Separation of powers and checks and balances

Detail

1. The basic idea: three organs, kept apart

• A government does three jobs. Each job belongs to a separate organ (branch) of government:
• Legislature: makes laws (Parliament, state legislatures).
• Executive: carries out laws and runs the administration (President or Governor, ministers, civil servants).

• Judiciary: settles disputes and explains what laws mean (Supreme Court, High Courts, lower courts).

• Separation of powers means each of these jobs goes to a different organ, so that no single organ holds all the power.

• In good governance the three organs stay separate, but they interact and work together. Separate does not mean isolated.
• Checks and balances means each organ can limit the others. If one organ oversteps, another can check it and restore the balance (NCERT: Fig. 10.3, Class 6). The aim is that no institution can weaken the Constitution.
• NCERT exercise: imagine one group controlling all three organs.
• The same people would make the law, enforce it and judge anyone who broke it.
• The citizen would have no neutral body to appeal to.

• The result is arbitrary rule and loss of liberty.

• Countries arrange this differently. In some the organs are strictly separate. In others they overlap (NCERT, Class 7).

2. Origins of the idea

• 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 idea fully in The Spirit of the Laws (1748): there is no liberty when the legislative, executive and judicial powers are united in one person or body.
• He argued that dividing power among three branches is the best way to protect freedom. About 40 years later his ideas became the basis of the US Constitution (1787) [7].

3. The US model: strict separation, with checks

• The framers of the US Constitution, influenced by Montesquieu, divided power among three branches. Through checks and balances, each branch can block actions by the others [7].
• Personnel are fully separate. The President and the Cabinet are not members of Congress.
• Key US checks:

Check	How it works
Veto	The President can reject a bill passed by Congress. Congress can override the veto by a two-thirds vote.
Senate confirmation	The Senate must approve the President's choices for judges, ambassadors and Cabinet members.
Impeachment	Congress can remove the President or federal judges.
Judicial review	Courts can strike down laws that conflict with the Constitution.

• Judicial review (the power of courts to declare a law invalid when it conflicts with the Constitution) was established in Marbury v. Madison (1803) by Chief Justice John Marshall. It was the first time the US Supreme Court declared an Act of Congress unconstitutional [8][9].

4. India: functional, not rigid, separation

• Functional separation means the three functions are clearly marked out, but the organs overlap in personnel and powers.
• Why India has no rigid separation: India has a parliamentary executive.
• 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 stands or falls together on the floor of the House.

• So the executive is drawn from the legislature and answers to it.

• Ram Jawaya Kapur v. State of Punjab (1955):

• The question was whether the Punjab government could publish school textbooks without a law passed for that purpose.
• The Supreme Court held that the Indian Constitution has not adopted rigid separation of powers. It does recognise the different functions of the organs.
• Executive power is the residue: what remains after legislative and judicial functions are taken away.
• So the executive can act in areas where no law exists, provided it breaks no existing law and violates no fundamental right.

5. Where the Constitution itself separates the organs

Article	What it says	Which separation
Art. 50 (Directive Principle)	The State shall take steps to separate the judiciary from the executive in the public services of the State [6]	Judiciary from executive
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 the judge	Legislature kept away from the judiciary
Arts. 122, 212	Courts cannot question the validity of legislative proceedings on the ground of irregular procedure. Officers who regulate business or keep order in the House are outside court jurisdiction for those powers [5]	Judiciary kept away from the legislature
Art. 361	The President and Governors are not answerable to any court for the exercise of their official powers. No criminal case can be started against them during their term	Protects the formal executive

• Why Art. 50 mattered: for most of colonial rule, the judicial and executive wings were merged. The same officer often collected revenue and also judged cases. Separating them was a long-standing demand of the freedom movement [6].
• Basic structure: separation of powers is part of the basic structure. This means Parliament can amend any part of the Constitution but cannot destroy its core features.
• Kesavananda Bharati v. State of Kerala (1973): a 13-judge bench created the basic structure doctrine. Separation of powers was named among the core features.
• Indira Nehru Gandhi v. Raj Narain (1975): the Court struck down clause (4) of Art. 329A, which the 39th Amendment (1975) had added. That clause had put the Prime Minister's election beyond any court. Parliament had acted as a court by declaring the election valid, and this broke separation of powers.

6. Deliberate overlaps in India

The Constitution blends the organs on purpose in some areas.

• Delegated legislation: Parliament passes a parent Act and lets the executive make detailed rules under it. Parliament must still lay down the policy. It cannot hand over its core law-making function.
• Ordinances: the executive can make law when the legislature is not in session.
• The President issues ordinances under Art. 123 and Governors under Art. 213.
• An ordinance has the same force as an Act.

• It lapses 6 weeks after the legislature reassembles unless the legislature approves it earlier.

• Tribunals: executive-created bodies decide disputes, which is a judicial job.

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

• Examples include administrative tribunals for service matters.

• Contempt powers:

• Courts can punish contempt of court (Supreme Court under Art. 129, High Courts under Art. 215).

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

• Judicial functions of the executive: the President and Governors can grant pardons (Arts. 72, 161).

7. Checks-and-balances map (India)

Check	Instruments	Legal anchor
Legislature → executive	Question Hour (the first hour of a sitting, when members question ministers), Zero Hour, adjournment and calling-attention motions, no-confidence motion, budget control (no tax or spending without the House's vote), impeachment of the President	Art. 75(3) collective responsibility; Arts. 112–117 budget; Art. 61 impeachment
Legislature → judiciary	Removal of judges; laws that remove the basis of a judgment (a "validating law"), but not laws that simply overrule it	Art. 124(4); Art. 217 for High Court judges; Judges (Inquiry) Act, 1968; State of Tamil Nadu v. State of Kerala (2014)
Executive → legislature	Summoning and proroguing the Houses, dissolving the Lok Sabha; assent to bills; ordinances	Art. 85; Arts. 111, 200, 201; Arts. 123, 213
Executive → judiciary	Appointing judges; pardons	Arts. 124(2), 217; Arts. 72, 161
Judiciary → both	Judicial review of laws, constitutional amendments and ordinances	Arts. 13, 32, 226; Kesavananda (1973); SCAORA (2015); Krishna Kumar Singh (2017)

7a. Impeachment of the President (Art. 61), step by step

• Ground: violation of the Constitution.
• Steps: 1. Charges are brought in either House as a resolution. At least one-quarter of the total members of that House must sign it, and 14 days' written notice must be given. 2. The resolution must pass by at least two-thirds of the total membership of that House. 3. The other House investigates the charges. The President has the right to appear or be represented. 4. If the second House also passes the resolution by two-thirds of its total membership, the President is removed from the date it passes.

7b. Removal of a Supreme Court judge (Art. 124(4) and Judges (Inquiry) Act, 1968), step by step

• Grounds: "proved misbehaviour or incapacity".

• Steps: 1. A notice of motion is signed by at least 100 Lok Sabha members or 50 Rajya Sabha members. 2. The Speaker or Chairman decides whether to admit it. 3. If admitted, a 3-member inquiry committee is formed: a Supreme Court judge, a High Court Chief Justice and a distinguished jurist. 4. If the committee finds the judge guilty, each House must pass the motion by a special majority: a majority of its total membership and two-thirds of members present and voting, in the same session. 5. The President then orders the removal.

• This is the only time Parliament may discuss a judge's conduct (Art. 121).

7c. Validating law versus overruling law

• Allowed: the legislature changes the law on which a judgment was based, so the old ruling no longer applies. For example, it can fill the defect the court pointed out.
• Not allowed: a law that simply sets aside a court's final decision between the parties. That would make the legislature an appeal court above the judiciary.
• State of Tamil Nadu v. State of Kerala (2014), Mullaperiyar dam:
• In 2006 the Supreme Court allowed the water level to be raised to 142 ft.
• Kerala then passed the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 to block this.
• A 5-judge bench struck the Act down. Kerala had tried to overrule a final judgment, which breaks separation of powers.

7d. The executive's checks on the legislature

• Art. 85: the President summons and prorogues (ends a session of) the Houses and can dissolve the Lok Sabha. No more than six months may pass between two sessions.
• Art. 111 (Parliament's bills): the President can do one of three things:
• give assent;
• withhold assent; or
• return the bill for reconsideration (not a money bill, which is a bill only about taxes, borrowing or spending).

• If Parliament passes the bill again, the President must give assent.

• Art. 200 (state bills): the Governor can assent, withhold assent and return the bill (not a money bill), or reserve it for the President. The President then acts under Art. 201.

7e. The judiciary's checks on both organs

• Supreme Court Advocates-on-Record Association (SCAORA) v. Union of India (2015):
• The Court struck down the 99th Amendment (2014) and the National Judicial Appointments Commission (NJAC) Act, 2014, by a 4:1 majority.
• Giving the executive a role in choosing judges threatened judicial independence, which is part of the basic structure.

• The collegium system (senior judges choose judges) was restored.

• Krishna Kumar Singh v. State of Bihar (2017):

• A 7-judge bench held that re-promulgation of ordinances (issuing the same ordinance again and again without placing it before the legislature) is a "fraud on the Constitution".
• It held that the President's or Governor's "satisfaction" behind an ordinance can be reviewed by courts.

8. Who is supreme: Parliament or the Supreme Court?

NCERT Class 7 asks: "Should Parliament be the most powerful? Parliament or Supreme Court?"

• Answer: neither. The Constitution is supreme.
• Parliament can amend the Constitution (Art. 368), but it cannot destroy the basic structure.

• Courts can review laws, but they cannot make laws and must respect Arts. 122 and 212.

• Minerva Mills v. Union of India (1980):

• The Court struck down clauses (4) and (5) of Art. 368, which the 42nd Amendment (1976) had added. They had put amendments beyond judicial review and given Parliament unlimited amending power.
• Limited amending power is itself part of the basic structure.

• The Court also held that the balance between Fundamental Rights and Directive Principles is part of the basic structure.

• Contrast with the UK: the UK follows parliamentary sovereignty, where Parliament can make or unmake any law. India follows constitutional supremacy.

• For more detail, see the amendment-basic-structure note.

9. Current friction: Governors and state bills

• Problem: some Governors held state bills for months or years without deciding. This blocked the elected legislature. It is a clash between the executive and the legislature, inside a federal setting.
• State of Tamil Nadu v. Governor of Tamil Nadu (8 April 2025):
• Facts: bills passed between January 2020 and April 2023 remained pending. After the state went to court, the Governor reserved 2 bills for the President and returned the rest. The Assembly passed 10 of them again, and the Governor then reserved those 10 for the President [3].
• Timelines the Court fixed for Governors [3]:

Governor's action	Time limit
Withholding assent or reserving the bill, when acting on ministers' advice	1 month
Withholding assent or reserving the bill, against ministers' advice	3 months
Assent to a bill passed again by the legislature	1 month

• Timeline for the President: 3 months to decide on bills reserved by a Governor [3].

• Deemed assent: the reservation of the 10 re-passed bills was declared invalid. The bills were deemed to have received assent (treated as approved) from November 2023 [3].

• 16th Presidential Reference under Art. 143:

• Art. 143 lets the President ask the Supreme Court for its advisory opinion.
• The President made the reference in May 2025. It raised 14 questions on the assent powers of the President and Governors [2].

• A 5-judge bench gave its opinion on 20 November 2025 (2025 INSC 1333) [2][4].

• What the 20 November 2025 opinion said [2]:

• Under Art. 200, the Governor has three options: give assent, reserve the bill for the President, or withhold assent and return the bill with comments (not money bills).
• For these Art. 200 functions, the Governor is not bound by the advice of the Council of Ministers.
• These functions are generally not justiciable (courts cannot review them on their merits).
• If there is prolonged inaction, the Court may only give limited directions asking the Governor to decide.
• Courts should not set timelines where the Constitution sets none.
• The Constitution has no concept of "deemed assent".

• The President need not seek the Court's advice under Art. 143 every time a Governor reserves a bill. The President's own satisfaction is enough.

• Net position:

• The April 2025 timelines and the deemed-assent order were effectively reversed by the November 2025 opinion.
• Courts can still act against prolonged inaction through a limited mandamus (a court order telling an official to perform a duty).
• For more detail, see the state-government-governor note.

Prelims Hooks

• The Spirit of the Laws (1748) → Montesquieu. Judicial review in the USA → Marbury v. Madison (1803), not the US Constitution's text.
• Art. 50 (separation of the judiciary from the executive) is a Directive Principle (Part IV). It is not enforceable in court.
• Arts. 121/211: the legislature cannot discuss a judge's conduct except on a removal motion. Arts. 122/212: courts cannot question legislative proceedings for procedural irregularity.
• Ram Jawaya Kapur (1955): India has no rigid separation of powers. Executive power is the residue of governmental functions.
• Separation of powers as basic structure → Kesavananda (1973) and Indira Gandhi v. Raj Narain (1975). Raj Narain struck down Art. 329A(4), added by the 39th Amendment.
• Minerva Mills (1980) struck down Art. 368(4) and (5), added by the 42nd Amendment. Limited amending power is part of the basic structure.
• SCAORA (2015) struck down the 99th Amendment and NJAC. Krishna Kumar Singh (2017): re-promulgating ordinances is a "fraud on the Constitution".
• Trap: the Governor can reserve a state bill for the President (Art. 200). The President cannot "reserve" a Union bill (Art. 111).
• The 16th Presidential Reference opinion (20 November 2025, 5 judges): no deemed assent and no court-made timelines for Governors. The 8 April 2025 judgment had set 1-month and 3-month limits.

Mains Points

• India's model is functional separation, not rigid separation.
• Merging the executive into the legislature gives accountability: Question Hour, no-confidence motions and budget control keep ministers answerable.

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

• Tension between judicial activism and judicial overreach.

• Activism has filled gaps, for example the guidelines in Vishaka (1997) and the end of repeated ordinances in Krishna Kumar Singh (2017).
• Critics argue that court-made timelines (April 2025) intrude into executive or constitutional discretion. The November 2025 opinion pulled back on this point.

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

• Judicial appointments.

• SCAORA (2015) protected judicial independence but kept the collegium, which is criticised for lack of transparency.

• Reform debate: a revised appointments process with a published memorandum of procedure and published reasons, without giving the executive the final say.

• Governors and assent.

• Long delays weaken elected state legislatures and cooperative federalism.
• Possible reforms: a constitutional amendment fixing time limits under Arts. 200 and 201, or a code of conduct for Governors.
• The November 2025 opinion means any binding time limit must come from Parliament, not from the courts.