Doctrine of Separation of Powers in India: A Myth or Reality

Abstract

The doctrine of separation of powers, attributed to Montesquieu, has been foundational in modern constitutional theory, seeking to prevent the concentration of power and preserve liberty. However, its practical application within the Indian constitutional framework remains debatable. While the Indian Constitution does not explicitly enshrine a strict separation, it does incorporate a functional division of roles among the legislature, executive, and judiciary. This article critically evaluates whether separation of powers in India is a myth or reality by examining constitutional provisions, judicial interpretations, and institutional practices. It concludes that while the doctrine is not rigidly followed, a nuanced and dynamic balance has emerged, reflecting the Constitution’s pragmatic and evolving nature. The doctrine of separation of powers, historically rooted in Montesquieu’s political philosophy, envisages the division of governmental functions among three organs — legislature, executive, and judiciary — to prevent the concentration of power and ensure checks and balances. In India, the adoption of a written Constitution and the parliamentary system has shaped this doctrine uniquely, blending strict separation with practical interdependence. This article critically examines whether the doctrine operates as a concrete constitutional principle or remains an aspirational myth in India. By exploring constitutional provisions, judicial pronouncements, and contemporary practices, it argues that while India does adhere to the doctrine in spirit, the structural overlaps and functional interactions make it more of a constitutional ideal than an absolute reality.

Introduction

The doctrine of separation of powers postulates that the three organs of the State—the legislature, the executive, and the judiciary—should function independently and refrain from encroaching upon each other’s domains. In theory, this prevents tyranny and promotes liberty. However, in India, the applicability of this doctrine has been tempered by the exigencies of governance, judicial activism, and the Constitution’s own design. This raises a fundamental question: is separation of powers in India merely a constitutional ideal, or does it have practical significance? The doctrine of separation of powers is a foundational principle of modern democratic governance, aiming to distribute power to prevent abuse and safeguard liberty. Originating from the writings of Montesquieu in The Spirit of the Laws (1748), the doctrine advocated a clear demarcation among legislative, executive, and judicial functions.

In India, the doctrine finds implicit recognition in the Constitution, though it is neither explicitly enumerated nor rigidly enforced. The adoption of the parliamentary system, cooperative federalism, and judicial activism have all influenced its practical application. The question, therefore, arises: is the doctrine of separation of powers in India a constitutional reality, or does it remain a theoretical construct?

Philosophical Origins of the Doctrine

The idea of separating state powers traces back to Aristotle but was crystallized by Baron de Montesquieu in his seminal work The Spirit of the Laws (1748). Montesquieu warned that the fusion of legislative, executive, and judicial powers would result in despotism. This doctrine profoundly influenced modern democracies, especially the United States Constitution, which institutionalized a strict separation.

However, the Indian Constitution does not replicate the rigid model adopted in the United States. Instead, it reflects the Westminster model, blending functions to ensure coordination while preserving checks and balances.

Historical Background and Theoretical Foundation

Montesquieu’s formulation was inspired by the British system, which itself was not based on absolute separation but rather on a balanced system of checks and balances. The American Constitution, however, reflects a stricter form of separation, creating distinct branches with limited overlaps.

The framers of the Indian Constitution were conscious of these models and chose an approach suited to India’s socio-political context, rejecting the idea of rigid separation while ensuring functional independence, especially for the judiciary.

Constitutional Framework in India

India does not follow a watertight separation of powers. However, certain provisions delineate institutional boundaries:

• Legislative Powers: Articles 107–122 outline the powers of Parliament; Articles 168–212 define powers of State legislatures.
• Executive Powers: Article 53 vests executive power in the President (Centre) and Article 154 in the Governors (States).
• Judicial Powers: Articles 124–147 establish the Supreme Court; Articles 214–231 deal with High Courts.

Importantly, the Constitution does not prohibit overlapping roles. For instance, Article 123 allows the President to issue ordinances, a quasi-legislative power.

Functional Overlaps: Myth or Necessity?

India’s parliamentary democracy necessitates certain overlaps:

Legislative and Executive

• The Council of Ministers is part of the legislature.
• Executive proposes bills, prepares the budget, and influences law-making.

Executive and Judiciary

• Appointment of judges involves executive participation.
• The President and Governors exercise the power to pardon.

Judiciary and Legislature

• The judiciary interprets and can invalidate laws passed by Parliament.
• Legislative bodies can remove judges through impeachment.

These overlaps are not mere deviations but essential to the functioning of a complex democracy. However, they raise questions about accountability and the potential for overreach.

• Judicial Interpretation of Separation of Powers
• [1]Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225

This landmark decision introduced the basic structure doctrine, holding that separation of powers is an essential feature of the Constitution and cannot be abrogated by Parliament.

• [2]Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1

The Supreme Court struck down Clause 4 of Article 329A (inserted by the 39th Amendment), stating that judicial review is part of the basic structure and cannot be taken away by legislative fiat.

• [3]State of Rajasthan v. Union of India, (1977) 3 SCC 592

The Court refused to judicially review the President’s satisfaction under Article 356, showing deference to the executive in matters of political discretion.

• [4] Asif Hameed v. State of J&K, (1989) 2 SCC 364

The Court reiterated that although Indian democracy doesn’t adhere to a rigid separation, each organ must operate within its constitutional sphere.

Instances of Overlap

Executive Exercising Legislative Powers

• Ordinances (Article 123 & 213)
• Delegated legislation by administrative bodies

Judiciary Assuming Legislative Functions

• [5]Vishaka v. State of Rajasthan, (1997) 6 SCC 241 – SC framed guidelines on sexual harassment in the absence of legislation.
• [6]Common Cause v. Union of India, (2018) 5 SCC 1 – Guidelines on passive euthanasia were issued.

Judiciary Overstepping into Executive

• Prakash Singh v. Union of India, (2006) 8 SCC 1 – Judicial directives for police reforms.
• Judicial interference in administrative appointments (e.g., NJAC judgment)

Legislature Encroaching on Judicial Domain

• Retrospective legislation to nullify judgments (Sabarimala, Jallikattu, SC/ST Act amendments)

Tensions and Challenges

Judicial Activism vs. Judicial Overreach

The Indian judiciary, especially post-1980s, has assumed an expansive role through Public Interest Litigation (PIL). While this has enhanced accountability, it has also been criticized for blurring the constitutional lines.

Politicisation of Institutions

The executive’s growing influence over appointments (despite the Second Judges Case) and judicial delays in checking executive inaction raise doubts about effective separation.

Parliamentary Evasion

The executive often bypasses Parliament via ordinances or by introducing legislation as Money Bills (Aadhaar Case), undermining deliberative democracy.

Comparative Perspective

United States: Adheres to a strict separation with checks and balances. The judiciary in [7]Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), established judicial review as a check on legislative and executive actions.

United Kingdom: Follows a fusion model, especially between the executive and legislature, as ministers are members of Parliament. [8]However, post-Constitutional Reform Act, 2005, the judiciary has gained institutional autonomy.

India’s model falls somewhere in between—a hybrid system with functional overlap and institutional independence.

Is Separation of Powers in India a Myth or Reality?

The Indian system reflects pragmatic separation rather than doctrinal purity. [9]The Constitution envisages a balance, not a wall, between powers. However:

• Frequent judicial interventions in executive/legislative domains (policy guidelines, governance oversight) risk undermining institutional autonomy.
• Ordinance-making bypasses legislative scrutiny, reducing accountability.
• The lack of transparent appointments to constitutional bodies like the Election Commission or Judiciary (collegium opacity) dilutes checks and balances.

Thus, while the separation exists in principle, its application is often contingent upon political will and judicial restraint.

Recommendations

1. Legislate Limits on Ordinance Power: Strengthen judicial review of ordinances and restrict their use to genuine emergencies.
2. Institutional Reforms in Appointments: Transparent mechanisms for appointments to judiciary, EC, and CAG.
3. Judicial Restraint in Policy Matters: The judiciary must exercise caution in framing socio-economic policies, respecting the mandate of the elected branches.
4. Revive Parliamentary Oversight: Strengthen the committee system and ensure deliberation, not rubber-stamping.

Conclusion

The doctrine of separation of powers in India is not a myth, but neither is it an unalloyed reality. It exists within a flexible constitutional framework, allowing overlaps to accommodate governance needs while preserving institutional checks. However, in an age of rising executive dominance and judicial assertiveness, the equilibrium needs continuous recalibration to protect constitutional democracy. The doctrine of separation of powers in India is not a myth, but neither is it an unalloyed reality. It exists within a flexible constitutional framework, allowing overlaps to accommodate governance needs while preserving institutional checks. However, in an age of rising executive dominance and judicial assertiveness, the equilibrium needs continuous recalibration to protect constitutional democracy. The doctrine of separation of powers remains central to India’s constitutional vision, though not in the strict sense envisaged by Montesquieu. India’s Constitution, shaped by historical experience and practical considerations, has crafted a model where functional overlap coexists with institutional autonomy. While this flexible interpretation enhances governance, it also requires constant vigilance to prevent institutional overreach. As recent debates on judicial activism, executive dominance, and legislative assertion illustrate, the balance of power must be preserved to uphold constitutional morality and democratic governance. Ultimately, the doctrine in India is both a constitutional reality and a living principle — essential not as a rigid rule but as a safeguard against the concentration of power. The doctrine of separation of powers in India occupies a unique constitutional space: it is neither an abstract ideal completely detached from reality nor a fully codified, rigid rule. Instead, it embodies a living constitutional principle — one that adapts to the evolving needs of a complex, diverse democracy.

From its inception, the Indian Constitution was deliberately crafted to accommodate a flexible separation rather than a strict division of governmental powers. This pragmatic choice reflects the framers’ awareness of India’s social, political, and historical context, including the need for an accountable government under the parliamentary system and the importance of an independent judiciary to uphold fundamental rights.

Judicial pronouncements over the decades have affirmed that the doctrine, though not expressly stated in the Constitution, forms part of its basic structure. Courts have emphasised that excessive concentration of power in any one organ threatens democratic governance and constitutional morality. Yet, the courts have also recognised that absolute compartmentalisation is neither feasible nor desirable in a parliamentary democracy, where the executive must derive its legitimacy from the legislature and remain answerable to it.

In practice, functional overlaps are unavoidable and, to some extent, beneficial. For instance, the executive’s role in law-making through ordinances and budget proposals enhances administrative efficiency; the judiciary’s power of judicial review guards against legislative or executive excesses; and the legislature’s oversight of the executive through debates and question hours strengthens accountability. These intersections ensure that governance remains dynamic and responsive rather than static and bureaucratic.

However, this functional balance remains delicate. Instances of judicial overreach, where courts intervene in policy matters, can disrupt this balance just as much as executive encroachment into judicial functions or legislative attempts to curtail judicial independence. These episodes underline the importance of institutional self-restraint, respect for constitutional boundaries, and a shared commitment to democratic values.

Ultimately, the doctrine of separation of powers in India is best understood as a constitutional reality in spirit and intent, though not in the strict structural sense imagined by classical theorists. It continues to function as an enduring safeguard against authoritarianism by ensuring that power remains distributed rather than centralised.

Rather than viewing the doctrine as a myth or a rigid formula, it should be seen as a guiding principle — one that evolves alongside India’s constitutional democracy, balancing institutional independence with interdependence. It reminds us that the health of a constitutional democracy depends not merely on written provisions, but on the mutual respect, dialogue, and restraint exercised by each organ of the State in discharging its role.

Reference(S):

[1] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

[2] Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1.

[3] State of Rajasthan v. Union of India, (1977) 3 SCC 592.

[4] Asif Hameed v. State of J&K, (1989) 2 SCC 364.

[5] Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

[6] Common Cause v. Union of India, (2018) 5 SCC 1.

[7] Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

[8] A.G. Noorani, Constitutional Questions in India (OUP 2000).

[9] Dr. B.R. Ambedkar, Constituent Assembly Debates, Vol. XI.