JUDICIAL REVIEW AND THE DOCTRINE OF SEPERATION OF POWERS

Published On: October 13th 2025

Authored By: Madhura Karmakar

Jogesh Chandra Chaudhuri Law College,
University of Calcutta

ABSTRACT:

Judicial review and the doctrine of separation of powers are two closely related concepts responsible for creating a balanced government in the country. Judicial review empowers the court to have a check on the other two organs for the potential misuse of powers. While the doctrine of separation of powers divides every organ to prevent it from becoming too dominant in nature. However, as J. Surya Kant mentioned, the power of judicial review cannot undermine separation of powers. It should be seen as a nexus, rather than a limitation.

KEYWORDS: Judicial review, separation of powers, nexus.

INTRODUCTION:

Both the concept of judicial review and the doctrine of separation of powers are new to modern constitutional democracies. Both together serve as checks and balances in the system to prevent arbitrary use of powers. While doctrine of separation of powers divides the governmental functions into three different organs, judicial review empowers the judiciary to assess the legality of actions taken by the other two organs of the government.

The relationship between these two concepts is a bit complex to understand. Excess of both the powers can destroy the undermine basis of constitutionalism of a democratic country. Through this article, we shall understand the historical roots, evolution and emerging trends of these.

THE DOCTRINE OF SEPERATION OF POWERS:

The concept of separation of powers came from France during the enlightenment period. French philosopher Montesquieu in 1948 put forth the concept of separation of powers in his book De I’Espirit des Lois, also known as the ‘Spirit of Laws’. He argues that the liberty of an individual is protected only when the powers of the three organs of the government act independently. It was widely accepted but came with some challenges. Today, the system of checks and balances is followed rather than complete separation of powers.

Later on, John Locke advocated that the separation between legislative and executive branches is essential for protecting individual liberty. He did not argue for strict separation of powers, but his concept helped in the development of the system of checks and balances.

The doctrine of separation of powers divides powers between the three wings of government, i.e., legislature, judiciary and executive. Article 50 of the constitution articulates the separation of powers among the three organs of the government. This demarcation by the Constitution does not allow concentration of power in any single organ of the government. It also establishes the system of checks and balances, which is also followed by the USA.

SYSTEM OF CHECKS AND BALANCES:

LEGISLATURE’S CONTROL:

ON JUDICIARY: Power to impeach the judges of any court in the country and also to amend laws that are declared unconstitutional by the court of law.
ON EXECUTIVE: It has the power to assess the works of executive through question hour.

EXECUTIVE CONTROL:

ON JUDICIARY: The president appoints the Chief Justice of India along with other judges of the supreme court of India.
ON LEGISLATURE: Power to exercise delegated legislation, which vests it with the authority to regulate laws.

JUDICIAL CONTROL:

ON EXECUTIVE: It exercises the power of judicial review upon the act of the executive to determine its constitutionality.
ON LEGISLATURE: Cannot amend the basic structure of the constitution.

This division between the three organs of the government prevents concentration of power and ensures accountability. Article 13 of the constitution gives the power of judicial review. there are many cases where the separation of powers has been upheld.

Judicial Interpretations:

P. Gupta v. Union of India (1981)[1]: the supreme court emphasized the need for judicial independence where judiciary can be free from the intervention of executive organ of the government.
Shayara Bano v. Union of India[2] (2017): Article 50 of the Constitution aims to separate the judiciary in public services from the executive.
State of Bihar v. Bal Mukund Shah[3] (2000): supreme court emphasized separation of judiciary from executive to ensure the independence of judiciary
State of Bihar v. Madan Mohan Singh[4] (1977): supreme court held that executive authorities cannot perform judicial functions.
Union of India v. R. Gandhi (2010): judicial independence is non-negotiable and article 50 strengthens the need to separate executive control from judicial functioning.

JUDICIAL REVIEW:

The careful observation and frequent debates of the Constituent Assembly led to the inclusion of Article 13. The framers acknowledged the necessity of safeguarding fundamental rights from legislative encroachment; thus, they integrated provisions for judicial review, enabling courts to deem laws unconstitutional if they infringe upon these rights. Article 13 underscores a dedication to upholding justice and democracy and is shaped by global constitutional principles, including the judicial review doctrine established by the U.S. Supreme Court’s decision in Marbury v. Madison (1803).

Judicial review is an essential feature of the Indian Constitution. It gives the bar the authority to check the validity of laws made by the council and conduct taken by the superintendent. This ensures that both are in line with the Constitution. The doctrine of Judicial Review protects the Constitution’s authority and safeguards the independence of the three organs.

Constitutional Foundation of Judicial Review

Although the Indian Constitution does not directly mention “Judicial Review,” numerous provisions implicitly support it:

Article 13: States that any law that contradicts Fundamental Rights is null and void. This establishes the basis for judicial review.
Articles 32 and 226: It acts as a constitutional remedy which grant the Supreme Court and High Courts the authority to issue writs for enforcing Fundamental Rights in cases of violation.
Articles 131–136: Provide the Supreme Court with special jurisdiction to resolve constitutional disputes.
Article 246 and Schedule VII: The allocation of legislative powers ensures that judicial review can scrutinize laws enacted beyond the authority of legislatures.
Article 143: The advisory jurisdiction further enhances judicial power.

Collectively, these provisions position the judiciary as the protector and interpreter of the Constitution.

Evolution Through Case Laws

Early Approach: Limited Review

K. Gopalan v. State of Madras (1950)[5]: The Court took a narrow interpretation of Fundamental Rights, determining that each right was separate and not interrelated. The ruling upheld preventive detention, restricting judicial oversight concerning personal liberty.

Legislative Power to Amend Constitution

Shankari Prasad v. Union of India (1951)[6]: The Supreme Court affirmed Parliament’s authority to amend the Constitution, which includes Fundamental Rights.
Sajjan Singh v. State of Rajasthan (1965)[7]: This case reaffirmed that amendments enacted under Article 368 are not subject to being nullified.
Kesavananda Bharati v. State of Kerala (1973)[8] The corner case where a 13- judge bench held that while Parliament has wide powers to amend the Constitution, it cannot alter its introductory structure. Judicial Review itself was declared part of this introductory structure, thereby getting unassailable.

Struggle Against despotism

Indira Nehru Gandhi v. Raj Narain (1975) [9]The Supreme Court struck down an indigenous correction that sought to count judicial review of election controversies involving the Prime Minister. The judgment affirmed that judicial review is integral to republic.
ADM Jabalpur v. Shivkant Shukla (1976)[10] Famously known as the Habeas Corpus case, the Supreme Court held the suspension of fundamental rights during emergency. This decision is termed as a failure of judicial review.

Reaffirmation of Judicial Supremacy

Minerva Mills v. Union of India (1980)[11] this case reiterated the Basic Structure Doctrine and emphasized that judicial review is part of the Constitution’s basic structure. The Court struck down the provisions that tried to give unlimited amending power to Parliament.
Waman Rao v. Union of India (1981)[12] Upheld the validity of indigenous emendations but maintained that emendations after Kesavananda Bharat verdict would be subject to judicial review.

Rise of Judicial Supremacy

Golak Nath v. State of Punjab (1967)[13]: This case marked a significant shift as the Court ruled that Fundamental Rights cannot be altered, placing them beyond the scope of Parliament’s amending powers.

ADVANTAGES OF JUDICIAL REVIEW

Some of the key advantages of judicial review can be outlined as follows:

Reinforces Constitutional Authority – Judicial review strengthens the idea that the Constitution is the highest law of the land and ensures that all laws and government actions align with all the provisions of the Constitution.
Balance of Power – By exercising judicial review, courts provide a check on the powers of both the legislative and executive branches of government. This supports a balance of power and prevents any single branch from becoming excessively dominant or misusing its authority.
Prevents Abuse of Authority – It helps prevent the abuse of power by the legislature and executive. This, in turn, guards against the potential for government tyranny.
Safeguards Citizens’ Rights – Judicial review serves as a protection against government actions that violate the rights and freedoms of individuals guaranteed by the Constitution.
Maintains Federal Structure – It assists in resolving disputes related to the allocation of powers between the central government and the states, thereby ensuring the federal structure remains intact.
Preserves Judicial Independence – By preventing the executive and legislative branches from infringing upon the judiciary’s authority, it helps maintain the independence of the judiciary.
Protection of Minority Interests – Judicial review acts as a safeguard against the oppression of minority groups by protecting their rights from unjust or discriminatory laws targeting vulnerable or marginalized communities.
Promotes Accountability and Openness – Judicial review increases transparency and accountability in governance, ensuring that governmental decisions are open to public scrutiny and oversight.

INTER-RELATION BETWEEN JUDICIAL REVIEW AND SEPERATION OF POWER DOCTRINE:

The connection between judicial review and the separation of powers is interdependent:

Judicial review acts as a protector of the separation of powers:

Judicial review inhibits the legislature from overstepping its boundaries into judicial responsibilities or enacting arbitrary laws. Likewise, it curtails the executive from misusing its discretionary authority. In the case of Indira Gandhi v. Raj Narain (1975), the Supreme Court annulled Article 329A, which was added during the Emergency, asserting that excluding judicial review from elections was in violation of the separation of powers.

Separation of powers marks the foundation for judicial review:

The principle of separation of powers explains the rationale behind the existence of judicial review. As each branch has defined powers, it is the judiciary’s duty to ensure that the legislature and executive do not exceed their respective limits. In the case of I.R. Coelho v. State of Tamil Nadu (2007)[14], the Court determined that constitutional amendments could also be subject to judicial review if they violate the basic structure, reaffirming the judiciary’s supremacy in matters pertaining to the constitution.

Implementation of checks and balances:

Although the judiciary possesses the power of review, it is also confined by constitutional parameters. For example, in S.R. Bommai v. Union of India (1994)[15], the Court evaluated the President’s declaration under Article 356 but it also articulated that it would refrain from assessing the political soundness of the action. Thus, judicial review maintains respect for the separation of powers while ensuring accountability.

CONCLUSION:

The principles of judicial review and separation of powers, although conceptually separate, are closely linked in their application. Separation of powers outlines the constitutional framework by allocating governmental authority among three co-equal branches: the legislature, the executive, and the judiciary, while judicial review serves as the oversight tool that maintains this equilibrium. Thus, judicial review can be viewed as both a protector and an outcome of separation of powers.

If separation of powers acts as a preventive measure against the accumulation of power, judicial review functions as a remedy that intervenes when any branch exceeds its authority. For instance, when the legislature enacts laws outside its jurisdiction or the executive issues capricious directives, judicial review intervenes to correct such actions. Therefore, judicial review operationalizes the principle of separation of powers by fostering accountability and upholding constitutionalism.

However, their relationship is not strictly hierarchical but rather reciprocal in nature. Judicial review is fundamentally based on the principle of separation of powers—it exists because the judiciary, as an autonomous entity, has the responsibility to interpret and uphold the Constitution. In the absence of judicial review, the concept of separation of powers would be merely an ideal without a means of enforcement. Conversely, without separation of powers, judicial review would lack credibility, as the judiciary would not possess a distinct and independent function.

In the end, the two doctrines align with the overarching principle of constitutional supremacy. Separation of powers governs the allocation of governmental responsibilities, while judicial review serves as the watchful guardian that monitors the limits of these powers. Together, they uphold the balance of governance, protect individual liberties, and thwart authoritarianism. Their interdependence is crucial for the operation of any contemporary constitutional democracy, particularly in a nation like India, where constitutionalism and the rule of law underpin the legal framework.