Separation of Powers and the CJI’s Refusal

Why in news?

CJI Surya Kant declined Opposition leaders’ meeting request on allegations against the CEC, citing separation of powers and judicial propriety.

UPSC Relevance 

Prelims: Separation of powers, Articles 50, 121, 122, 123, 142, basic structure cases.

Mains: GS2 – Separation of powers between various organs, dispute redressal mechanisms and institutions; Comparison of the Indian constitutional scheme with that of other countries. 

What is Separation of Powers?

• Meaning: Government power is divided among three organs – the legislature (makes laws), the executive (implements laws) and the judiciary (interprets laws and settles disputes).
• Origin: The idea goes back to Aristotle and John Locke, but was systematically explained by French thinker Montesquieu in The Spirit of Laws (1748). He argued that liberty is lost when the same person or body holds all three powers.
• Three core elements:
  • The same persons should not be part of more than one organ.
  • One organ should not control or interfere with the work of another.
  • One organ should not perform the functions of another.
• Checks and balances: A related idea, whereby each organ keeps a check on the others so that no one becomes all-powerful. Strict separation is rarely practical; most democracies follow a mix of separation and checks.
• Purpose: Prevent concentration of power, protect individual liberty, ensure accountability and efficiency through specialisation.

Separation of Powers in the Indian Constitution

The phrase ‘separation of powers’ does not appear anywhere in the Constitution. India follows a functional separation – each organ has a defined sphere, but there is deliberate overlap with checks and balances.

Provisions that separate the organs

• Vesting of powers: Executive power in the President (Article 53) and Governor (Article 154); legislative power in Parliament (Article 79) and State Legislatures (Article 168); judicial power in the Supreme Court (Article 124) and High Courts (Article 214).
• Article 50 (DPSP): The State shall take steps to separate the judiciary from the executive in the public services of the State.
• Articles 121 and 211: Legislatures cannot discuss the conduct of a judge in the discharge of duties, except on a motion for removal.
• Articles 122 and 212: Courts cannot question the validity of proceedings in the legislature on grounds of irregularity of procedure.
• Article 361: The President and Governors are not answerable to any court for the exercise of their official powers.
• Articles 105 and 194: Privileges of legislators, including freedom of speech in the House.
• Judicial independence: Security of tenure (removal only by special majority under Article 124(4)); salaries charged on the Consolidated Fund and cannot be reduced to their disadvantage (Article 125); bar on practice after retirement (Article 124(7)).

Where the organs overlap – checks and balances

What the courts have said

• Ram Jawaya Kapur v. State of Punjab (1955): India does not follow a rigid separation of powers, but the functions of the organs are sufficiently differentiated.
• Kesavananda Bharati (1973): Separation of powers was listed among the features of the basic structure, which Parliament cannot destroy through amendment.
• Indira Nehru Gandhi v. Raj Narain (1975): Reaffirmed that separation of powers is part of the basic structure; struck down a clause that took the PM’s election dispute out of judicial review.
• Asif Hameed v. State of J&K (1989) and Aravali Golf Club (2008): Courts must practise judicial restraint and should not take over the functions of the executive or legislature.
• Supreme Court Advocates-on-Record Association (2015): Struck down the NJAC (99th Amendment), holding that executive role in judicial appointments threatened judicial independence.

How India Differs from Other Democracies

• France: Montesquieu’s home country follows a semi-presidential system, with a separate Constitutional Council and administrative courts that keep ordinary courts away from reviewing government action.

The Present Case

• The request: On October 10, Leaders of Opposition in both Houses, Mallikarjun Kharge and Rahul Gandhi, wrote to the CJI seeking a meeting over the CEC’s conduct during the SIR, detention of protestors and the lockdown of arterial Delhi. A second representation sought SIR records, an inquiry by a retired SC judge, and suspension of the SIR, asking the CJI to treat it as a letter petition.
• The CJI’s reply (October 12): The issues were already sub judice; meeting to discuss pending cases would violate separation of powers and judicial propriety. The Supreme Court has no administrative power to deal with such matters – the leaders should invoke its judicial powers. A writ petition was later filed by Mr. Gandhi and 12 other Opposition leaders.

Is there another view?

• The Supreme Court has itself accepted letters as petitions (epistolary jurisdiction) since the PIL era of the 1980s – S.P. Gupta (1981) and Sunil Batra cases. Critics say the gravity of electoral issues could have justified a quicker response.
• However, the CJI did not refuse to hear the issue – he only refused a meeting and assured an early hearing. The remedy under Article 32 remains open.

Judicial Propriety – Past Controversies

• Supersession of judges (1973): After Kesavananda Bharati, three senior judges were superseded to appoint Justice A.N. Ray as CJI; all three resigned.
• Press conference (January 2018): Four senior judges publicly raised concerns over case allocation by the then CJI.
• Post-retirement posts: Nomination of former CJI Ranjan Gogoi to the Rajya Sabha (2020) raised questions about judicial independence.
• Public praise and private visits: Remarks by sitting judges praising political leaders and the Prime Minister’s 2024 visit to the then CJI’s residence for Ganesh Puja drew criticism over perceptions of closeness.

Way Forward

• Codify judicial ethics: Give the Restatement of Values and the Bangalore Principles a clearer, enforceable framework with an in-house mechanism.
• Cooling-off period: For post-retirement appointments of judges to political or government posts.
• Transparent appointments: Finalise the Memorandum of Procedure for the collegium and for appointments to bodies like the ECI.
• Institutional dialogue, not private meetings: Concerns of political actors should reach the judiciary through petitions; executive-judiciary coordination should happen through formal forums like the Chief Justices’ Conference.
• Respect for each other’s domains: The legislature and executive must also avoid public attacks on judges and pending cases.

Conclusion: Separation of powers in India is not a wall but a set of boundaries with checks across them. The CJI’s refusal shows that the judiciary’s strength lies in speaking only through open, reasoned judgments – which is also what keeps public trust in its neutrality.

Practice MCQ

Q1. Consider the following statements regarding separation of powers in India:

1. The term ‘separation of powers’ is expressly mentioned in the Constitution of India.

2. Article 50 directs the State to separate the judiciary from the executive in the public services of the State.

3. In Kesavananda Bharati (1973), separation of powers was recognised as a part of the basic structure.

How many of the statements given above are correct?

(a) Only one     (b) Only two     (c) All three     (d) None

Answer: (b). Statement 1 is incorrect. The doctrine is implied, not expressly stated.

Q2. Consider the following statements:

Statement I: Under Article 121, Parliament cannot discuss the conduct of a Supreme Court judge in the discharge of duties, except on a motion for removal.

Statement II: The Constitution of India follows a strict separation of powers on the lines of the USA.

Which one of the following is correct in respect of the above statements?

(a) Both Statement I and Statement II are correct and Statement II explains Statement I

(b) Both Statement I and Statement II are correct but Statement II does not explain Statement I

(c) Statement I is correct but Statement II is incorrect

(d) Statement I is incorrect but Statement II is correct

Answer: (c). India follows functional separation with checks and balances; the executive and legislature are fused under the parliamentary system.

Mains Practice Question

Q. “The Indian Constitution does not follow a rigid separation of powers, yet the doctrine is part of its basic structure.” Explain with reference to constitutional provisions and judicial pronouncements. How does the Indian model differ from those of the USA and the UK? (15 Marks, 250 words)

PDF