Revision summary
India does not follow a rigid American separation of powers. Ram Jawaya Kapur (1955) treated the Cabinet as part of a parliamentary legislature. Articles 13, 32 and 226, charged judicial salaries, and a hard removal process are mutual checks. Kesavananda and Minerva Mills keep judicial review inside the basic structure. The design is checks and balances, not sealed branches.
Model answer
Introduction
A strict separation of powers would keep the legislature, the executive, and the judiciary in sealed boxes, as in a pure reading of Montesquieu. The Constitution of India copies the functions of those three organs, but it also lets each organ check the others. The Supreme Court said this plainly in Ram Jawaya Kapur v. State of Punjab (1955): India does not follow a rigid American separation.
Body
No strict separation
- Articles 53 and 74 place executive power in the President, who acts on the aid and advice of the Council of Ministers, so the political executive sits inside the legislature through Articles 75 and 88.
- Ordinance power under Article 123, and the power of the Houses to punish for contempt of themselves, mix law-making with executive and quasi-judicial work.
- Article 50 asks only for separation of the judiciary from the executive in the public services of the State; it is a Directive Principle, not a wall between all three organs.
- Delegated legislation, parliamentary committees that examine the executive, and judges sitting on commissions show daily overlap of functions.
- Ram Jawaya Kapur held that the Indian design is a parliamentary system in which the Cabinet is a part of the legislature, not a rival sealed branch.
Checks and balances in the text
- Articles 13, 32, 136, 141, 142 and 226 give courts the power to strike down statutes and executive acts; that is a judicial check on the other two organs.
- Articles 121 and 211 bar discussion of a sitting judge except on a removal motion; salaries of judges are charged, and removal needs a parliamentary address, so the legislature cannot casually punish the Court.
- Parliament can impeach a judge, create courts under Articles 124 and 247, and amend the Constitution under Article 368, which is a political check on the judiciary.
- The President and Governors, the Rajya Sabha’s share in some appointments, and Article 356 as read in S.R. Bommai v. Union of India (1994) check the Union executive in the federal field.
- Kesavananda Bharati v. State of Kerala (1973) placed separation of powers and judicial review inside the basic structure, so even an amendment cannot wipe out the balance.
How the balance works in practice
- Indira Nehru Gandhi v. Raj Narain and Minerva Mills v. Union of India show the Court stopping Parliament when it tries to make itself the last judge of elections or of fundamental rights.
- The executive checks the Court through the collegium’s need for a Memorandum of Procedure and through the power to appoint after consultation; the failed National Judicial Appointments Commission still shows the tension, not a sealed separation.
- A fair explanation therefore agrees with the question: India chose checks and balances, not a strict separation of powers.
Flow diagram
flowchart TD T[Three organs in the text] --> O[Functional overlap] T --> C[Checks and balances] C --> J[Arts 13 32 226 review] C --> P[Parliament removal and money] C --> K[Kesavananda basic structure] J --> B[Balanced constitutional government]
Conclusion
The Constitution does not accept a strict separation of powers. It assigns functions to three organs and then binds them through judicial review, parliamentary control, charged salaries, and the basic-structure limit. That is the Indian principle of checks and balances.
Quick related
Students also ask
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How far do you agree with the view that tribunals curtail the jurisdiction of ordinary courts? In view of the above, discuss the constitutional validity and competency of the tribunals in India. (15).
Next question on this syllabus topic (2018 · Q12). View answer →
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Does Article 50 create a strict separation of all three organs?
No. It is a Directive Principle about the judiciary and the executive in State services. The political executive still sits in the legislature.
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Can Parliament remove judicial review by amendment?
Kesavananda and Minerva Mills treat judicial review as part of the basic structure. An amendment that destroys it would not stand.
PYQ trend
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2024 · Q2 · GS II · 10 marks
Explain and distinguish between Lok Adalats and Arbitration Tribunals. Whether they entertain civil as well as criminal cases? -
2020 · Q12 · GS II · 15 marks
Judicial Legislation is antithetical to the doctrine of separation of powers as envisaged in the Indian Constitution. In this context justify the filing of large number of public interest petitions praying for issuing guidelines to executive authorities. -
2018 · Q12 · GS II · 15 marks
How far do you agree with the view that tribunals curtail the jurisdiction of ordinary courts? In view of the above, discuss the constitutional validity and competency of the tribunals in India. (15). -
2015 · Q5 · GS II · 12 marks
Resorting to ordinances has always raised concern on violation of the spirit of separation of power doctrine. While noting the rationales justifying the power to promulgate, analyse whether the decision of the Supreme Court on the issue have further facilitated to resorting to this power. Should the power to promulgate the ordinances be repealed?
More from this topic
Q2 · UPSC Mains 2024 · GS II · 10 marks
Explain and distinguish between Lok Adalats and Arbitration Tribunals. Whether they entertain civil as well as criminal cases?
Separation of Powers
Lok Adalat is a Legal Services Authorities Act forum: conciliation, award as a decree, generally no appeal. It hears civil matters and compoundable criminal cases, not non-compoundable crime. Arbitration is contractual under the 1996 Act: civil-commercial disputes, Section 34 challenge, no criminal trial. Booz Allen and Vidya Drolia mark what cannot be sent to a private tribunal. Permanent Lok Adalats for public utilities are a statutory hybrid, still not private arbitration. The working distinction is public compromise at little cost versus paid private adjudication.
Q12 · UPSC Mains 2020 · GS II · 15 marks
Judicial Legislation is antithetical to the doctrine of separation of powers as envisaged in the Indian Constitution. In this context justify the filing of large number of public interest petitions praying for issuing guidelines to executive authorities.
Separation of Powers
Indian separation of powers is checks and balances with a justiciable Part III, not a sealed legislative monopoly. Guidelines that mimic a statute sit uneasily with Article 245 if they become permanent. Vishaka and D.K. Basu justified PIL guidelines as interim rights protection until Parliament or the executive acted. Volume of PILs tracks executive failure on police, environment and welfare as much as judicial overreach. Justification holds only if courts retreat when a competent law occupies the field and throw out frivolous petitions.
Q12 · UPSC Mains 2018 · GS II · 15 marks
How far do you agree with the view that tribunals curtail the jurisdiction of ordinary courts? In view of the above, discuss the constitutional validity and competency of the tribunals in India. (15).
Separation of Powers
Tribunals divert original disputes from ordinary courts but cannot oust High Court judicial review. Articles 323A and 323B give Parliament (and in 323B, States where listed) power to create tribunals. L. Chandra Kumar (1997) held Articles 32, 226 and 227 to be basic structure; tribunals are courts of first instance. Sampath Kumar and the Madras Bar Association line require court-like independence. Competency exists; exclusion of constitutional courts does not.
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