Judicial Review And Separation Of Powers - A Corner-Stone Of Indian Democracy

Author: LawSphereX

Category: Administrative & Regulatory Law

Published: 2026-08-23T20:26:10.834+00:00

Updated: 2026-08-30T07:08:47.073Z

JUDICIAL REVIEW AND SEPARATION OF POWERS: A

CORNER-STONE OF INDIAN DEMOCRACY

Riya Maggu, SRM University Sonipat Delhi-NCR

ABSTRACT

In ancient times, all the power of the state was vested with the King; he was the sovereign leader, but as the state grew modern, citizens learnt about their rights and duties. Thus, the diversification of the state emerged. Presently, there are three primary organs of the government, namely the legislature, Executive and judiciary, which are responsible for carrying out the functions on behalf of the state. This diversification of functions is often termed as “Separation of Powers”. However, this concept is often conflicted with the power of “Judicial Review” vested with the Higher Courts in the country. Thus, it becomes of utmost importance to define how both these disciplines are interconnected with each other and what are the possible issues in conflict with “Separation of Powers” and “Judicial Review”.

Through this blog post, we will delve deeper into the concerns associated with “judicial review” and “Separation of Powers”, namely, Whether checks and balances strengthen or weaken the separation of powers. Secondly, In what ways does the separation of powers interact with the independence of the judiciary? Keywords: Judicial Review, Separation of Powers, Independence of Judiciary.

INTRODUCTION

In a modern democracy, the Separation of Powers plays a crucial role and holds a pivotal position. The concept of separation of powers ensure checks and balances amongst the three different yet crucial organs of the government each assigned with different roles and functions. The government, by adopting separation of powers, ensures that there is no concentration of powers in only one organ of government and, thus, no arbitrary actions executed by these organs of the government. However, this diligent exercise often occupies a controversial place with the powers of “Judicial Review” vested in the Supreme Court and the High Court of the country.

This tool of “Judicial Review” though which is not expressly stated in our constitution, ensures that there is no encroachment of powers or functions by one or other organ of the government to ensure checks and balances and to check the constitutional validity of laws made by the legislature which can be at union level or state level. However, there are no inbuilt or express provisions in the constitution of India that support the contentions of “Separation of Powers” and “Judicial Review”, but there are only judicial pronouncements and interpretations as laid down by the Courts in a series of judgements. Thus, it becomes important to understand the evolution of both these disciplines and how they have evolved over time.

1 SEPARATION OF POWERS

The doctrine of Separation of Powers states that ever since the diversification of state has taken place, the functions and powers of the state has been divided into three main organs, namely; Legislature, tasked with the authority of rule-making, makes supervision upon the administration; Executive, responsible to implement laws and policies made by legislature and lastly, Judiciary responsible to interpret the laws and check the constitutionality of the same. In the context of this, the Independence of the Judiciary occupies a significant position because of the “Checks & Balances” that exist between these organs.

The “test of constitutionality” or what we say “Constitutional validity” holds an important position in legal system of India, every statute, policy or law is subject to the constitution meaning thereby, that every such law must be in consonance with the provisions of constitution and does not violate the Fundamental Rights as enshrined in Constitution. The judiciary checks the constitutionality of laws and thus declares them as Ultra-vires (beyond the powers) or Intra-vires (within the powers). Here, the power of Judicial Review comes into play, which is discussed in the later part of this blog.

However, the Indian legal system does not follow a stricter separation of powers that the USA follows but it is merely incorporated under the Indian Constitution to keep a check and balance upon the actions of all three organs of the Government, and no organ can take over the functions and powers of other organs as assigned which forms the part of basic structure doctrine. The mention or source of separation of powers has been witnessed and interpreted under certain provisions of the constitution and to name a few they are; Article 13, Article 50 etc.. On the other hand, there are provisions in the Indian Constitution that support a “Collaborative Approach” of one or two organs of the government, for example, Article 111, etc.

James Madison, a member of the legislative assembly of Virginia has rightly stated that; “But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others... Ambition must be made to counteract ambition. The interest of the man, must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. James Madison on the need for the “separation of powers” because “men are not angels,” Federalist 51 (1788)”. 1 It was held by Hon’ble SC in the case of Ram Jawayya Kapur and Ors. v.

State of Punjab2 (AIR 1955 SC 549), “The Indian Constitution has not recognized the doctrine of separation of powers in its absolute rigidity, but the functions of different branches of the Government have been sufficiently differentiated. One organ cannot assume functions that essentially belong to the other.

2 POWERS OF JUDICIAL REVIEW

The courts in India have been granted the status of a court of Appeal, Supreme Court is the Highest Court of Appeal, followed by the High Courts of the respective states. The courts or Judiciary have been regarded as the “Guardian of Constitution” or “Protector of the 1 https://oll.libertyfund.org/quotes/james-madison-on-the-need-for-the-separation-of-powers-because-men-arenot-angels-federalist-51-1788

2 Ram Jawayya Kapur and Ors. v. State of Punjab (AIR 1955 SC 549).

Fundamental Rights of the People” because of the amount of Independence granted and possession of power to Check and balance amongst the two other organs of the government, makes the Judiciary “Guardian of the Constitution and Fundamental Rights”. But the question arises: does the constitution of India expressly make a mention of the power of Judicial review? Article 13 of the Indian Constitution3, is the primary source from where the Indian Judiciary draws the power of Judicial Review and Article 13 lays down the provision of “Laws inconsistent or in derogation with the Fundamental Rights” and deals with the status of two crucial constitutional points; firstly, clause 1 lays down that, all pre-constitutional laws that which were made before the commencement of the constitution and which violates the fundamental rights of citizens are void to the extent of the inconsistency caused.

Secondly, clause 2 of article 13 prevents the states from making such laws that abrogate fundamental rights, and if this is the case, the law is considered as void. In the landmark case of Keshavan Madhava Menon v. State of Bombay4 the Supreme Court addressed the retrospective effect of Article 13 and states that “laws inconsistent with fundamental rights are void prospectively, not ab initio. This means that such laws remain valid for actions taken before the Constitution’s commencement but become void for future applications”. It was held by the Hon’ble SC in the case of Deep Chand v. State of Uttar Pradesh5 that “post-constitutional laws inconsistent with fundamental rights are void from the beginning and cannot be revived by future constitutional amendments”.

The constitution also makes a mention of Judicial Review in various articles though not expressly but from the implied language of which, power of Judicial Review is drawn and the following are significant constitutional provisions namely; (1) Articles 32 and 226: The Supreme Court and High Court draws is granted writ jurisdiction under article 32 & 226 which empowers the roles of the protector and guarantor of fundamental rights to the Supreme and High Courts. 3 Constitution of India, Article 13, as amended by The Constitution (One hundred and Fifth Amendment) Act, 2021.

4 Keshavan Madhava Menon v. State of Bombay ( AIR 1951 SC 128)

5 Deep Chand v. State of Uttar Pradesh, (AIR 1959 SC 648)

(2) Article 144: This article provides for the Binding Authority of Judgements pronounced by the Supreme Court and states that “All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court. ” (3) Article 137: Gives a special power to the SC to review any judgment pronounced or order made by it. An order passed in a criminal case can be reviewed and set aside only if there are errors apparent on the record. In the Indian legal system, it is clearly established that all state organs are creations of the Constitution, from which they derive their authority and power by way of constitutional provisions or judicial pronouncements and that no branch of government possesses unrestricted powers beyond the Constitution.

The Constitution has established a framework of power relationships that includes checks and balances and it is the responsibility of the Court to uphold constitutional values and enforce the limitations set forth by the Constitution. This principle embodies the doctrine of separation of powers and its application within our constitutional framework, which the Court is tasked with overseeing and protecting. It follows that in a limited government governed by a written Constitution, all state organs are bound to operate within the framework of the Constitution. Consequently, the Constitution is supreme, establishing constitutional supremacy, with the judiciary serving as the final authority on its interpretation and acting as its monitor, defender, and protector. What ensures that the judiciary remains within the limits of its powers?

Primarily, it is the judges' own sense of selfrestraint. WHETHER CHECKS AND BALANCES STRENGTHEN OR WEAKEN THE SEPARATION OF POWERS?

The system of Checks and Balances are considered a fundamental aspect of democracy, it is indeed a sign of Healthy Democracy in the way that, how a government diversifies its powers in different organs so as to avoid, Unconstrained exercise of power, Arbitrariness of decisionmaking and to make sure that there is some kind of supervision or tests to ensure the organs of the government does not override the power assigned to them. Thus, the principle of “Checks and Balances” is core to all the modern democracies in the world.

Checks and balances serve as the frameworks that allocate power within a political system, thereby preventing any single institution or individual from gaining absolute authority. While the terms 'checks' and 'balances' are often used in conjunction, they can be understood as referring to distinct yet interconnected concepts. Checks refer to the mechanisms that enable political institutions to restrict each other's power, which may involve actions such as obstructing, postponing, or openly critiquing decisions. In contrast, balances ensure that a diverse array of perspectives and interests is represented within the democratic process. This encompasses structures like federalism, as well as broader aspects of democratic operation. Checks and balances serve two fundamental purposes.

Firstly, they restrict the majority's ability to act without considering the opinions or interests of others. This mechanism guarantees that minority viewpoints on specific issues are acknowledged, such as by ensuring that dissenting voices are included in the legislative process (for example Article 368 of Indian Constitution). Secondly, on a more pragmatic level, they facilitate the evaluation of policies and the oversight of conduct. This process enhances the quality of decision-making and mitigates actions that could jeopardize the integrity or reputation of the political system. But, there are certain drawbacks to the concept of “Checks and Balances”.

In Indian democracy, there are certain factors that undermine the doctrine of Checks and Balances, and they are, Firstly, there is no clear delineation & division of authority among the various branches of government, which often or can result in overlaps and conflicts. Secondly; the Judiciary has faced criticism for what is perceived as judicial overreach, indicating an undue level of interference by the judiciary in the functions of both the legislature and the executive. Thirdly, the dominance of a single party within the House of Representatives, along with occurrences of circumventing parliamentary accountability measures like standing committees, is undermining the legislative checks on the executive branch.

INTERACTION BETWEEN SEPARATION OF POWERS AND JUDICIAL INDEPENDENCE: In any democratic system, the principle of separation of powers is fundamental to ensuring a balanced and fair governance structure. At the heart of this principle is the independence of the judiciary, which guarantees that courts function without undue influence from the executive or legislative branches. This interaction between separation of powers and judicial independence forms the backbone of constitutional democracy, ensuring that justice is administered fairly, laws are interpreted without bias, and fundamental rights are protected. There are certain ways through which judicial independence is also protected, and separation of powers is also upheld as a core principle of modern democracy.

Firstly, the system of checks and balances and to ensure there is no overreach by the Judicial System, there are necessary limitations as enforced by the constitution. Secondly, the judiciary is also protected from political interference, where it shields the judiciary from undue influence by the executive and legislative branches and lastly, principles of natural Justice and fair governance.

CONCLUSION

Judicial review and the separation of powers form the bedrock of Indian democracy, ensuring that governance remains within constitutional limits while protecting the rights of citizens. The doctrine of separation of powers prevents the concentration of authority in any one branch, while judicial review acts as a safeguard against unconstitutional actions by the legislature or executive. This dynamic interplay reinforces the rule of law and upholds democratic ideals. Over the years, the Indian judiciary has played a pivotal role in shaping the nation’s legal and political landscape, from landmark judgments on fundamental rights to interventions in executive and legislative actions that threatened constitutional principles. Despite occasional criticisms of judicial overreach or delayed justice, the power of judicial review remains essential in preserving democratic values.

However, to maintain a healthy democracy, a balance must be struck—courts must exercise their power responsibly without encroaching upon the domains of the legislature and executive. At the same time, the other branches must respect judicial independence and adhere to constitutional mandates. A strong, independent judiciary and a well-defined separation of powers will continue to be the cornerstone of Indian democracy, ensuring that governance remains accountable, just, and in service of the people.