Separation Of Powers: Who Wins the Race – Legislature, Executive or Judiciary ?

Saji Koduvath, Advocate.

Symbiosis of the Three Organs of State

The legislature, the executive, and the judiciary together form the foundational pillars of a democratic system.

The polity where these three wings are operated by a single authority is called an autocracy. The separation of these three wings is essential for the endurance of democracy. Each one is expected to function independently in its domain. When headship of two of these three organs is conferred upon one source of power, it gives rise to despotism.

Diversities are the real strength

We, the people of India, declared ourselves as a Republic and adopted the democratic Constitution 71 years back. When power of administration of the nation was handed down to Indians by the British in 1947, doubts were raised from various corners as to the survival of democratic institutions in India.

Several people doubted that diversities of India were so grave and myriad that it could not thrive as one nation for long. But, we proved that we are one and united, despite the diversities; and that the diversities are the real strength for our nation. Credit for the same goes to the personalities and forces that united India as a nation.

Energy emanated by the freedom struggle movement under the powerful icon, Mahatma Gandhi, is the main source of power that made an ever united India. The patriotic voice of the national leaders emerged in the freedom struggle marks the second position. Then comes the effect of the vibrant Book of the Nation, the Constitution of India.   

The Constitution

The Constitution promised a lively democratic nation. It served as a strong-bedrock to build up the lawful and realistic dreams and aspirations of all citizens who are entitled to live in this country. It assured safety to all the inhabitants of this land. It founded a systematic administrative system that can protect the nation guarding against all possible adversities.

No doubt, it is true that India as a nation, during the past decades, performed far better thorough well than certain critiques thought about infant India during the middle of twentieth century. If we are required to point out the slip-ups upon the legislature, executive and judiciary, we may have to pin-point the following downsides.

Legislature

Legislature that consists of the elected representatives of the people is the most important organ of democracy. Whole nation, especially those who are near to the steering wheel of the nation, has to keep an eternal vigilance to protect the democracy.  If religion-based politics is practised by the people who are steering wheel of the nation, it will begin to ruin the democracy; and if the system is deteriorated so that the legislatures can be easily ‘purchased’, the country will lose its title as a democratic nation and it can no longer survive as an independent republic.

Evaluating the general performance of legislatures in India, if one opines that our elected representatives have not performed well upto the expected level, it will be a sheer truth.   Because of the over politicisation, most of the representatives have forgotten that law-making is their prime duty. They even fail to regularly attend the parliament or legislature whereby the houses are frequently adjourned for no quorum. Boisterous and unruly MPs and MLAs are a curse to the democracy. Such elected representatives deteriorate and degenerate the status of the legislatures.  

Several elected representatives, having political affiliations, speak as mouthpieces of their masters who may be the religious forces or wealthy ones who funded them in their elections. Most are not allowed to work independently for they are forced to express the opinions and views of the political pundits who may have hidden motives or who may be narrow minded.  In our system, the elected representatives are forced to face-guard the corrupt practices of the parties to which they belong and of the tainted political leaders.

Executive

Executive is primarily expected to implement the laws in force and function independently without being guided by the legislators, or the political leaders who side with the party in power. It is shameful that we cannot think of ‘independent’ appointments, termed now-a-days as ‘political appointments’, after celebrating 73 independence-anniversary, even in constitutional appointments such as Election Commission, the Comptroller and Auditor General of India (CAG), Reserve Bank Governor etc..

Because of the conferment of actual executive power to the council of ministers, by our constitution, the executive is forced to function in accordance with the directions of the political aspirations of the parties in power. From experience we can say – police and various investigative agencies are the hand-maidens of political powers that be. We see change in the officers, from top to bottom, at least in certain departments, by the change of a ministry. Doesn’t it show – our executive is not independent as it was expected to be?

From experience we can realise – corruption is rampant in certain departments. No doubt, unless the god-fathers of such erring persons do not protect them, they cannot thrive and flourish in the present form they shaped themselves. That is, corrective-steps have to be begun from the top. 

It remains a fact – because of the intervention of judiciary, at least some major ‘political scandals’ and ‘political corruption’ are brought to light and at least some political-stalwarts are sent to jail after trial.  It is time to think – is not it necessary to liberate the executive wing of our nation from the clutches of the ‘political-executive’.

 From experience we can also realise – the police will be a threat to the citizens if that force is not controlled properly.  And, Excise-Tax- Registration departments will amass unless proper enacted laws are made to collect revenue properly and sufficient machinery is placed to trace the unerring officers. 

From experience we can definitely say – the ‘existing system’ promotes corruption in Excise-Custom-Tax-Revenue-Registration-Police-departments. It is a sheer fact that our high level political-masterminds do not want a change. Thy will not engage effective system to check the tax and revenue evaders.  There is only one reason for the same – that is, proper laws and simplification of the protracted procedures will stop, or at least reduce, corruption. The political-pundits will not allow to make proper Laws and Rules also with a view to safeguard the citizens of India, and to place a proper machinery to trace the unerring officers, in betterment of the nation.

Judiciary

The success of all establishments, especially judiciary, lies in the quality of persons who handle it. Independent judiciary is essential for proper working of democracy. Unqualified and petty elements that capture the high posts through front or back doors destroy the system. The appointment of proper persons in judiciary from top to bottom is essential for the strength of a democratic nation. The solicitors and other counsel for the government should also be appointed in a manner that they should not be guided by politicians or people in power.

Did our judiciary performed up-to-the-mark it was expected by the founders of our Constitution? Did the most important provision of the Constitution – Article 32 – is properly used-up by the persons who handled it? If the answer is no, the general grounds pointed out are the following:

  1. Incompetence of some judges.
  2. Forbearance from real issues, ignoring duty imposed upon them, by some judges.
  3. Illegal association of some judges with, or their undue obligation to, political or religious gurus.

All accusations as to corruption within the judiciary may not have been proved and allegations as to over-smartness or as to indulgence in self-promoting acts against some judges may not be correct, yet, no doubt, the conferment of post-retirement ‘political appointments’ to some selected retired hands raises doubts, and such acts of conferment and its acceptance lowers the dignity of the Judiciary.

Judicial Decisions are Commands of Law to be Obeyed – Until the Law is Altered

In Adani Power Ltd v. Union of India, 2026 INSC 1, our Apex Court (Aravind Kumar, N.V. Anjaria, J.), held that the Judicial pronouncements are not advisory opinions; they are binding commands of law, and it was incumbent upon the administrative authorities to conform their conduct to that declaration. It is also pointed out – the authorities were obliged to treat the matter as concluded until the law was altered by legislative action. The Court said as under:

  •  “81. We now turn to an aspect which goes beyond the immediate dispute between the parties. The case also concerns the obligation of the administration to give full effect to Commands of Law once they have attained finality. The authority of the rule of law rests not only in the pronouncement of judgments but equally in their proper implementation. It is therefore necessary to briefly recall the principles that govern the conduct of the executive after a court has finally settled the legal position.
  • 82. When a High Court of competent jurisdiction declares a levy to be ultra vires and unconstitutional, and this Court declines to interfere, that declaration cannot be treated as a one-time indulgence for a closed period. It is incumbent upon the authorities thereafter to conform their conduct to the law so declared. They cannot, consistent with constitutional discipline, continue to enforce the same levy for a later period on the strength of slightly altered subordinate instruments and then resist restitution on grounds of technical pleading.
  • 83. It is well settled that in the public interest there must be an end to litigation. The appellant succeeded in 2015. The Union failed in its challenge before this Court. The appellant then approached the High Court in 2016 essentially seeking implementation of the declaration already made. To deny relief on the footing that it is a new notification or that period was not expressly mentioned is to frustrate finality and to compel the citizen to engage in repetitive litigation to secure, in practice, what has already been recognised in principle.
  • 84. Accordingly we hold that once the 2015 judgment had declared the levy to be ultra vires and this Court had declined interference, it was incumbent upon the administrative authorities to conform their conduct to that declaration. Judicial pronouncements are not advisory opinions; they are binding commands of law. When the executive continues to enforce, under new guise, a levy that has been judicially struck down, it acts in defiance of constitutional discipline and erodes public confidence in the rule of law. Finality of adjudication is an essential component of good governance. The repetition of an invalidated levy through successive notifications compels needless litigation, burdens the courts, and subjects citizens to prolonged uncertainty. The authorities in this case were obliged to treat the matter as concluded and ought to have extended the benefit of the 2015 decision uniformly to all subsequent periods until the law was altered by legislative action. Their failure to do so justified judicial intervention. The doctrine interest reipublicae ut sit finis litium which essentially means, that it is in the public interest that there be an end to litigation would squarely apply; the State must exemplify obedience to judgments, not resistance to them.”

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