Open Access Research Article
JUDICIARY VS. LEGISLATURE A TUSSLE FOR SUPREMACY By: AMIT SHARMA & GAGANJOT
Published Paper
Article Details
JUDICIARY VS. LEGISLATURE
A TUSSLE FOR SUPREMACY
Author: AMIT
SHARMA,
Advocate (B.Com., LL.B.),
District and Sessions Court, SBS Nagar.
Mob. 9855620369, Email-
advsharmaamit82@yahoo.in
Co-Author: GAGANJOT,
BA.,LL.B. (Hons.) 5th year,
School of Law, Lovely Professional
University.
Mob. 9501538787, Email-
gaganjot231099@gmail.com
ABSTRACT
The
Legislature and the Judiciary, both are under the Constitutional obligation to
not to encroach upon each other’s spheres. But in actual, what we see is that
this scenario is not in existence since the beginning of the Democratic
Government of India. The Doctrine of Separation of Powers which is considered
to be as the part of the basic structure of the Constitution is not followed in
its true sense. There are many instances that witness that fact and would be
discussed and elaborated thoroughly into the research report.
The
Research Report which is going to be prepared would elaborate on the conflict
between both these organs in depth, this research project is ought to find out
the reasons, beliefs and also the extent
to which that conflict is going. And in
addition to that, the report would elaborate many such instances which lead to
the rise of controversies between them which led to the ultimate competition
between the both as to establish that which one is Supreme in its own entity
over the other.
Keywords- #Judiciary
#Legislature #Conflict #Fight #Constitution #SeparationofPowers
#FundamentalRights #RuleofLaw
INTRODUCTION
The
Legislature, Executive and Judiciary are the three main pillars of the Indian
Democracy. The Constitution of India explicitly demarcates the powers,
jurisdictions and limits of all these and also mentions the responsibilities to
be undertaken by them. Though, the Constitution not directly/ vividly abided to
its rigidity under the Constitution of India because the Doctrine of Separation
of Powers is not directly stated under the Constitution as it is followed in
the U.S. But the system of checks and balances has been embedded in such a way
that there is no water tight compartmentalization between all these-
Legislature, Executive & Judiciary. Art. 121 & 122 of the Indian
Constitution sets some reasonable restrictions on both the Legislature as well
as the Judiciary not to unreasonably interfere into each other. Art. 121 of the
Indian Constitution[1]
states that the conduct of the judges of the Hon’ble Supreme Court of India as
well as the High Courts can’t be discussed into the Parliament except in the
cases of Impeachment motions moved against the judges. Similarly, Art. 122 of
the Indian Constitution[2]
prohibits the Judiciary not to inquire into or question upon the proceedings
going on into the Parliament. So, there is a proper demarcation of both the
organs of the Government.
The
Parliament, being the Supreme Law making body is authorized to formulate and
amend the laws as per the needs of the society and time but only according to
the provisions enshrined in the Constitution of India and the laws which are
passed by the legislature should not be ultra
vires and for that only, the role of Judiciary comes upon.
The
Courts are competent to strike down the provisions/ laws/ amendments which are ultra vires i.e. which are against the
Constitution. The same is conferred to the Courts under a power namely
“Judicial Review” which is more accurately described as
“Constitutional
Review” under which the Judiciary reviews the laws and actions passed by the
Government to determine that whether they’re Constitutional or not & this
power is confined to the Judiciary under the ambit of Art. 13 of the Indian
Constitution[3].
As
per the Constitutional Scheme in India, both the Parliament and the Judiciary
are Supreme in their respective spheres. But in actual, many a times there’s
conflict arises between the Judiciary and Legislature. When the laws passed by
the Legislature are declared as ultra
vires by the Judiciary then they try to nullify the decision by passing
some laws/ amendments which nullifies the decision given by the Court.
There
are a number of instances that indicate that there are some conflicts going on
between both the wings of the Government which is actually deteriorating the
essence of the doctrine of Separation of Powers as the conflicts for
establishing supremacy on one another is rising rapidly and the spirit of
working independently is getting affected by the same.
HISTORICAL BACKGROUND
In
India, basically we see that the Constitution framers have framed the
provisions of the Constitution in such a way that in actual, though we have the
concept of Separation of Power but that doctrine is not abided in its form of
rigidity as that of the U.S.A. So, we
can say that actually there’s Separation of Functions prevailing more and the
demarcation of powers and authorities is being made for all the 3 golden
pillars of the democracy i.e. Legislature, Executive and Judiciary. Since the commencement
of the Constitution from Jan. 26, 1950, this system is followed.
The
Legislature and the Judiciary, both have got their duties to fulfil and the
Constitution makers have distributed the powers in such a scrupulous way that
it has made the judiciary competent enough to struck down the unconstitutional
laws and amendments made by the Legislature.
Checks and Balances
The
system of checks and balances is followed since the commencement of the
democratic government of India. This system has made the situation of
interference as a natural phenomenon in the working of both the organs as if
the system of checks and balances would not have been there, then there would
be chances of turning of the democracy into dictatorship. Only the Judiciary
has got the ultimate independency to act freely as the judiciary is an organ
which is confined with the duties of giving justice to all and to protect the
rights of the citizens of the country. And, if it is suppressed by any other
organ or is under any power or influence then there might be chances that the
people would be deprived of getting justice. Since then the system of flexible Separation of Powers is followed
along with the system of checks and balances.
RESEARCH METHODOLOGY
The
research methodology which is being used for the preparation of this Research
Paper is Doctrinal Research. The data gathering and identification of the
concepts is done with the help of Primary and Secondary sources which includes-
·
Library sources/ Reports/ Internet Sources.
·
Case Laws/ Judgments.
·
Propositions.
·
Case Studies.
The
data is analyzed by grouping the information on the basis of its collection and
testing of hypothesis to reach to a tentative conclusion. The adequate analysis
is framed after collecting the appropriate data on the concerned research
topic.
RESEARCH OBJECTIVES
In
this research report, a detailed analysis would be done concerning the conflict
arising between the Legislature and Judiciary by stating the instances which
depicts a fight between both the organs of the government. The following
objectives are to be achieved through this research which are of utter
importance-
ü To
find out the tussles emerging between Legislature & Judiciary.
ü To
gather data from the Primary and Secondary sources which corroborate the
concerning issue.
ü To
thoroughly discuss and analysis the data obtained.
ü To
recommend appropriate solutions to prevent the conflict between the Judiciary
and Legislature.
STATEMENT OF PROBLEM
In
India, we see that there are three golden triangles/ pillars of the government
on which the whole administrative structure relies and the country is governed
accordingly.
Each
pillar of the government is vested with their own work i.e. The legislature is
empowered to formulate laws & policies, the executive is empowered to
implement
those
laws and the judiciary is assigned with the utmost important work i.e. to
interpret those laws and to adjudicate the matters in accordance with the laws
passed by the legislature. This doctrine is called ‘Separation of Powers’ and
is not specifically mentioned in the Indian Constitution but from the
interpretation of the text of the Constitution we can guess the intention of
the Constitution framers & draw the inferences from both the text and
context of the wording of the Constitution. So, this doctrine is considered to
be as the part of the basic structure of the Indian Constitution.
The
duty of Legislature is to create those laws which are consistent with the
provisions of the Indian Constitution as any law inconsistent with the
provisions of the Constitution would be declared as ultra vires. Then, the duty of Judiciary is to review/ check that
whether those laws are intra vires or
not i.e. whether the laws/ amendments passed by the Parliament are consistent
with the provisions of the Constitution or not?
And,
that is the exact point where the conflict begins to rise between the
Legislature and the Judiciary because at that point when the Judiciary finds
that the particular law or amendment is inconsistent with that of the
provisions of the Constitution, the Judiciary declares the law/ amendment as
unconstitutional and then the Legislature again passes some laws/ orders which
further nullifies the decision of the Judiciary
& in this way a tussle begins between both the organs as both tries to
establish their supremacy over one another in the context that which one is
going to survive over the other?
So,
this is what the reason continuous arise of the various controversies and
conflicts between the Judiciary and the Legislature on certain occasions.
HYPOTHESIS
The
Judiciary as well as the Legislature, both are assigned with their tasks
respectively and a proper demarcation of their powers is done by the
Constitution itself. But, in actual we see that both the wings of the
government are not working independently. Somehow or the other both tries to
interfere in the working of each other and that disturbs the essence of the
doctrine of ‘Separation of Powers’.
When
the Legislature is passing a particular law, the Judiciary reviews it and if it
finds that the particular law ultra vires
then it declares that law as unconstitutional and nullifies & scraps
that law. And, in giving answer of that to the Judiciary, the Legislature
passes counter laws which again nullifies the decision of the courts. This
ultimately leads to the controversies between both the wings.
This
conflict is not a new phenomenon in India, this conflict is arising since the
beginning of the democracy in India and since then, on many incidents, the
Judiciary & Legislature, both have tried to meddle between the tasks of
each other in the emulation of establishing that which one is exalted over the
other.
LITERATURE REVIEW
India’s
administrative and governmental structure is such that even if there’s a
separation of powers between all the three wings of the government, even that
it could not be that too strict that it becomes difficult to perform their
tasks efficiently.
There
can never be water tight compartmentalization of these organs as the democracy
demands the system of checks and balances between them so that any of these
organs should not become arbitrary and work on their free will in whatever way
they want to.
These
inferences have been formulated by Phiroze K. Irani in his Journal article “The
Courts and the Legislatures in India”[4] stated that it is really very difficult
task to demarcate any line between the Judiciary and the Legislature where the
final arbiter of the laws is Judiciary only. In this way it becomes difficult
to make both of them to work independently because the laws framed by the
Legislature are needed to be reviewed by the Judiciary only to check the
consistency of the Laws with the provisions of the Constitution.
In
“Jurisdictional
Conflict between the Legislature and the Judiciary” by Dr. A.K. Ghoshal,[5]
the conflict between the Legislature and the Judiciary are corroborated with
the help of case laws which actually tells us about how both the Legislature
and Judiciary are trying to override each other to establish their superiority
over the one another.
Walekar
Dasharath, in his Journal Article “Changing Equation between Indian Parliament
& Judiciary” [6]
has stated that the conflict between the Legislature and the Judiciary is
somewhat natural and somewhat desirable. He emphasized on the changing
relations between the Indian Parliament and the Judiciary from the period of
last 6 decades which contributed to the various aspects of the Constitutional
Law as well as the field of the Social Sciences by studying the relations
between both the organs changing overtime.
In
the “Judiciary
vs. Legislature in India: Plea for Structural Reforms” by R. Thandavan[7],
the demarcations of both the Judiciary and the Legislature are stated and also
their basic structure is discussed along with the needs of structural reforms
by stating the controversies arisen between them.
In
“The
Courts over the Legislature” by Shreeram Chandra Dash[8],
the Powers, rights and privileges given to the Parliament and to the Judiciary
by the virtue of the Indian Constitution are discussed and the reviewing power
of the courts is also discussed.
JUDICIAL TRENDS
As
discussed above, we can see that the Executive powers of the government of the
Union as well as the States are expressly mentioned by the Constitution itself
by Art. 53[9]
& Art. 154[10]
of the Indian Constitution. But, there is no corresponding provision in the
Constitution from which we could infer that the Legislature and Judiciary have
also got their powers vested within their organs. Hence, we can say that
there’s no rigid separation of powers between the Legislature and the Judiciary
and this could also be the reason for conflict between both the organs because
there’s not specific mention in the Constitution about ‘Doctrine of Separation
of Powers’.
The
tension between the Judiciary and the Legislature began from the very first
amendment in the Indian Constitution in the case of Champakam Dorairajan Vs. State of
Madras (1st Constitutional Amendment)[11]- This case was concerned with the
issue of Caste based reservations in the Educational Institutions. The
Government of Madras reserved some seats in the medical and engineering
colleges of the state on the basis of Religion, Race and Caste and this was
challenged on the basis of its validity and the Constitutionality.
The
Government took the shelter of Art. 46 of the Constitution[12]
and defended itself by contending that the state is ought to promote the
educational and economic interests of the weaker sections of the society
(especially the Scheduled Castes/ Scheduled Tribes) with special care.
The
Hon’ble Supreme Court scrapped the order by saying that this provision is
violative of the Art. 15(1) of the Indian Constitution[13]
which guarantees equality and moreover, the Directive Principles of State
Policy cannot override the Fundamental Rights.
Now,
the Legislature came up with amendment which is known as The Constitution
(First Amendment) Act 1951[14]
to Art. 15 and inserted Clause (4)[15]
into that which stated that the provision of general prohibition of
discrimination cannot prevent the state from making any special laws for the
upliftment of weaker sections i.e. SCs/STs . This amendment nullified the decision
of the Hon’ble Supreme Court and the Legislature overridden Judiciary.
In
Shankari
Prasad Vs. Union of India[16]
& Sajjan Singh Vs. State of Rajasthan[17]-
The 1st and 17th Constitutional Amendment were
challenged on their Constitutional validity and the question was that whether
the Fundamental Rights can be amended under Art. 368 of the Constitution[18]
or not? So, here in both the cases we see that the Legislature was supported by
the Judiciary where it was held that the ‘Law’ in Art. 13 is Ordinary Law made
under the Legislature and not the Amendment. So, if the Legislature passes any
amendment which abridges the Fundamental Rights, it would be valid. Therefore,
the Parliament has the power to amend the Constitution.
The
Hon’ble Supreme Court applied the Principle of Harmonic Construction
between both the Art.13 as well as the Art. 368 of the Constitution because
there is a conflict between the provisions of both the Articles.
The
judgments were followed till the year of 1967 i.e. before the emerging of Golaknath’s
Case[19]-
In that case, certain state acts were inserted in the 9th Schedule
under the 17th Constitutional
Amendment Act 1964[20] which again was challenged on the same ground
that whether the Parliament under Art. 368, is having the power to amend the
provisions of the Constitution even if the amendment overrides the Fundamental
Rights or not?
The
earlier decisions of the Hon’ble Supreme Court which were given in the favour
of the Parliament that they have the authority to amend the Constitution in the
Shankari Prasad and Sajjan Singh’s cases were overruled by
the majority of 6:5. It was held that the term ‘Law’ under the ambit of Art.
13(2)[21]
not only includes the ordinary law but includes every kind of law- Statutory
& Constitutional Law as well as the Constitutional Amendments also and
hence, any constitutional amendment violating Art. 13(2) would be void.
The
effect of this judgment was Prospective and not the Retrospective under the Doctrine
of Prospective Overruling invoked by the Hon’ble Chief Justice Koka
Subba Rao. He imported this concept from the American Law and declared that the
decision given in the Golaknath’s Case
will not affect the earlier amendments passed by the Parliament i.e. 1st,
4th & the 17th Constitutional Amendments respectively
and these amendments will continue to remain valid. But from now, the Hon’ble
Supreme Court curtails the power of the Parliament to make such amendments in
the Constitution which subsequently infringes any of the Fundamental Rights of
the citizens.
This
judgment of the Apex Court again lead to the emergence of controversy between
the Judiciary and the Legislature.
DOCTRINE OF BASIC STRUCTURE
The
Doctrine of Basic Structure was first evolved by the Hon’ble Supreme Court in
the landmark case Kesavananda Bharati Vs. State of Kerala[22]
in 1973. A Special Constitutional bench of 13 judges was constituted to
hear this case and this was the highest bench of judges in the judicial history
of India.
This
case is also known as the Fundamental
Right’s Case in which the legality of the Kerala Land Reforms Act 1963[23]
was questioned. This case demarcated
the amending power of the Parliament.
In
that case, the validity of the 24th Constitutional Amendment Act
1971[24]
was challenged. Meanwhile, during the pendency of the petition, the Kerala Land
Reforms
Act
was amended in 1971[25]
and was inserted into the 9th Schedule of the Indian Constitution by
the 29th Amendment Act[26]
to prevent them from being struck down by the Judiciary on the basis of their
Constitutional validity. The Petitioner was allowed to challenge the 24th,
25th as well as the 29th amendment to the Constitution.
The
question evolved under the Art. 368 was “the
extent to which the Parliament was authorized to amend the Constitution”.
The Union contended that the amending power of the Legislature is unlimited and
the Petitioner contended that the Legislature’s power is wide but not unlimited.
The uncontrolled power of the Parliament was controlled by the establishment of
Doctrine of Basic Structure.
The
Court by majority overruled the judgment of Golaknath’s
Case in which the Parliament was prohibited to amend the Fundamental Rights
of the people. It was held that though the Parliament has the power to amend
the Constitution but it doesn’t has the power to ‘weaken’, ‘damage’, ‘change’,
‘abrogate’, ‘destroy’ or ‘alter’ the basic structure of the Constitution.
So,
the Parliament can make the amendments but the basic structure of the
Constitution needs to be maintained and it cannot be changed anyway. This
decision of the Supreme Court limited the powers of the Parliament and the
Judiciary established its authority over the Legislature in this case which
brought a landmark change & a turning point in the Constitutional History
of India.
Indira
Nehru Gandhi Vs. Raj Narayan[27]-
This was the case which actually lead to Emergency in India and the period was
known as the Darkest hour of the
democracy. This was the first time in the history of India that the
election of a Prime Minister was set aside by the Judiciary. This was also the
first case in which the Doctrine of Basic Structure given in the Kesavananda Bharati’s Case was followed
for the first time.
In
this case, the election of the Prime Minister Indira Gandhi was challenged by
his opposing candidate Raj Narayan in the Allahabad High Court contending that
she has won the elections by infringing the code enshrined in the Representation of People Act 1951[28]
as her election campaigns were personally assisted by the government
officials and has distributed the commodities like liquor, blankets etc.
amongst the voters to gain the votes and the campaign expenses which were worth
Rs. 35,000.
Hon’ble
Justice Jagmohan Sinha of the Allahabad High Court declared the election of
Prime Minister Indira Gandhi as void due to corrupt practices followed in the
election campaigns. Then, Indira Gandhi made an appeal against the order of the
Allahabad High Court into the Supreme Court but at that time, the Court was on
vacation so it ordered conditional stay.
After
that, Indira Gandhi declared National Emergency throughout the territory of
India and meanwhile, to nullify the decision of the Allahabad High Court,
passed the 39th Constitutional Amendment Act 1975[29]
which introduced Art. 392A into the Indian Constitution.
It
stated that the election of the Prime Minister and the Speaker cannot be
challenged in any court of law. This amendment was highly criticised by
everyone and was challenged in the Hon’ble Supreme Court. The Court held this
amendment as unconstitutional.
Minerva
Mills Vs. Union of India[30]
(42nd Constitutional Amendment, 1976)
The
42nd Amendment Act 1976[31]
came into picture after the cases of Kesavananda Bharati and Indira Nehru
Gandhi. This amendment brought Clauses (4) & Clause (5) to the Art. 368 of
the Constitution. These provisions ended the limitation on the Parliament for
amending the Constitution by the way of any addition, variation or repeal of
any particular provision. This provision set the Parliament free to amend the
Constitution according to their sweet will & removed the limitation imposed
on the amending power of the Parliament.
The
matter was brought before the Supreme Court challenging the validity of this
amendment that if that provision would be enacted, then it would destroy the
doctrine of ‘Basic Structure’ which is already established by the court that no
amendment could take place which affects the basic structure of the
Constitution. It also stated that the Parliament cannot have unlimited amending
power so that it starts working arbitrarily and damage the Constitution.
The
Clauses (4) & (5) of Art. 368 were violative on the ground that-
ü
They gave unlimited power to the
Parliament to amend the Constitution the way they want.
ü
It restricted/ barred the Judiciary
from any Judicial Review.
The
Apex Court by majority, struck down the Clauses (4) & (5) of the Art. 368
inserted by the 42nd Amendment by stating that these are violative
of the basic structure of the Constitution. Also, the Court held that it cannot
be deprived of their power of Judicial Review.
The decision given in the Minerva Mills Case
brought clarity to the Doctrine of Basic Structure which subsequently arisen
into the tensions between the Parliament and the Judiciary and lead to conflict
between both the wings of the government.
Mohammed
Ahmed Khan Vs. Shah Bano Begum[32]
This
case is commonly referred to as Shah Bano case and is the landmark case from
the perspectives of Muslim Laws as well as the Constitutional Law. This case
was proved to be the most controversial maintenance suit in India.
In
April 1978, a 62 year old Muslim woman filed a suit against her husband Mohammed
Ahmed Khan, a renowned lawyer in Indore, Madhya Pradesh, claiming alimony/
maintenance from him for her as well as her 5 children. She filed maintenance
under Sec. 123 of the Code of Criminal
Procedure, 1973[33].
Mohd.
Ahmed Khan contended that according to the Muslim Law, the husband is only
required to pay the maintenance to the wife till the period of Iddat after
divorce. (Iddat is a period after the death of the husband or after the divorce
till she remarries). His argument was supported by the All India Muslim
Personal Law Board and contended that the courts cannot interfere into the
Muslim Personal Laws as if Shah Bano would be provided with the maintenance
under Sec. 123 of CrPC then it would violate
The
Muslim Personal Law (Shariat) Application
Act, 1937[34]
and the courts are ought to adjudicate the matters of divorce and the other
family issues based on the laws of Shariat.
After
hearing the contentions and arguments from both the sides, the court finally
passed the judgment in the favour of Shah Bano and awarded her with alimony by
stating that the Sec. 123 of CrPC applies to all the Indian Citizens
irrespective of their caste or religion. So, Shah Bano is entitled to
maintenance.
This
decision of the Supreme Court was highly criticized by the rigid Islamists.
After receiving huge pressure from the Islamic orthodoxies, the Congress with
absolute majority, passed the Muslim
Women (Protection of Rights on Divorce) Act, 1986[35]
which nullified the judgment of the Supreme Court given in the Shah Bano’s Case.
Dr.
Subramaniam Swamy Vs. Director, Central Bureau of Investigation and Ors.[36]
The
Supreme Court, in this case struck down the legal provision which required the
prior sanction mandatory for conducting probe against the senior bureaucrats in
the cases of corruption. Also, Sec. 6A of
the Delhi Special Police Establishment Act[37]
which granted the protection against any preliminary inquiry to the joint
secretary and the above rank officers, was also held as unconstitutional by the
Supreme Court. The Court held that it destroys the very essence of the Art. 14
of the Indian Constitution[38]
which
provides for the equality before law. The court established that no matter
whether a person is a common citizen or a public officer or a bureaucrat, a
corrupt would be a corrupt only and the punishment would be same for all. No
special treatment would be given to anyone if he’s on a high rank post. Thus,
the Supreme Court repealed those provisions lead down by the Legislature by
declaring them as unconstitutional & overridden the Legislature.
In
Prakash
Singh Badal Vs. State of Punjab[39],
the same principle was lead down that the persons of high rank who are using
corrupt practices and are taking bribes cannot take the shelter of the
provisions of any sanction before investigation against them under the Prevention of Corruption Act[40].
These laws are enacted only to save those who are actually serving with honesty
in their respective fields and to protect them from the undue harassment in the
course of the bonafide discharge of their duties and not for the persons who
are actually following the corrupt practices and when they are made to face the
allegations of corruption, they try to hide themselves behind the smokescreen
of legislations passed for the protection of the public servants.
This
decision of the court was protested by the legislators but this decision was
actually given by the judiciary in the purview of cleansing the toxic system of
corruption and to distinct the corrupt ones from the bonafide ones.
Judges
Transfer Case & 99th Constitutional Amendment 2014
The
issue of appointment of the judges has became a controversial one between the
Executive and the Judiciary as to who will be having more preference into the
appointment of the judges of the Supreme Court as well as the High Courts.
In
the Judges
Transfer Case I[41],
the main controversy was revolving around the term “Consultation” in the Art.
124 of the Indian Constitution[42].
The Supreme Court made it open for the Government to override the opinion of
the other functionaries for the appointment of the judges in reference to their
consultation. So, the decision most probably was more inclined towards the
Executive rather than the Judiciary.
But
all the scenario of judicial appointments was changed when in 1993 in the Judges
Transfer Case II[43],
a nine judges bench of the Hon’ble Supreme Court overruled the judgment given
in S.P. Gupta’s Case and established that the “Collegium” system of 2 senior
judges headed by the Chief Justice of India would have primacy and authority
for the appointment of the judges. Also, it was held that the recommendation of
the Chief Justice of India is final.
And,
then again in the year of 1998, the former President of India Mr. K.R.
Narayanan made a reference to the Supreme Court under Art. 143(1) of the
Constitution[44]
to settle down the dispute related to the appointment of judges into the higher
judiciary i.e Judges Transfer Case III[45].
The result of this case was that the number of judges in the collegium was
increased from 2 to 4 senior most judges and if 2 out of 4 judges have the
adverse opinion, then the CJI cannot send the recommendation to the Government.
The
Controversy began when the Legislature passed the 99th
Constitutional Amendment Act 2014[46]
and the National Judicial Appointment
Commission (NJAC) wass established
for the appointment of the judges and the collegium system established by the
Supreme Court was brought to an end. The amendment gave more power into the
hands of the politicians and the civil society to make judicial appointments.
The
amendment was challenged into the Apex Court on the ground of its
Constitutional validity. The bench held the National Judicial Appointment
Commission (NJAC) as “Unconstitutional & Void” and again restored the
collegiums system and up till now, only this system is being followed for the
higher judicial appointments.
In
Shreya
Singhal Vs. Union of India[47],
the Sec. 66A of the Information
Technology Act 2005[48]
was declared as unconstitutional by the judiciary on filing of the writ
petition when the two women namely- Shaheen Dhada and Rinu Srinivasan posted
comments on Facebook and expressed their displeasure at the bandh called by the
Mumbai Police in Nov. 2012 due to the death of renowned Shiv Sena chief Bal
Thackeray. Those women were arrested under the Sec. 66A of the IT Act for
sending offensive messages.
The
validity of the Sec. 66A of IT Act was challenged by Shreya Singhal (Indian
Lawyer) into the Supreme Court and she filed against the Union of India for
infringing
the
Fundamental Right- Right to Freedom of Speech & Expression guaranteed to
the Indian citizens under Art. 19(1)(a) of the Indian Constitution[49].
It
was held by the Supreme Court that the provisions contained in this particular
section are totally vague and are ultra
vires as they are infringing the rights of the citizens to freely express
their views and with that the Sec. 66A of The Information Technology Act 2005
was quashed by the Hon’ble Supreme Court on the grounds of its vague and
ambiguous provisions as these were confronting with the Art. 19(1)(a) of the
Constitution.
INTERPRETATION & ANALYSIS
From
the above collected data, we could infer that there are always some kind of
controversies and conflicts existing between the Legislature and the Judiciary
and this is not a new phenomenon. The fight for establishing supremacy on one
another is existing between both the wings of the Government since the 1st
Constitutional Amendment has came into picture in Champakam Dorairajan’s Case. Whenever the Legislature has tried to
exercise its powers in excess or arbitrarily, then the Judiciary has interfered
from time to time a and there a number of landmark case laws and judgments to
justify this fact.
In
all the cases, we see that whenever the Legislature has passed any law or
amendment which is violating the rights of the Indian Citizens, the Judiciary
has declared that particular law or amendment as “Void & Unconstitutional”
because the Art. 13 of the Constitution itself says that any law which is
inconsistent with the Part III of the Constitution i.e. fundamental rights
would be unconstitutional and would not be
enforceable
and the task of protecting these rights is given to the Judiciary by the way of
Writ Jurisdiction under Art. 32[50]
(Supreme Court) & Art. 226[51]
(High Courts) of the Constitution of India.
Also,
in most of the cases, we see that the issue has arisen in the context of the
amendments passed by the Legislature and most of them are being passed to
nullify the decision given by the Judiciary in the favour of the public. This
is done in the landmark judgements given in the Indira Nehru Gandhi and Shah Bano’s cases and So, the Legislature
here tried to act like a bully and has tried to supersede the Judiciary.
We
can see that interfere of the Judiciary into the law making power of the
Legislature is also a kind of system of checks and balances where the Judiciary
tries to defend the rights of the general public because ultimately there is the
prevalence of Rule of Law in the Country and the Constitution is considered to
be as the Supreme Law of India. And also, to the protect the Supreme Law of
India i.e. the Constitution, the responsibility is confined to the Judiciary
and that makes the interfere of Judiciary as somewhat “Natural” as there is no
intentional interfere. The role of the Judiciary in the issues of law making
only comes up when there is the violation of the Constitution. So, if any law
or provision or amendment is proved to be inconsistent to that of the
provisions enshrined in the Constitution, for sure it would be scrapped by the
Judiciary in order to maintain the public order and the Unity, Sovereignty and
Integrity of the Union of India.
CONCLUSION
A
state is having the authority to create laws unless it is being restrained or
prohibited by some provision enshrined in the Constitution. But, the supporters
of the restriction theory suggests that such restrictions are also ought to be
imposed within their sphere only and there should not be any restriction over
the legislature beyond that specific limit. All of the administration of law
revolves around a process which keeps going in a cycle. In short-
ü
The Legislature passes a law or
amendment.
ü
If its constitutional, it is accepted
by the people and is followed accordingly but if its infringing the rights of
the people as well as the provisions of the Constitution, then it is being
challenged into the court of law.
ü
Then the role of judiciary comes up.
The judges, only after hearing the evidences corroborating to the issue of the
case, declares that law as Unconstitutional.
ü
If that decision is accepted by the
Legislature, then the Legislature is overridden by the Judiciary.
ü
If the decision is unacceptable to
the Legislature, then in response to the Judiciary, they enact certain type of
law which subsequently dilutes/ nullifies the judgment of the Judiciary.
ü
In this way, both tries to effectuate
their superiority over each other.
Hence,
the matter turns out to be a never ending conflict between both the
Governmental organs as one organ supersedes the other. This tension is still
prevailing between the Legislature and the Judiciary.
SUGGESTIONS
Need for Structural Reforms
To
maintain harmony between the Legislature and the Judiciary, Structural Reforms
is a need of the hour. The following suggestions might work for reforming the
administrative system of both the golden triangles of the democracy-
Ø
There should be coequality between
both the organs. The Powers of both should be rigidly demarcated so as no
question could be arisen against the power and authorities of any of them to
promote smooth tasking. By this way, when both the organs will respect the
authority of each other within their own spheres, then obviously the harmony
would be resultant product.
Ø
There should be a provision
introduced into the Constitution which lays down that as to what extent the
Legislature can make the amendments into the Constitution keeping in mind the
previous judgments given by the Judiciary pertaining the amendment powers and
procedure for the Parliament so that no such kind of instances arise again
consequentially leading to tussles.
Ø
The checks should also be placed on
the Judiciary as well so that the Judiciary cannot use excessive powers against
the Legislature by exercising the powers beyond its limits in the name of
Judicial Activism. The limits of Judiciary also need to be adequately
demarcated.
Ø
In short, the Doctrine of Separation
of Powers which was flexibly followed till now, needs to bring some rigidity in
it so as to hamper the unnecessary interfere in the tasks of each other.
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Article Information
JUDICIARY VS. LEGISLATURE A TUSSLE FOR SUPREMACY By: AMIT SHARMA & GAGANJOT
Authors: AMIT SHARMA, GAGANJOT
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/05
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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- License CC 4.0
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