Open Access Research Article
CLASH OF POWERS: LEGISLATIVE CHALLENGES TO JUDICIAL PRECEDENTS IN DEMOCRATIC GOVERNANCE BY: SAHIL SINGH, SIDDHESH MUNGHATE & DIPTO DASGUPTA
Published Paper
Article Details
CLASH OF POWERS:
LEGISLATIVE CHALLENGES TO JUDICIAL PRECEDENTS IN DEMOCRATIC GOVERNANCE
AUTHORED BY: SAHIL SINGH, SIDDHESH MUNGHATE & DIPTO
DASGUPTA
(B.B.A LL.B. (Hons.) IV SEMESTER)
Alliance School of Law Alliance University, Bangalore
In
a parliamentary democratic governance, the Legislature and the Judiciary are the crucial pillars,
essential for upholding the rule of law and ensuring the smooth functioning of the state. The Legislature, comprising elected representatives, holds
the responsibility of enacting
laws that governs the nation,
while Judiciary is responsible for the adjudication of the laws made by the Legislature. Together, they form the cornerstone of checks and balances, crucial for maintaining the integrity of
the system. But the delicate balance of power
between the legislature and the
judiciary has often faced challenges, particularly when legislative bodies enacted laws that seemingly undermined or negated
judicial rulings. This study aims to analyze the underlying factors of such
imbalance, with a focus on understanding how the legislature enacted laws that
directly contravened the established judicial precedents or decisions. Through a thorough examination
of specific cases where legislative actions have clashed with judicial rulings, this study aims to understand the
broader implications for the rule of
law, separation of powers, and democratic governance. The study ultimately aims
to find a common ground to
establish the balance of power between
the two organs.
KEYWORDS: Legislature, Executive, Separation of Power, Rule of Law, Democratic Governance
Background:
In a parliamentary democratic governance, the Legislature and the
Judiciary are the crucial pillars, essential for upholding the rule of law and ensuring the smooth functioning of the state.
The Legislature, comprising elected representatives, holds the
responsibility of enacting laws that governs the nation, while Judiciary
is responsible for the adjudication of the laws made by the
Legislature. Together, they form the cornerstone of checks and balances,
crucial for maintaining the integrity
of the system.
However, there are instances when the equilibrium between these two pillars is disrupted. This disruption
often occurs when laws passed by the legislature seem to challenge or undermine the decisions made by the judiciary. Such
conflicts highlight fundamental questions about the distribution of power within a democratic society
and the principles of separation of powers.
Judiciary has the power to lay down precedents. According to Article 141[1]
of the Indian Constitution, the decisions of the Supreme
Court are binding on all courts within the country's
territory. When the Supreme Court, sitting as a constitutional bench,
sets a precedent, it is not only
binding on other courts but also establishes legal principles that become the
law of the land.
The Legislature has the authority to enact laws and make amendments to
existing legislation and the constitution. Sometimes, these laws come into conflict
with judicial rulings,
leading to a clash between
legislative and judicial
authority. In response
to unfavorable judicial
decisions, the legislature
may pass new laws or amend existing ones in an attempt to nullify the impact of these rulings.
This creates a disbalance of power between
the organs of the government.
The situation of imbalance of power is pretty evident
from Champakam Doraijan[2] case in 1951 to Golaknath case[3] in 1967
to the recent Electoral
Bond case[4] judgment
in 2024.
This study aims to analyze
the underlying factors
of such imbalance, with a focus on understanding
how the legislature enacted laws that directly
contravened the established judicial precedents or decisions. Through
a thorough examination of specific cases where
legislative actions have clashed with judicial rulings,
this study aims to understand the broader implications for the rule of law,
separation of powers, and democratic governance. The study ultimately aims to find a common ground to
establish the balance of power between the two
organs.
Literature Review:
1]
Title: " Reviewed Work: Controlling Administrative Power: A Historical Comparison" Author: Stephen Gageler
Date Published: July 2017
This article offers a
comprehensive analysis
of the book “Controlling Administrative Power: A Historical Comparison" which is a
comprehensive analysis of the evolution of administrative law and judicial review mechanisms.
Through a historical point of view, author examines the growth of legal frameworks aimed at controlling governmental actions and ensuring responsibility. By comparing historical practices and legal doctrines across different jurisdictions, author sheds light on the
various approaches to regulate administrative power. The book delves into the theoretical support of judicial
oversight and its role in maintaining the
rule of law in democratic societies. This research provides valuable insights
into the challenges and complexities
of balancing administrative discretion with legal constraints, offering
a fine perspective on the historical trajectory of administrative law and its importance to contemporary
governance structures.[5]
2]
Title: "Judicial Review of Constitutional Amendments in Light of the 'Political Question' Doctrine"
Author:
Mohammad Moin Uddin and Rakiba Nabi Date Published: July – September 2016
In this article authors delve
into the complex
realm of judicial
review concerning constitutional amendments in Bangladesh, India, and the United States.
The authors meticulously analyze the jurisprudence of the Supreme Courts of
these countries, focusing on the controversial issue of the "political question" doctrine and its implications for the separation of powers and democratic
governance. By comparing and contrasting the approaches of these courts, the authors provide valuable insights into the
role of the judiciary in upholding constitutional principles and ensuring the integrity of the amendment process.
Through a comprehensive examination
of legal precedents, authors offer a fine understanding of the challenges and opportunities associated with judicial
review of constitutional amendments, shedding light on the evolving dynamics between the judiciary and the
legislative branches in different legal systems.[6]
3]
Title: "Our Supreme Court An Appellate Legislature" Author: Dr. B. B. Jena
Date Published: July-September-December 1964
In this article the author delves into
the role of the Supreme Court as an Appellate Legislature in India. Author highlights the original right of the Indian
people to establish principles for their
government, highlighting the prominent and permanent nature
of the Constitution as the act of the
people themselves. The article discusses how the Constitution organizes
governments, assigns powers to
different organs, and sets limits to ensure universal obedience. Author also explores
the Supreme Court's
function as the final allocator
of reason, highlighting the importance of
balancing personal liberty with societal interests. Through a thorough study of constitutional principles and judicial
responsibilities, the author presents a compelling
argument for the Supreme Court's key role in upholding the Constitution and
ensuring the smooth functioning of the legal system in India.[7]
4]
Title: "Legislative Wisdom,
Executive Discretion, and Judicial Review" Author: P.
Leelakrishnan
Date Published: January-March 1989
In the article the author explores the complex relationship between the
judiciary, legislative wisdom, and
executive discretion in the context of Indian democracy. Author raises
questions about the role of the
judiciary in safeguarding civil rights when faced with unreasonable exercise of executive discretion or
legislative inaction. The article discusses instances where the judiciary has intervened to ensure the
proper implementation of laws and to address social issues that require legislative attention.
Author's study highlights the challenges faced by the judiciary in balancing its role of upholding the rule of law while
respecting the separation of powers. By examining case studies and legal principles, the author
advocates for a subtle approach that allows for judicial review in cases where executive actions
or legislative decisions
may intrude upon individual rights
or fail to address pressing societal concerns.[8]
5]
Title: "Judicial Review of Parliamentary
Privileges: Functional Relationship of Courts and Legislatures in India"
Author: D. C. Jain
Date Published: April-June 1967
This article delves into the dynamics between the judiciary and the legislative branches in India.
Author explores the challenges faced in balancing the powers of these
institutions within the framework of a democratic society. By examining specific cases and constitutional provisions, author highlights the complexities of upholding parliamentary privileges while ensuring
judicial review and protection of fundamental rights.
The article raises
questions about the implications of the functional relationship between courts
and legislatures on governance and the rule of law in India. Author
provide insights on the valuable
contribution to the discourse
on the separation of powers,
constitutional interpretation, and the evolving nature of democracy in the Indian context.[9]
Research problem:
In the complex landscape of democratic governance, clashes between legislative enactments in the form of laws and amendments by the legislature and the precedents sent by supreme
courts emerge often. It
reflects the tension between the legislature’s power to make laws and the judiciary’s role in interpreting and applying those laws. These
clashes also highlight the issue about the separation of power within
the legal system. It is important to understand and address these clashes for maintaining the rule of law and also
to find a common ground to establish the balance of power between the two branches.
Research
questions:
1.
What are the various incidents
where the clashes
between legislative enactments and judicial precedents have emerged?
2.
What are the implications of clashes between legislative enactments and judiciary precedents
for the separation of powers within the legal system?
3.
How can the clashes between
the legislative enactments and judicial precedents be resolved in order to find a common ground?
Research objectives:
·
To assess the impacts
of the clashes between judiciary and legislature on the legal system
·
To identify and analyse the various situations where the conflicts
between these two organs have emerged.
·
To identify and understand the factors that led to the clashes
between the legislative enactments and the judicial precedents.
·
To find a common ground
to establish the balance of power between
the two organs.
Hypothesis:
In Indian
parliamentary democratic governance, the legislature and the judiciary is not superior
to one another but provides
checks and balances to the system.
Scope and Limitation:
This research paper will focus primarily on the clashes
between legislative enactments and judicial
precedents in parliamentary democratic systems, with a particular emphasis on
the Indian context. The study will
examine both historical and contemporary cases as well as amendments to assess the evolution of
legislative-judicial conflicts over time. While the primary focus will be on legal analysis,
the research may also incorporate political, institutional,
and socio-economic perspectives to provide a comprehensive understanding of the underlying dynamics of conflicts
between the legislature and the judiciary in democratic governance.
Methodology:
The research will follow the doctrinal method as it is
mostly compilation of data from various places.
The sources are mostly secondary. We have consulted as several sources
including books and Journals and also
different articles, internet sources and lectures of leading legal thinkers
from India and around the world. The following methods
will be relied upon to fulfill the objectives of the study and
collection of necessary data. In
addition, various case laws, provisions
as well as amendments are referred in this paper.
Chapter II - The various incidents
where the clashes between legislative enactments and judicial precedents have
emerged.
Introduction:
The
fundamental principle of rule of law lies upon the existence of the three
organs of the government i.e the Legislature, the Executive, and the Judiciary. Separation of powers
between these three organs is
an essential feature for a democratic governance. In a parliamentary democratic governance, the Legislature and
the Judiciary are the crucial pillars, essential for upholding the rule of law and ensuring the smooth functioning of
the state. The Legislature, comprising
elected representatives, holds the responsibility of enacting laws that governs
the nation, while Judiciary is responsible for the adjudication of the laws made by the Legislature. Together, they form the cornerstone of checks and balances,
crucial for maintaining the integrity
of the system. However, there are instances when the equilibrium between these
two pillars is disrupted. This
disruption often occurs when laws passed by the legislature seem to challenge
or undermine the decisions made by the judiciary. Such conflicts highlight
fundamental questions about the distribution of power within a
democratic society and the principles
of separation of powers.
Incidents of Clashes:
1.
Champakam Dorairajan case and 1st Amendment -
It all
started from the case of State of Madras v. Champakam Dorairajan[10] in the
year 1951, just after the Constitution had come into force, where there was
conflict between Article 15, Article 29(2) and Article 46 of the constitution
and the issue was reservation. There should be equality according to
Fundamental Rights, but Directive Principles of State Policy is asking to
promote interests of weaker section. The five-judge bench of the Supreme Court
in its verdict held that in case of conflict between Fundamental Rights and
Directive Principles, Fundamental Rights would always prevail. It was further
held that Directive principles have to work as a supplement with Fundamental
rights & Parliament can't amend Fundamental Rights.
As a
response to Champakam Dorairajan case, the Parliament made 1st amendment
to the Indian Constitution and added
clause 4 to Article 15 of the constitution, which created a way to provide reservation as special provision
for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
This was the first major incident
of clash between
the two organs of the government.
2.
Golaknath case
and 24th, 25th Amendment
–
In the
landmark case of Golaknath and Ors v. State of Punjab[11], the 11
judge-bench of the Supreme Court held that the Parliament cannot amend the
fundamental rights in order give effect to the Directive Principles of the
constitution.
As a result
of this judgement, the Parliament made 24th amendment to the Indian
Constitution where it added clause
4 to Article 13 and Clause 3 to Article 368 which gave the Parliament the power to amend
the fundamental rights.
This nullified the Golaknath
judgement.
The
Parliament also made 25th amendment, where Article 31C which said
that any law which is made to give effect
to Directive Principles of State Policy
cannot be declared
unconstitutional on the grounds
that it violates Article 14, 19
and 31 of the Indian Constitution.
3.
Kesavananda Bharti case and 42nd Amendment-
The most
landmark case of the Indian Constitution, also regarded as mini constitution,
Kesavananda Bharati v. State of Kerala[12], the 13
judge-bench of Supreme Court propounded the basic structure doctrine, where the
Parliament can amend the Constitution including the fundamental rights to the
extent that it does not hamper with the basic structure of the Indian
Constitution. The Court held the second provision Article 31C as invalid and
unconstitutional because it was taking away the power of judicial review from
the courts.
The Parliament made 42nd Amendment to the constitution during
the time of emergency where
many changes were made.
Article 32A was added which denied the Supreme Court the power to consider
the Constitutional validity of the State law.
Article 144A was added where the minimum number
of judges of the Supreme Court required to decide the Constitutional validity of
a Central or State law was fixed to at least 7, and this required a two-thirds majority of the judges to declare the law
as unconstitutional. Several restrictions were imposed on the High Court’s
power to issue writs ‘for any other purpose’.[13]
Fundamental
Rights became subordinated to Directive Principles, and any legislation enacted by the Parliament to that purpose was
exempt from court scrutiny. High Courts power of judicial review was curtailed.
4.
Shah Bano
case and Muslim Women (Protection of
Rights on Divorce) Act, 1986-
In the case
of Mohd. Ahmed Khan v. Shah Bano Begum[14], the
Supreme Court held that a muslim woman has a right to claim maintenance under
Section 125 of Cr.P.C as the Code is a criminal law and not a civil law.
According to Supreme court there was no conflict between Section 125 Cr.P.C and
Muslim personal laws because Section 125 applies to all regardless of caste
creed or religion and it is criminal in nature unlike Muslim personal law which
is civil.
This was
not well received by the Public and led various protests. As a result, the
Parliament enacted the Muslim Women
(Protection of Rights on Divorce) Act in the year 1986 which limited the liability of husband to pay
the maintenance till the iddat period only which was mentioned in Muslim personal law. After the iddat period if the
woman is unable to support herself
her relatives which would have inherited her property would maintain her and if
she has no such relatives the waqf board will pay for the maintenance.
This
judgement thus effectively nullified progressive elements of the Shah Bano
judgment, subverting secular tenets of the Constitution.
5.
Indra Sawhney case and
77th Amendment –
In the case
of Indra Sawhney v. Union of India[15], the
Supreme Court laid down the concept of creamy layer and it was directed that
such a creamy layer be excluded while identifying backward classes. Maximum reservation was
capped at 50% and no reservations in promotions were allowed. It overruled T.
Devadasan v. Union of India[16] (1964) by declaring carry forward
rule as constitutional as long as it does not exceed the 50% ceiling.
As a result of this judgment, the
Parliament made 77th Amendment to the Indian constitution, where Article 16(4A) was added by which
the Government nullified the effect of Indra
Sawhney. Article 16(4A) allowed the State to provide reservations to a
SC/ST in matters of promotion, as
long as the State believes that the SC/ST is not adequately represented in government services.
6.
1975 Emergency, Habeas Corpus case and Puttaswamy case –
In June
1975, a state of national emergency was declared, and all fundamental rights
were suspended. Then followed the 42nd Amendment Act of 1976, which aimed to
place the issue outside the purview of the judiciary by placing priority on the
directive principles of state policy over fundamental rights. The preventive
detention laws passed by the Parliament during the emergency which threw everyone's
constitutional rights into turmoil.
In the case of ADM Jabalpur
v. Shivakant Shukla,
popularly known as the Habeas
Corpus case, the 5-judge bench of the Supreme Court in a 4:1 verdict
held that the right to not be unlawfully detained can be suspended during the time
of emergency. The Supreme Court ruled in favour of State's right for unrestricted powers of detention
during emergency. It was observed
that no person had locus standi to appear under Art 226 of HC to challenge
the legality of detention.
In this
case, Honourable Justice Khanna gave the dissenting judgment where he stated “' detention
without trial is an anathema
to all those who love
personal liberty.”[17]
Habeas
Corpus case was overruled in the case of Justice K.S. Puttaswamy & Anr. v.
Union of India[18], where the
court stated Judgments rendered by all the four judges constituting the majority in ADM Jabalpur case are
seriously flawed. Honourable Justice
D.Y. Chandrachud said that “When histories
of nations are written and critiqued, there are judicial
decisions at the forefront
of liberty. Yet others have to be consigned
to the archives, reflective of what was, but should
never have been.”
7.
Electoral Bond Scheme of
2018 and Association for Democratic Reforms
& Anr v. Union
of India & Ors. –
Introduced
in January 2018, the Electoral Bond Scheme allowed citizens and corporate
entities to donate money electronically to political parties. Donors received
interest-free bearer banking instruments redeemable exclusively by registered
political parties. Anonymity prevailed throughout the process, raising
questions about financial transparency and accountability.
The
Ministry of Finance formulated the EBS using the authority granted by Section
31(3) of the RBI Act. The following were key characteristics of the
Electoral bond schme that debuted in 2018:
a) Anybody may purchase EB, but only qualified political
parties that meet certain requirements,
are registered under Section 29-A of the Representation
of the People Act, 1951 ("RP Act"),
are
eligible to receive electoral bonds, and
can cash Elecortal bond.
b) Electoral
bond granted under the plan is non-refundable in accordance with Clause 7(6), and the information provided by the buyer
is to be maintained as confidential by the licenced bank, to be revealed only upon a court's order or the filing of
a criminal complaint by any law enforcement agency.
c)
Under the revised provisions of Section 13-A of the
Income Tax Act, 1961 (the "IT Act"),
the value of the bonds is deemed income obtained from voluntary
contributions received by the political party and is therefore free from income tax.[19]
In the case
of Association for Democratic Reforms & Anr v. Union of India & Ors.[20], the Supreme Court held that the Electoral Bond Scheme was unconstitutional for violating the right to information
of voters under Article
19(1)(a).
In
conclusion, the clashes between legislative enactments and judicial precedents
highlight the intricate relationship between the legislature and judiciary in a
democratic society. Through landmark cases like Champakam Dorairajan and
Kesavananda Bharti, the importance of upholding fundamental rights while
considering directive principles of state policy has been emphasized. The
evolution of constitutional amendments reflects the ongoing dialogue to address
these clashes and maintain the integrity of the legal system. Upholding the
principles of separation of powers is essential to prevent disruptions in the
equilibrium between the branches of government. By fostering mutual respect and
dialogue, democratic societies can navigate these challenges while upholding
the rule of law and principles of justice.
Chapter III- Major implications of
clashes between legislative enactments and judicial precedents for the separation of powers within
the legal system
Introduction:
In India, a separation of
powers is followed. It is impossible for all the organs to perform all the functions systematically and
appropriately. Therefore, separation of powers provides for a system of governance where the legislative,
executive and the judicial functions are separated and assigned to different organs of the government. This helps
to prevent concentration of power in
any one organ or individual. The particular parts and freedom of the
legislative and judicial branches
offer assistance to anticipate the concentration of power and secure citizens’ rights[21]. A system of checks and
balances have been put in place in such a manner that the judiciary has the power to strike down any
law passed by the legislature, which it deems
unconstitutional. It can be said that in India the functions are separated from powers rather
than the other way around.
However
there have been several instances where the separation of powers has been
challenged and there have been clashes between legislative enactments and
judicial precedents. Such kinds of clashes have a significant impact on the
separation of powers as the powers are distributed among the three organs for
the proper functioning of the powers and when there is a clash it results in
various complications like undermining the authority of the judiciary, reducing
clarity and certainty in the law and hinder effective governance.
Major Implications of such clashes:
It has been observed from time to time that the Supreme court has assumed
the powers of legislature and in the guise of giving guidelines and creating principles they assume the powers of the legislature. For instance, in the
case of Kesavananda Bharati vs State of Kerala[22], the Supreme court laid down the basic structure doctrine,
which put out limitations on the legislature’s power to make and amend
the basic structure of the Indian Constitution. The history of conflict between legislature and judiciary in India
has been marked by pivotal moments, with the major reason being the tool of judicial
review which ensures
that governmental actions
align with the constitution. The role of the Supreme Court in upholding the constitutional principles and the
precedence of fundamental rights over legislative actions remains
a cornerstone in India’s constitutional framework[23]. According to Encyclopaedia
Britannica, “Judicial review is the power of court to examine the actions
of Legislative, Executive and
Administrative arms of the government and to determine whether such actions are consistent with the constitution.” Therefore, it can be said as the power
of courts to examine the actions of the Government. This
power of the Supreme Court can often lead to conflicts between the judicial precedents and the legislative enactments.
One such instance is, during the period of national
emergency in India (1975-1977) 42nd amendment act (1976) was enacted, and it brought several changes to the
constitution. The Supreme Court held that the 42nd Amendment Act was unconstitutional and void in the case of Minerva Mills
vs Union of India. The court reaffirmed the doctrine of
basic structure and ruled that the Parliament could not amend the Constitution in a manner that destroyed its basic
structure of undermined its essential features.
There are several impacts of the conflicts that arise between the
Legislature and the Judiciary. Some of them
are: -
1. It
undermines the authority of the judiciary: If there is a law passed by the
legislature which is contradicting with the judicial precedent, it may
undermine the authority of the judiciary and weaken its credibility. It will
raise questions on the ability of the judiciary to interpret the constitutional
and uphold the rule of law.
2. It can
reduce the clarity and certainty in the law: Such conflicts between legislation
and judicial precedents can create uncertainty in the application of law. Such
disputes can generate confusion about how specific laws should be applied.
Different interpretations of the same statue by different courts will be the
result and this can lead to reduction in predictability and stability of the
legal system.
3. Hinders
effective governance: Such disputes between the Judiciary and the Legislature
can be prolonged and can become a hinderance in effective governance and can
also delay implementation of several policies. It can also distract the policy
makers from addressing ongoing social and economic challenges by diverting
their attention to the conflicts.
4. Public
Trust: Such Frequent clashes between the Judiciary and the Legislature can
cause mistrust in public. It can cause disillusionment which can lead to the
public raising questions on the whole system and its reliability and
effectiveness of the entire system. Over time it can lead to loss of public
trust and it would weaken the separation of powers as public opinion may shift
towards consolidation of power in one branch rather than different branches.
Although
such clashes between legislative enactments and judicial precedents can have
some negative implications, they can also have a positive impact. One such
impact can be:
Since the
separation of powers relies on the system of checks and balances between the different organs of government, such
clashes will ensure that the equilibrium between the two organs is maintained ensuring proper checks and balances
within system. It will also ensure proper decision
making between the branches essential for a free democratic governance.
In conclusion, the most important thing for successful coexistence between the legislature and judiciary
is mutual understanding and proper collaboration. It is crucial for both
branches of the Government to respect each other’s roles and responsibilities and engage
in regular communication to avoid
further conflicts. In order to maintain the separation of powers, complete commitment is required from all
the organs of the government which will lead to effective governance and eliminate all mistrust and confusion.
Chapter IV- A Common Ground between Legislative
Enactments and Judicial Precedents
Introduction:
In a
democratic society like India, the relationship between the legislature and the
judiciary is crucial for upholding the rule of law, ensuring the separation of
powers, and maintaining the integrity of the legal system.[24] However,
conflicts can arise when laws passed by the legislature challenge or undermine
decisions made by the judiciary. Resolving these clashes requires a
comprehensive approach that involves judicial review, legislative scrutiny
process, dialogue and cooperation, and legislative response and amendment.
Strengthening Judicial
Review Mechanisms:
One of the
primary means to resolve the conflicts between legislative enactments and
judicial precedents is through the strengthening of judicial review
mechanisms. Judicial review
acts as a fundamental mechanism for resolving
conflicts between legislative enactments, and judicial precedents.[25] Through judicial review
the judiciary interprets laws and ensures
their adherence with constitutional principles. Marbury v. Madison[26] is a
landmark case in the United States that
established the principle of judicial review, empowering courts to repeal
legislative acts that are unconstitutional in nature. In India, the case of Kesavananda Bharati
v. State of Kerala[27] has confirmed the supremacy
of the Constitution and the
judiciary's authority to review legislative actions.
Enhancing Legislative Scrutiny Processes:
Another approach to resolving
conflicts is by enhancing legislative scrutiny processes. Legislative scrutiny processes involves
ensuring that lawmakers thoroughly review proposed legislation to assess
its compatibility with existing legal frameworks and judicial precedents.[28] In the Factortame case[29], the House of Lords ruled that
national courts have the authority to set aside national
legislation that conflicts with European Union law. This decision
underscored the importance of legislative scrutiny
in ensuring compliance with international legal obligations. By incorporating mechanisms for legal analysis
and consultation with legal experts, legislators can identify
potential conflicts early on and address them through amendments or revisions to the proposed laws.
Promoting Dialogue
and Collaboration between
Branches:
Dialogue and collaboration between
the legislature and the judiciary are essential for resolving conflicts and finding common ground. A
collaborative approach between the legislature and the judiciary can help mitigate conflicts and foster mutual
understanding.[30]
In Canada, the Supreme Court's
decision in Reference re Remuneration of
Judges of the Provincial Court of Prince Edward Island[31] demonstrated how dialogue between
branches of government can lead to constructive outcomes. The legislature
and the judiciary can clarify legal interpretations, address differences, and uphold the rule of law by engaging in
meaningful dialogue and cooperation.
It can promote an environment of understanding and mutual trust, both organs, Legislature and Judiciary, can work
together to address issues and prevent conflicts from arising in the first place.
Legislative Response and Amendment:
Legislative
bodies can respond to judicial precedents through amendments to existing laws
or the enactment of new
legislation. In some cases, conflicts between legislative enactments and judicial precedents may require constitutional amendments to resolve. By amending the constitution, lawmakers
can clarify vagueness, manage inconsistencies, and reaffirm the balance
of powers between the branches of government. Such amendments must adhere to constitutional principles and respect the
judiciary's interpretation of the law.[32]
In the United Kingdom, the
Parliament's response to judicial decisions, such as in the case of R (Jackson) v. Attorney General[33], highlights the importance of legislatures adherence
to constitutional norms. Legislatures can enact laws that
address judicial concerns while upholding democratic principles by engaging in thorough debate and consultation.
constitutional amendments must be approached with careful consideration and caution of the long-term
implications for democratic governance.
In conclusion, to resolve the conflicts between
legislative enactments and judicial
precedents, i.e., Legislature and Judiciary, a holistic approach
that involves strengthening judicial review
mechanisms, enhancing legislative scrutiny processes, promoting dialogue and
collaboration between branches,
and employing legislative response and amendment
when necessary. Judicial review is a pillar that ensures
that statutes or legislative amedments are in accordance with the constitutional
principle, as can be seen in
the landmark cases like Marbury v. Madison in the United States
and Kesavananda
Bharati v. State of Kerala in India. Similarly, legislative scrutiny processes plays an
important role in ensuring the compliance with legal frameworks and international obligations, as evidenced by landmark
cases like Factortame in the United
Kingdom. Dialogue and collaboration between
the organs can help in resolving the conflicts, as can be seen in cases such as Reference
re Remuneration of Judges of the Provincial Court of Prince Edward Island in Canada,
these can be essential in fostering mutual understanding and resolving conflicts
constructively. Finally, legislative response and amendment
provide a means for lawmakers
to address conflicts
and uphold democratic principles, as demonstrated by the Parliament's response in
cases like R (Jackson) v. Attorney General in the United Kingdom. By
employing these approaches in collaboration, India can navigate conflicts between legislative enactments and judicial
precedents while upholding the rule of law
and democratic governance.
Conclusion:
This
research paper delves into the dynamics between the Legislature and the
Judiciary in parliamentary democratic
governance, highlighting the challenges and implications of clashes between legislative enactments and
judicial precedents. Through a comprehensive analysis of historical comparisons, judicial review mechanisms, and the
role of the judiciary in upholding constitutional principles, the researchers try to sheds light on the evolving
relationship between these
two vital organs of government.
The
findings highlight the critical importance of maintaining a delicate balance of
power between the Legislature and the
Judiciary to uphold the rule of law, ensure the separation of powers, and foster democratic governance. By examining case studies and legal principles from various
countries, the research emphasizes the need for an approach that allows for
judicial oversight without
intruding on the legislative domain.
Moreover,
the study highlights the role of the Supreme Court as the final court of appeal
of reason, responsible for upholding
the Constitution and ensuring the smooth functioning of the legal system. It highlights the original
right of the people to establish principles for their government and the enduring nature of the Constitution as a reflection of the collective will of the people.
Ultimately,
the research paper advocates for finding common ground between legislative enactments and judicial precedents to resolve clashes
effectively. By addressing these conflicts and promoting a harmonious relationship
between the Legislature and the Judiciary, the research aims to enhance governance, eliminate distrust, and uphold the principles of democracy and the
rule of law.
Bibliography:
·
Cases:
1.
State of Madras v. Champakam Dorairajan (AIR 1951 SC
226)
2.
Golaknath v. State of Punjab (1967 AIR 1643)
3.
Association for Democratic Reforms & Anr v. Union
of India & Ors. (2024 INSC 113)
4.
Kesavananda Bharati v. State of Kerala, AIR 1973 SC
1461
5.
Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945
6.
Indra Sawhney v. Union of India, AIR 1993 SC 477
7.
T.Devadasan v. Union of India, (1964) 4 SCR 680
8.
Justice K.S. Puttaswamy & Anr. v. Union of India,
AIR 2017 SC 4161
9.
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
10. R
(Factortame Ltd) v Secretary of State for Transport, UKHL 7
11. Reference
re Remuneration of Judges of the Provincial Court of Prince Edward Island,
[1997] 3 SCR 3
12. R (Jackson)
v. Attorney General,[2005] UKHL 56
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Papers:
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Stephen Gageler, Reviewed Work: Controlling
Administrative Power: An Historical Comparison by Peter Cane, Vol. 76 CLJ, pp.
430, pp. 430-433 (2017)
2.
Mohammad Moin Uddin & Rakiba Nabi, JUDICIAL REVIEW
OF CONSTITUTIONAL AMENDMENTS IN LIGHT OF THE "POLITICAL QUESTION"
DOCTRINE: A COMPARATIVE STUDY OF THE JURISPRUDENCE OF SUPREME COURTS OF
BANGLADESH, INDIA AND THE UNITED STATES, Vol.58 JILI pp.313, pp. 313-336 (2016)
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B. B. Jena, Our Supreme Court An Appellate
Legislature, Vol.25 IJPS pp.250, pp.250-257 (1964)
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DISCRETION AND JUDICIAL REVIEW, Vol.31 JILI pp.75, pp.75-80 (1989)
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PRIVILEGES: FUNCTIONAL RELATIONSHIP OF COURTS AND LEGISLATURES IN INDIA, Vol.2
JILI pp.205, pp.205-222 (1967)
6.
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Legislature and the Judiciary, Volume 5, International Journal for
Multidisciplinary Research
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Tobias Oberdieck and Enrico Moss, Principle of
separation of powers between the legislature and judiciary: Distribution of
state power several state bodies for this purpose limitation of power, Volume
8(2) International Journal of Public Administration Management and Economic
Development.
8.
8 Kumarappan M, History of Conflict Between the
Legislature and the Judiciary, Volume 5, International Journal for
Multidisciplinary Research
·
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1. Textbook.IAS,
https://testbook.com/ias-preparation/42nd-amendment-act,
(last visited on 6 April 2024)
2. Siddharth
R. Gupta, Analysis and Anatomy of Electoral Bond Judgment, SCC Online, https://www.scconline.com/blog/post/2024/02/20/analysis-and-
anatomy-of-electoral-bond-judgment/(last visited on 6 April 2024)
3. V. Sudhish
Pai, Separation of Powers and the Judiciary, National Judicial Academy (Feb. 27, 2024, 10:25 PM), https://nja.gov.in/Concluded_Programmes/2018-19/P- 1110_PPTs/12.Separation%20of%20the%20powers%20and%20the%20judicia ry.pdf.
4. Judicial
Review- Scope, Ambit and Dimensions, National Judicial Academy (Feb. 28, 2024,
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5_102120495.pdf (last visited Mar. 3, 2024).
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https://www.livelaw.in/top-stories/spirit-of-collaboration-between-
institutions-necessary-to-deliver-justice-cji-dy-chandrachud-238508 (last visited Mar. 5, 2024).
7. BYJU'S,
https://byjus.com/free-ias-prep/separation-power-indian-constitution/ (last
visited Mar. 7, 2024).
[1] INDIA CONST. art. 141
[2] State of Madras v. Champakam
Dorairajan (AIR 1951 SC 226)
[3] Golaknath v. State of Punjab (1967
AIR 1643)
[4] Association for Democratic Reforms & Anr v. Union
of India & Ors. (2024 INSC 113)
[5] Stephen Gageler, Reviewed Work:
Controlling Administrative Power: An Historical Comparison by Peter Cane, Vol.
76 CLJ, pp. 430, pp. 430-433 (2017)
[6] Mohammad Moin Uddin & Rakiba Nabi, JUDICIAL
REVIEW OF CONSTITUTIONAL AMENDMENTS IN LIGHT OF THE "POLITICAL
QUESTION" DOCTRINE: A COMPARATIVE STUDY OF THE JURISPRUDENCE OF SUPREME
COURTS OF BANGLADESH, INDIA AND THE UNITED STATES, Vol.58 JILI pp.313, pp.
313-336 (2016)
[7] B. B. Jena, Our Supreme Court An
Appellate Legislature, Vol.25 IJPS pp.250, pp.250-257 (1964)
[8] P. Leelakrishnan, LEGISLATIVE
WISDOM, EXECUTIVE DISCRETION AND JUDICIAL REVIEW, Vol.31 JILI pp.75, pp.75-80
(1989)
[9] D. C. Jain, JUDICIAL REVIEW OF PARLIAMENTARY PRIVILEGES:
FUNCTIONAL RELATIONSHIP OF COURTS AND LEGISLATURES IN INDIA, Vol.2 JILI pp.205,
pp.205-222 (1967)
[10] State of Madras v. Champakam Dorairajan (AIR 1951 SC
226)
[11] Golaknath and Ors v. State of Punjab, 1967 AIR 1643
[12] Kesavananda Bharati v. State of Kerala, AIR 1973 SC
1461
[13] Textbook.IAS, https://testbook.com/ias-preparation/42nd-amendment-act, (last visited on 6 April 2024)
[14] Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945
[15] Indra Sawhney v. Union of India,
AIR 1993 SC 477
[16] T.Devadasan v. Union of India, (1964) 4 SCR 680
[17] Kumarappan M, History of Conflict
Between the Legislature and the Judiciary, Volume 5, International Journal for
Multidisciplinary Research
[18] Justice K.S. Puttaswamy & Anr.
v. Union of India, AIR 2017 SC 4161
[19] Siddharth R. Gupta, Analysis and
Anatomy of Electoral Bond Judgment, SCC Online
[20] Association for Democratic Reforms & Anr v. Union
of India & Ors. (2024 INSC 113)
[21] Tobias Oberdieck and Enrico Moss, Principle of
separation of powers between the legislature and judiciary: Distribution of
state power several state bodies for this purpose limitation of power, Volume
8(2) International Journal of Public Administration Management and Economic
Development.
[22] Kesavananda Bharati v. State of
Kerala, AIR 1973 SC 1461
[23] 8 Kumarappan M, History of Conflict Between the
Legislature and the Judiciary, Volume 5, International Journal for
Multidisciplinary Research
[24] V. Sudhish Pai, Separation of Powers and the
Judiciary, National Judicial Academy (Feb. 27, 2024, 10:25 PM),
https://nja.gov.in/Concluded_Programmes/2018-19/P-
1110_PPTs/12.Separation%20of%20the%20powers%20and%20the%20judiciary.pdf.
[25] Judicial Review- Scope, Ambit and Dimensions,
National Judicial Academy (Feb. 28, 2024, 12:05 AM),
https://nja.gov.in/Concluded_Programmes/2018-19/P-
1110_PPTs/13.Sunday%20Club%20talk%20(Judicial%20Review).pdf.
[26] Marbury v. Madison, 5 U.S. (1
Cranch) 137 (1803)
[27] Kesavananda Bharati v. State of
Kerala, MANU/SC/0445/1973
[28] Lok Sabha Secretariat Intranet,
https://loksabhadocs.nic.in/Refinput/Research_notes/English/04122019_174605_102120495.pdf
(last visited Mar. 3, 2024).
[29] R (Factortame Ltd) v Secretary of State for
Transport, UKHL 7
[30] Law Live, https://www.livelaw.in/top-stories/spirit-of-collaboration-between-institutions-necessary-to-deliver- justice-cji-dy-chandrachud-238508 (last visited Mar.
5, 2024).
[31] Reference re Remuneration of
Judges of the Provincial Court of Prince Edward Island, [1997] 3 SCR 3
[32] BYJU'S, https://byjus.com/free-ias-prep/separation-power-indian-constitution/
(last visited Mar. 7, 2024).
[33] R (Jackson) v. Attorney General,[2005] UKHL 56
Article Information
CLASH OF POWERS: LEGISLATIVE CHALLENGES TO JUDICIAL PRECEDENTS IN DEMOCRATIC GOVERNANCE BY: SAHIL SINGH, SIDDHESH MUNGHATE & DIPTO DASGUPTA
Authors: SAHIL SINGH, SIDDHESH MUNGHATE, DIPTO DASGUPTA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/06
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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- ISSN 2582-6433
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