Published on 12th July 2025
Authored By: Venkatesh Pramod Gaikwad
Manikchand Pahade Law College
Historical Origins in Western Thought
The idea that liberty requires dividing state power into separate branches dates to Enlightenment thinkers. Montesquieu famously argued in The Spirit of Laws (1748) that political authority should be split into legislative, executive and judicial parts, “confided to different individuals or bodies, acting independently,” so that no single person or group gains tyranny.1 In practice, older British constitutionalism relied on a mixed regime with the monarch, Lords and Commons checking one another. As one commentator notes, the U.S. framers reinterpreted this tradition into a functional separation of powers by vesting lawmaking in Congress, execution in the President, and adjudication in the Courts.2
In the United States this scheme was given concrete form by the Constitution of 1787. Notably, Marbury v. Madison (1803) established judicial review. Chief Justice John Marshall held that the Supreme Court has duty to say what the law is, and famously proclaimed “a Law repugnant to the Constitution is void”.3 In other words, the American Supreme Court claimed power to invalidate legislative or executive acts that exceed constitutional limits. This completed the “checks and balances” picture. Congress may legislate, the President may veto or appoint, and the judiciary may strike down unconstitutional acts.
Adoption in India’s Constitutional
The framers of the Indian Constitution drew on both British and American models, adapting separation of powers and judicial review to India’s needs. Unlike in Britain (which has no written constitution or explicit separation), India established a detailed constitution with entrenched rights. Article 13(2) of the Constitution provides that laws inconsistent with Part III (Fundamental Rights) are void, empowering courts to void such laws.4 Article 32 grants the right to approach the Supreme Court for the enforcement of fundamental rights. This provision was coined by Dr. B. R. Ambedkar as the “the very soul of the Constitution”.5 During the Constituent Assembly debates, many discussion had commenced on the topic that, the Supreme Court must be an independent guardian of rights.
The Constitution also reflects separation of powers in structure, though not as rigidly as in the U.S. or Montesquieu’s ideal. In the Indian Constitution, Article 50 obliges the State to “take steps to separate the judiciary from the executive”.[1] The Constitution envisions a parliamentary democracy where the executive (President, Prime Minister, Council of Ministers) are drawn from and accountable to the legislature, yet must operate within constitutional bounds.
Some of the important Constitutional Provisions
Article 13(2)
Article 13 (2) is the foundation for Doctrine of Judicial Review. It empowers the judiciary to invalidate not only laws passed by the legislature but also executive orders or actions that infringe upon the fundamental rights guaranteed under Part III.
This nullification mechanism acts as a constitutional safeguard, preventing the legislature and executive from enacting or enforcing laws that violate core individual freedoms such as the right to equality, freedom of speech, or protection against arbitrary arrest. Article 13(2) thereby establishes judicial review as an intrinsic feature of the Indian constitutional scheme, giving courts the power to act as sentinels of fundamental rights. This judicial check ensures that legislative supremacy is limited by constitutional morality and individual liberties.
Articles 32 and 226
Articles 32 and 226 provide the Supreme Court and High Courts respectively with writ jurisdiction to enforce fundamental rights and provide remedies in case of their violation. Article 32 grants the Supreme Court the power to issue writs such as habeas corpus, mandamus, prohibition, quo warranto, and certiorari for enforcement of fundamental rights. Article 226 confers a similar power on the High Courts, but with broader discretion to enforce not only fundamental rights but also other legal rights. This makes High Courts crucial access points for justice, especially for ordinary citizens. Article 368: Parliament’s Power to Amend the Constitution with Judicially Recognized Limits.
Article 368
Article 368 empowers the Parliament to amend the Constitution “in accordance with the procedure laid down in this article.” This article grants the legislature a broad authority to modify the Constitution, reflecting the principle of constitutional adaptability and democratic sovereignty.
However, this power is not absolute. The Supreme Court in Kesavananda Bharati v. State of Kerala (1973)[2] famously held that Parliament’s amending power under Article 368 is subject to inherent limitations imposed by the basic structure doctrine. According to this doctrine, amendments that alter or destroy the fundamental framework or essential features of the Constitution such as the supremacy of the Constitution, fundamental rights, judicial review, and the separation of powers are unconstitutional and void. Thus, while Parliament can amend the Constitution to meet changing needs, it cannot abrogate the Constitution’s core identity or violate its fundamental principles. This judicial check on parliamentary sovereignty maintains constitutional sanctity and preserves the balance of power between the legislature, executive, and judiciary. Article 368 therefore exemplifies the interplay between legislative supremacy and constitutional supremacy, positioning judicial review as the ultimate arbiter of constitutional amendments’ validity.
In practice, therefore, India’s Constitution provides both a written guarantee of rights and an embedded mechanism for judicial oversight. Any law or executive act that violates a constitutional provision or the “basic structure” of the Constitution can be struck down.
Landmark Supreme Court Decisions
Over the decades, the Supreme Court has defined the scope of judicial review and separation of powers through landmark rulings. Early cases laid the groundwork for review of ordinary laws. For example, A.K. Gopalan v. State of Madras (1950)[3] addressed due process under Article 21, and Maneka Gandhi v. Union of India (1978)[4] later expanded the right to personal liberty. However, the most significant cases concern the extent of Parliament’s amending power and the implicit separation of powers in the Constitution. In Golaknath v. State of Punjab (1967)[5], a divided Court held that Parliament could not amend fundamental rights. It read Article 368’s “law” narrowly, ruling that constitutional amendments fell under Article 13(2) and were thus void if they abridged rights. This effectively challenged the notion of unlimited legislative sovereignty. Soon after, Kesavananda Bharati v. State of Kerala (1973) overruled Golaknath rigidity but imposed a new limitation. A 13-judge bench introduced the basic structure doctrine i.e. Parliament can amend any provision, but cannot alter the Constitution’s essential framework. Chief Justice Sikri (for the majority) famously held that the “basic structure” – including democracy, rule of law, federalism, and separation of powers – is inviolable. In practice, this meant Parliament could not, for example, abrogate fundamental rights or extinguish judicial review. The Kesavananda Court indicated that amending away judicial review or upsetting the balance between fundamental rights and directive principles would destroy the Constitution’s fundamental basis.
During the Emergency era, Parliament adopted the 39th Amendment, which attempted to oust courts’ jurisdiction over election petitions concerning the Prime Minister. In Indira Nehru Gandhi v. Raj Narain (1975),[6] the Supreme Court struck down this amendment. Petitioners had argued that the Amendment “destroys the basic features of the Constitution” and “affects the rule of law and separation of power”. The Court agreed that free and fair elections and judicial review were part of the basic structure and could not be abrogated. Thus, the decision reaffirmed that even very high constitutional amendments are subject to judicial oversight.
The 42nd Amendment (1976) had attempted to immunize certain parts of the Constitution from review. In Minerva Mills Ltd. v. Union of India (1980)[7], the Supreme Court struck down key clauses of that Amendment. Chief Justice Chandrachud declared that “judicial review is crucial to the Constitution’s basic structure.” He struck down the clauses (Articles 368(4)–(5) and the corresponding parts of Article 31C) that sought to bar review, observing that without judicial review, “democracy would be reduced to a facade. In effect, Minerva Mills reinforced Kesavananda: Parliament’s amending power is limited, and it cannot destroy the Constitution’s balance between fundamental rights and directive principles, or eliminate the judiciary’s check on power.
In L. Chandra Kumar v. Union of India (1997),[8] a seven-judge bench extended the basic structure doctrine to judicial procedure itself. The Court held that Articles 32 and 226 grants the Supreme Court and High Courts the power to enforce fundamental rights which are “integral and essential features” of the Constitution’s basic structure. This decision arose in the context of new administrative tribunals: the Court ruled that even if Parliament creates such tribunals, the right to go to the High Courts and Supreme Court for enforcement of rights cannot be taken away. Thus L. Chandra Kumar underlined that judicial review is so fundamental that it cannot be legislatively ousted.
The Ninth Schedule had been created in 1951 to protect land reform laws from challenge, but over time many other laws were added to it. In I.R. Coelho v. State of Tamil Nadu (2007)[9], the Supreme Court addressed whether Ninth Schedule laws (post-Kesavananda) were beyond review. The nine-judge Court unanimously held that all laws placed in the Ninth Schedule after 24 April 1973 are subject to judicial review. In other words, no law is immune if it violates the Constitution’s fundamental structure. This judgment “reaffirmed the judiciary’s role as the guardian of the Constitution,” ensuring that Parliament cannot insulate ordinary legislation from review even by shoving it into a schedule.
Separation of Powers and Balance of Institutions in India
India’s Constitution thus embodies a working balance of powers. The Legislature (Parliament and state assemblies) enacts laws on subjects under the Union, State and Concurrent Lists, but its actions must conform to constitutional boundaries. The Executive (the President/Governor as head of state, and the Council of Ministers) administers and enforces laws; it is accountable to the Legislature through confidence conventions, and its ordinances and actions can be reviewed by courts. The Judiciary (Supreme Court and High Courts) interprets laws and enforces the Constitution; it is independent in appointment and tenure, and it has the power to invalidate government action that violates constitutional provisions.
In practice, Indian democracy does not enforce a rigid separation as in the pure Montesquieu model. For example, ministers must be legislators, and some senior judicial and bureaucratic figures have held multiple roles. Nonetheless, the system ensures mutual checks. Parliament retains ultimate power to amend the Constitution under Article 368 (subject to the basic structure limit), to impeach judges (Articles 124–125), and to legislate broadly. The Executive can veto legislation or refer constitutional questions back to the Parliament (Articles 111, 143), can promulgate ordinances (Article 123) with temporary effect, and can be held to account by the courts. Conversely, the Judiciary’s power of review means that no law or executive order may stand if it infringes the Constitution or fundamental rights (Article 13).
The Supreme Court itself has emphasized that judicial review complements separation of powers. For instance, in 2024 the Court noted that the power of judicial review “fosters the concept of separation of powers by ensuring a system of checks and balances”. In other words, allowing courts to strike down unconstitutional acts actually helps maintain the balance among branches, rather than undermine it. At the same time, courts respect the domain of the Legislature and Executive by refusing to enter policy questions or reopen purely political decisions.
Conclusion
Ultimately, India’s separation-of-powers doctrine is flexible. The framers aimed for an ideological rather than absolute separation: as one commentator observed, India’s Constitution “provides for a fair division of duties and authority among the three branches”. Over decades of jurisprudence, the courts have given concrete meaning to this division. The basic structure cases (starting with Kesavananda) ensure that Parliament cannot usurp the core powers of the judiciary or executive. The writ jurisdiction cases (like L. Chandra Kumar) guarantee that citizens always have access to judicial remedies. And day-to-day practice, including judicial review of ordinary legislation and executive action, enforces the rule of law. In this way, the Indian system upholds the separation of powers not by walling off each branch, but by holding each branch accountable to the Constitution and to the other branches.
References
[1] Constitution of India 1950, art 50.
[2] AIR 1973 SC 1461
[3] AIR 1950 SC 27
[4] 1978 2 S.C.R. 621
[5] 1967 AIR 1643
[6] 1975 AIR 865
[7] AIR 1980 SC 1789
[8] AIR 1997 SC 1125
[9] [2007] 1 S.C.R. 706
