This Article on ‘Judicial independence and separation of powers: as essential components of democracy is written by Sanjana Rochlani. A 4th year student from Renaissance law college, and an intern at Legal Upanishad.
“Democracy is not the law of the majority but the protection of the minority”. In simple words, it is the system of choosing the government based on the will of the people who form a society. This article deals with what judicial independence and the separation of powers are in the light of democracy.
What is democracy?
Democracy is not a form of government as is thought by the people; it is the way to a well-maintained society wherein the person who will rule the country will be directly voted and elected by the person who will be ruled in the future. This is the best way and manner in which a government can run to ensure a successful future for its country.
What is judicial independence?
By breaking the big term, it can be said that the judiciary must be independent. Independent of their own decisions keeping in mind that the other organs of the three-tier system which are executive and legislature do not interfere in the functioning of such organs. The idea independent judiciary was propounded by Montesquieu. A French philosopher all American philosophers thanked Montesquieu for giving such a practical. Important theory which was important for the functioning of the government. His true belief was that there exist three different organs in the government which collaboratively works together to maintain law and order in the society.
The main function which is performed by the independent judiciary is to maintain a proper balance between the interests of the individual as well as the society so that no one is left behind.
Who assures the principle of independence of the judiciary?
Though it is written in the constitution about all the aspects that do come under the independence of judiciary. The same is governed by various legislations, conventions, and other suitable norms and practices. The foundation of the judiciary is the constitution itself.
Position of the independent judiciary in India
In the case, SP Gupta v Union Of India, the actual importance of the principle was being laid down by the apex court by justifying the said statement that law is above all, and everyone regardless of status, gender and religion are below the law and law is equal for all, further, it was also said that this said principle of the independent judiciary will ensure a real participatory democracy, not a democracy only for name but a democracy which will provide a just and equitable environment for the natives.
In the case Supreme Court Advocates-on-Record Association v Union of India, herein a new name was been given by the supreme court to the independence of the judiciary by saying that independence of the judiciary is the sine qua non of democracy, as far as the theory of Montesquieu is being followed the functioning of the judiciary can never be disturbed.
Is the Indian judiciary independent or dependent?
The constitution of India, though written, provides for the concept of separation of powers but does not exercise it in real life. The concept of an independent judiciary says only one thing; that the judiciary, to be independent. Must act in a just and equitable way away from any external influences or any kind of executive pressure. Many people find that separation of powers will lead to an obstacle towards the attainment of a just and equitable society.
What is the separation of powers?
“Separation of powers” or “trias politicia” is a term which was propounded by Montesquieu, a French social philosopher. In one of his great works, Spirit of the Laws, it means the division of government responsibilities into several branches. So that any branch is limited to exercising the core functions of another.
In simple words, every organ of the government was being given responsibility. So that the effective and smooth functioning of the government could be ensured.
Objectives of separation of powers
- To promote a well-accountable system for a democratic country.
- Ensure speedy decision-making as the responsibilities are being divided into distinct branches and each of them is a facet of government.
- To maintain a balance between all three organs of government—executive, legislature, and judiciary.
- It makes all the organs of the government accountable, even to themselves and even to the nation, and this principle keeps a check on the accountability of the organs of the government so that justice, equity, and good conscience can be maintained.
Position of separation of powers in India
We all know that India follows a parliamentary system of government. Wherein the two organs of the government, the executive and the legislature, are directly linked with each other. Our written constitution, though it guarantees in writing the aspect of separation of powers. But talking about its implementation in practical and real-life situations. It has still not been implemented strictly.
In Indira Nehru Gandhi v Raj Narain, it was held by the hon’ble justice that all the laws and assumptions, etc., which do apply for separation of powers cannot be applied to India in a rigid sense. In a nutshell, the international constitution can only be referred to as a guide and cannot be copied and followed.
Criticisms of the separation of powers
The following are some limitations of the relevant principle:
- Distinguishing between the powers of the legislative, executive, and judiciary is difficult as to what should fall under which category.
- Currently, the scenario is that this concept is being adopted and implemented partially when it will be implemented totally in all its senses. It will hinder decision making in certain areas.
- If the concept of separation of powers is applied to its utmost in a strict sense, basic fundamental rights such as freedom and liberty will be violated.
Independence of the judiciary is the basic feature of the Indian constitution. It is the fuel that runs the vehicle that ensures the smooth functioning of the constitution as well as ensures that law and order are maintained in society.
“Independence of Indian judiciary”,10 pointer, 16 December 2020, available at: https://www.10pointer.com/current-affairs/independence-of-indian-judiciary
Shaila Arora, “Independence of Judiciary in India” 4 International Journal of Law Management and Humanities, 714-20
Drpremnarh, “Independence of Judiciary”, Legal services India, available at: http://www.legalservicesindia.com/article/2166/Independence-of-Judiciary.html
“A Independence Judiciary and Separation of Powers”, Law teacher, 25 June 2019, available at:
AIR 1982 SC 149, 1981 Supp (1) | SCC 87, 1982 2 SCR 365
Writ petition (civil) no.13 of 2015
1975 AIR 1590, 1975 SCC (2) 159