The Conflict Between Judiciary And Parliament: A Descriptive Understanding
By Raj Krishna & Shashwat Pratyush
“Governments without separation of powers commit the worst crimes.” — James Cook¹
In simplest form ‘Rule of Law’ implies that the state is governed, not by the monarch or the nominated representatives of the people but by the law. In states where rule of law is practiced, there exists a Grundnorm [Basic Law or Constitution] from which all other laws derive its authority. The monarch or the representatives of the people are also governed by the laws derived out of the Grundnorm and their powers are thus limited. The kings or the elected representatives need to act as per the provisions of law; they can’t act in an arbitrary manner. In case of India, the Constitution is supreme law of the land and all other laws and statutes enacted by the Governmental Bodies in India need to be in conformity with the provisions of the Constitution or else it will be declared void by the court of law. Thus, it can be said that Judiciary plays a very important role in maintaining rule of law in India. The constitutional principle of separation of powers is therefore considered to be a bulwark against the abuse of powers and it has a long pedigree in the canonical literature on constitutional theory. The Principle of Separation of Powers occupies a position of deep ambivalence in the panoply of principles regulating the constitutional government in the modern day democracies across the globe. Upon the lines of exiting constitution of other nation states, our constitution framers too inscribed this pervasive principle of separation of powers in our Constitution in order to check abuse of powers. However, despite being a deep pervasive feature of our Constitution, the principle of separation of power often fruits to be an area of friction between the different organs of the state.
“A hundred years scarce serve to form a state; an hour may lay it in the dust.”
Indian Constitution is an organic document which derives its gravitas and grandeur from the will of the Indians. The Constitution of India is the supreme authority which provides for the powers and functions of various organs of the state and their inter se relationship. One of the most important features of the Indian Constitution is the concept of separation of powers.
According to Wade and Phillips Doctrine of Separation of Powers can be defined as follows –
“1. The same individual should not form part of more than one of the three organs of the Government.
2. One organ of the Government should not exercise the function of other organs of the Government.
3. One organ of the Government should not encroach upon the function of the other two organs of the Government.”³
Under the provisions of Indian Constitution, the legislature has been entrusted the power of legislation and the judiciary has the responsibility to interpret such legislations, and adjudicate upon on the basis of such interpretation. However it is pertinent to note that even though the Constitution of our country has conferred the law making powers upon the legislature, but on the other hand the Constitution also recognizes the court’s role in gradual and orderly development of law by judicial interpretation.⁴
As a result since the very inception of our Constitution there has been an innate conflict between the jurisdiction of the respective functions of the legislature and the judiciary. The precise legal basis of the power of the judiciary to pass upon the constitutionality of Acts of legislature has been a bone of contention in various constitutional debates and political skirmishes in the annals of our parliamentary democracy.⁵
Therefore the Apex Court judgment in the case of Kesavananda Bharti v. State of Kerala⁶ is regarded as the most important judgment delivered in the history of the Supreme Court. The Court in this case observed that “even though the Parliament has the power to amend, add, modify or repeal any part of the Constitution, there are certain limits to this power. The Parliament while amending the Constitution cannot make changes to the essential features of the Constitution. The Court termed this principle as the Basic Structure Doctrine.”
II. JUDICIAL REVIEW AND INDIAN CONSTITUTION
The Constitution of India has created an independent judiciary which is vested with the power of judicial review to determine the legality of law and any executive action. Judicial Review is an essential part of Rule of Law. Judicial review involves determination not only of the constitutionality of the law but also of the validity of administrative action. The actions of the state public authorities and bureaucracy are all subject to judicial review; they are thus all accountable to the courts for the legality of their actions. Judicial Review in India is governed by the principle of Procedure Established by Law.⁷ Under this principle the court checks following things:
i. Whether the law made is in accordance with the powers granted by the Constitution to the law-making body.
ii. Whether the law making bodies have followed the prescribed procedure or not.⁸
If the court finds that the Act of the law making bodies/ Administrative Actions violates the provisions of the Constitution and is violative of the procedure established by law then the Court strikes down the said law and declares it as void. The power of judicial review is granted to the Supreme Court and High Courts under Articles 32 and 226 respectively.⁹ Apart from that there is also Article 13 of the Constitution which states that “all laws, which include customs and usages enjoying the force in law and existing in India at the commencement of the constitution, and inconsistent with fundamental rights, would be to the extent of such inconsistency, void.”¹⁰
III. THE JUDICIAL JOURNEY OF BASIC STRUCTURE AND JUDICIAL REVIEW
In Re, Delhi laws Act¹¹ case the Supreme Court of India observed that “the Indian Constitution confers upon the legislature the power to make laws subject to certain restrictions. In case where the law made by the Parliament transgresses the limitations imposed by the Constitution then the judiciary can strike down such law as unconstitutional.” It is thus one of the first cases wherein the Supreme Court recognized the power of judicial review.
The power of judicial review was firmly established, and the limitations for its exercise were clearly enunciated by the Apex Court in the case of AK Gopalan v. State of Madras.¹² The Supreme Court in this case observed that “even though the Indian Constitution recognizes the implicit superiority of the Court over the legislative authority, such supremacy is confined to the field where the legislative power is circumscribed by limitations put upon it by the Constitution itself.” The Court, in this case, further declared that the judiciary’s power of judicial review is subordinate to the “procedure established by law”. Therefore, the Court opined, the Constitution of India refers to “procedure established by law” and not “due process of law” like the American Constitution.¹³
In the case of Shankari Prasad v. Union of India,¹⁴ the validity of the first Amendment Act, 1951, was called into question before the Apex Court. The Supreme Court, in this case, held that “the power to amend the Constitution, including the power to amend the fundamental rights, is contained in Article 368 of the Constitution.” The Court in this case stated that the word “law” in Article 13(2) includes only an ordinary law made in exercise of the legislative powers and does not include a Constitutional amendment, which is made in exercise of constituent power. The Court thus concluded by stating that “a Constitutional amendment will be valid even if it abridges or takes any of the fundamental rights”.¹⁵
The same question was again raised before the Supreme Court in the case of Sajjan Singh v. State of Rajasthan¹⁶ wherein the validity of the Constitution (Seventeenth Amendment) Act, 1964, was challenged before the Court. The Apex Court in this case re-affirmed its previous decision that “Constitutional amendments made under Article 368 of the Constitution are outside the purview of judicial review.”
However the Supreme Court in the case of I.C. Golaknath v. State of Punjab¹⁷ held that the Parliament could not curtail any of the Fundamental Rights enshrined in the Constitution. The Court in this case further observed that “a constitutional amendment under Article 368 of the Constitution was an ordinary ‘law’ within the meaning of Article 13(3) of the Constitution.” The majority thus did not believe in the view that there is any difference between the ordinary legislative power of the parliament and the inherent constituent power of parliament to amend the Constitution. The majority judgment in this case further opined that “the text of Article 368 only explained the procedure to amend the constitution, the power being derived from entry 97 of the List I of the VII Schedule to the Constitution.”¹⁸
Six years later in the landmark case of Kesavananda Bharati v. State of Kerela,¹⁹ the Apex Court of India laid down the famous Basic structure doctrine. The Basic Structure Doctrine states that the legislature has the power to amend the Constitution but it must not change the fundamental nature and essence of the Constitution. Chief Justice S.M. Sikri in the majority judgment laid down five basic features of the Indian Constitution which according to him cannot be amended by the Parliament. Those five features were supremacy of the Constitution, Republican and Democratic form of Government, Secular character of the Constitution, Separation of Powers between the legislature, the executive and the judiciary and the Federal character of the Constitution.²⁰
Later a Constitution bench, in the infamous case of Indira Nehru Gandhi v. Raj Narain²¹ observed that “judicial review in election disputes was not a compulsion as it did not form a part of basic structure.” The decision in Cooper sowed seeds for consolidated application of fundamental rights, and with Maneka Gandhi,²² the judicial system moved away from the “procedure established by law” and moved towards “due process of law”.
In Minerva Mills Ltd. v. Union of India²³ the scope and extent of the doctrine of basic structure was reconsidered by the Supreme Court. The Supreme Court, by a 4:1 majority, struck down clauses (4) and (5) of Article 368, which were inserted by the Forty Second Amendment Act, with the rationale that these clauses destroyed the essential feature of the basic structure of the Constitution. “Limited power of amendment” was considered to be a basic structure of the constitution and since these clauses precluded judicial review in its entirety, they were considered an attempt by the legislature to evade examination at the hands of the judiciary. This case firmly embedded judicial review in the basic structure framework of the Constitution.²⁴ In the case of S.P. Sampath Kumar v. Union of India²⁵ Jutstice Bhagwati held that “judicial review is a basic and essential feature of the Constitution.” The Court unequivocally stated that “if the power of judicial review is taken away in its entirety, the Constitution would cease to be what it is.” In Sampath Kumar, the Court further held that “if a law made under Article 323-A (1) were to exclude the jurisdiction of the High Court under Articles 226 and 227 without setting up an effective alternative institutional mechanism or arrangement for judicial review, it would violate the basic structure and hence, such an action is outside the constituent power of Parliament.” Subsequently, in L. Chandra Kumar v. Union of India²⁶ a larger Bench of seven Judges held that “the power of judicial review over legislative action also vested with the High Courts.”
The Supreme Court vide its judgment in I.R. Coelho v. the State of Tamil Nadu²⁷ established the pre-eminence of judicial review of each and every part of the Constitution. It has now become clear that if the Court finds that a particular enactment damages the basic structure of the Constitution, it shall be declared void, notwithstanding the fictional immunity given to it by the ninth schedule. Thus, the basic structure doctrine requires the State to justify the degree of invasion of Fundamental Rights in every given case, and this is where the Court’s power of judicial review comes into play extensively.
In recent times a five judge bench of the Supreme Court in the case of State of W.B. v. Committee for Protection of Democratic Rights²⁸ has observed that “power of judicial review is an integral part of the basic structure of the constitution and no act of parliament can exclude or curtail the powers of the constitutional courts with regard to the enforcement of fundamental rights.” Later on 16th October, 2015 the Supreme Court of India, by a majority opinion of 4:1, declared the “99th Constitutional Amendment, 2014 unconstitutional because the 99th Constitutional Amendment interfered with the autonomy of the judiciary and thus violated the basic structure of the Constitution.” However, the Supreme Court in this case acknowledged that the collegium system lacks transparency and credibility, but, these shortcomings should be rectified by the Judiciary itself.²⁹
Thus it can be said that in the initial phase the Apex Court resorted to an approach of literal and narrow interpretation. Judicial discipline used to be the order of the day. However in due course of time this judicial positivism transformed into judicial activism, and in a bid to increase the commonness of legality, the Court eventually carved a different path for itself.
IV. CONCLUSION AND SUGGESTIONS
“In view of the fact however, that the opposition is negligible, the position of the judiciary becomes all the more important. In the Legislative Assembly, a Bill could be passed and made into an Act without much difficulty. Having regard to this position of the Legislature, if the Executive government, which is now held responsible to the Legislature does acts which encroach upon the liberty of the subjects, the only forum which can give redress against irregular action of the Executive is the Court.”
— Chief Justice Kania³⁰
Judicial Activism is an essential aspect of the dynamics of a constitutional court. It is a counter-majoritarian check on democracy. Judicial activism, however, does not mean governance by the judiciary. It also must function within the limits of the judicial process. Within those limits, it performs the functions of legitimizing or, more rarely, stigmatizing the actions of the other organs of the government.³¹
Today there is a lack of harmony between the three organs of the state i.e., the Legislature, Executive and Judiciary. It is mainly because their powers are over-lapping in nature. Therefore in order to realize the Constitutional vision and the implicit goal of Separation of Powers this conflict between the judiciary and the other two wings needs to be actively reconciled, or outcries of encroachment will eventually give way to unwilling accommodation, causing severe damage to the fabric of the polity. This will only be possible when more and more jurists as well as other stakeholders engage with this question of apparent ascendancy and keep Constitutional incrementalism at bay, so as to avoid ambiguity and unnecessary delay.³²
Judiciary has been entrusted with the extensive power in regards to the interpretation of statue which results into emergence of set of new rules in order to achieve end of justice. Former president of U.S. Jefferson once pointed out that “Judicial activism makes a thing of wax in the hands of judiciary which it can give the shape as it wishes.” The doctrine of separation of power are getting blurred which is not good for the society and it slowly and gradually destroy the democracy. The tussle can be solved by the Judicial Restraint. The Supreme Court of India in catena of judgments highlighted the importance of judicial restraint to maintain balance of power in democracy. It is important because Judiciary is not accountable to any other organ of government. When judiciary is guilty of excess, it is only subject to the criticism by the public at large or by larger constitutional bench or a constitutional amendment can intervene. As a result judicial restraint is necessary.³³ The doctrine of separation of power in today’s world have great significance it cannot be interpreted to mean principles of restraint but ‘community powers’ exercised in the spirit of cooperation by various organs of the state in the interest of the people.³⁴
 Apoorva Maheshwari, Separation of Powers: Theory and Practice (Indian Perspective), Racolb Legal (Aug. 14, 2020, 2:00 p.m.), http://racolblegal.com/separation-of-powers-theory-practice-indian-perspective/.
 Aqaraza, The Doctrine of Basic Structure of the Indian Constitution: A Critique, Legal Service India (Aug. 14, 2020, 2:02 p.m.), http://www.legalserviceindia.com/legal/article-254-the-doctrine-of-basic-structure-of-the-indian-constitution-a-critique.html
 E.C.S. Wade & G. Godfrey Phillips, Constitutional Law 22–34 (6th edition, Longmans, UK, 1960).
 Raj Krishna, A Case Study of Judicial Review in India, Volume 4 Issue1, The 19 (1) (A) Modern Law College Law Journal. 37, 37 (2018).
 Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225.
 Supra note at 4.
 An analysis of the concept of judicial review and a comparison between the judicial review of India and U.S., Legal Services India, (May 12, 2020, 11:30 p.m.) http://www.legalservicesindia.com/article/1734/Judicial-Review-in-India-And-USA.html.
 Indian Constitution, Art. 13.
 In Re, Delhi laws Act AIR 1951 SC 332
 AK Gopalan v. State of Madras, 1950 SCR 88.
 Shankari Prasad v Union of India, AIR 1951 SC 458.
 Supra note at 4.
 Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.
 I.C. Golaknath v. State of Punjab, AIR 1967 SC 1643.
 Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225.
 Indira Nehru Gandhi v Raj Narain 1975 Supp SCC 1.
 Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
 Minerva Mills Ltd. V. Union of India, AIR 1980 SC 1789.
 Supra note at 4.
 S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124.
 L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.
 I.R. Coelho v. State of T.N., (2007) 2 SCC1.
 State of W.B. v. Committee for Protection of Democratic Rights, AIR 2010 SC 1476.
 Supreme Court Advocates-on –Record — Association and Another v Union of India (2015) 11 SCALE 1.
 Prof S.P. Sathe, Judicial Activism in India 43 (2nd ed., Oxford University Press).
 Prof. S.P. Sathe, Judicial Activism in India 310 (1st ed., Oxford University Press, 2002).
 Raj Krishna and Rahul Singh, “Are the lines of separation of powers between the judiciary and the parliament becoming blurred?”, Manipal Law Review (July 21, 2020, 4:00 p.m.), https://mujlawreview.wordpress.com/2020/04/30/are-the-lines-of-separation-of-powers-between-the-judiciary-and-the-parliament-becoming-increasingly-blurred/.
 Supra note 21.
 Supra note 32.
The first author is a Year V and the second author is a Year III B.A.LL.B (Hons.) student at the Chanakya National Law University, Patna.
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