JAMIA MILLIA ISLAMIA

Faculty of Law

Relationship between the Three

Organs of Government in India

Submitted by: Submitted to:

Albab Alam Dr. Noorjahan Momin

B.A.LL.B. (H) (Reg.)
Semester: Second (II) ___________________
Session: 2018

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 INTRODUCTION
This project deals with the relations between the three organs of government, that is,
executive, legislature and judiciary, in India. First of all, the relationship between the three
organs of government has been discussed, in the light of theory of separation of powers;
followed by a discussion on the attempts by the different organs of government to widen their
scope. Under “The way Forward” heading, an attempt has been made to briefly describe how
the acrimonious relationship between the three can be made better. And lastly, a conclusion
has been drawn up to summarise the whole project.

Like any other modern and robust democracy in the world, India also has three organs of the
government: legislature, executive, and judiciary; which are separate from as well as
interrelated to each other. India has a Westminster form of governance1, consequent of which,
the three organs of government are not as distinct from each other as is the case in
presidential form of democracy2.

In India, legislature is comprised of both the Houses of Parliament that is, Lok Sabha (Lower
House) and Rajya Sabha (Upper House). The executive in India consists of President, Vice-
President, Prime Minister, the Council of Ministers, and bureaucrats. The Prime Ministers as
well as the Council of Ministers are also, simultaneously, members of legislature. And lastly,
the Indian justice system consists of a unitary system at both state and union level. The
judiciary consists of the Supreme Court of India, High Courts at the state level, and district
courts at district level.

The organs of Indian government share a relationship which is mix-mesh of the kinds of
relationships shared amongst the different organs of government in United States of America
and Great Britain. Some features have been drawn up from the former and some from the
latter. Just after Independence, the relationship among these organs was quite commendable
and complementary to each other, in practical sense, for the better functioning of the state.
But, of late, this relationship has worsened amid lack of trust among each other and attempts
by all the three organs to widen its scope for actions and tread on the territory of other.

1
A Prime Ministerial Form of Government, available at http://www.thehindu.com/opinion/op-ed/a-prime-
ministerial-form-of-government/article6120400.ece (Visited on April 3, 2018).
2
Dr. S. R. Myneni, Political Science for Law Students, (Allahabad Law Agency, Faridabad).

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 1) Relationship amongst the different organs of Indian government

The debate on relationship between the different organs of government grew out of centuries
of political and philosophical development. Its origins can be traced to 4th century B.C.,
when Aristotle, in his treatise entitled Politics, described the three agencies of the government
viz. the General Assembly, the Public Officials, and the Judiciary3.

Since then, many attempts have been made to define the kind of relationship that the three
organs of government should have. Almost all the modern democracies around the world
have incorporated into their constitutions, the ways to maintain a working and viable
relationship among the three.

Applicability of theory of Separation of Powers in India:

Montesquieu had given the theory of Separation of Powers, in which he postulated that all the
organs of government should be completely separate from each other. Many countries have
adopted Montesquieu‟s theory has been accepted by many countries, although with some
alterations.

Framers of the Indian Constitution expressly rejected attempts to include the theory into the
constitution. Prof. K.T. Shah wanted to insert a new article in the Indian Constitution to
incorporate the theory of Separation of Powers, but his efforts did not yield success as it was
deemed not proper in the Indian context by Prof. Shibban Lal Saksena and others4.

In his famous „responsibility versus stability‟ speech in the Constituent Assembly, Dr. B.R.
Ambedkar argued against explicit separation of powers within the government5.

In India, instead of separation of powers, there is fusion of powers6. Executive in India, like
any other Westminster system, is a subset of legislature and virtually there is a fusion
between them, thus generally no friction arises between them7.

3
Separation of Powers and the Indian Constitution, available at
http://shodhganga.inflibnet.ac.in/bitstream/10603/32340/9/10_chapter%204.pdf (Visited on April 3, 2018).
4
Constituent Assembly Debates on 10 December, 1948, available at https://indiankanoon.org/doc/1954671/
(Visited on April 3, 2018).
5
Checks And Balances In The Indian Constitution: Poorly Conceived, Reviewed and Now in Disarray,
available at https://swarajyamag.com/ideas/checks-and-balances-in-the-indian-constitution-poorly-conceived-
reviewed-and-now-in-disarray (Visited on April 3, 2018).
6
Dr. S. R. Myneni, Political Science for Law Students, (Allahabad Law Agency, Faridabad).
7
P.Puneeth, Administrative Law XLIII Annual Survey of Indian Law 5 (2007).

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In Asif Hameed v. State of J&K8, the Supreme Court observed, “Although the doctrine of
separation of powers has not been recognized under the constitution in its absolute rigidity
but the constitution makers have meticulously defined the functions of various organs of the
state. Legislative, Executive and Judiciary have to function within their respective spheres
demarcated under the constitution”.

Checks and balances amongst the different organs of government in India:

Checks and balances is a principle of governance under which different organs of

government are empowered to prevent unlawful actions by other organs and are induced to
share power. Checks and balances, which modify the separation of powers, can also operate
under parliamentary systems through different mechanisms.

Legislature and Executive:

In India, executive is essentially a subset of legislature. Consequently, the power of

executive, for all practical purposes, is more than that of legislature. Nevertheless, legislature
exercises control over the executive by asking questions in the Parliament, forming House
committees to investigate any issue, bring in no-confidence motion against the executive, etc.
On the other hand, the executive has the power to summon both the Houses of Parliament as
and when required and also dissolve them. Furthermore, executive has primacy over finances
of the country and hence no money bill can be presented in Indian Parliament without prior
approval of executive.

Executive and Judiciary:

Executive and judiciary in India mutually control each other, to a great extent. Executive in
India appoints the judges and also handles resignations of the judges, thereby having an
indirect influence on judiciary. Furthermore, the chief executive enjoys prerogative of
pardon, reprieve and respite. But, on the other hand, it is very rare for judiciary to perform
executive tasks. Still, judiciary has power of judicial review by which it may test the
constitutionality of executive actions and stop them if they are against the spirit of Indian
Constitution9.

8
AIR 1989 SC 1899.
9
Relationship between the Executive and Judiciary, available at
http://www.preservearticles.com/201106258659/relationship-between-the-executive-and-the-judiciary.html
(Visited on April 3, 2018).

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Legislature and Judiciary:

Framers of the Indian Constitution tried to strike a balance between legislature and judiciary
through a mix-mesh of the concepts of parliamentary sovereignty and judicial supremacy,
applicable in the Great Britain and United States of America, respectively. Legislature in
India has the power to remove a judge through an impeachment motion, if needed. Apart
from that, legislature discharges some judicial functions also, as it tries its members for
breach of privileges and passes judgements. On the same lines, judiciary also discharges
some legislative functions through a very controversial tool, that is, judicial legislation 10 .
Nevertheless, this comes in handy to fill the gaps in legislation which might have proved to
be disastrous for the nation.

2) Attempts by different organs to widen their sphere of jurisdiction

Of late, there have been attempts by each organ of government to widen its scope of
functioning and increase its demarcated horizon significantly. The judiciary has gathered
huge power in its hands by inventing the concept of judicial legislation and effectively
discharges the functions of legislature. Already, it had the power of judicial review, which
now combined with judicial legislation, has now made judiciary so powerful that some
members of legislature have gone to the extent of dubbing its actions as „tyranny of the
unelected‟11. At the same time, executive has widened its area of jurisdiction by bringing in
executive decrees and ordinances which effectively act as means to bypass the legislature.
Furthermore, in times of national crises, executive assumes the role of „big brother‟ and
directly controls everything, without any regard for the other two organs. All this while, the
role of legislature in the Indian government has dwindled because of the emergence of a
strong and populist executive, the power of judiciary to question its actions, and attempts by
successive governments to ram through the Upper House of Parliament, where executive
finds the going tough. Some scholars have gone as far as declaring, that the „Indian
Parliament has become irrelevant‟12.

10
Judicial Legislation: What‟s the Lakshamn Rekha! ,available at http://www.livelaw.in/judicial-legislation-
whats-lakshman-rekha/ (Visited on April 3, 2018).
11
Arun Jaitley on NJAC verdict: Democracy cannot be „tyranny of unelected‟, available at
http://indianexpress.com/article/india/india-news-india/njac-sc-verdict-democracy-cannot-be-tyranny-of-the-
unelected-says-arun-jaitley/ (Visited on April 3, 2018).
12
Sagarika Ghose, “House in Crisis: Four reasons why Parliament is becoming irrelevant”, The Times of India,
March 25, 2018.

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 3) The Way Forward

Different organs of Indian government have experienced bitter conflicts amongst them.
Striking down of National Judicial Appointments Committee (NJAC), which was created by
the Parliament after passing the concerned bills unanimously, by the Supreme Court as
unconstitutional is one of them. Presenting Aadhar bill as money-bill, despite it not being the
case, to bypass the scrutiny by Rajya Sabha is other example. The list is endless. These issues
need to be resolved.

One of the major characteristics of a mature democracy is to ensure a harmonious

relationship between the three organs of the government13. It is indisputable that a good and
intact democracy calls for a proper balance in the discharge of functions by the executive,
legislature and judiciary. There is no drawn map or an enunciated demarcation beyond which
each of them cannot cross. What is most expected out of each of them is that they consciously
realize the unseen boundaries and respect each other‟s sovereignty14. This realization would
help in upholding the rights of the citizens and establishing a „welfare state‟. It is important to
value the efforts of the framers of our Constitution who envisaged the nation‟s future as a
harmonious relationship between the pillars of the government. It is not only the duty of the
tripartite to realize the same but also the obligation of the citizens to realize the ultimate
sanctity of the Constitution.

13
Dr. APJ Abdul Kalam, “Harmonious Relationship among Legislature, Executive and Judiciary”, Indian
Advocate, vol. 32-33, 2004-2005
14
Nidhi Singh, Anurag Vijay, “Separation of Powers: Constitutional Plan and Practice”, IJSRP Volume 3, Issue
11, November 2013.

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 CONCLUSION

Indian government is modelled after the British system of Parliamentary form of government.
The framers of Indian Constitution did not explicitly incorporate an article in the Constitution
which would have accepted the theory of separation of powers in its totality. India follows a
separation of functions and not separation of powers. And hence, Indian government does not
abide by the principle in its rigidity. Though in India strict separation of powers like in
American sense is not followed but, the principle of „checks and balances‟, exists as a part of
this doctrine15.

The different organs of government in India have different mechanisms to keep the activities
of each other in check. Legislature exercises control over executive by asking questions and
bringing in different motions in the Parliament. Executive, sometimes, discharges legislative
functions in the form of ordinances. Judiciary has also assumed legislative character through
the concept of judicial legislation. Furthermore, execute appoints he judges and hence,
indirectly influences he judiciary. In some way or the other, Indian Constitution provides a
mechanism to each organ of the government, through the doctrine of checks and balances, to
check the activities of other and prevent unlawful actions and, at the same time, maximise
individual liberty of Indian citizens.

Although the Constitution has defined the spheres of all the three organs of government
clearly, there have been many conflicts between the three on the issue of jurisdiction, which
were a result of the attempts by different organs to widen their scope of functioning.

Amidst all these issues, all the organs of government have to rise above their differences to
ensure smooth working of the affairs of the state. For that to happen, all the three organs have
to attempt to have a harmonious relationship with each other. Also, each one should view the
other two as its integrals and not as rivals, so as to make India a true democracy that the
founding fathers of Indian Constitution had hoped for.

15
Separation of Powers: Constitutional Plan and Practice, available at
https://pdfs.semanticscholar.org/f703/775b1ec104661fc5e4265a35a42fad3ad1a5.pdf (Visited on April 3, 2018).

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 References
To complete the project, Relationship between the Three Organs of Government in India, a
number of books, periodicals, websites, journals, etc. have been used, which have been
mentioned as follows:

1) Andrew Heywood, Politics (Palgrave Macmillan, 4th edn., 2013).

2) Dr. S. R. Myneni, Political Science for Law Students, (Allahabad Law Agency,
Faridabad).
3) www.preservearticles.com
4) https://indiankanoon.org
5) www.livelaw.in
6) http://shodhganga.inflibnet.ac.in
7) Nidhi Singh, Anurag Vijay, “Separation of Powers: Constitutional Plan and Practice”,
IJSRP Volume 3, Issue 11, November 2013.
8) Indian Express.
9) Swarajya.
10) The Hindu, etc.

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