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The concept of separation of powers was first articulated by the French philosopher
Montesquieu in the 18th century. He considered the Legislature, the Executive and the
Judiciary as the three branches of the Government. Legislature is an organized body having
the authority to make laws for a political unit 2. Executive is that branch of government that is
charged with such powers as diplomatic representation, superintendence of the execution of
laws and appointment of officials3. Judiciary is a branch of government in which the
responsibility of administration of justice is vested4. He thought that it was very important to
create separate branches of government with equal but different powers in order to ensure the
freedom of the people. According to him each branch of Government could limit the powers
of the other two branches without encroaching upon them. Many countries adopted this form
of government all over the world.
After getting independence from the clutches of the colonial rulers, India also adopted
this model of government by framing some articles to this effect in the Constitution of India.
In recent times, India has been witnessing a conflict among these branches with regard to
their encroachment upon one another. This became more pronounced when the provisions of
the 9th schedule of the Constitution of India was brought under the purview of Judicial
review. The judiciary was alleged to have encroached upon the legislative in the name of
judicial activism. Another example where the judiciary was said to have encroached upon the
legislative is the issuing of directives by the Supreme Court regarding the bill for reservation
of 27% for OBCs in educational institutions. There are very few cases where judicial
encroachment on legislature has been debated given the 60 long years that has passed after
In the case of judicial encroachment on executive the main question is whether the
judiciary can be said to have encroached upon the executive or whether there are any legal or
constitutional defences in the form of writs and Public Interest Litigations.

Tarumoy Chaudhuri, Student pursuing B.B.A. L.L.B. (Hons.) at National Law University (Jodhpur). (visited on August 12, 2007)
3 (visited on August 12, 2007)
4 (visited on August 12, 2007)

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The separation of powers of the legislative, the executive and the judiciary as
articulated by Montesquieu, effectively limits the possibility of arbitrary excesses by
government. This means the government cannot violate the rights of man as laid down in The
Declaration of the Rights of Man5. It is because of the fact that there is an effective system of
checks and balances by one organ of the government on the other. This ensures that all the
organs perform effectively. The legislative cannot frame a law which violates the
Fundamental Rights or the basic structure of the Constitution. The executive cannot
implement the laws negligently. The judiciary itself keeps a check on the working of the
judiciary by the provisions of appeals, review, revision and reference.
The separation of powers primarily means that the decisions of one organ of the
government are not influenced by the other organs. The decisions are taken independently.
This ensures that if one organ mistakenly or purposefully performs its functions wrongly or
negligently then the other organ or the same organ, in the case of judiciary, can rectify it. An
important point to be noted here is that independent functioning does not mean that the
organs shall function in isolation which would make the very purpose of separation of powers
Indeed the complementary principle to separation of powers is the principle of checks
and balances. That is, each branch has a duty to monitor the performance of the other
branches and thereby provide a check against breach of duty by those other branches. The
powers of each branch have been separated with a view to protect the liberties of the people
and prevent tyranny.


The Declaration of The Rights of Man and Citizen was passed by the French National Assemly in the year

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The Constitution of India lays down the relation of the Judiciary with respect to the
Executive under article 50 in Part IV which contains the Directive Principles of State Policy6

Restrictions on Judiciary and Executive

There are certain restrictions on the Judiciary to see to it that it does not encroach
upon the Executive. The judiciary has no right to impeach any person belonging to the
Executive on any grounds. It can only issue directions in the case of a dispute. The courts
also do not have the right to interfere in the performance of executive functions as long as
they do not infringe upon the constitutional rights of any person. As long as a public
governing body acts within the limits of its legal powers and jurisdiction, the exercise of its
judgement and discretion is not subject to review or control by the courts at the instance of
private litigants like citizens or taxpayers, in the absence of a statute authorizing such review
or control.
On the other hand, the Executive is also restricted from meddling with the working of
the Judiciary. Executive officers cannot exercise judicial powers or functions such as passing
upon the constitutionality of legislation. They do not have the powers to decide whether a
plaintiff or potential plaintiff has standing to maintain an action in court for judicial review of
an agencys action. They cannot amend or modify court orders.

Powers of Judiciary and Executive

The judiciary has the power to declare executive actions unconstitutional if they are
challenged in court. Some of the other instances where Judiciary can exercise checks on the
Executive are discussed below.

Judicial Review
Judicial review is a type of court proceeding in which a judge reviews the lawfulness
of a decision or action made by a public body7. Judicial reviews are essentially a challenge to
the way in which a decision has been made rather than rights or wrongs of the conclusion

50. Separation of judiciary from executive.The State shall take steps to separate the judiciary from the

executive in the public services of the State. (visited on August 12, 2007)

reached. The courts do not substitute the decision of the public body by what it thinks is the
correct decision.

The following are some of the examples where judicial review can be exercised:

Decisions of local authorities in the exercise of their duties to provide various welfare
benefits and special education for children in need of such education;

Certain decisions of the immigration authorities and Immigration Appellate


Decisions of regulatory bodies;

Decisions relating to prisoner's rights.

The concept of judicial review is sometimes alleged to become a form of judicial

encroachment on the other branches. In the words of Justice K. G. Balakrishnan, the Chief
Justice of India, The application to judicial review to determine constitutionality of the
legislation and to review the executive decision sometimes creates tension between the judge
and legislative and executive branch... such tension is natural and to some extent desirable 8.

Article 32 of the Constitution gives an extensive original jurisdiction to the Supreme
Court with regard to enforcement of Fundamental Rights. It is empowered to issue directions,
orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari to enforce them9. The writs have been explained below.
A writ of habeas corpus is issued for releasing a citizen from illegal detention.
A writ of certiorari is issued for quashing an illegal order passed by an inferior
A writ of mandamus is issued to compel a public authority to perform its statutory
A writ of quo-warranto is issued to enquire into legality of a claim which a party
asserts to a Public Office, and to remove him from his enjoyment if the claim is not
well founded. (visited on August 12, 2007

32. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part.

A writ of prohibition is issued by the Supreme Court or High Court to an inferior

court forbidding it to continue proceedings in a case in excess of its jurisdiction.
Thus it can be seen that writs can be used as tools to keep a check on the Executive and the
Even Public Interest Litigations (PILs) can act as a very effective weapon in the
hands of the public to resort to the judiciary in order to keep the executive under control. But
PILs have also been criticized of being misused by a group of people who wanted to get some
publicity out of the proceedings, given the relatively easier procedure for initiating a case
against any Public Body.
Conversely, the Executive can also have some minimal control over the Judiciary in a
few cases. The courts are staffed by the judges nominated by the President or the Governor
who are the Executive heads of the nation and the states respectively. The Judiciary also has
to rely on the Executive branch for enforcement of their decisions. The judges of the courts
are appointed on the basis of nominations by the Executive heads. Besides, the power to
pardon an individual who had been handed over a very severe punishment lies with the
President who is the executive head of the nation, even if the decision has been supported by
the Supreme Court, which is the highest appellate body in the country.


On the basis of the above discussion it can be concluded that each branch of the government
has some influence over the actions of the others, but no branch can exercise its powers
without cooperation from the others. Each branch has some say in the work of the others as a
way to check and limit their powers, but no branch may encroach unconstitutionally upon the
domains of the other branches. In this system of separation of powers, with its checks and
balances, no branch of the government can accumulate too much power. But each branch and
the government generally, is supposed to have enough power to do what the people expect of
it. So the government is supposed to be both limited and strong: strong enough to be effective
in maintaining order, stability, and security for the people, but not strong enough to threaten
their liberty.
It can also be said that separation of powers is the hallmark of most democratic governments,
but the balance of powers among branches can differ in different political systems. The
United Kingdom's parliamentary system, for example, has much greater overlap between the
executive and the legislative branches. The party who wins a majority of seats in Parliament,

the United Kingdom's legislative body, chooses a member of its party to serve as prime
minister, the head of the executive branch. On the other hand, the government of the United
States of America, which was the first country to formally enact Montesquieus doctrine of
separation of powers, follows a strict demarcation of powers among the various branches of
the Government.
Other institutions outside government also serve as checks and balances on the powers of the
executive, the legislature, and the judiciary. These include a free press that can investigate
and report on government actions, non-governmental organizations that advocate for different
interests, and the power of the people in whom government authority ultimately rests.