Indian Journal of Integrated Research in Law Volume III Issue V | ISSN: 2583-0538

DYNAMIC FRAMEWORK: INDIA'S CONSTITUTIONAL

GOVERNANCE, SEPARATION OF POWERS, AND
JUDICIAL ACTIVISM

Ali Johar, Jamia Millia Islamia

Asad Naushad Khan, Jamia Milli Islamia

ABSTRACT

The article presents a comprehensive examination of the key themes and

concepts discussed in the paper titled "Separation of Power and Judicial
Activism." It delves into various dimensions, encompassing historical
origins, the separation of powers doctrine, India's constitutional status,
judicial activism, and its ramifications. A significant portion of the article is
dedicated to tracing the historical roots of these concepts, tracing them back
to the early ideas of Aristotle and Montesquieu and their subsequent
evolution in British constitutional history. The relevance of these principles
in contemporary democratic governance is underscored, emphasizing their
enduring importance. The doctrine of separation of powers takes center stage
in the article, as it elucidates its aims: preventing authoritarianism,
safeguarding individual liberties, and preserving the judiciary's
independence. The three core principles of this doctrine are expounded upon,
with a focus on delineating the distinct functions of each branch, advocating
for non-interference, and promoting adherence to their respective mandates.
The examination of the constitutional status of power separation in India is
meticulous, incorporating references to key provisions and landmark court
cases that have shaped the country's legal landscape. The system of checks
and balances is explored, with a particular emphasis on the judiciary's pivotal
role in reviewing and invalidating unconstitutional legislation. The article
introduces the concept of judicial activism, delving into both its positive and
negative dimensions. The evolution of judicial activism in India is traced,
with a comprehensive exploration of its application in significant cases and
a critical analysis of the potential for judicial overreach. In its conclusion,
the article underscores the paramount importance of striking a delicate
balance between the separation of powers and judicial activism to sustain a
robust democratic system. It highlights how achieving this equilibrium is
crucial for upholding individual rights, fostering effective governance, and
ensuring the rule of law within the constitutional framework of India. In

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essence, the article serves as a comprehensive guide to understanding and

appreciating the intricate interplay of these vital concepts in the Indian legal
and political landscape.

Keywords: Constitutional law, Separation of Power, Judicial Activism,

Organs of Government.

1: Introduction

A.1. History

This concept was first seen in Aristotle's works in the 4th century BCE, when he described the
three branches of government as the General Assembly, Public Officials, and Judiciary. A
similar approach was seen during the Roman Empire.

Montesquieu introduced the doctrine of separation of power, stating the absolute status of the
executive, legislature, and judiciary. Aristotle, the first to write about it, divided it into three
branches: deliberative, executive, and judicial. He explained that constitutions have three
elements: deliberate public affairs, magistrates, and judicial power.1

In the 18th century, Locke and Montesquieu analyzed the doctrine of separation of powers in
British constitutional history. The King and Parliament had a long war, leading to legislative
supremacy and the Bill of Rights. The King recognized legislative and tax-paying members
and judicial powers. Currently, England follows a parliamentary form of government, without
this separation. However, the King still exercises executive powers, Parliament holds
legislative powers, and courts exercise judicial powers.

The separation of powers, also known as trias politica, is a model for democratic state
governance, first developed in ancient Greece and adopted by the Roman Republic. It divides
the state into branches with separate and independent powers, such as an executive, legislature,
and judiciary. The opposite is the fusion of powers, often seen in parliamentary democracies,
where the executive, often consisting of a prime minister and cabinet, is drawn from the
legislature. This principle of responsible government ensures that the legislative and executive
branches are connected, but there is often an independent judiciary. The government's role in

1
Aristotle- Politics- BOOK 4- Part XIV

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parliament does not grant them unlimited legislative influence.2

A.2. The Legislature, The Executive and The Judiciary.

What is the Legislature?

The legislature's primary function is to enact legislation.

● It serves as the foundation for both the organs—the executive and the judiciary.

● It is also sometimes given priority among the three organs because there can be no
implementation or application of laws unless and until laws are enacted.

What is the Executive?

The executive organ oversees putting the legislature's laws into action and enforcing the state's
will.

● It is the government's administrative head.

● Ministers, including prime ministers and governors, are members of the executive.

What is the Judiciary?

The judiciary is the branch of government responsible for interpreting the law, resolving
disputes, and providing justice for all citizens.

● The judiciary is regarded as the protector of democracy and the keeper of the
Constitution.

● It is made up of the Supreme Court, High Courts, District Courts, and other lower
courts.

2: Doctrine of Separation of Power

“Power corrupts and absolute power corrupts absolutely.” – Lord Acton

2
Legislative Influence available at: http://www.legalserviceindia.com/article/l16-Separation-Of-Powers.html
(last visited on September 25, 2023)

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When power is concentrated in one center or authority, the likelihood of maladministration,

corruption, nepotism, and abuse of power increases. This principle prevents authoritarianism
from infiltrating a democratic system. It safeguards citizens from arbitrary rules.

Separation of powers splits the governance process into three branches: the legislative,
executive, and judiciary. Although different authors provide different definitions, we can
generalize three aspects of this philosophy.

The Theory of Separation of Powers denotes three concepts for categorizing government
powers:

1. Each organ should have different people in charge of it; for example, a person with a
function in one organ should not be a part of another.

2. One organ should not obstruct the functioning of the others.

3. One organ should not perform the function of another (they should only do their
mandate).

Separation of powers refers to the division of authority for specific government responsibilities.
All the government's powers have been divided into three broad categories:

1. The creation of laws,

2. The interpretation of those laws, and

3. Their execution; specifically, legislative, judicial, and executive.

Government has been believed to be made up of three branches, each with their own set of
functions, and this classification is known as classical division.

As a result, the significance of the Separation of Powers doctrine can be summarized as follows:

1. Keeps autocracy at bay.

2. Individual liberty is protected.

3. Aids in the creation of an effective administration.

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4. The independence of the judiciary is preserved.

5. Prevents the legislature from passing irrational or unconstitutional legislation.

B.1. Importance of the Separation of Power

The objective of separation of powers is to avert power abuse via a single entity. It will protect
society from the state's arbitrary, unreasonable, and tyrannical powers, ensure freedom for all,
and assign each function to the appropriate state organs for effective discharge of each one of
their responsibilities.

B.2. Montesquieu on Separation of Power:

Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, also known simply as

Montesquieu, was a French judge, writer, and political philosopher. He is the primary source
of the separation of powers idea, which is used in many constitutions around the world.3

"When the legislative and executive powers are united in the same person or in the same body
of magistrates, there can be no liberty," he believes, "because apprehensions may arise, lest the
same monarch or Senate execute exact tyrannical laws in a tyrannical manner." Again, there is
no liberty unless the judicial power is distinct from the legislative and administrative powers.
Where it joined the legislative, the subject's life and liberty would be susceptible to arbitrary
control, for the judge would then be a legislator. Where it is combined with executive power,
the judge may act violently and oppressively. There would be a stop to everything if the same
man or same body, whether of the nobles or of the people, exercised the three functions of
exacting laws, executing public decrees, and pursuing individual causes.4"

In a nutshell, Montesquieu submission is the division of powers by function, and the theory
that emerged from it is known as the separation of powers. The current notion of separation of
powers was a key component in 18th-century political philosophy.5

3
Montesquieu on Separation of Power available at: https://byjus.com/question-answer/doctrine-of-separation-
of-powers-was-propounded-by/# (last visited on October 03, 2023)
4
p. 31, Thakker. C.K., Administrative Law, (1992), Eastern book company
5
1951 AIR 322: 1951 SCR 747

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3: India's Constitutional Status of Power Separation

C.1. Constitutional Status of Separation of Power in India

Although not explicitly stated, the doctrine of separation of powers is part of the basic structure
of the Constitution6. The legislature can't enact legislation that violates this principle. The
Constitution specifically mentions the responsibilities of the three organs.

Ram Jawaya Kapoor V State of Punjab (1955)7: held that, while the Indian Constitution did
not recognize the doctrine of separation of powers in its absolute rigidity, the functions of the
various parts or branches of government had been sufficiently differentiated, and thus it can be
effectively argued that our Constitution does not contemplate the presumption by a single body
or section of the state of functions that essentially belong to another.

Let us examine some of the provisions of the Indian Constitution that advocate for separation
of powers.

Article 50: This article requires the state to keep the judiciary separate from the executive.
However, because this is a violation of the Directive Principles of State Policy, it is useless.8

Article 123: As the country's executive head, the President has the authority to execute
legislative powers (promulgate ordinances) under certain conditions.9

Articles 121 and 211: stipulate that legislatures may not debate the conduct of a Supreme
Court or High Court judge. They can only do so in the case of impeachment.10

Article 361: The President and the Governors are immune from legal proceedings.11

Indira Nehru Gandhi V Raj Narain (1975)12: Ray, CJ, observed that the Indian Constitution
only has a broad separation of powers. A strict separation of powers, as in the American or
Australian constitutions, is not applicable to India. The Court also ruled that adjudication of a

6
Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225; AIR 1973 SC 1461
7
AIR 1955 SC 549, 1955 2 SCR 225
8
The Constitution of India, art. 15.
9
The Constitution of India, art. 123.
10
The Constitution of India, art. 121, 211.
11
The Constitution of India, art. 361.
12
1975 AIR 1590, 1975 SCC (2) 159

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specific dispute is a function of the judiciary that Parliament, even when acting under a
constitutional amending power, cannot perform. Apart from the difficulties inherent in
enforcing the strict doctrine of separation of powers in modern government functioning, there
is also an inherent problem in defining the separation of powers into executive, legislative, and
judicial.

There's a system of checks and balances in place in which all three organs impose checks on
each other through various provisions.

● The judiciary possesses the authority to review the actions of both the legislature and
the executive.

● According to Article 13, the judiciary has the authority to overturn any law approved
by the legislature if it is deemed unconstitutional or arbitrary (if it infringes on
fundamental rights).

● It may also nullify unconstitutional executive actions.

● The legislature also examines the executive's performance.

● Despite the fact that the judicial system is independent, the judges are appointed by the
president's office.

● The legislative body can also change the basis of the decision while staying within the
constitutional limits.

Checks and balances guarantee that no single organ gains too much power. The Constitution
ensures that any discretionary power conferred on any organ is consistent with democratic
principles.

P Kannadasan V State of Tamil Nadu (1966)13: It was held, “the Constitution has invested
the Constitutional Courts with the power to invalidate laws made by Parliament and the state
legislatures transgressing Constitutional limitations. Where an Act made by the legislature is
invalidated by the Courts on the basis of legislative incompetence, the legislature cannot enact
a law declaring that the judgement of the Court shall not operate; it cannot overrule or annul

13
1996 5 SCC 670

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the decision of the Court. But this does not mean that the legislature which is competent to
enact the law cannot re-enact the law. Similarly, it is open to the legislature to alter the basis
of the judgement. The new law or the amended law can be challenged on other grounds but not
on the ground that it seeks to in effectuate or circumvent the decision of the court. This is what
is meant by “checks and balances” inherent in a system of government incorporating separation
of powers.

C.2. Independence of the Judiciary and Separation of Powers in India

The principles of judicial independence and separation of powers are critical for a country's
judicial system to be fair and neutral. This independence stems from England's Act of
Settlement, 1701, which established judicial independence. Prior to this, judges were removed
by the King's will, and the parliamentary role in removing judges was nonexistent. The Act of
Settlement 1701, required judges to follow the King's wishes, ensuring a fair and neutral
judicial system. The concept of independence originated in England, with the cases of
Hampden and Coke leading to its enactment.

The term "judicial independence" refers to a fair and neutral judicial system in a country that
can afford to make decisions without interference from the executive or legislative branches of
government. It means that the judges can render justice in accordance with their oath of office
and only in accordance with their own sense of justice, free of any pressure or influence from
the executive or legislative branches, the parties themselves, or their superiors and colleagues.

The Indian founding fathers believed that incorporating a complete separation of powers
concept was premature because the Constitution had already been written and India had already
adopted the British parliamentary system.14

Prior to independence, the executive had direct control over the criminal magistrates. There
was a strong backlash against such a situation. At all levels, the public demanded that the
judiciary be separated from the executive. It was vehemently argued that without such a
division, the independence of the judiciary at the lower level would be a farce. This is the
concept that was incorporated into the article 50 on the Indian constitution.15

14
CONSTITUENT ASSEMBLY DEBATES (PROCEEDINGS)- VOLUME VIII available at:
https://loksabha.nic.in/writereaddata/cadebatefiles/C23051949.html (last visited on September 07, 2023)
15
Indian Constitutional Law by M.P. Jain, pg 1393, para.4

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Because the primary function of the judiciary is to protect the constitution, only an independent
judiciary can protect the rights that enable the rule of law to be achieved.

The primary role of the judiciary is to protect the constitution, and an independent judiciary is
essential for achieving rule of law. Article 50 of the Constitution separates the executive from
the judiciary, ensuring judicial independence from the executive. This independence principle
is based on the belief that if the executive controls the judiciary, the people's rights may be
jeopardised, and the judiciary will operate solely in accordance with the executive's decisions.
The executive is the head of the state in India's parliamentary form of government, and it has
the ability to abuse discretionary power, resulting in chaos and a lack of pure justice. According
to the Supreme Court of India, the constitutional scheme aims to ensure an independent
judiciary, which is the foundation of democracy.16

In India, the judiciary is autonomous in making decisions about its functions, with no
government organ interfering in its task of delivering justice. Independence of judiciary has
been recognized as a basic structure of the Indian constitution17. This independence is limited
to the delivery of justice, with parliament having the authority to decide on issues such as
salaries, privileges, allowances18, and the number of judges19. Fazal Ali, J., stated in S.K.
Gupta v. President of India20 that the concept of independence should be confined within the
four corners of the constitution, allowing for separate powers and functions of the judiciary.
This independence has been adopted as a guiding principle for Article 5021.

C.3. Relationship between the Legislature and the Judiciary

Even though the executive and judicial branches' functions are clearly laid out in the
Constitution, the process of checks and balances guarantees that each can impose checks on
the other.

● The judiciary has the authority to overturn laws that it deems unconstitutional or

16
A.C. Thalwal v. High Court of Himachal Pradesh (2040) 7 SC 1 : AIR 2000 SC 2732
17
Kumar Padma Prasad v. U.O.I. AIR 1992 SC 1213
18
The Constitution of India art.125 (1) - there shall be paid to the Judges of the Supreme Courts such salaries as
may be determined by the parliament.
19
The Constitution of India art.216
20
AIR 1982 SC 149
21
The Constitution of India art.50 - the State shall take steps to separate the judiciary from the executive in the
public services of the State.

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arbitrary.

● The legislature, for its part, has protested judicial activism and attempted to craft
legislation to circumvent certain rulings.

● The doctrine of separation of powers is said to be violated by judicial activism.

● In some cases, the courts have issued laws and policies through judgements. For
example, the Vishakha Guidelines, in which the Supreme Court issued sexual
harassment guidelines

● In 2010, the Supreme Court directed the government to begin distributing food grains.

● Judicial overreach occurs when the judiciary exceeds its mandate and enters the
territory of the legislature or the executive.

C.4. Judicial Supremacy and Parliamentary Sovereignty

The Indian constitution employs the following principles to strike a balance between the
judiciary and the legislature:

● The British Constitution inspired the doctrine of parliamentary sovereignty.

● The American Constitution inspired the doctrine of judicial supremacy.

● The Supreme Court of India's judicial review power is narrower in scope than the
Supreme Court of the United States.

● Article 21 of the Indian Constitution guarantees 'established procedure by law' rather

than the 'due process of law' guaranteed by the American Constitution.

● The Indian Constitution has chosen to combine the British principle of parliamentary
sovereignty with the American principle of judicial supremacy.

● On the one hand, the Supreme Court can use its judicial review power to declare
parliamentary enactments unconstitutional.

● The Parliament, on the other hand, has the constituent power to amend a large portion

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of the Constitution.

Kesavananda Bharati Case (1973)22: In this case, the SC held that the amending power of
the Parliament is subject to the basic features of the Constitution. So, any amendment violating
the basic features will be declared unconstitutional.

4: Judicial Activism

Judicial activism refers to court rulings that are based on the judges' political and personal
rationality and prudence. It is a legal term that refers to court decisions that are based in part or
entirely on the judge's political or personal factors rather than current or existing legislation.

Judicial activism, according to Black's Law Dictionary, is a judicial decision-making

philosophy in which judges allow their personal views on public policy, among other factors,
to guide their decisions.

Judicial activism in India implies that the Supreme Court and the high courts, but not the lower
courts, have the authority to declare regulations unconstitutional and void if they violate or are
incompatible with one or more constitutional clauses.

According to SP Sathe, an activist court is one that gives a new meaning to a provision to suit
changing social or economic conditions or broadens the horizons of an individual's rights.

In its early years, the Supreme Court of India was more of a technocratic court, but it gradually
became more active through constitutional interpretation. Through its involvement in and
interpretation of laws and statutes, the court became an activist, but the process took years and
was gradual. The court's premature and early assertions about the essence and nature of judicial
review can be traced back to the beginnings of judicial activism.

In its early years, the Supreme Court of India was more of a technocratic court, but it gradually
became more active through constitutional interpretation. Through its involvement in and
interpretation of laws and statutes, the court became an activist, but the process took years and
was gradual. The court's premature and early assertions about the essence and nature of judicial
review can be traced back to the beginnings of judicial activism.

22
1973 4 SCC 225; AIR 1973 SC 1461

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D.1. Judicial Activism in India can be Both Positive and Negative.

● A court that is actively changing power relations to make them more equitable is said
to be positively activist.

● A court is said to be negatively activist if it uses its ingenuity to maintain the status quo
in power relations.

Judicial activism reflects the suggested administrative patterns, namely: expansion of hearing
privileges over administrative lapses; expansion of judicial control over discretionary forces;
expansion of judicial review over the administration; and extending the conventional
translation guidelines in its pursuit of financial, cultural, and academic goals.

D.2. Course of Judicial Activism

For the first decade after independence, judicial activism was almost non-existent; the
executive and legislative branches of government actively dominated and intervened in the
functioning of the judiciary. The Apex Court began considering the judicial and structural
views of the Constitution in the 1970s.

Just two years before the emergency declaration, the Supreme Court of India ruled in the
landmark Kesavananda Bharati23 case that the executive had no right to intervene and tamper
with the basic structure of the constitution. Though the judiciary was unable to prevent the
exigency imposed by then Prime Minister Indira Gandhi, the concept of judicial activism
gained traction as a result.

The Supreme Court ruled in I. C. Golaknath & Ors. vs. State of Punjab & Anrs.24 that
fundamental rights enshrined in Part 3 are immune and cannot be amended by the legislative
assembly.

D.3. Landmark cases of Judicial Activism

In Hussainara Khatoon (I) v. State of Bihar25, the newspaper articles reflected the inhumane
and barbaric conditions of the undertrial prisoners. Many of the prisoners on trial had already

23
Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225; AIR 1973 SC 1461
24
1967 AIR 1643, 1967 SCR (2) 762
25
1980 SCC (1) 98

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served the maximum sentence without being charged with the offence. An advocate filed a writ
petition under Article 21 of the Indian Constitution. The Supreme Court accepted it, stating
that the right to a speedy trial is a fundamental right, and directing state authorities to provide
free legal services to under-trial inmates in order for them to obtain justice, bail, or final release.

In another significant case, Sheela Barse v. State of Maharashtra26, a journalist wrote a letter
to the Supreme Court describing custodial violence against female prisoners. The court treated
the letter as a writ petition, took cognizance of the matter, and issued the necessary guidelines
to the state's concerned authorities.

The court used its epistolary jurisdiction in Sunil Batra v. Delhi Administration27, and a letter
written by a prisoner was treated as a petition. According to the letter, the head warden inflicted
terrible pain on another prisoner and assaulted him. The Court stated that technicalities cannot
prevent the court from protecting individuals' civil liberties.

In some cases, the judicial activism mechanism resulted in judicial overreach. The Indian
Parliament has held the judiciary accountable or accused it of intervening and exceeding its
constitutional powers.

The Supreme Court ruled in Supreme Court Advocates-on-Record Association v. Union of

India28 that the National Judicial Appointments Commission (NJAC) Act and the
constitutional amendment were unconstitutional, with a 4:1 majority. The act was declared
unconstitutional because it interfered with judicial independence. And the existing collegium
system for transferring and appointing judges was once again invoked. According to Justice
Khehar, the absolute independence of the judiciary from other organs of government protects
people's rights.

Lodha Committee report on the Board of Control for Cricket in India: The Lodha Panel
was established by the Supreme Court in response to allegations of Indian cricket corruption,
match-fixing, and betting controversies. The committee was formed in an effort to restore law
and order to the BCCI. The committee recommended that the BCCI be subject to RTI, that
cricket betting be legalised, and that only bodies representing states be granted voting rights,

26
1983 SCC (2) 96
27
(1978) 4 SCC 409
28
(2016) 5 SCC 1, (2016) 2 SCC (LS) 253

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while teams such as Railways and Services be given the status of associate members with no
voting rights. However, because the BCCI is an independent body not controlled by any state
or central government, the Lodha committee had no authority to declare such
recommendations.29

Christian Medical College, Vellore & Others versus Union of India and Others30: The
Supreme Court prohibited states from holding separate entrance exams for medical
programmes and ruled that undergraduate admission to medical programmes could only be
done through the NEET. The Supreme Court's rulings on the National Eligibility-Centre Test
(NEET), i.e., the single exam for admission to medical colleges, the reformation of the Board
of Cricket Council in India (BCCI), the filing of the post of judge, and other issues were viewed
as judicial intervention by the government.

When necessary, the judiciary has attempted to regulate itself and place some constraints on its
powers. In Divisional Manager, Aravali Golf Course v. Chander Haas31, The Supreme Court
stated that judges must know their limits and must not try to run the government. They must
be modest and humble, and they must not act like emperors. The Constitution provides for a
broad separation of powers, and each organ of the state—the legislature, the executive, and the
judiciary—must respect the others and not encroach on each other's domains.

5. Conclusion

In conclusion, the concepts of separation of powers and judicial activism are critical to the
functioning of democratic governance. As we have seen, this concept has deep historical roots,
dating back to Aristotle's initial delineation of the three branches of government to
Montesquieu's 18th-century articulation of the doctrine. It acts as a vital check on
authoritarianism, ensuring the protection of individual liberties, the promotion of effective
administration, and the preservation of an independent judiciary.

The constitutional status of the separation of powers is implicit but essential in the context of
India. The Constitution defines the roles and responsibilities of the three branches of
government—the legislature, executive, and judiciary—as well as a system of checks and

29
Lodha Committee available at: https://en.wikipedia.org/wiki/Lodha_Committee (last visited on October 15,
2023)
30
(2016)4 SCC 342
31
(2008) 1 SCC 683

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balances. This system allows the judiciary to review and, if necessary, invalidate
unconstitutional laws, thereby preventing legislative overreach.

In India, the concept of judicial activism is a two-edged sword that can have both positive and
negative consequences. While it has helped to address a variety of social and legal issues, there
have been instances of judicial overreach. The ability of the judiciary to interpret and adapt the
law to changing societal needs and values is critical, but it must be exercised within the
framework of the Constitution and the principle of separation of powers.

To summarize, the principles of separation of powers and judicial activism are essential
components of India's constitutional framework. They contribute to the delicate balance
between the branches of government, ensuring that no one organ becomes overly powerful
while also allowing the judiciary to play an important role in upholding the rule of law and
protecting individual rights. Finding this balance is critical to the long-term success of India's
democratic system.

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