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Mainstream, Vol XLVI, No 13

Tug of War between Judiciary and Parliament : A Burning Question

Sunday 16 March 2008, by Narain Dutt


On August 15, 1947, after ruling the subcontinent for over 200 years, the British surrendered power and India became a free country. India adopted the path of parliamentary democracy. The British parliamentary system left a lasting impress on it; due to the colonial legacy the framers of the Indian Constitution borrowed this system primarily from England.1 The freedom of the judiciary was taken from the USA. The USA did impart considerable power to the judiciary and made the judiciary free of the biased influence of the executive and the legislature.2 So the USA set an example of the freedom of judiciary before the whole world.

It is pertinent to point out that the Supreme Court of the USA is the earliest in the modern democratic world. The USA is one of the countries to have adopted the ‘principle of separation of powers’. There is a clear and distinct line that separates the three major organs—the executive, the legislature and the judiciary. As a result the USA had had a glorious past of 200 years of peace, progress and harmony.3 Its chief reason is that the powers of the three organs of the government are obviously written in the Constitution.

To keep the Constitution supreme in the country, India made the biggest written Constitution in the world. Jennings also describes it as “the largest written Constitution in the world”4. So the Constitution of India gave powers to the three pillars of the government—the executive, the legislature and the judiciary.5 The Founding Fathers of our Constitution gave importance to justice at the highest pedestal than the other principles in the Preamble of our Constitution. The Preamble clearly demonstrates the precedence of social and economic justice over political justice because the people go to the judiciary in quest of justice. The Constitution lays down the structure and defines the limits and demarcates the role and functions of every organ of the state, including the judiciary, and establishes the norms for their inter-relationship, checks and balances. Independence of the judiciary is essential for upholding the rule of law.6 So checks and balances with separation of powers is one of the most characteristic features of our Constitution.7 It is to be noticed that the powers8 of the three pillars must be balanced and none of these should be in excess of the others.

Since the legislature represents the people, controls the government and makes law, no one can interfere with its freedom and authority to do so. The judiciary has to adjudicate disputes, interpret the Constitution, “declare the law” and pass the necessary order “for doing complete justice”. The Supreme Court is the final authority for interpreting and pronouncing on the provisions of a law. Any law which is violative of constitutional provisions is invalidated. The power of judicial review has always been there with the Supreme Court and cannot be taken away. The executive operates and enforces the law made by the legislature.9 However, a number of occasions have come in the parliamentary history of our country when there is a tug of war between the legislature and the judiciary. In fact the tug of war between the executive government and courts has occurred ever since the courts have been established. In 1608 in the case of Bonham Lord Coke systemised the judicial review of the laws made by Parliament in Britain that if any law which is against the Constitution or impossible to enforce, the judiciary will invalidate such law.10

After almost two centuries in 1803 Marshall, the Chief Justice of the American Supreme Court, systemised in the same way referring to the case Marbury versus Madison. The government objected to it raising the query as to how the unelected judges could invalidate those laws made by the elected members of Parliament while there is no provision for this in the Constitution of the USA.11 In the world the legislature is mostly troubled by the fact that the unelected judges interfere with the functions of other organs of the government in the name of interpretion.12 US President Jefferson pointed out: “Judicial activism makes a thing of wax in the hands of judiciary which it can give the shape as it wishes.” According to Lord Saimond, “Judicial activism abducts directly the legislative functions in the name of interpretation.”13

In India, the courts started invalidating the agriculture and land reform acts after independence in the name of violation of the fundamental right to property; on this there was conflict between the government and the judiciary. Consequently, the First Amendment was made in 1951, by which the Ninth Schedule was added and a provision was made that the laws given in this Schedule will not be subject to judicial review.14 In the context of the Ninth Schedule of the Indian Constitution, Prime Minister Jawaharlal Nehru said: “It is not with any great satisfaction or pleasure that we have produced this long Schedule. We do not wish to add to it for two reasons. One is that the Schedule consists of a particular type of legislation generally speaking, and another type should not come in. Secondly, every single measure included in this Schedule was carefully considered by our President and certified by him…..”15 But, instead of repealing the Ninth Schedule the powers were included in this Schedule for their political use.

In the Golaknath case the Supreme Court gave the judgement that Chapter 3 of the Indian Constitution dealing with the fundamental rights of Indian citizens cannot be amended. The judgment in this case was considered to be a case of judicial over-activism to some extant.16 Creating a stir in Indian politics, the Supreme Court gave its historic judgment on the Keshavananda Bharati case in 1973; In this case the Supreme Court held that Parliament cannot change the Basic Structure of the Constitution. The judgment was criticised saying that the judiciary had crossed its limits.17 When the 39th Amendment was carried out in the Constitution making the provision that the election of the Prime Minister cannot be defied in the Court, the Supreme Court invalidated it by declaring it violative of the Basic Structure of the Constitution.18

In this way, in 1985 there was again a tug of war between the government and judiciary regarding the Anti-Defection Act. The Chairmen of Assemblies were given the power to decide the issue of defection of political parties. After the decisions of the Chairmen of Assemblies like those of Mizoram, Goa, Nagaland, Manipur and UP on the issue, these were challenged in the courts. As a result many kinds of disputes cropped up.19

THERE remained constant tension between the judiciary and legislature in 2006 regarding some issues which are as follows:
- 1. Confrontation of Parliament and judiciary in relation to reservation, the question of creamy layers.
- 2. Opposition by the Supreme Court to the sealing operations of commercial premises in unauthorised areas of Delhi.
- 3. The Supreme Court’s interim stay on the 27 per cent OBC quota in institutions of higher education.20
- 4. The Lok Sabha Speaker’s refusal to expel some MPs for taking bribes to put questions in Parliament.21
- 5. The decision of the Andhra Pradesh Governor to grant pardon to a Congress leader was sought to be nullified by the Supreme Court. Besides the Supreme Court said that the power of the President and the Governor regarding the grant of pardon should be in the preview of the judicial review.22
- 6. The judgment of the Supreme Court that in corruption issues there is no need to take permission to file case against a corrupt Chief Minister, MP and bureaucrat.
- 7. The recommendation of President’s Rule in Bihar by the Governor was declared unconstitutional by the Supreme Court.
- 8. According to the Supreme Court, the decision of the Speakers of Assemblies should come under judicial review.23
- 9. Growing confrontation between the judiciary and Parliament in regard to the Ninth Schedule being brought under judicial review.24

Thus it is obvious that the conflict between the judiciary and Parliament about the constant enhancement of their respective powers has grown with the passage of time. On April 8, 2007 Prime Minister Manmohan Singh told the Chief Ministers and Chief Justices of the High Courts in the conference on Administration of Justice on Fast Track Issue: “The dividing line between judicial activism and judicial overreach is a thin one….a takeover of the functions of another organ may, at times, become a case of over-reach.”25 But the Chief Justice of India, K.G. Balakrishnan, declared that tension between the judiciary on the one hand and the legislature and the executive on the other was “natural and to some extent desirable”.26

Such comments considerably accentuated the dispute over judicial activism. The comment of Prime Minister Manmohan Singh was viewed in the context of introduction of various pieces of legislation nullified by the Supreme Court last year.27 The ban on several pieces of legislation in the Ninth Schedule, the constitutional invalidation in relation to 27 per cent reservation of the OBC quota in government aided educational institutions, the Muslims in UP being declared non-minority by the Allahabad High Court, the expulsion of 12 MPs from Parliament being declared valid by the Supreme Court etc. are also to be included in this backdrop.28

It is clear that the Prime Minister expressed his political views rising above party politics and Balakrishnan said how invalid and irresponsible criticism can prove to be harmful. The views of both should be discussed cautiously.29

The privileges of Parliament are often mentioned in any discussion. It is said that the privileges of the Indian Parliament are not similar to those of the British Parliament according to the Indian Constitution. The British Parliament has expelled its several members and even today, if it likes, it can do so but the question is not of privileges, it is a question of aptness or obligation because the democratic form of system has been adopted in India.

The opinion of the people is supreme in a democracy. The people are sovereign and their power cannot be reduced but the people themselves do not use this power. They use it through their elected representatives. If the people themselves use their sovereign power, lawlessness will spread in the country. Thus the sovereignity of the people has been changed into the sovereignty of Parliament.30 But the Supreme Court is not such a body as can dishonour Parliament or consider Parliament to be of no consequence. The Supreme Court analysed the laws terminated by Parliament on the judicial basis. As Edmund Burke also said, “The fire-alarm at midnight may disturb your sleep, but it keeps you from being burned at night.”

In the same way, the Supreme Court cooperates in the activities of the other organs of the state to ensure the control and balance available in a developing democracy.31

It can be said that the unelected judges availing so many powers and refusing to heed the intentions of the elected representatives is undemocratic. But it is also true that the division of powers among the organs of government is the fundamental feature in the Constitution of India and this should be maintained.32 Because the Constitution does not give unfettered power to any organ. Just as parliament is supreme in Britain, similarly the Constitution is made sovereign in our country.33 Therefore, just as the judiciary has supreme rights in its sphere in the same way the legislature is also supreme in its sphere under the Articles 122 and 212.34 So the supremacy of the Supreme Court ends where the supremacy of Parliament starts.

In the parliamentary history of India it has happened several times that when the legislature or the executive failed in its constitutional duties, then the judiciary had to interfere to safeguard the provisions of our Constitution and in public interest. As corruption is rampant among top bureaucrats and political leaders, the increased expectation of common man from the judiciary can easily be understood. However, it must also be realised that unless different organs of the Constitution cross the limits of each other, there is no possibility of a real tug of war between them.


1. Narain Dutt, “The Office of Profit in the Constitution Perspective”, Mahila Vidhi Bharti, Delhi, July-September 2006, Ank 48, p. 234.
- 2. Harday Narayan Dixit, “Sakiryta Pal Beja Sawal”, Dainik Jagran, April 13, 2007, p. 8.
- 3. Fali S. Nariman, “Dear Prime Minister, with respect beg to Disagree”, The Tribune, Chandigarh, April 12, 2007, p. 10.
- 4. Fali S. Nariman, “Constitution under Threat”, The Tribune, August 15, 2007, p.1.
- 5. Somnath Chatterjee, “No single authority is Supreme”, The Tribune, April 28, 2007, p. 12.
- 6. K.G. Balakrishnan, “Executive to Blame for delayed justice”, The Tribune, April 10, 2007, p. 10.
- 7. M.P. Raju, “Conflict Within”, Frontline, Chenni, April 20, 2007, p. 24.
- 8. Regarding the power and corruption Lord Acton asserted: “Power corrupts and absolute power corrupts absolutely.” Nariman, op.cit.
- 9. Subhash Kashyap, “Ninth Schedule can’t help”, The Tribune, January 29, 2007, p. 12.
- 10. Sudhansu Ranjan, “Sakiryta per Sawal”, Dainik Jagran, April 27, 2007, p. 6.
- 11. Ibid.
- 12. See for details, “Loktantar me Nayay Palika”, Sahara Samay, New Delhi, June 12, 2004, p. 6.
- 13. Ibid.
- 14. Abhishek Singhvi, “Back to the Drawing Board”, Hindustan Times, New Delhi, January 17, 2007, p. 10.
- 15. A.G. Noorani, “Ninth Schedule and the Supreme Court”, Economic and Political Weekly, Mumbai, March 3, 2007, p. 731.
- 16. Inder Malhotra, “Judges for Mrs G”, The Indian Express, New Delhi, April 12, 2007, p. 10.
- 17. Subhash Kashyap, “Ninth Schedule can’t help”, The Tribune, January 29, 2007, p. 10.
- 18. Ranjan, op. cit.
- 19. Farjand Ahamad, “Rajya Bana Paryogshala”, India Today, New Delhi, November 1, 2006, p. 14.
- 20. Rajinder Sachar, “The OBC question”, The Times of India, New Delhi, April 16, 2007, p. 14.
- 21. J.S. Verma, “The Constitution does not envisage Judicial Review as the only way to correct every wrong”, The Indian Express, April 7, 2007, p. 9.
- 22. Subhash Kashyap, “Takrav Jaisi to Koe Bat Nhi”, Danik Bhaskar, Feburary 1, 2006, p. 4.
- 23. See for details, “Satmbho Ki Rassakshi”, Danik Bhaskar, December 9, 2006, p. 6.
- 24. H.K. Dua, “9th Schedule route Plugged”, The Tribune, January 15, 2007, p. 10.
- 25. Manmohan Singh, “Line Between activism and over-reach thin: PM to Bench”, The Indian Express, April 9, 2007,
p. 1.
- 26. Malhotra, op. cit.
- 27. T.K. Rajalakshmi, “Doubts over data”, Frontline, April 30, 2007, p. 16.
- 28. Poonam I. Kaushis, “Desh Me Nayayik Sakriyta Honi Chahie”, Panjab Kesri, April 17, 2007. p. 6.
- 29. Ibid.
- 30. Raj Kishor, “Sawal sarvochta ka nhi maryadao ka hai”, Dainik Tribune, Chandigarh, January 31, 2006, p. 6.
- 31. Kuldeep Nayar, “Loktantar Ke Sabhi Ango Ki Apni-Apni Lakshman Rekhai Hai”, Panjab Kesri, December 13, 2006, p. 6.
- 32. Kaushis, op. cit.
- 33. Dev Rishi Sharma,”Sarvoch to Sanvidhan Hai”, Dainik Jagran, March 26, 2005, p. 6.
- 34. Subhash Kashyap,”Sabse Upar Sansad”, Sahara Samay, January 21, 2006, p. 7.

The author is a Lecturer in Political Science, DAV College, Pundri, Kaithal (Haryana).

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