The separation of power concept at the very instance gave a black and white image of the limited domain and the functions it includes, however that’s not the case. Separation of power doctrine was conceptualized centuries ago but still faces conflicts and disputes. This draws the need for us, especially inspiring lawyers and judges to have a prominent framework of the practical application of separation of power and its conflict with his major opponent- Judicial review. Constitutionalism gave birth to the concept of separation of powers. The meaning of separation of power refers to the system of government where it is bifurcated into different domains to prevent power centralization in one domain, each domain carrying out its function without the interference of the other. The doctrine of separation was promulgated by Charles de Montesquieu and then was carried about by Plato and Aristotle for the functioning of the state on the pillars of impartiality and fairness. In contemporary democracies, the separation of power includes-
- Legislative– This is the body that is responsible for lawmaking and the legislative power is restored in the parliament. Parliament and state legislature formulate laws based on Union list- 97 items, State list- 66 items, and Concurrent list-47 as per the seven schedules.
- Executive- This is the body that is responsible for the implementation of the laws in the country. Executive powers are restored to the office of President at centre and Governor at state which has its ambit over the officials and bureaucrats.
- Judiciary- This body plays a crucial role; its job is to check the laws made and executed by the legislative and executive and govern that it agrees with the rule of law. The apex body of the judiciary- the Supreme court and then the high courts under which comes various district court.
The basic motive of separation of power is to eliminate the autocratic regime and to establish the concept of democracy in the country. Under this doctrine different forms of government work under their limitations which preserve arbitrariness and protect the individual rights and liberties infringement from the state. Independence of the judiciary is ensured under Article-50 which aids in controlling the legislation from making unconstitutional laws and arbitrariness.
Separation of power in Indian Context
Constitution frameworks have studied various constitutions before forming the Indian constitution. India adopts the parliamentary type of government from the United Kingdom and the concept of Judicial review and Independence of Judiciary from the USA. India adopting both the features have tried to strike a check balance between the Judicial review and Legislative with flexible separation of power. In the Indian constitution, nowhere is explicitly written the “separation of powers” but it is incorporated in the constitution in various articles- Article-50 (independence of the judiciary), Article-122 & 212 (courts not to enquire in parliament and state legislature proceedings), Article 361– (president/governor not answerable to courts) and various other articles that draw a demarcation between the institutions and their limitation which signifies the flexible nature of the separation of power in India. For example- Article 368 (Power of the parliament to amend the constitution without disrupting basic structure- M. Nagraj v. Union of India and judicial review cannot happen), President rule in the state of emergency, or Article- 145 that allow the court to make laws and other provision that shows overlapping of functions by the three organs.
Conflict of legislative power and judicial review
It is a preconceived notion that the legislative hold the highest power as it is the representation of citizen and it forms the basis of democracy. The legislative is the law-making body but there are various instances where the judiciary has interfered in the law-making process to protect rule of law and to dispense justice. Judiciary used the mechanism of Judicial Review- an inherent power supreme court holds to review the legislative and executive when their decision or law does not align with the constitution of India and can nullify or declare void. In the foremost case, Marbury v. Madison,, it was mentioned that judicial review is the inherent power that courts hold to check legislative and executive. In India, judicial review’s purpose is to protect the fundamental rights, authorize the disinterest of organizational achievement and integration regarding public interest. Mechanism of Judicial review includes- review of legislative action, judicial decision, and administrative action under Article-13. The trajectory of Judicial review and legislative power is engrossed with various conflicts and is not as straightforward as it is written in constitution books. There are instances where the judiciary has overruled the laws of parliament and vice versa. Here are a few prominent cases that show the journey of conflict and overlapping of functions by judiciary and legislation.
Synthesis of judicial review and legislative power through the lens of cases
In one of the landmark cases of The State of Madras v. Srimathi Champakam Dorairajan,, the Supreme court stated that what comes under the ambit and functions of parliament and cannot go against fundamental rights by using Directive principles of state policy which led to the passing- 1st Constitutions Amendment act, 1951- the amendment of article 15(4)- special reservation by the state for socially, removal of Right to property, a fundamental right and insertion of 9th schedule-(restriction of judiciary made under 9th schedule). This was questioned in the supreme court-1951 amendment act infringes the Fundamental rights- (Removal of Right to property) which is curtailed in Article-13 (Parliament cannot make laws that infringe the fundamental rights).
Supreme court in the case Shankari Prasad v. Union of India, and Sajjan Singh v. the State of Rajasthan, the first building blocks of the doctrine of basic structure, stated that it comes under the constitutional powers of legislative and can do under the Article-368 (parliament can modify fundamental rights following the procedure and Article-13 does not apply). In Golaknath v. State of Punjab, the contested issue was against the 17th amendment, the 9th schedule, and some other acts. Supreme court for the first time stated that- parliament cannot amend the laws about fundamental rights(FR) but its perspective was elaborated that the word ‘law’ under Article 13(2) comprise the meaning of amendment to the Constitution, and any amendment contrary to the provision of fundamental Rights was void. In reaction to this, legislation using the legislative powers produced the 24th amendment– the restoration of absolute power in parliament to amended FR, the president was duty-bound to provide assent to a Constitution Amendment Bill whenever presented before them, Article 13 of the Constitution inapplicable to an amendment of the Constitution under article 368. Kesvananda Bharati v. the State of Kerala, Indian judiciary laid down the doctrine of basic structure to protect the individual rights and also clarified that legislation can alter the constitution upholding the 24th and other amendments, provided it does not abridge the basic structure of Indian constitution. A balanced approach was taken to resolve the conflict between the judiciary and legislation. In I.R. Coelho (dead) by L.Rs. v. State of Tamil Nadu and others, also called as 9th schedule case, upholder the authority of the judiciary to review any law, if it infringes the basic structure stated in Keshvananda Bharti case even if they come under the ambit of 9th schedule, hence making power of judicial role significant. Indira Nehru Gandhi (Smt.) vs Raj Narain & Anr,the case that shook Indian politics and embedded the faith and importance in the constitution. This case signifies the limitations on the powers of parliament curbing its supremacy and establishing the significance of an independent judiciary in India. In the judgment, the court strikes down the 39th amendment- Clause 4-Article 329 A declaring it unconstitutional and comprising rule of law and ability of judicial review under the ambit of the doctrine of basic structure.
Another case, Minerva Mills Ltd. & Ors vs Union Of India & Ors, SC strikes down- section 4&55 of 42nd amendment as it was against basic structure and curb judicial review and it provided clarity that court hold the absolute power to exercise judicial review of any amendment passed by the parliament- limiting the power mentioned in Article-368 and L. Chandra Kumar v. Union of India– judicial review is the most important traits to establish democracy and it is a part of the basic structure under Article 32 and Article 226 and these powers cannot be disintegrated by allocation them to an administrative tribunal. We can see that the judiciary has interfered in the legislative power to protect the rights of an individual, and in turn, parliament has overturned the rulings by making laws. One of the essential noting from the above cases states that legislation can formulate laws regarding the welfare of people but it doesn’t have the power to go contrary to the basic structure which is a cornerstone of democracy. Judicial review is the mechanism that aids the judiciary to preserve the essence of the constitution. In Rai Sahib Ram Jawaya Kapur and Ors. vs The State of Punjab,- “doctrine of separation of power”, SC for the first time mentioned that there is no concept of the rigid separation of power but the functions are demarcated. Recently “99th Constitution Amendment Act and the National Judicial Appointments Commission (NJAC),” were declared ultra vires of the Constitution and were rejected by the judiciary. Judicial review has also faced challenges like in “Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989” and the populist review of the legislation in enacting Section 18A in which virtually circumvents the diktat of the judgment passed by the Supreme Court.
It can be concluded that rigidity and constriction of specific power to specific domain restrict the functioning of institutions would not aid in the social welfare and upholding of democracy, to preserve the people and their welfare, the purpose of separation of power have to be implied – judiciary and legislative have to work in coherence with each other, implying check and balance to maintain liberty and restricting arbitrariness. Recent trends have showcased that the judiciary has evolved from judicial conservatism to judicial activism- Suo moto cases in the times of infringement as well implying the concepts of socio-judice concepts under the principle of Juri- matrix. These practical notions help the judiciary to evaluate the laws laid down by parliament or the subordinate courts in an expanded manner, their enforcement, effect on society- amplifying the judgment impact. This aids judiciary to dispense justice and hence we can conclude that to evolve the nation there is a need for both legislation and judiciary working harmoniously without strict demarcation of powers but implying its motive in their functioning and establishing a balance rather than superiority in the nation.
Author(s) Name: Smriti Yadav (Maharashtra National Law University, Nagpur)
 Shaila Arora , Independence of Judiciary in India, 4 (2) IJLMH Page 714 – 720 (2021), DOI: http://doi.one/10.1732/IJLMH.26156
 M. Nagraj v. Union of India (2006) 8 SCC 212
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 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803),
 The State of Madras v. Srimathi Champakam Dorairajan, 1951 AIR 226, 1951 SCR 52
 Shankari Prasad v. Union of India, 1951 SCR 89: AIR 1951 SC 458
 Sajjan Singh v. State of Rajasthan 1965 AIR 845, 1965 SCR (1) 933
 Golaknath v. State of Punjab (1967 AIR 1643, 1967 SCR (2) 762
 Tiwari, R. (2018, June 26). Tension between Executive, Judiciary: The current conflict — and its fraught resolution. The Indian Express. https://indianexpress.com/article/india/tension-between-executive-judiciary-the-current-conflict-and-its-fraught-resolution-supreme-court-cji-impeachment-5155435/ (Accessed on March,12 2021)
 Kesvananda Bharati v. the State of Kerala, AIR 1983 SC 239
 Indira Nehru Gandhi (Smt.) v. Raj Narain & Anr, 1975 AIR 1590, 1975 SCC (2) 159,
 Minerva Mills Ltd. & Ors v. Union Of India & Ors,1980 1980 AIR 1789, 1981 SCR (1) 206
 Rai Sahib Ram Jawaya Kapur and Ors. v. The State of Punjab AIR 1955 SC 549, 1955 2 SCR 225
 judicial Supremacy v. Parliamentary Supremacy in India – Lloyd Law. (2020, January 10). Https://Www.Lloydlawcollege.Edu.in/Blog/Judicial-Supremacy-v-Parliamentary-Supremacy.Html. Accessed on March,13 2021.
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