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“Independence of Judiciary” is the basic feature of the Indian constitution that guarantees the proper application of rule of law. One of the aspects of this Independence is the separation of power which is the key feature of the constitution and this means that other branches of the state like the legislature and executive cannot interfere in the work of the judiciary. As India does not follow the separation of power in its true sense, a certain amount of overlap in the function of organs is witnessed. Such overlapping is necessary for the Indian context, but to a certain degree, if such is extended it may hamper the “independence of Judiciary”. It is not only hampered by the Executive, but also by external pressure and prejudices. This article deals with encroachment in the independence of the judiciary in the light of executive and judicial overlapping of powers and post-retirement benefits to judges provided by political parties. The article mainly focuses on the thin line of separation of powers between the executive and judiciary, and the loophole which gives rise to a cycle of superseding of judges who may have given decisions in the matter of governmental affairs.

KEYWORDS – Independence of judiciary, separation of power, superseding, post-retirement benefits.


“power corrupts and absolute power corrupts absolutely”

 – Sir John Dalberg-Acton

The term ‘trias political or ‘separation of powers established by the Constitution, refers to the division of responsibilities, authorities, and powers between groups rather than being centrally held. Montesquieu stressed that there must be a division of power, which should never be monopolized in one organ. Originating from the USA, it implies that each pillar of democracy performs separate functions and acts as a separate entity. Its main purpose is to prevent the concentration of power and provide checks and balances. One of the true applications of ‘separation of powers can be seen in the branches of US Government, where the Legislative is responsible for the enactment of laws, and the Executive is responsible for its implementation, while on the other hand, the Judiciary is responsible for the interpretation, and its application in case of any disputes. While separation of powers is necessary for the American government to work, no democratic system can claim to have an absolute separation of powers or to have none at all.

Because government authority and responsibilities are simply too complicated and interconnected to be properly segregated, they are purposefully overlapping. As a result, there is an inherent level of competition and conflict among the many branches of the government. Throughout American history, supremacy has ebbed and flowed between several parts of government. Determining where power lies is a natural part of the evolutionary process, as shown by such interactions. “Even in the United States of America where the Doctrine of Separation of powers finds itself most vigorously canvassed, it has not found favour in absolute undiluted form”.

Montesquieu envisioned ‘separation of powers’ with some important elements –

1. One person should not be performing more than one function.

2. One organ should not interfere in the working of another.

3. One organ shouldn’t exercise the power assigned to another organ.

This is applied in the American Government due to the concept of ‘Parliamentary sovereignty, the literal translation of which is ‘supreme authority. Sovereignty can be explained in a two-fold approach – one may provide absolute sovereignty by keeping the Parliamentary view as final or upholding Parliamentary sovereignty in areas where Parliamentary role is limited. It has been a stated by AV Dicey – “The principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament thus defined has, under the English Constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”.

The Indian Parliament in this regard is not as powerful as the British Parliament because it operates within the limits set by its Constitution, and there is Judicial review in India, though not as extensive, which follows due process of law rather than procedure established by law, as per “Article 21 of the Constitution”. In the United Kingdom, Parliament has broad powers to amend, abolish, or modify the Constitution, but in India, there is a distinction between statutory and Constitutional law, and special provisions are included in the Constitution to allow for revisions under Article 368. The Indian Parliament does not have supremacy over the Indian Constitution, and India maintains a balance between Judicial and Legislative scrutiny. However, the three pillars of Government must work together and not infringe on the rights of others. On the other hand, “Parliament reserves the right to extend its jurisdiction to List I and List III,” as well as to act on behalf of two or more States, as Stated in Article 252. In India, Parliamentary powers are drawn from the Constitution, and Parliament does not have unrestrained or arbitrary power to override it. The issue is not one of parliamentary or judicial supremacy, but rather of establishing a balance between the two to achieve a democratic system that does not jeopardize the public interest.

From a cursory examination, it is evident that there is a” functional overlap in the three organs” in India, which contradicts “Montesquieu’s third premise”. This leads to the conclusion that a strict division of powers, as defined by the “Doctrine of Separation of Powers”, is undesirable in a democracy. The separation of powers hypothesis is a separation of functions theory. As a result, the principle of the Separation of Powers has several flaws. Absolute and tight division of powers is neither conceivable nor desirable, according to all experts. Three government organs cannot and should not be divided into distinct, water-tight boxes.


The Indian democratic system creates a framework that presupposes, implements, and reinterprets the separation of powers to fit the needs of good governance. Any democratic state cannot implement a comprehensive and impenetrable separation, which is not only impossible but also injurious to the organs. Despite differing interpretations of the Doctrine of Separation of Powers in democracies around the world, one thing has remained constant: the independence of the judiciary is crucial to maintaining the balance between the three arms of government.

It can therefore be established, “There can be no liberty” unless “judicial powers are separated from legislative and executive powers.” If the powers of the three different organs were committed to the same body, democracy would come to an end, and people’s lives and liberties would be vulnerable to arbitrary rule. The importance of the Doctrine of Separation of Powers can only be appreciated by considering the ramifications of it not existing at all. Although a simple division of powers between the three organs of government, as described by Baron de Montesquieu, is theoretically viable, it cannot be implemented in India or throughout the democratic sphere in its purest definition.

When the Constitution was first drafted, the separation of the executive and judiciary was recognized as DPSP. It means that in its absolute form, the Constitution did not contain a perfect division of powers between the three branches of government. However, while the Constitution was being revised, Mr. K. T. Shah advocated that Article 40-A of the Indian Constitution be altered to include total separation of powers. In response to Mr. K.T. Shah’s amendment, Shri K. Hanumanthaiya Stated that “we have approved the parliamentary form of government and the amendment raised was of the nature of presidential executive.” He was in support of the complete separation of three organs of the Government but not in the Parliamentary form of Government since the Constitution had already been drafted and bringing such a change would change the whole structure of the Constitution, hence India has not adopted absolute separation of power, although Article 50 as DPSP speaks about separation of power between Executive and Judiciary.

Hence in India, the Executive wing is responsible for the governance of the State i.e. it not only formulates the laws but also Implements them. Under Article 75 of the Indian Constitution, the Prime minister is the leader of the Executive branch, appointed under the hands and seal of the President, PM leads the Union cabinet, for 5 years. The Judicial branch re-enforces and interprets the laws, the role of the court is to decide the cases and conflicts based on the circumstances and laws. As a result, a complete separation of the functions of the three government institutions is not only impossible but also impractical, because the inherent nature of their functions necessitates some degree of interdependence. A situation in which their powers or functions are completely separated would result in ineffectual governance.

Independence of Judiciary, assured through the Constitution, is the sine qua non of Indian democracy, especially for the rule of law to prevail. It does not however imply arbitrariness and is, therefore, is accountable to the Constitution. The Judiciary, hence, is an active participant, ready to use the law to serve social justice via a proactive goal-oriented approach. In India, although Legislative and Executive are connected, Judicial independence ensures a fair and just Judicial system in the country. It has been held in the case of A.C. Thalwal v. High Court of Himachal Pradesh, that “the Constitutional scheme aims at securing an independent Judiciary which is the bulwark of democracy”. In the S.P. Gupta v. President of India, Fazal Ali, J. has Stated that “independence of Judiciary is a basic structure of the Constitution, but the said concept of independence has to be confined within the four corners of the Constitution.” In short, we have independent Judicial powers and functions to some extent and Article 50, now includes Judicial independence as a guiding principle.

The system of checks and balances helps in the proper functioning of the branches and guarantees decentralization of power, as it allows for a regulation based on the system which allows one branch to limit another. The theory holds that no branch should be given unchecked powers, organs enjoy along with their powers, some form of check over the powers of the other two organs. This way a balance should be secured to prevent any arbitrary use of power by any solo organ of the Government. 

The judicial review encompasses the power of the Judiciary to keep the other organs in check, thus enshrining rule of law and maintaining separation of power. The main framework within which the Judiciary’s limits is Judicial review of Administrative and Legislative actions, as well as to defend the Constitution’s sanctity and citizens’ fundamental rights, many constitutional modifications are being examined in light of constitutional provisions. As a result, in India, all three branches have “checks and balances” in place to maintain the balance of power and ensure that they do not exceed their constitutional bounds.

The Executive should only carry out administrative responsibilities, such as enforcing laws and maintaining peace and order, in theory, under a strong separation of powers. However, the Indian Constitution’s “functional overlap” permits the Executive to execute essential legislative and judicial responsibilities in addition to administration, and the Judiciary to exercise control over the legislature and executive, in addition to its functions.


Dr. Ambedkar observed that the two important matters Constitution has to deal with are the form of Government and the Constitution. While addressing the situation, it is quite clear that the political background of India during the British regime played a massive role in the formation of the Government. The relation between the Executive and Judiciary in India has always been a debatable issue, rule of law demands independence of Judiciary from Executives, as the intention of framers while dealing with Article 50 was to bring immediate changes without delay, where such immediate operation was not possible, it would be accepted as an imperative obligation. It is imperative after all, that it’s difficult to achieve independence of the Judiciary from Executives due to the increasing powers of Executives, which might off balance the foundations of the Indian Judicial system.

Executive control has always been seen as a threat to the independence of the Judiciary’, especially in cases of conduct of Governmental litigation and Executive responsibilities. It is feared that the Executive would use its powers to influence the outcomes of the case and the relative immunity about Executive decision making from Public scrutiny, which undermine the separation of Governmental powers that may go unnoticed. Furthermore, the involvement of political parties in power, upon neutral areas of Government decision-making may also go unobserved. 

In today’s world, the state has become the primary litigant, and the superior courts, notably the Supreme Court, have become hotbeds of tumultuous conflicts, some of which have political overtones. The Courts must weather the storm since their survival is a national priority. In such circumstances, can the Government, as the main plaintiff, be justified in having complete control over the selection and appointment of its arbitrators? The answer is no; if this process is allowed to continue, the judiciary’s independence will slowly but steadily erode.

In India the Executives have been vested with “Judicial powers under several provisions”, for example, it has the power to disqualify a member of a Parliament under Articles 102 & 103 of the Constitution, wherein it is stated that a person shall be disqualified from being chosen as MP if s/he is of unsound mind, holds the office of profit under the Government, is an undischarged insolvent, or is disqualified by law. Such a question shall be referred to the President, with the decision of the Election Commission shall be deemed final. The Executive has the right to advice the President on granting pardon or modification of punishment of a convicted person under Article 72 and that of Governor under Article 161. Such a power has been granted because, as per Taft CJ, “administration of justice by Courts aren’t always wise or considerate enough for the circumstances which may properly mitigate guilt”. It is a check entrusted upon Executives to use, to remove the deterrent effect of Judicial punishment, and such has been made subject to Judicial review to avoid arbitrary use of the power, this was also held in the case of Maru Ram V, Union of India.

Article 311 of the Indian Constitution allows the Executives, “to hold an inquiry into charges against any person holding a Civil post under the Union or the State and to award punishment. Besides, several statutes, for instance, laws dealing with licensing, levy of taxes, or imposition of duties, give the administrative authority the power to decide rights affecting a claimant or competing claims.” Such safeguard is provided to a member of Civil service of Union/State or persons who hold Civil post in Union/State, which is also a subject to Judicial review. And lastly, Executives also have the Judicial power to staff the tribunals set up under Article 323A and 323B to discharge their functions, which is a heavily debated issue and further discussed in greater detail. 

The Executives also exercise control over Judiciary, by allowing the President “to decide the number of Judges to be appointed in HC” and the chief justice of both HC and SC, including control over appointment and service conditions of District Courts with assent by President. In the case of K. Veeraswami v. Union of India, the Executives have “the power to prosecute Judges under the prevention of Corruption Act 1947”. In a case where a former chief justice of the Madras High Court disputed an FIR filed by the CM under the ‘Prevention of Corruption Act in 1976’ because the Act did not apply to Judges, the court remarked that the Judiciary lives only by public confidence. A Judge’s character is tainted, and his or her morality and rectitude are questioned, he or she may lack Judicial independence and be unable to command the public’s trust. He or she must voluntarily leave his position as a Judge and Administrator. This gave rise to a serious debate over Judicial accountability which weighs in the need for regulation in Higher Judiciary.


“In exercise of the powers of Judicial review, the Judiciary has given directions to the Executive to implement constitutional, statutory, or policy measures but has generally been reluctant to interfere in matters of policy”, also stated in the case of BALCO Employees ‘Union v Union of India. The basic goal of Judicial oversight of Government is to defend people’s rights and liberties by ensuring that administrative actions are legal. Each elected government in a democracy has the right to pursue its own policy. A shift in focus or a change in economic policies is frequently the outcome of a change in government. Any such reform may have a negative impact on some established interests. Unless there is an illegality committed in the execution of the policy, or it is contrary to law or mala fide, a decision bringing about change cannot be overturned by the Court. In the case of a policy decision involving economic issues, courts should proceed with caution when conducting any inquiry or investigation, and should be wary of impugning the experts’ judgment unless the Court is certain that the choice is unconstitutional.

As a result, the Executive is responsible for formulating policies and enforcing them. The Judiciary does not have the authority to do so. Furthermore, the Judiciary lacks the skills and topic knowledge necessary to create or change policies. The Executive, on the other hand, has professionals, administrators, advisors, experts in certain subject matters and has the expertise to develop policies after considering all sides of a situation. As a result, State policy decisions have to be respected unless they are proved to be extremely arbitrary or unreasonable. Judiciary occasionally has “to set up committees to monitor and oversee the implementation of such directions”. The court in the case of Ram Jethmalani v Union of India acknowledged the Government’s failure ineffective investigation and passed several directions including the conception of a high-level Special Investigation Team (SIT).

Even though the independence of the Judiciary is a part of the “basic structure”, there have been instances of encroachment by the Executive or the parties, which shakes the trust of Citizens in the Judiciary and also in its choices made while selecting urgent cases amidst a nationwide lockdown. 


The independence of the judiciary has been called into question several times in recent years, and this third pillar of democracy has always perplexed the people. The Judiciary acts as a check on the Executive’s misuse of power by acting as a barrier between citizens and the government. As a result, as stated in many parts of the Constitution, the judiciary must be free of executive pressure or meddling. The Executive, as well as external pressures and prejudices, impede the independence of the Judiciary.

The majority of all senior Judges were superseded after the Kesavananda Bharati decision, which limited the authority of Constitutional modification, and the dissenter was granted with the office of CJI. In protest, the superseding Judges resigned. Emergency was declared in 1975. Judicial oversight of violations of fundamental rights, such as the right u/a 21, was drastically curtailed, giving the Executive practically unrestricted power to strip persons of their liberty and detain them without consequence. Several High Courts have ruled that Governments are unable to do so. In 1976, the Executive reassigned 16 High Court justices to other High Courts in response. The SC majority disagreed with the HC and upheld the Government’s authority. Justice H.R. Khanna was the lone dissenter. Although he was the senior-most Judge in the SC and would have been nominated in the normal way, the Executive ‘punished’ him by superseding him for nomination as CJI and Justice Khanna stepped down.

It’s no surprise, then, that a battered Judiciary, after an initial regrettable hiccup in the form of the S.P. Gupta decision, picked itself up and, using all of the interpretative tools at its disposal — dubbed by many as an unacceptable feat of Judicial activism — virtually wrested the powers of appointment, confirmation, and transfer of Judges from the Executive through a composite Judgement in several public interest litigation.

Nomination of Justice Gogoi in Rajya Sabha, after making a Statement on the challenges to the law which governs the quasi-Judicial tribunals, is not the time in the Judicial history of India, where a former CJI of Supreme court was awarded post-retirement benefits. It has dated back to Nehru’s regime, when Justice Hidayatullah became the vice President of India or when Justice Baharul Islam, who after becoming a Judge of SC, again became a member of Parliament. In 1991 Justice Ranganath Mishra was appointed as chairman of NHRC and later became a member of Parliament from INC’S ticket, but as rightly said by Justice Madan Lokur, “several wrongs of the past do not make this decision right”. After less than six months of retirement, former Chief Justice of India Ranjan Gogoi was nominated to the Rajya Sabha. In the final year of his term, he was involved in several pivotal decisions, including the Rafale Deal, the Ayodhya Temple issue, and the Assam NRC case, all of which were directly related to the BJP-led-NDA Government, all of which were decided in the Government’s favour. P. Sathasivam, the former Chief Justice of India, was appointed Governor of Kerala within six months of his retirement. He presided over the bench that dismissed Amit Shah’s First Information Report in the Sohrabuddin Sheikh fake encounter case. The question is whether the retired judges are nominated because of their credibility or because of a favour they may have rendered to the Government. These selections, therefore, call into doubt the Judiciary’s credibility and independence.


The supreme law of the land is the Constitution. No organ should take on more responsibilities than those enumerated in the Constitution. We adopt “separation of functions rather than a separation of powers in India. As a result, we do not adhere to the idea in its strict form.” Though there is no explicit separation of powers in India, as there is in the United States, the notion of “checks and balances” is part of this doctrine. For quite some time to sustain the constitutional scheme, these organs must work together to reach a solution. The executive’s ability to rule the state will be hampered by the judiciary’s excessive intervention. 

Similarly, when conducting functions such as judicial appointments, the administration should not undermine the judiciary’s power and should behave prudently. The judiciary, as an autonomous body, prioritizes the exercise of appointment functions. Because the collegium system surpassed the executive’s influence over the judiciary, it was preferred over the NJAC. The connection between the government and the judiciary will undoubtedly be strengthened by cooperation in concord. Judges strive to provide a free and impartial administration of justice to provide citizens with fairness in the application of the law. The issue comes when other organs, such as the legislature and the executive, begin to meddle with them. External interference not only undermines the profession’s piety but also takes away people’s freedoms but as rightly said by Justice Madan Lokur, “several wrongs of the past do not make this decision right.”

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