Separation of powers

Topic: State, Government and Governance: Organs, Levels and the Citizen · NCERT: Class 6, Ch 10 "Grassroots Democracy – Part 1: Governance"; Class 7, Ch 9 "From the Rulers to the Ruled: Types of Governments"; Class 7, Ch 10 "The Constitution of India: An Introduction"; Class 8, Ch 6 "The Parliamentary System: Legislature and Executive"; Class 9, Ch 6 "Democracy"; Class 10, Ch 1 "Power-sharing"; Class 11, Ch 1 "Constitution: Why and How?"; Class 11, Ch 6 "Judiciary"

Meaning

Separation of powers means the three jobs of government — making laws, carrying them out, and settling disputes — are given to three different organs: the legislature, the executive and the judiciary. This way, no single organ holds all the power. India follows a functional separation. Each organ's job is clearly marked out, but the organs overlap, because the executive comes from the legislature and answers to it.

It matters because if one group made the law, enforced it and judged those who broke it, the citizen would have no neutral body to turn to. The result would be arbitrary rule and a loss of liberty.

Explanation

How it works: three organs, three jobs

• Legislature makes laws. Examples: Parliament and the state legislatures.
• Executive carries out laws and runs the administration. Examples: the President or Governor, ministers and civil servants.
• Judiciary settles disputes and explains what laws mean. Examples: the Supreme Court, the High Courts and the lower courts.
• Separate does not mean isolated. The three organs stay apart, but they work together and interact.
• Checks and balances means each organ can limit the others.
• If one organ goes beyond its limits, another can stop it.
• The aim is that no institution can weaken the Constitution.

Where the idea came from

• John Locke (17th-century England) separated the power to make laws from the power to carry them out.
• Montesquieu, a French philosopher, set out the full idea in The Spirit of the Laws (1748). He said there is no liberty when one person or body holds the legislative, executive and judicial powers together.
• About 40 years later, his ideas became the basis of the US Constitution (1787) [7].

Two models: strict (USA) and functional (India)

• Strict separation (USA)
• The people in each branch are fully separate. The President and the Cabinet are not members of Congress.

• Each branch can still block the others [7]:

  • Veto: the President can reject a bill. Congress can override the veto by a two-thirds vote.
  • Senate confirmation: the Senate must approve the President's choice of judges, ambassadors and Cabinet members.
  • Impeachment: Congress can remove the President or federal judges.
  • Judicial review (the power of courts to strike down a law that goes against the Constitution): this came from Marbury v. Madison (1803), not from the text of the US Constitution [8][9].

• Functional separation (India)

• India has a parliamentary executive, so the executive comes from the legislature and answers to it.
  • Ministers must be members of Parliament or of a state legislature, or become members within six months.
  • The Council of Ministers is collectively responsible to the Lok Sabha. Collective responsibility means the whole ministry stays in office or falls together on the floor of the House.
• So the functions are kept separate, but the people and the powers overlap.

Deliberate overlaps in India

The Constitution mixes the organs on purpose in some areas.

• Delegated legislation: Parliament passes a parent Act and lets the executive make the detailed rules under it.

• Parliament must still lay down the policy. It cannot hand over its core law-making job.

• Ordinances (laws made by the executive when the legislature is not sitting):

• The President issues them under Art. 123, and Governors under Art. 213.
• An ordinance has the same force as an Act.

• It lapses 6 weeks after the legislature meets again, unless the legislature approves it before then.

• Tribunals are bodies set up by the executive that decide disputes, which is a judicial job.

• Arts. 323A and 323B were added by the 42nd Amendment (1976).

• One example is administrative tribunals for service matters.

• Contempt and privilege:

• The Supreme Court (Art. 129) and the High Courts (Art. 215) can punish contempt of court.

• The Houses of the legislature can punish breach of privilege (Arts. 105, 194). Here the legislature acts like a court.

• Pardons: the President (Art. 72) and Governors (Art. 161) can grant pardons. This is a judicial-type function carried out by the executive.

In the Constitution and practice

• Articles that keep the organs apart:
• Art. 50 is a Directive Principle (Part IV). It says the State shall take steps to separate the judiciary from the executive in the public services of the State [6].
  • Why this was needed: under colonial rule, the same officer often collected revenue and also judged cases.
  • Separating the two was a long-standing demand of the freedom movement [6].
• Arts. 121, 211: Parliament or a state legislature cannot discuss the conduct of a Supreme Court or High Court judge, except on a motion to remove that judge.
• Arts. 122, 212: courts cannot question legislative proceedings on the ground that the procedure was irregular [5].

• Art. 361: the President and Governors are not answerable to any court for using their official powers. No criminal case can be started against them while they are in office.

• Checks and balances in India:

• Legislature over executive:
  • Question Hour (the first hour of a sitting, when members question ministers), the no-confidence motion and budget control. These rest on Art. 75(3) and Arts. 112–117.
  • Impeachment of the President under Art. 61, on the ground of violation of the Constitution. The steps are: 1. Charges are brought as a resolution in either House. At least one-quarter of that House's total members must sign it, with 14 days' written notice. 2. That House passes the resolution by at least two-thirds of its total membership. 3. The other House investigates the charges. 4. If the other House also passes the resolution by two-thirds of its total membership, the President is removed.
• Legislature over judiciary:
  • Removal of a judge for "proved misbehaviour or incapacity" (Art. 124(4); Judges (Inquiry) Act, 1968). The steps are: 1. A notice of motion is signed by at least 100 Lok Sabha members or 50 Rajya Sabha members. 2. The Speaker or the Chairman decides whether to admit it. 3. A 3-member inquiry committee investigates the charges. 4. Each House passes the motion by a special majority: a majority of its total membership and two-thirds of the members present and voting, in the same session. 5. The President orders the removal.
• Executive over legislature: the President summons and prorogues the Houses and can dissolve the Lok Sabha (Art. 85). The President and Governors also give assent to bills (Arts. 111, 200, 201).
• Executive over judiciary: the executive appoints judges (Arts. 124(2), 217) and grants pardons (Arts. 72, 161).

• Judiciary over both: courts can review laws, constitutional amendments and ordinances (Arts. 13, 32, 226).

• Landmark cases:

• Ram Jawaya Kapur v. State of Punjab (1955):
  • India has not adopted rigid separation of powers.
  • Executive power is the residue: whatever is left after the legislative and judicial functions are taken away.
  • So the executive can act where no law exists, as long as it breaks no existing law and violates no fundamental right.
• Kesavananda Bharati (1973): a 13-judge bench created the basic structure doctrine. This means Parliament can amend the Constitution but cannot destroy its core features. Separation of powers was named as one of those core features.
• Indira Nehru Gandhi v. Raj Narain (1975):
  • The Court struck down Art. 329A(4), which the 39th Amendment had added.
  • That clause had put the Prime Minister's election beyond the reach of any court.
  • By declaring the election valid itself, Parliament had acted as a court. This broke separation of powers.
• Minerva Mills (1980):
  • The Court struck down Art. 368(4) and (5), which the 42nd Amendment had added.
  • Limited amending power is itself part of the basic structure.
• State of Tamil Nadu v. State of Kerala (2014), the Mullaperiyar dam case:
  • Kerala passed a 2006 law to block the Supreme Court's order letting the water level rise to 142 ft.
  • A 5-judge bench struck the law down.
  • A legislature may remove the legal basis of a judgment (a "validating law"). It may not simply overrule a final judgment.
• SCAORA (2015): by 4:1, the Court struck down the 99th Amendment (2014) and the NJAC Act, 2014. Judicial independence is part of the basic structure, so the collegium system (senior judges choose judges) was restored.

• Krishna Kumar Singh (2017): a 7-judge bench held that re-promulgating ordinances (issuing the same ordinance again and again without placing it before the legislature) is a "fraud on the Constitution".

• Current friction: Governors sitting on state bills

• State of Tamil Nadu v. Governor of Tamil Nadu (8 April 2025): the Court set time limits for Governors [3]:
  • 1 month to withhold assent or reserve a bill when acting on ministers' advice.
  • 3 months when acting against that advice.
  • 1 month to give assent to a bill the legislature has passed again.
  • It also gave the President 3 months to decide on reserved bills [3].
  • It declared 10 re-passed bills deemed to have received assent (treated as approved) [3].
• 16th Presidential Reference under Art. 143 (the President asking the Supreme Court for advice): a 5-judge bench gave its opinion on 20 November 2025 [2][4]. It held that:
  • The Governor is not bound by ministerial advice for the Art. 200 functions [2].
  • Courts should not set timelines where the Constitution sets none [2].
  • The Constitution has no concept of "deemed assent" [2].
  • In cases of prolonged inaction, a court may only give limited directions asking the Governor to decide [2].

Don't confuse with

• Checks and balances: separation of powers divides the jobs among the organs. Checks and balances lets each organ limit the others. India uses both.
• Rigid separation (US model): in the USA, no one serves in two branches at once. In India, ministers must sit in the legislature, so the separation is only functional (Ram Jawaya Kapur, 1955).
• Parliamentary sovereignty (UK): the UK Parliament can make or unmake any law. India follows constitutional supremacy, where neither Parliament nor the Supreme Court is supreme, only the Constitution (Minerva Mills, 1980).
• Validating law vs overruling law: the legislature may change the law a judgment was based on. It may not simply set aside a final judgment (Tamil Nadu v. Kerala, 2014).

Prelims Hooks

• The Spirit of the Laws (1748) was written by Montesquieu. Judicial review in the USA comes from Marbury v. Madison (1803), not from the US Constitution's text [8][9].
• Art. 50 (separating the judiciary from the executive) is a Directive Principle. It is not a Fundamental Right and cannot be enforced in court [6].
• Arts. 121/211: legislatures cannot discuss a judge's conduct except on a removal motion. Arts. 122/212: courts cannot question legislative proceedings for irregular procedure [5].
• Ram Jawaya Kapur (1955): India has no rigid separation of powers, and executive power is the "residue" of government functions.
• Separation of powers as basic structure → Kesavananda (1973) and Raj Narain (1975), which struck down Art. 329A(4) added by the 39th Amendment.
• Trap: a Governor can reserve a state bill for the President (Art. 200). The President cannot "reserve" a Union bill (Art. 111). The 20 November 2025 opinion said there is no deemed assent and no court-made timelines [2].

Mains Points

• Functional separation brings both accountability and risk.
• Because ministers sit in the legislature, Question Hour, no-confidence motions and budget control keep them answerable.

• But a government with a large majority can control the legislature. This makes judicial review and independent bodies more important as checks.

• Judicial activism vs judicial overreach.

• Courts have filled gaps, for example the Vishaka (1997) guidelines and the end of repeated ordinances in Krishna Kumar Singh (2017).
• Critics say the court-made timelines for Governors (April 2025) went into executive territory. The November 2025 opinion pulled back on this [2][3].

• A balanced answer cites Minerva Mills (1980): the Constitution is supreme, and each organ must respect the others' limits.

• Reform debates.

• Judicial appointments: SCAORA (2015) protected judicial independence, but the collegium is criticised for lack of transparency. One proposal is a published memorandum of procedure and published reasons, without giving the executive the final say.
• Governors' assent: any binding time limit under Arts. 200 and 201 must now come through a constitutional amendment by Parliament, not from the courts. A code of conduct for Governors is another option.

Related concepts

• Checks and balances
• Ram Jawaya Kapur case

Read more

• Separation of powers and checks and balances