ISSN: 2581-8465
Judicial Predation as a facet of Parliamentary Democracy within the contours of Separation of Power
Author: Purbayan Chakraborty & Kavya Nargund
ABSTRACT
Constitutional supremacy is the order of the day. The role of the judiciary in guarding the constitutional principles is undeniable political truth. The excellence of the judicial institutions affords an illustrious sense of satisfaction to the people of the country against the distrust and distress attitude of the government. It acts as custodian of constitutional principles and basic rights of the citizens. Therefore, it is indispensable for the modern States to maintain the sanctity of the judiciary in order to emancipate the dynamic role of this constitutional office. Realizing the crucial role of judiciary in the constitutional governance, the judicial system of the modern States has been set up in a very constructive and careful manner under their respective Constitution. Verdict of the Supreme Court of India on NJACA, declaring it as Unconstitutional, triple talaq judgement directing the parliament to enact law within 6 months to address the issues relating to personal laws of the country, and controversial tussle regarding the appointment of the judges to the High Court of Uttar Pradesh has unveiled the intrinsic conflict between Parliament and Supreme Court of India. These developments have created unprecedented apprehension in the mind of constitutional scholars in assessing the sanctity of judicial review and parliamentary supremacy in constitutional jurisprudence. This paper aims to succinctly analyze the position of parliamentary supremacy and the significance of judicial review in the context of a constitutional crisis between judiciary and legislature while exercising their powers within the constitutional parameters. This paper focuses on comprehensively and addresses the complex constitutional interrogations. The study in the paper starts with the vitality and vigor of the Parliamentary Democracy and then the focus shifts upon the determination and constitutional discipline of the Judiciary. At this stand-point when the study awaits at the stage where we have two powerful organs claiming a stake of supremacy under the Constitution and the solution to which the Constitution asserts through conventional doctrines. Finally, the last paper focuses on how judicial review takes on Parliamentary Democracy.
“Never seek to enlarge judicial power beyond its proper boundary, nor fear to carry it, to the fullest extent that duty requires”
- Chief Justice Marshall
PROLOGUE
Constitutional supremacy is the order of the day.[1]The role of the judiciary in guarding the constitutional principles is undeniable political truth.[2]The excellence of the judicial institutions affords an illustrious sense of satisfaction to the people of the country against the distrust and distress attitude of the government. It acts as custodian of constitutional principles and basic rights of the citizens. Therefore, it is indispensable for the modern States to maintain the sanctity of the judiciary in order to emancipate the dynamic role of this constitutional office. Realizing the crucial role of the judiciary in constitutional governance, the judicial system of the modern States has been set up in a very constructive and careful manner under their respective Constitution.
One of the striking features of the judicial system is independency.[3] The judicial process based on probity, fairness, and impartiality is unimpeachable.[4]It is a fundamental pillar of public Confidence.[5]These basic tenets of the judiciary have stretched the confidence of the public on judiciary. The enlarged sense of confidence commanded by judiciary located itself as a benevolent institution of the political system. Under the context of a fundamental characteristic of the judicial system, the Supreme Court of India (SCI) is termed that
“The foundation of the judicial system which is based on the independence and impartiality of those who man it will be shaken if disparaging and derogatory remarks are made against the presiding judicial officers with impunity. It is high time that we realize that the much cherished judicial independence has to be protected not only from the executive or the legislature but also from those who are an integral part of the system. An independent judiciary is of vital importance to any free society”.[6]
In the backdrop of the complex task of the judiciary, Alexander Hamilton opined that
“The independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”[7]
As viewed by Justice Hand in Brown v. Walter
“A judge…is more than a moderator; [a judge] is affirmatively charged with securing a fair trial and a judge must intervene suasponte to that end, when necessary… justice does not depend upon legal dialectics so much as upon the atmosphere of the courtroom, and that in the end depends primarily upon the judge.”[8]
It is unquestionable fact and indeclinable truth from the above-mentioned observations that the honest, impartial, independent and competent judicial branch to ensure rule of law, stimulating public confidence, dispensing administration of justice much relies upon the appointment process of the higher judiciary. In establishing integrity and probity based judiciary, the various processes such as appointment, removal and service conditions of the judges have a pivotal role to play and these processes should be guided by Constitutional principles. By most accounts, these are uniformly held, well established and uncontroversial principles across the globe throughout the ages. Accordingly, the framers of the Constitution were able to incorporate potential provisions on the judiciary so as to articulate and materialize the above-mentioned principles.[9]
However, verdict of the Supreme Court of India on NJACA, declaring it as Unconstitutional, triple talaq judgement directing the parliament to enact law within 6 months to address the issues relating to personal laws of the country, and controversial tussle regarding the appointment of the judges to the High Court of Uttar Pradesh has unveiled the intrinsic conflict between Parliament and Supreme Court of India. These developments have created unprecedented apprehension in the mind of constitutional scholars in assessing the sanctity of judicial review and parliamentary supremacy in constitutional jurisprudence. This paper aims to succinctly analyze the position of parliamentary supremacy and the significance of judicial review in the context of a constitutional crisis between judiciary and legislature while exercising their powers within the constitutional parameters.
This paper focuses on comprehensively and addresses the complex constitutional interrogations. The study in the paper starts with the vitality and vigor of the Parliamentary Democracy and then the focus shifts upon the determination and constitutional discipline of the Judiciary. At this stand-point when the study awaits at the stage where we have two powerful organs claiming a stake of supremacy under the Constitution and the solution to which the Constitution asserts through conventional doctrines. Finally, the last paper focuses on how judicial review takes on Parliamentary Democracy.
Parliamentary Democracy vis-à-vis Legislative Supremacy
“The dignity of the individual and the sacredness of human personality are the fundamental principle of democracy. The moral basis of a democratic society is respect for the individuals. The voice of the people must be carried by the Government and the parliamentary democracy is the best instrument for the ascertainment and the expression of the public mind. Parliament acts as a liaison between the people and the State. It is the function of the Parliament to express, not to suppress, public opinion and social discontent, if any. A sound democracy requires freedom of thoughts and expression and this demands respect for minority opinion.”
- Dr. S. Radhakrishnan
Countries with parliamentary systems may be constitutional monarchies, where a monarch is ceremonial head of state while the head of government is almost always a member of the legislature (such as the United Kingdom, Sweden and Japan), or parliamentary republics, where a mostly ceremonial president is the head of state while the head of government is regularly from the legislature (such as Ireland, Germany, Pakistan, India, and Italy). In a few parliamentary republics, such as Botswana, South Africa, and Suriname, as well as German states, the head of government is also head of state, but is elected by and is answerable to the legislature.[10]
The Constitution of India establishes a system of parliamentary democracy in India. Before taking such a decision, the Constituent Assembly discussed in detail as to whether the Presidential System would be more suitable for India or the Parliamentary System. While some of its members like SayeedKaji, & S. L. Saxena, strongly supported the case for establishing a presidential system, the majority of members supported the case for adopting the parliamentary form of government. This decision was made because the people of India had some experience in working this type of system and because it provided for a government directly responsible to the legislature. The Constituent Assembly, therefore, decided to adopt the system of parliamentary democracy both at the Union as well as State levels.
Parliamentary form of government hints at Legislative Supremacy
India has a hybrid system of government. The hybrid system combines two classical models: the British traditions, drawn upon parliamentary sovereignty and conventions, and American principles upholding the supremacy of a written constitution, the separation of powers and judicial review. The two models are contradictory since parliamentary sovereignty and constitutional supremacy are incompatible. India has distinct imprints in her constitution of both the British and American principles. In other words, following the adoption of the 1950 Constitution, India has evolved a completely different politico-constitutional arrangement with characteristics from both the British and American constitutional practices.
Parliament is also the custodian of the Constitution of India. The Preamble to the Constitution proclaims the supremacy of the people of the country. They exercise their supremacy through their elected representatives who are the Members of Parliament. While parliamentary sovereignty places the highest position of the government to parliament has a wide range of power, including the power of legislating law and deciding policy. The conventional view of the doctrine of parliamentary supremacy is basically that the only parliament has the liberty and freedom to create and invalidate any law as it wishes and that no other institution can challenge that right, no matter how absurd, unjust or unreasonable the law is. Pursuant to the Indian Constitution, the very basis of the parliamentary democracy is the exercise of the power, which is based on the popular will and the popular control.[11] The doctrine usually referred to the description by Professor A.V Diecy[12], which states Parliament is legally competent to legislate upon any subject matter. By his description, reflects that parliament is very powerful where it may pass any law without restriction.
Within a modern legal system, enacted laws remain in force until they are repealed or amended unless they are declared when enacted to have a limited life.[13] It is inherent in the nature of a legislature that it should be free to make new laws. The fact that legislation about, say, divorce or consumer protection was enacted five or 50 years ago is no reason why fresh legislation on the same subject should not be enacted today: even if social conditions have not changed, the legislature may wish to adopt a new approach. When Parliament does so, it is convenient if the new Act expressly repeals the old law or states the extent to which the old law is amended. Suppose that this is not done and a new Act is passed which conflicts with an older Act but does not expressly repeal it. There now appear to be two inconsistent statutes on the statute book.
It is for the courts to resolve this conflict because they must decide the law which applies to a given situation. Where two Acts conflict with each other, and the conflict cannot be resolved in another way, the courts apply the Act which is later in time; the earlier Act is taken to have been repealed by implication to the extent of the inconsistency.
If two inconsistent Acts be passed at different times, the last must be obeyed . . . Every Act is made either for the purpose of making a change in the law, or for the purpose of better declaring the law, and its operation is not to be impeded by the mere fact that it is inconsistent with some previous enactment.[14]
Lawmaking is the primary function of legislative bodies. In all parliaments, there are established procedures for making laws. By and large, these procedures concern initiation, introduction, general discussion, Committee scrutiny, public consultation, amendments, discussion in the plenary and voting leading to authentication by the President. We also have time-honored rules for legislation comparable to international standards. Of late, Civil Society Organizations have tended to become strident in regard to the manner in which they should be consulted in lawmaking. Of course, these organizations can provide invaluable inputs based on their grassroots perception of people’s aspirations. It is desirable that any public consultation including with Civil Society organizations is done within the framework of parliamentary procedures. In representational democracies, it is the prerogative of the parliament to make laws on behalf of the sovereign people. We cannot allow lawmaking to be delegated to the Civil Society with the result that it becomes something in the nature of collective bargaining. The simple reason is that there are lot many Civil Society Organizations and we should not tie ourselves down by complicated procedures. Nor do they have a representative character. This apart, such organizations also may have their caprices and partisan orientations. Laws touching, as they do, millions of people should be formulated without capricious and partisan orientations. Government, on their part, could study, and learn from, the experiences of other countries such as the UK in perfecting pre-legislative scrutiny.
SUPREMACY OF THE JUDICIARY ASSURING THE CONSTITUTIONALISM
National identity is about national self-definition, how a society understands and defines itself and credit of such is to be found at the Grund-norm of the nation. The Constitution of India certainly entails in its Preamble the national identity of India. Such a basic norm was a precipitate of outstanding efforts of the Constituent Assembly and under the authority of the People of India. The idea of democracy was not an add-on but was inherent in the idea of India as a nation-state.[15] The question as to the proliferation and organization of the State under the authority of the Constitution for its effective implementation requires the assimilation of constitutional obligations mutually among the co-ordinate organs as provided by the Constitution there-under. India is a Parliamentary form of government where one can find that accountable infusion of the executive in the legislature. Meanwhile, the legislature assuming that vast power has to act within the constitutional license, but when we trace the history we are evident to our satisfaction that the same organ has trespassed its contours claiming its supremacy over other co-ordinate organs.[16] The same basic norm has also formulated for a constitutional creature under a dynamic concept of Polarisation of Power, i.e. the Judiciary. If we are to remember the words of ShriAlladiKrishnaswamiAiyar, “the future evolution of the Constitution will to a large extent depend upon the work of the Supreme Court and the direction given to it by the court…From time to time in the interpretation of the constitution, the Supreme Court will be confronted with apparently contradictory forces at work in society for the time being. While its main function may be one of the interpreting Constitutions as contained in the instrument of the government, it cannot in the discharge of its duties afford to ignore the social, economic and political tendencies of the times which must furnish the necessary background. It has to keep the poise between the seemingly contradictory forces.[17]
On churn of events[18], which, blatantly alleged to juxtapose the Constitutional philosophy have tapped the conscience of the judiciary and the latter achieved an expansive judicial control in various areas under our Constitution. By exercising such powers of judicial review which became a classic case of, “brooding Omni Presence”. The judicial attitude and behavior of the Courts after 1980, gave rise to many concepts like ‘judicial activism’, ‘judicial supremacy’, ‘judicial absolutism’, ‘judicial liberalism’ and the like.[19] Judicial review is considered as an adjunct to the limited government, an instrument of progress and promoter of constitutional values. A Constitution enjoys a special status because of its position as a reservoir of power. The judicial review stems from the juristic nature of the Constitution, to protect and promote the constitutionalism.[20] Democracy is designed for the welfare of all citizens and an independent judiciary is one of the instruments to be used for that purpose.[21] It is often said that the legislature enacts the law, the executive executes and the Courts thereafter interpret that law. This is not a correct proposition in which one can afford to venture against the prevailing practicality. It is the judiciary that has time and again bridged the lacunas duly arising from the lethargic and adamant approaches of the other organs in the promotion of the constitutional values and principles of the public policy. In regard to the role exhibited by the Judiciary in these days, one can afford to say that, the supremacy of the judiciary is not a luxury or a constitutional trespass but essential as a constitutional necessity. The Indian judiciary has commanded the respect and a sense of faith which people owe towards it because it stood up as the only limb of the State which annulled the ideology of Lord Acton.[22] The notion “what Parliament doth, no power on earth can undo”,[23]which may be applauded in the land of Emperor, but that notion does not properly hold good in the Indian context and any reference such idea would be a fallacy of Indian Parliamentarians or Executives for that matter. Fali S. Nariman, says, “After half a century a written Constitution takes on a life of its own especially in a country that is wedded to the concept of judicial review.”[24] The statement logically ensnares senses of every individual in this country in the role played by the Judiciary in protecting and ensuring the constitutional adages.
It is essential that judicial supremacy must be carved out from the delicate constitutional balance so as to ensure the constitutional democracy rather than beheading to the majoritarian democracy. Having been framed for a country with many races, languages, religions, and cultures it guaranteed to all people freedom of religion, faith, and worship, and it conferred on minorities’ educational and cultural rights. These fundamental rights preserve the unity and integrity of India. By conferring the amending power to the Parliament the latter abused such power and converted a free and democratic Constitution into a dictatorship, in which the freedom of thought and expression, and freedom of religion were suppressed, equality disregarded, and abuse of power unchecked by an independent Judiciary, were the proximate consequences of the presumption of Parliamentary supremacy.[25]
The Judiciary entrusted upon it a solemn role under the Constitution has time and again courageously strived to protect the constitutional philosophy. It is the Judiciary which operationalise the textual law into functional. Constitutional theorists often discuss judicial supremacy under the rubric of judicial review.[26]In this light after having regard in length as to the vital role played by judiciary, at no stretch of imagination judicial supremacy becomes the order of the day and sine qua non for prevailing of constitutional order.
Theory of bipolar sovereignty restoring the equilibrium between the co-ordinated organs
It has been well said by Lord Acton: – “Power corrupts and absolute power tends to corrupt absolutely”. Conferment of power in a single body leads to absolutism. It is generally accepted that there are three main categories of state functions – (i) the legislative, (ii) the Executive, and (iii) the Judicial. At the same time, there are three main organs of the State i.e. legislature, executive and judiciary. According to the theory of separation of powers, these three powers and functions of the state must, in a free democracy, always be kept separate and exercised by separate organs of the state. Thus, the legislature cannot exercise executive or judicial power; the executive cannot exercise the legislative or judicial power of the state[27].
It is widely accepted that for a political system to be stable, the holders of power need to be balanced off against each other. The principle of separation of powers deals with the mutual relations among the three organs of the state namely legislature, executive and judiciary. This doctrine tries to bring exclusiveness in the functioning of the three organs and hence a strict demarcation of power is the aim sought to be achieved by this principle. This doctrine signifies the fact that one person or body of persons should not exercise all the three powers of the state. The doctrine of separation of powers is an animation of the rule of law and its roots also lie in the concept of natural law because of both aims at the progressive diminution of the exercise of the arbitrary power necessary for protecting the life, liberty, and dignity of the individual. It is an organic flexible doctrine that can be molded to suit the requirements of governance, but its inherent fundamentals and rationality must not be compromised, i.e. “accumulation of power” is a definition of tyranny. Brandeis J. scientifically explained the purpose of the separation of powers is not to promote efficiency in the administration but to preclude the exercise of arbitrary power. He further emphasizes that its purpose is not to avoid friction among various organs of the State by keeping them separate but to protect people from autocracy by means of inevitable friction due to the distribution of powers. Therefore, the basic purpose of separation of powers is to divide the governance against itself by creating separate centers of power so that they could prevent each other from threatening tyranny.[28]
Montesquieu Stated the Doctrine of Separation of Powers in the Following Words- “They would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals”. Through this doctrine, Montesquieu tried to explain that the union of the executive and the legislative power would lead to the despotism of the executive for it could get whatever laws it wanted to have, whenever it wanted them. Similarly, the union of the legislative power and the judiciary would provide no defence for the individual against the state. The importance of the doctrine lies in the fact that it seeks to preserve human liberty by avoiding the concentration of powers in one person or body of persons.
The American Constitution provides for a rigid separation of governmental powers into three basic divisions, the executive, legislative and judicial.[29] It is an essential principle of AmericanConstitution that powers entrusted to one department should not be exercised by any other department. The Australian Constitution follows the same pattern of distribution of powers.[30] Unlike these Constitutions, the Indian Constitution does not expressly vest the three kinds of power in three different organs of the State. The Constitutional history of India reveals that the framers of the Indian Constitution had no sympathy with the doctrine. This is evident from its express rejection in spite of attempts being made[31]. The Constituent Assembly, while in the process of drafting the Constitution, had dwelt at length for incorporating the doctrine and ultimately rejected the idea in toto. Dr. B.R. A. Ambedkar, who was one among the members of the Constituent Assembly, while comparing the Parliamentary and Presidential systems of India and America respectively, remarked as thus[32]. But the functions of the different parts or branches of the state have been sufficiently differentiated and consequently, it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. In KesavanandaBharati v. State of Kerala[33] and later in Indira Nehru Gandhi v. Raj Narain[34] case, apex Court declared the separation of powers to be a part of the basic structure of the Constitution. Moreover, there is ample evidence in the Constitution itself to indicate that it creates a system of checks and balances by reason of which powers are so distributed that none of the three organs it sets up can become so predominant as to disable the others from exercising and discharging powers and functions entrusted to them.
In a parliamentary form of government, one would certainly find the difficulty in tracing the domains for the administration of separation of powers, but it is justified that the Legislature and Executive may be fused and the executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. But the judiciary is always separate from the rest two organs.[35] One of the three formulations of this separation of powers is, ‘one organ of the government must not interfere with the other organ of the government’; the institutional balance between the executive, the legislature and the courts is determined by the role allotted to each of them under the Constitution and the limitations that the Constitution imposes on each of them. Under constitutional scheme in India, the legislatures have the power to make laws but the courts have the power of judicial review under which they are required to interpret the provisions of the Constitution and the laws made by the legislature to determine whether the legislatures are acting within the limits imposed by the constitution. The claim of legislatures in India to be the “sole judge” in all matters pertaining to legislative privilege arises out of their need for autonomy and self-sufficiency in their functioning without being dependant on any other organs of the State. Accordingly, the legislatures claim to be the sole judge not only with respect to the exercise of their privileges but also with respect to the existence and extent of privileges.[36] In demarcating the boundaries between the exercise of jurisdiction by the legislatures and the superior courts in the field of legislative privilege, the legal principles developed by the courts over the last six decades since the commencement of the Constitution have brought about equilibrium today. Both wings of the state exercise restraint towards the exercise of power by the other.[37] In countries where there is written Constitution the precise distinction between the organs of the State, the powers of such organs may be of great practical importance, for the exercise of each power may be surrounded by safeguarding conditions. In a federal system where disputes as to the limits of the constitutional powers have to be resolved by courts, the distinction between judicial and other powers may be vital for the maintenance of the Constitution itself.[38]
Redefining the concept of Judicial Review as an important part of Parliamentary Democracy
In a mature democracy, the Courts and Parliament have distinct and complementary constitutional roles in securing good government according to the Constitution.[39] The Courts will no longer avoid adjudicating the legality of a decision merely because it has been debated and approved by Parliament[40] or relates to the nationally important policy pursued by a Minister accountable to Parliament.[41] The distinctive roles of judicial review & parliamentary oversight of executive action create opportunities for synergy, with aspects of a particular decision being scrutinized in different ways by different bodies. Thus, a government decision may be examined in judicial review proceedings, in an ombudsman complaint, and by a parliamentary committee.[42] Judicial review proceedings may prompt parliamentary action, and vice versa.[43] Judicial review also goes some way to answering the age-old question of “who guards the guards?” by ensuring the public authorities responsible for ensuring accountability of government does so within the boundaries of their own lawful powers.[44]
The concept of Judicial Review was recognized for the first time by Lord Coke in Dr.Thomas Bonham v. College of Physicians[45], where he observed that “in many cases, the common law will control Acts of Parliament.” Lord Coke intended to introduce the doctrine of Judicial Review in this landmark decision. Subsequently in the case of the City of London v. Wood[46] Chief Justice Holt remarked that “An Act of Parliament can do no wrong, though it may do several things that look pretty odd.” This remark establishes the ‘Doctrine of Parliamentary Sovereignty’ which means that the court has no power to determine the legality of Parliamentary enactments.
The concept thereafter has truly come into force when it was expounded in Marburyv. Madison[47] by Marshall C.J., where he asserted, “it is emphatically the province and duty of the judicial department to say what the law is.” The power of the courts to invalidate a law made by the Legislature in case it conflicts with the mandate of the Constitution emanates from the other part of the juristic nature of the Constitution, namely, that it is the ‘supreme law of the land.’[48]
In the Indian context, the Apex Court since the era of A.K. Gopalan’s case[49] to the historic judgment in I.R. Coelho’s[50]case magnified the concept of the doctrine of Judicial Review. In the present scenario, the Supreme Court plays a very crucial role to interpret the constitutional provisions and now the concept of Judicial Review became a fundamental feature or a basic structure of the Constitution. It is observed by scholars that the aim of Judicial Review is to ensure democratic outcomes while preserving popular participation in democratic processes.[51] Further, it helps in limiting the powers given to the different organs of the State.
The initial years of the Supreme Court of India witnessed the adoption of an approach characterized by caution and circumspection. Being steeped in the British tradition of limited judicial review, the Court generally adopted a pro-legislature stance. This is evident from the rulings such as A.K. Gopalan. However, it did not take long for judges to break their shackles and this led to a series of right to property cases in which the judiciary was logger head with the parliament.
The nation witnessed a series of events where a decision of the Supreme Court was followed by legislation nullifying its effect, followed by another decision reaffirming the earlier position, and so on. The struggle between the two wings of government continued on other issues such as the power of amending the Constitution. During this era, the Legislature sought to bring forth people-oriented socialist measures which when in conflict with fundamental rights were frustrated on the upholding of the fundamental rights of individuals by the Supreme Court. At the time, an effort was made to project the SupremeCourt as being concerned only with the interests of propertied classes and being insensitive to the needs of the masses. Between 1950 and 1975, the Indian Supreme Court had held a mere one hundred Union and State laws, in whole or in part, to be unconstitutional.
The Indian Judiciary has played a remarkable role by the way of Judicial Review to maintain the supremacy of the Constitution. As said by Holmes that life of the law is not logic but experience. Hamilton, one of the framers of the constitution of the United States of America says that if there is a conflict between the constitution and the law the judges should pre reconstitution. In India, it is reflected by 100%. After the decision of KeshavanandaBharti’s case42ndamendment was made to the Constitution which inserted Clause 4 and 5 which declared that their shall be no limitation on the amending power of the parliament of what so ever. According to Mr.Swaran Singh, the Chairman, and Congress Committee on Constitutional Amendments put an end to any controversy as to which is Supreme, Parliament or theSupreme Court. But In Minerva Mills v. Union of India[52], The Supreme Court struck down clauses (4) and (5) of Article 368 inserted by the 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the Constitution. the judgment of the Supreme Court thus makes it clear that “the Constitution-not the parliament is supreme in India.”
After having observed the importance of judicial review as an essential and axiomatic truth for ensuring Constitutionalism it is to be inferred that the judicial review is considered as an essential part of the Parliamentary Democracy just to ensure the constitutional values to the citizens by protecting their life and liberty.
Conclusion
Constitution of any country is a lifeless document with a noble intention of transforming a nation, the State which is organized under it has to function in furtherance of realization of the said goals set by that Premier Law. The State while acting in accordance with the mandate of the Constitution fills life to that lifeless instrument of transformation. The paper as in length has shed some light on lucrative concepts of the Constitutional Jurisprudence. The study focused on the loggerhead battle of two mighty organs of the State, one claiming the supremacy over the other. As they are the creatures under the Constitution they must oblige to the notion of the Constitutional Supremacy, to that extent neither of them is supreme. In the context of claiming supremacy under the subordination of the Constitution in order to protect the constitutional values, one needs to strike a workable balance between these two conflicting extremities. When we analyze the structure of paper few of the constitutional principles have been addressed as the contentions by the said organs in the quest for supremacy. The Parliamentary democracy constituting the wider principle on the one hand and the Judicial review, an identity of the Constitution on the other hand. To phrase this battle, as a conflict of one Basic structure with the other. In order to draw a workable balance between these two, the need for an hour requires the appreciation of the political, social and economic conditions of the country along with the track record of the performance of their respective roles duly conferred upon them by the Constitution. When we weigh the preponderance of probability always favors the Judiciary as a constitutional office, as it has retained the faith of the Supremes of the country (People of India). So as to the balance the power centers the Constitution also subscribes to an ideology of Separation of Power, which purported for mutual exclusivity in the lapse of time it has been reconceptualized to mutual checks and balances. In the limits prescribed by the said doctrine, the Judicial review becomes an essential facet of the Parliamentary Democracy in order to make certain the Constitutional order and for the survival of the Constitutional values in this country.
*3rdYearB.A., LL.B.,( Hons.)Karnataka State Law University’s Law School, Karnataka.
**4th Year B.B.A., LL.B.(Hons.) Karnataka State Law University’s Law School, Karnataka.
[1]. SeeSpecial Reference No.1 of 1964 case (Keshav Singh’s case) 1965 (1) SCR 413; KesavanondaBharati v. State of Kerala, 1973 Suppl. S.C.R. I; Indira Nehru Gandhi v. Raj Narain, (1976) 2 S.C.R 347; A.D.M. Jabalpur v, ShivakanthSukla, A.I.R. 1976S.C. 1207; Peoples’ Union for Civil Liberties v. Union of India, AIR 2003 SC 2363, para.53;See also, Vriend v. Alberta, 1998(1) SCR 493 of Canada; International Transport Roth Gmbth vs. Home Secretary 2002(3) WLR 344 of U.K.
[2]. SANFORD LEVINSON, FRAMED AMERICA’S CONSTITUTIONS AND THE CRISIS OF GOVERNANCE 253 (2010).
[3]. See for example Beijing Statement of Principles of the Independence of the Judiciary in the Law Asia Region, adopted by Conference of Chief Jusitices Law Association for Asia and Pacific, held on August 1997 in Beijing; Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from Aug. 26 to Sept.6,1985 and endorsed by G.A.Res. 40/32 of Nov.29, 1985 and 40/146 of 13 Dec.13, 1985;Basic Principles of the Independence of judges and Lawyers, G.A. Res. 32, U.N. GAOR 40th Sess., Supp. No. 53, at 205, U.N. Doc. A/40/53 (1985).
[4]. BalKishanGirivs State Of U.P,para 18, decided on 28 May, 2014.See alsoM. Krishna Swami vs Union Of India &Ors, AIR 1993 SC 1407, para.68; D.K. Pariharvs Union Of India and Anr, AIR 2005 Raj 171, RLW 2005 (3) Raj 1783, 2004 (4) WLC 724, para.31; C. RavichandranIyervs Justice A.M. Bhattacharjee&Ors, 1995 SCC (5) 457, JT 1995 (6) 339; Sub-Committee On Judicial … vs Union Of India and Ors, 1992 AIR 320 1991 SCR Supl. (2) 1, 1991 SCC (4) 699; In re Mason, 916 F.2d 384, 386 (7th Cir. 1990).
[5] . SeeRepublican Party of Minn. v. White, 536 U. S. 765, 793 (2002); MODEL CODE OF JUDICIAL CONDUCT R. 1.2 cmt.3 (2007).
[6]. M.B. Sanghi, Advocate v. High Court of Punjab and Haryana &Ors., AIR 1991 SC 1834.See also IBA Minimum Standards of Judicial Independence, 1982; UN Basic Principles on the Independence of the Judiciary, 1985; Singhvi Declaration, 1989; The Universal Charter of the Judge, 1999; Beijing Statement of Principles of the Independence of the Judiciary, 1997; Latimer House Guidelines, 1998; The European Charter on the Statute for Judges, 1998; Bangalore Principles of Judicial Conduct, 2002 .
[7]. ALEXANDER HAMILTON, FEDERALIST NO. 78. Cited in: DONALD P.KOMMERS, JOHN E.FINN AND GARY J.JACOBSON, AMERICAN CONSTITUTIONAL LAW- LIBERTY, COMMUNITY AND BILL OF RIGHTS, 751 (2004).
[8]. Cited in: Juanita Bing Newton, Raising the Age of Criminal Responsibility in New York: A Judge’s Observation, in BLACK GIRLS AND ADOLESCENTS – FACING CHALLENGES 337 (Catherin Fisher Collins eds., 2015).
[9]. Provisions as to the judiciary in India are contained under the titled ‘The Union Judiciary’, ‘High Courts in the States’, and ‘Subordinate Courts’ respectively. The unique feature of the Indian Judicial system, contrary to other federal system like United States of America, is integrated instead of separate hierarchies of federal and State Courts. For the entire republic of India, there is one unified judicial system, one hierarchy of Courts, with the Supreme Court as the highest court and also as the arbiter in matters of relations between the Union and the States and the States. SeeConstitution of India, 1950, (hereinafter INDIA CONST)pt.V, ch.IV, art.124-147; pt.VI, ch.V, art.214-232; pt.VI ch.VI, art.233-237.
[10]Dr. Rajeev, “Parliamentary Democracy in Indian Political Environment”, International Journal of Computing and Corporate Research, Volume 4 Issue 6 November 2014, p. 03.
[11] Article 75 (3) of the Constitution reads, “The Council of Ministers shall be collectively responsible to the House of the people” and under Article 75 (3) it is clearly provided that the Cabinet is responsible to the Legislature.
[12] Dicey, The Law of the Constitution, pp. 39–40.
[13] Mitchell, Constitutional Law, pp 21–22.
[14]Lord Langdale, in Dean of Ely v Bliss (1842) 5 Beav 574, 582. See also Thoburn v Sunderland Council [2002] EWHC (Admin) 934, [2003] QB 151.
[15]Bhiku Parekh, “The Constitution as a Statement of Indian Identity”, Politics and Ethics of the Indian Constitution, Ed., Rajeev Bhargava, 1st ed., (New Delhi: Oxford University Press India, 2008), pp.44,47.
[16] O. Chinnappa Reddy, The Court and the Constitution of India, 1st ed., (New Delhi: Oxford University Press India, 2008), p.21…………………………………………………………………………
[17] AIR 1949 Journal 36.
[18]The words of UpendraBaxi, cited inG.B.Reddy, Judicial Activism in India, 2nd ed., (Hyderabad: Gogia Law House, 2013), p.11.
[19]G.B.Reddy, Judicial Activism in India, 2nd ed., (Hyderabad: Gogia Law House, 2013), p.9.
[20] P. IshwarBhat, “Reflections on the Life and Works of Dr.Durga Das Basu”, Constitutionalism and Constitutional Pluralism, P. IshwarBhat Ed., 1st ed., (Gurgaon: Lexis Nexis, 2013), pp.8,9.
[21]Supra at 3, p.300.
[22]“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority; still more when you superadd the tendency of the certainty of corruption by authority.”
[23] R.F.V. Heuston, Essays in Constitutional Law, 2nd ed., (New Delhi: Universal Law Publishing Co. Pvt Ltd., 2011), p.1.
[24]F.S.Nariman, “The Silences in our Constitutional Law”, Constitutionalism and Constitutional Pluralism, IshwarBhat Ed., (Gurgaon: Lexis Nexis, 2013), p.39.
[25]H.M.Seervai, “Parliament and The Constitution”,EvokingH.M.Seervai, Feroza H. Seervai Ed., (New Delhi: Universal Law Publishing Co., 2005),p.165.
[26]4 Wash. U. Jurisprudence Rev. 325 2011-2012, p. 327.
[27]C.K.Takwani, Lectures on Administrative Law (2008) p.31.
[28] I. P. Massey, Administrative Law, 8th ed., (Lucknow: Eastern Book Co., 2012), p. 37.
[29] . Article 1 of Constitution of United States, 1787.
[30] . Section 1, 61, and 71 of Commonwealth of Australia Constitution Act, 1900.
[31] Professor K.T.Shah wanted to move an amendment that suggested the insertion of a new Article in
the Constitutional to effect the incorporation of the doctrine. This new article, that is, Art.40 (A)
provided that ―There shall be a complete separation of powers as between the principal organs of the
State viz. the legislature, the executive and the judiciary.‖ CAD vol.7 at 958 cited in C.H.Alexandrowics,
Constitutional Developments in India 109 (1957).
[32]CAD vol.7 at 956 cited in H.R.Khanna, Making of the Indian Constitution 69 (1957).
[33] (1973) 4 SCC 225
[34] (1976) 3 SCC 321
[35]Arts.50, 121, 122, 211 and 212 of the Constitution of India.
[36] K. Venugopal and V. SudhishPai, “Meaning and Source of Legislative Privileges”, ROIL Legislative Privilege in India , 1st ed., (Nagpur: LexisNexis Butterworths Wadhwa,2011), pp. 48, 49.
[37]Ibid, pp. 49, 50.
[38]G.W.Paton, A Textbook of Jurisprudence, 4th ed., (Oxford: Oxford University Press, 2007), p.332.
[39]Lord Steyn, “The Weakest and Least Dangerous Department of Government”, (1997) P.L. 84 at p. 86.
[40]R. v. Secretary of State of Home Department, [2002] Q.B. 129.
[41]R. v. Secretary of State for Transport, [2002] EWHC 2516.
[42]R. v. Secretary of State for Defence, [2003] Q.B. 1397.
[43]R. v. Secretary of State for Foreign Affairs, [1995] 1 W.L.R. 386.
[44] Stanley de Smith, De Smith’s Judicial Review, 7th ed., (London: Sweet and Maxwell, 2013), pp. 10, 11.
[45]77 Eng. Rep. 646 (1610).
[46](1701) 12 Mod.669, 687.
[47](1803) 1 Cr. 137.
[48] Ibid.
[49]AIR 1950 SC 27.
[50]AIR 2007 SC 861.
[51] Christopher L. Eisgruber, Constitutional Self-Government, (Cambridge: Harvard University Press, 2001), p. 76.
[52]AIR 1980 SC 1789.