But what is the doctrine of separation of powers? How did it evolve? How is it related to the principle of checks and balances? 

Evolution of the doctrine of separation of powers

The doctrine of separation of powers stands for a form of government in which the mechanism of governance is divided into three branches, namely Legislature, Executive and the Judiciary in the majority of democratic nations. 

The doctrine of separation of powers evolved with the famous work of Aristotle, The Politics, in which he discussed the concept and stated that every constitution should include different branches of government, namely the judiciary, public officials, and the deliberative branch.

British philosopher John Locke reiterated the idea of the three branches of government in his 17th-century work, Two Treatises of Government, although in a different manner. 

In his view, the three branches ought not to operate independently or with equal power. Rather he thought that the legislative branch should be the most significant of the three and that the monarch should have control over the other two branches. 

However, in the 18th century, French jurist and philosopher Baron de Montesquieu meticulously developed the notion of the separation of powers in his book, The Spirit of Laws. 

Montesquieu increased the weight and independence of the judiciary. He asserted that these three powers must be separate and act independently to avoid totalitarian rule and to protect individual liberty. The US Constitution is founded on the Montesquieu school of thought.

Montesquieu’s notion of separation of powers is the cornerstone of the US Constitution. 

Separation of powers in Indian constitution

India has a parliamentary form of government modelled on the British parliamentary system. But it also took some lessons from the United States and established the judiciary as the guardian of the constitution. As a result, the judiciary in India is vested with the authority of judicial review of the actions of the legislature and the executive. 

Many provisions in the Indian Constitution clearly indicate the existence of the idea of separation of powers, which is upheld by both the federal government and the states.

For instance, Article 53(1) states that the executive power of the Union shall be vested in the President, while Article 154 says that the executive power of the State shall be vested in the Governor, which they may exercise either directly or through their subordinate officers. 

Articles 122 and 212 of the Indian Constitution stipulate that courts are not allowed to inquire into proceedings of Parliament and State Legislatures, respectively. It guarantees that the judiciary would not meddle in legislative matters. 

Moreover, Articles 105 and 194 prohibit the court from calling members of Parliament and Legislative Assemblies for any speeches they make in any of these houses. 

Similarly, Article 50 of the Indian Constitution encourages the separation of the judiciary from the executive. 

Article 245 grants Parliament the authority to make laws for the whole or any part of the country, and the Legislature of a State to make laws for the whole or any part of the State. 

At the same time, Articles 121 and 211 of the Indian Constitution forbid Parliament and State Legislatures from discussing the judicial conduct of any judge of the Supreme Court or High Court. Article 361 exempts the President and the Governors from legal accountability for the exercise of their official powers and duties.

Upholding the basic structure of the constitution

However, there are instances when governments tried to restrict or increase the power of different branches. For instance, the Ninth Schedule along with the 76th Amendment in 1994 and 99th Amendment in 2014 meant to increase the power of Parliament.

Nonetheless, the Supreme Court narrowed it down via different judgements and checked the power of Parliament by adding the concept of the basic structure of the constitution along with the judicial review. 

For example, the Golaknath judgement was overruled by the Supreme Court in the Kesavananda Bharati case, which established that Parliament had the authority to amend the constitution. 

Simultaneously, in the Kesavananda Bharati case, the apex court established that the ability to alter the constitution has implicit restrictions on the amending powers of Parliament and that power cannot be used to alter the basic structure of the constitution. 

To sum up, it can be said that the Supreme Court as a guardian of the Indian constitution reminds the other branches to do their duty within their domain. The doctrine of separation of powers also emphasises on the system of checks and balances to prevent the misuse of power by the various branches of the government.

Post Read Question

What is the doctrine of separation of powers? 

The separation of powers doctrine forms the basis of a democratic system. Comment.

Discuss the significance of the separation of powers doctrine in India, emphasising the concept of checks and balances.

What are the shortcomings of the doctrine of separation of powers? What steps should be taken to address it?  

Is there a suitable approach to maintain the balance of powers between Parliament and the judiciary apart from the basic structure? Discuss.

(Dr. Madhukar Shyam is an Assistant Professor of Political Science, University of Delhi.)