Early Philosophical Roots

Aristotle – Politics

The earliest articulation came from Aristotle in his work Politics.

He spoke of three distinct organs:

1. Executive – for day-to-day administration.
2. Judiciary – for adjudication of disputes.
3. Deliberative – a proto-legislature responsible for collective decision-making.

This was a pre-idea of separation, rudimentary but foundational.

John Locke

In his Second Treatise of Government, Locke refined this theory.

He distinguished between:

1. Executive
2. Legislature
3. Federative – powers dealing with foreign affairs and administration.

Locke’s emphasis was administrative, aimed at restraining monarchical absolutism.

Montesquieu and Expansion of the Doctrine

Montesquieu, inspired by Aristotle and Locke, crystallized the idea into the three modern branches:

1. Legislature
2. Executive
3. Judiciary

His work, The Spirit of Laws, laid down the modern theory of separation of powers, advocating that liberty can only be secured when these three powers are not concentrated in one hand.

Wade & Phillips later expanded Montesquieu’s theory into a functional checklist, emphasizing:

• The same person should not be part of more than one branch of government.
• One branch should not encroach upon the function of another.
• No branch should exercise the powers assigned to another.

Checks and Balances – Madison’s Contribution

James Madison, in The Federalist Papers, moved beyond rigid separation and developed the idea of checks and balances, suited to the U.S. Constitution.

Famous principle: “Ambition must be made to counteract ambition.”

He argued that liberty is best preserved not merely by dividing power but by pitting power against power, so that no branch could dominate.

Mechanisms of Checks and Balances

Horizontal Checks (among Legislature, Executive, and Judiciary)

Legislature makes laws → Executive assents and enforces them.

Executive appoints judges → Judiciary exercises judicial review over laws and executive actions.

Each organ controls and restrains the other without collapsing the system.

Vertical Checks (Federalism)

Power divided between Union and States.

Each level acts as a restraint on the other, preventing excessive centralization.

Social and Institutional Checks

Beyond formal government structures, social mechanisms such as Right to Information (RTI) and Public Interest Litigation (PIL) operate as checks.

These allow citizens to participate in accountability and strengthen democratic governance.

Separation of Powers in the Indian Context

In India, the doctrine of separation of powers has a very significant ground. Unlike the Preamble, which does not impose any limitation on legislative power, separation of powers has been recognized as a limiting principle.

This limitation operates through Article 368 of the Constitution:

Parliament may amend the Constitution with a special majority.

If the amendment relates to fundamental rights or the representation of states, it requires both a special majority and ratification by half of the state legislatures, followed by the President’s assent.

However, as held in Kesavananda Bharati v. State of Kerala, any amendment must not alter the basic structure of the Constitution.

Thus, separation of powers acts as a constitutional safeguard by restricting even the amending powers of Parliament.

Article 368. Power of Parliament to amend the Constitution and procedure therefore:

(1)Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.
(2)An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:Provided that if such amendment seeks to make any change in--
(a)article 54, article 55, article 73, article 162 or article 241, or
(b)Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c)any of the Lists in the Seventh Schedule, or
(d)the representation of States in Parliament, or
(e)the provisions of this article.

the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

(3)Nothing in article 13 shall apply to any amendment made under this article.
(4)No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground.
(5)For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.)

The Indira Gandhi v. Raj Narain Case

Background

Indira Gandhi was elected as the Prime Minister in the House of the People.

Her election was challenged before the Allahabad High Court.

During the Emergency, the 39th Constitutional Amendment was passed, inserting Article 329A into the Constitution.

Provisions of Article 329A

Courts could not question the election of the Prime Minister, President, or Speaker.

Such elections could only be questioned before a special authority.

Article 329A(4) declared that any decision of the authority would be final and beyond judicial review.

It also retrospectively validated the Prime Minister’s election, making it immune from scrutiny.

Article329A. Special provision as to elections to Parliament in the case of Prime Minister and Speaker [REPEALED]

[In Part XV of the Constitution, after article 329, the following article shall be inserted through Constitution (Thirty-Ninth Amendment) Act, 1975]

(1)Subject to the provisions of Chapter II of Part V [except sub-clause (e) of clause (1) of article 102], no election-(a)to either House of Parliament of a person who holds the office of Prime Minister at the time of such election or is appointed as Prime Minister after such election;(b)to the House of the People of a person who holds the office of Speaker of that House at the time of such election or who is chosen as the Speaker for that House after such election,shall be called in question, except before such authority [not being any such authority as is referred to in clause (b) of article 329] or body and in such manner as may be provided for by or under any law made by Parliament and any such law may provide for all other matters relating to doubts and disputes in relation to such election including the grounds on which such election may be questioned.
(2)The validity of any such law as is referred to in clause (1) and the decision of any authority or body under such law shall not be called in question in any court.
(3)Where any person is appointed as Prime Minister or, as the case may be, chosen to the office of the Speaker of the House of the People, while an electionpetition referred to in clause (b) of article 329 in respect of his election to either House of Parliament or, as the case may be, to the House of the People is pending, such election petition shall abate upon such person being appointed as Prime Minister or, as the case may be, being chosen to the office of the Speaker of the House of the People, but such election may be called in question under any such law as is referred to in clause (1).
(4)No law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to have applied to or in relation to the election to any such person as is referred to in clause (1) to either House of Parliament and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void or has, before such commencement, been declared to be void under any such law and notwithstanding any order made by any court, before such commencement, declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect.
(5)Any appeal or cross appeal against any such order of any court as is referred to in clause (4) pending immediately before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, before the Supreme Court shall be disposed of in conformity with the provisions of clause (4).
(6)The provisions of this article shall have effect notwithstanding anything contained in this Constitution.]

This amendment was an attempt to exclude judicial review and directly affected the balance of separation of powers.

Judicial Opinions in Indira Gandhi v. Raj Narain

Majority Opinions

The majority agreed that Parliament had usurped a function belonging to the Judiciary, thereby violating the doctrine of separation of powers.

Chandrachud J.: Rested his reasoning on separation of powers as an essential feature of the Constitution, emphasizing a system of checks and balances.

“The amending body cannot transgress the basic structure of the Constitution… The Parliament is not entrusted with the power to adjudicate upon the validity of an election; that function belongs to the judiciary, and any attempt by Parliament to take it upon itself is a violation of the doctrine of separation of powers.”

Khanna J.: Focused not only on separation of powers but also identified violations of two other essential features:

• Rule of Law
• Free and Fair Elections

“Free and fair elections are the foundation of democracy. Any law which seeks to exclude judicial review for the determination of election disputes undermines the democratic structure and the rule of law, which are integral parts of the basic structure of the Constitution.”

Mathew J.: Emphasized the democratic structure of the Constitution. He considered free and fair elections as integral to democracy, which in turn falls under the broader umbrella of separation of powers.

“The rule of law and free and fair elections are essential features of the Constitution. The exclusion of judicial review in matters which vitally affect the democratic structure rights at the very root of the basic framework of our constitutional system.”

Minority Opinions

Ray C.J.:

Argued that the legislature is competent enough to make such amendments, and such amendments are not void.

He criticized the basic structure doctrine as vague and uncertain.

Echoing his stance in the A.K. Gopalan case, he argued that constitutional interpretation must not be limited by political, juristic, or social concepts beyond the language of the Constitution.

He rejected appeals to a “higher law” not expressly mentioned in the text.

“The doctrine of separation of powers as recognised in America is not applicable to our country. Hence, the larger question whether there is any implied limitation on the power of amendment cannot be decided by reference to American doctrine.”

“I do not find any tacit or implied limitations on the exercise of the amending power… It is for Parliament to determine the content and extent of the amending power and it is not open to the judiciary to invent limitations not found in the text of the Constitution.”

However, paradoxically, he still recognized Rule of Law as a principle that could be judicially applied, claiming it to be an implicit intention of the legislature, though not explicitly written.

Beg J.: Agreed with Ray J. in rejecting the certainty of the basic structure doctrine but similarly invoked Rule of Law to avoid the total exclusion of judicial review under Article 329A(4).

“No law passed by Parliament can fully exclude the jurisdiction of the Court, and the rule of law must govern all legislative actions. Parliament may have wide powers, but these are not unlimited, and cannot override basic constitutional guarantees, particularly the right to judicial review.”

Ray C.J.’s Argument and Its Contradictions

In A.K. Gopalan, he resisted importing external principles like fairness or natural justice into constitutional interpretation.

“In interpreting the provisions of the Constitution… I do not think it is permissible to import into it doctrines or concepts or theories which are not to be found in the Constitution itself… The Constitution is not to be interpreted on the basis of external notions of justice or fairness, but in accordance with its language and scheme.”

In Indira Gandhi, while dismissing the basic structure doctrine, he nevertheless invoked Rule of Law as a judicially enforceable check.

This is ironic, as he simultaneously rejected “higher law” reasoning but still relied on an implicit, unwritten principle to justify judicial review. His stance thus reveals both a strong commitment to legislative supremacy and a reluctant concession to judicial safeguards.

Conclusion

The doctrine of separation of powers, though not absolute in India, has emerged as a basic feature of the Constitution. The Indira Gandhi v. Raj Narain case demonstrated how this doctrine operates as a limitation on Parliament’s amending power, preserving essential constitutional values.

While the majority firmly upheld separation of powers, Rule of Law, and free and fair elections as inviolable, even the dissenting judges, though skeptical of the basic structure doctrine, could not escape the pull of Rule of Law.

Thus, the case stands as a landmark in asserting that the Indian Constitution is founded on a delicate balance — Parliament may amend, but it cannot destroy the core democratic and constitutional fabric.