Separation of Judiciary from Executive

In today's society, the rule of law is critical. People have given up their rights and entered into a contract with the government in exchange for protection from the government. Judicial review is the procedure through which the court declares invalid any statute that violates the constitution.

Branches of Government

In India, there are three branches of government: the legislature, the executive, and the judiciary. The judiciary maintains an eye on both the organs mentioned above and ensures that the laws being produced and implemented do not violate the Indian Constitution. The Legislature performs the duty of establishing laws, the Executive executes or implements the laws, and the Judiciary keeps a check on both of the aforementioned organs. Separation of powers is a component of our constitution that allows various organs to function within their defined boundaries. The separation of powers is discussed in Article 50 of the Indian Constitution.

Article 50 of the Constitution

However, Article 50 of the Indian Constitution, as incorporated in the form of Directly Principles in Part IV, states that the state shall take measures to separate the judiciary from the executive in state-run services. The Indian Constitution's Article 50 suggests that it is intended to keep the judiciary and executive branches apart from one another. However, a thorough examination of Article 50 of the Indian Constitution's legislative history would show that its primary goal was always to take action to separate the executive from the lower courts.

Separation of Power

Separation of powers refers to the division of the government's legislative, executive, and judicial duties. It reduces the likelihood of arbitrary government excesses by requiring the approval of all three branches for the creation, execution, and administration of legislation. The constitutional principle prohibits any branch of government from concentrating excessive power.

Constitutional Provision of Separation of Power

The Constitution's basic structure includes the concept of separation of powers, though it is not expressly mentioned. The legislature cannot approve legislation that violates this concept. The functions of the three organs are expressly specified in the Constitution.

Consider some of the provisions of the Constitution that advocate for separation of powers.

  • Article 50 − According to this article, the state is required to keep the judiciary and executive branches distinct. However, because this is covered by the Directive Principles of State Policy, it is not binding.

  • Article 123 − The President, as the country's executive leader, has the authority to exercise legislative powers (promulgate ordinances) under specified situations.

  • Articles 121 and 211 provide that legislators may not debate the behaviour of a Supreme Court or High Court judge. They can only do so if the president is impeached.

  • Article 361 − The President and Governors are immune from legal action.

Elements of Separation of Power

  • Legislature − The legislature is the body responsible for enacting laws, and it has the power to do so for a political entity like a nation. Legislation adopted by the legislature is referred to as "primary legislation." The legislature serves as the foundation for the other two organs' operations.

  • Executive − The executive branch of government comprises Prime Ministers/Chief Ministers and Presidents/Governors. The executive is totally dependent on the powers granted to it by the legislature, and its acts may or may not be subject to judicial scrutiny.

  • Judiciary − The judiciary is the democracy's watchdog, as it protects the constitution. The judiciary is made up of the Supreme Court, High Courts, District Courts, and various subordinate courts.

Relationship between the Executive and the Judiciary

The Constitution has many provisions that establish the independence of the judiciary. The reason for this is that it is widely accepted that the court has to be independent in order for a democracy to continue to function effectively. The judiciary is seen as the constitution's protector. Such a government is prone to becoming repressive if the administration also exercises judicial authority.

However, the executive is also responsible for some judicial responsibilities. They are as follows:

  • The executive is in charge of appointing judges.

  • The President and the Governors have the authority to pardon, reprieve, and so on. These are straightforward judicial tasks.

  • Under the administrative adjudication system, the executive agencies have the authority to hear and determine issues concerning certain domains of administrative activity.

The judiciary also has certain executive powers. It has the authority to evaluate presidential acts and declare them unconstitutional if they are determined to be so.


A strong democratic system requires an independent judiciary. Only an impartial and independent judiciary can serve as a bulwark for the preservation of citizens' rights and deliver even-handed justice without fear or favor. The judiciary may be required to invalidate executive, administrative, and legislative actions of the federal and state governments since it is the guardian of the Constitution. Judicial independence is critical for the rule of law to flourish. The Constitution typically guarantees the independence of the judiciary, although other appropriate laws, agreements, and customs may also guarantee it. However, the Constitution or the basic rules governing the judiciary are merely the beginning point in the process of ensuring judicial independence.

Finally, the independence of the judiciary is dependent on the creation and support of a conducive environment by all state institutions, including the judiciary and public opinion. The judiciary's independence must also be continually defended against unforeseen occurrences and changing social, political, and economic situations; it is too delicate to be left unattended. Article 50 of the Indian Constitution is the Directive Principles of State Policy and cannot codify any idea of judicial separation from the executive.

Frequently Asked Questions

Q1. What separates judiciary from execution?

Ans. Article 50 of the Indian Constitution separates the executive from the judiciary. Although unjustifiable, the constitution establishes a set of State Policy Directive Principles that are "essential for the government of the country," and it is the state's obligation to make provisions for them when laws are passed.

Q2. What is the separation of powers in the Constitution?

Ans. It is a doctrine in which the three organs of the government, the executive, the legislature, and the judiciary have separate functions and powers, and one organ does not interfere with the functioning of the others.

Q3. Who introduced the separation of powers?

Ans. The idea was developed in a methodical and scientific way by the French political philosopher Charles-Louis de Secondat, Baron de Montesquieu, in the 18th century, even though it had been in use since antiquity.

Q4. Why Indian Constitution is divided into executive and judiciary?

Ans. According to this rule, the state is separated into three distinct branches: legislative, executive, and judicial, each with its own autonomous power and duty, so that one department does not interfere with the operations of the other two.

Updated on: 20-Feb-2023


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