• THE THEORY OF

SEPARATION OF POWERS
STATES THAT THE
DIVISION OF THE POWERS
OF THE GOVERNMENT
INTO THREE BRANCHES –
THE LEGISLATIVE,
EXECUTIVE AND
JUDICIARY.

• THE MAIN AIM OF THIS

THEORY IN PRACTICE IS
SO THAT THESE THREE
ORGANS DO NOT
 INTERFERE IN EACH
OTHER’S ACTIVITIES.

• THIS MAKES THE ORGANS

INDEPENDENT OF THE
POWERS VESTED IN THEM
SO AS TO WORK WITHOUT
THE INTERFERENCE OF
EACH OTHER. THIS ALSO
HELPS IN TAKING OUT
ARBITRARINESS AND
ABUSE OF POWERS OF
THE GOVERNMENT.

2
 • ANOTHER IMPORTANT
OUTCOME OF THIS
DIVISION IS THAT IT HELPS
THEM TO KEEP A CHECK
ON ONE ANOTHER; OR IN
OTHER WORDS, MAINTAINS
A SYSTEM OF CHECKS
AND BALANCES.

• WHEN THIS SYSTEM WAS

PROPOSED IN THE
CONSTITUENT ASSEMBLY,
IT WAS FELT THAT THERE
IS A NEED FOR
INTERDEPENDENCE
BETWEEN THEM. THERE
ARE SITUATIONS IN WHERE
THESE DEMARCATED
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 POWERS OF THE THREE
ORGANS CAN OVERLAP.
ONE OF SUCH ASPECTS
COMES UP AS LEGISLATIVE
OVERRULING.

• THE LEGISLATURE IS
CONFERRED WITH THE
POWER OF ADDITION,
VARIATION OR REPEAL OF
ANY PROVISION OF THE
CONSTITUTION IN
ACCORDANCE WITH THE
PROCEDURE LAID DOWN IN
THE CONSTITUTION ITSELF.
THIS EXACT PROVISION IS
KNOWN AS LEGISLATIVE
OVERRULING.
4
 • ARTICLE 368 STATES THE
POWER OF PARLIAMENT
TO AMEND THE
CONSTITUTION AND
PROCEDURE THEREFORE.

• THE MAKERS OF THE

CONSTITUTION MADE IT
COMPREHENSIVE, BUT AT
THE SAME TIME FLEXIBLE.
THIS WAS SO THAT THE
CONSTITUTION GROWS
WITH THE COUNTRY. THE
CONSTITUTION IS KING. IT
GIVES POWER TO THE
GOVERNMENT AND STATES
THE ACTIONS IT IS
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 ALLOWED TO DO. AT THE
SAME TIME, IT ALLOCATES
POWER FOR ITS
AMENDMENT. HERE, A
QUESTION POPS UP IN
OUR MINDS, IF THE
CONSTITUTION GIVES
POWER TO THE
GOVERNMENT, HOW CAN
THE GOVERNMENT HAVE
POWER OVER THE THING
THAT ITSELF GIVES IT
POWER?

6
 • THE POWER TO AMEND
THE CONSTITUTION WAS
GIVEN SO THAT THE
CONSTITUTION IS ABLE TO
GROW WITH THE COUNTRY
IN HER FUTURE.
HOWEVER, THIS POWER IS
ALSO NOT ABSOLUTE. THE
POWER OF AMENDMENT IS
NOT ABSOLUTE. IT HAS TO
BE PROTECTED AND MUST
NOT CHANGE THE BASIC
STRUCTURE OF THE
CONSTITUTION; THUS STILL
ALLOWING IT TO BE
SUPREME.

7
 • COMING BACK TO THE
CONCEPT OF LEGISLATIVE
OVERRULING; LET US
FIRST BREAK DOWN THE
PHRASE TO UNDERSTAND
THE MEANING BEHIND
THEM. ‘LEGISLATIVE’
MEANS HAVING POWER TO
MAKE LAWS; A BODY
AUTHORIZED TO MAKE
LAWS. ‘OVERRULING’
MEANS EXERCISING A
SUPERIOR AUTHORITY TO
CHANGE OR DISALLOW A
SUBORDINATE’S DECISION.

8
 • WHILE THE LEGISLATURE
DOES NOT HAVE THE
AUTHORITY TO INTERPRET
AND APPLY THE LAW LIKE
THE JUDICIARY, IT CAN
ONLY ENACT LAWS. IN
CASE OF LEGISLATIVE
OVERRULING, THE
LEGISLATURE DOES NOT
INTERPRET OR APPLY THE
LAW, RATHER CANCELS A
CERTAIN DECISION MADE
BY THE JUDICIARY. THIS
DOES NOT MEAN THEY
ARE DIRECTLY
INTERPRETING A LAW OR
APPLYING IT AS THE
INSTITUTION ONLY
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 NULLIFIES A DECISION
FROM THE JUDICIARY.

• LEGISLATIVE OVERRULING
FIRST OCCURRED IN INDIA
IN 1951, WITH THE CASE
OF STATE OF MADRAS V.
SRIMATHI CHAMPAKAM.
THIS HAS BECOME A
LANDMARK JUDGEMENT IN
THE HISTORY OF INDIA AS
IT LED TO THE FIRST
AMENDMENT IN THE
CONSTITUTION.

10
 • THIS CASE RELATED TO
THE RESERVATION
ALLOTTED IN THE
COLLEGES IN MADRAS. A
CERTAIN NUMBER OF
SEATS WERE ALLOTTED
FOR OUTSIDE STATE
STUDENTS AND
DISCRETIONARY
ALLOTMENT BY THE STATE.
ALL OTHER SEATS WERE
DIVIDED BETWEEN FOUR
CATEGORIES FOR
DISTRICTS AND
RESERVATION OF SEATS IN
THESE WAS DONE
ACCORDING TO RELIGION
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 AND CASTE. IT WAS
STATED THAT IF
SELECTION FOR SEATS
WAS BASED ON MERIT
RATHER THAN RELIGION
AND CASTE IT WOULD
PROMOTE EQUAL
OPPORTUNITY FOR ALL AS
EMBEDDED IN ART.15 OF
THE CONSTITUTION. THIS
ARTICLE STANDS FOR
PROHIBITION OF
DISCRIMINATION ON
GROUNDS OF RELIGION,
RACE, CASTE, SEX OR
PLACE OF BIRTH. THUS,
MAKING RESERVATIONS
WAS STATED TO BE
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 UNCONSTITUTIONAL. THE
SUPREME COURT ALSO
RULED IN FAVOR OF THE
SAME, STATING THAT
EDUCATIONAL
INSTITUTIONS SHALL NOT
DISCRIMINATE STUDENTS
ON ANY BASIS.

• HOWEVER, THIS DECISION

WAS OVERRULED BY THE
LEGISLATURE BY THE
VERY FIRST AMENDMENT
OF THE CONSTITUTION.
SUB-CLAUSE 4 WAS ADDED
ONTO THE CONSTITUTION
WHICH CIRCUMVENTED
THE DECISION OF THE
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 APEX COURT. THIS CLAUSE
PROVIDES THAT THE
STATE CAN MAKE SPECIAL
PROVISION FOR THE
ADVANCEMENT OF ANY
SOCIALLY AND
EDUCATIONALLY
BACKWARD CLASSES.
THUS, THE RULING IN THE
CHAMPAKAM JUDGEMENT
WAS CHANGED BY THE
LEGISLATURE WITHOUT
OVERSTEPPING THE
AUTHORITY GIVEN TO IT.

14
 • HOWEVER, BEFORE THIS
CASE CAME THE ONE OF
SHANKARI PRASAD V.
UNION OF INDIA. THE
ABOVE CASE AMENDED AN
ARTICLE FROM THE
FUNDAMENTAL RIGHTS
AND WALKED INTO THE
QUESTION OF BASIC
STRUCTURE OF THE
CONSTITUTION. THE CASE
ALSO ADDED TO THE
ONGOING STRUGGLE
BETWEEN THE JUDICIARY
AND THE LEGISLATURE
FOR SUPREMACY IN
INDEPENDENT INDIA. THE
QUESTION WAS BROUGHT
15
 BEFORE THE COURT
WHETHER THE
FUNDAMENTAL RIGHTS
CAN BE AMENDED UNDER
ARTICLE 368.

• AFTER INDEPENDENCE,
AGRARIAN LAND REFORMS
THROUGH LEGISLATION
WERE ENACTED AS THE
ZAMINDARI ABOLITION ACT.
THIS UPSET THE
ZAMINDARS AS THE ACT
DEPRIVED THEM OF THEIR
LANDHOLDINGS. SOME OF
THEM CAME TOGETHER IN
A PETITION TO THE HIGH
COURT WHICH UPHELD
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 THE ACT. HOWEVER, TO
PUT AN END TO THIS TYPE
OF LITIGATION
ALTOGETHER, THE
REMEDY BY THE
LEGISLATURE WAS THE
CONSTITUTION (FIRST
AMENDMENT) ACT, 1951
WITH THE CHANGE IN
ARTICLE 13. THE ORIGINAL
SAID THAT THE STATE
SHALL NOT MAKE ANY LAW
THAT TAKES AWAY OR
ABRIDGES THE RIGHTS
GIVEN TO THE CITIZENS IN
PART III AND ANY SUCH
LAW MADE IN
CONTRAVENTION OF THIS
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 ARTICLE SHALL BE
DEEMED VOID TO THE
EXTENT OF
CONTRAVENTION. THUS,
THE LAND REFORMS
WOULDN’T BE
CONSTITUTIONALLY VALID,
AS HAVING LAND WAS A
FUNDAMENTAL RIGHT
BEFORE.

• THE AMENDMENT
INSERTED ARTICLE 31A
AND ARTICLE 31B IN THE
CONSTITUTION OF INDIA
WHICH ALLOWED FOR THE
STATE SECURING
ESTATES. THIS IS
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 ANOTHER INSTANCE OF
LEGISLATIVE OVERRULING
WHEREIN, THE
GOVERNMENT MOVED
FORWARD TO MAKE A
CHANGE SO AS TO
PROMOTE A LARGER
PUBLIC GOOD WHEN IT
INTERVENED WITH
FUNDAMENTAL RIGHTS.

.
• THIS ACTION OF
LEGISLATIVE OVERRULING
HAS BEEN DONE ON
VARIOUS OCCASIONS TO
NULLIFY THE JUDGMENTS
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 OF THE COURTS OR FIT IN
A LARGER PUBLIC GOOD
IN WHICH MAY BECOME A
LITIGATING NUISANCE. ONE
MORE CASE IN THIS FIELD
IS THAT OF STATE OF
WEST BENGAL V. BELA
BANERJEE AFTER WHICH
THE LEGISLATURE ADDED
CLAUSE 2 AND CLAUSE 2A
TO ARTICLE 31A WHICH
PROVIDED THAT ‘A COURT
COULD QUESTION NO LAW
ON GROUNDS THAT THE
COMPENSATION PAID FOR
ACQUIRED PROPERTY IS
INADEQUATE’.

20
 • IN THE CASE OF
KESHVANANADA BHARTI V.
STATE OF KERALA THE
COURT WAS OF THE VIEW
THAT THE WORD ‘AMOUNT’
MEANT A FAIR RETURN OF
THE PROPERTY ACQUIRED.
THE LEGISLATURE PASSED
THE 44TH CONSTITUTIONAL
AMENDMENT, DELETED
THIS RIGHT FROM THE
CHAPTER ON
FUNDAMENTAL RIGHTS IN
1978.

21
 • AFTER THE LANDMARK
JUDGMENT IN
KESAVANANDA BHARTI,
THE 42ND AMENDMENT
ADDED CLAUSE (4) AND (5)
TO ARTICLE 368 TO
NULLIFY THE RULING IN
THE SAID CASE. THESE
CLAUSES STATED THAT NO
LIMITATION WOULD BE
THERE ON THE POWER OF
THE LEGISLATURE TO
AMEND PROVISIONS OF
THE CONSTITUTION. THE
PARLIAMENT
(LEGISLATURE)
REPRESENTED THE WILL
OF THE PEOPLE, AND THE
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 LIMITATION IMPOSED IN
THE KESAVANANDA
BHARATHI CASE WAS
NULLIFIED.

• THE NEXT INSTANCE OF A

LEGISLATIVE OVERRULING
BEING ENACTED TO
NULLIFY A JUDGMENT
AROSE IN THE CASE OF
INDIRA NEHRU GANDHI V.
RAJ NARAIN, WHEREIN
THE SETTING ASIDE THE
ELECTION OF INDIRA
GANDHI WAS CHALLENGED.
DURING THIS THE
LEGISLATURE ENACTED
THE 39TH CONSTITUTIONAL
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 AMENDMENT WHICH
ADDED ARTICLE 392A TO
THE CONSTITUTION AND
STATED THAT THE
ELECTIONS OF THE
PRESIDENT, VICE
PRESIDENT, PRIME
MINISTER AND THE LOK
SABHA SPEAKER CANNOT
BE CHALLENGED IN ANY
COURT EXCEPT ONLY
BEFORE A PARLIAMENTARY
COMMITTEE.

• HOWEVER, THIS
AMENDMENT WAS HELD TO
BE UNCONSTITUTIONAL,
SINCE IT VIOLATED THE
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 BASIC STRUCTURE OF THE
CONSTITUTION.

• SIMILARLY, COMES THE

CASE OF MOHD. AHMED
KHAN V. SHAH BANO
BEGUM; MORE POPULARLY
KNOWN AS THE SHAH
BANO CASE. THE COURT
HAD HELD THAT A MUSLIM
WIFE WAS ALSO ENTITLED
TO ALIMONY. THE
LEGISLATURE, PASSED THE
MUSLIM WOMEN
(PROTECTION OF RIGHTS
ON DIVORCE) ACT, 1986 TO
DILUTE THE EFFECTS OF
THIS JUDGMENT WHICH
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 DENIED MUSLIM WOMEN
THEIR RIGHT TO ALIMONY.
HOWEVER, IN
SUBSEQUENT CASES THE
COURT INTERPRETED THE
ACT IN ORDER TO
REASSURE THE VALIDITY
OF THE SHAH BANO
DECISION; WHICH THUS
NULLIFIED THE EFFECTS
OF THE ACT.

• ON ONE SIDE, THE

SUPREME COURT HAS
ALWAYS PRESSED ON THE
FACT THAT ENACTING
AMENDMENTS WHICH
NULLIFY THE JUDGEMENTS
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 OF THE SUPREME COURT
WILL ALWAYS ENCROACH
UPON THE POWER OF THE
JUDICIARY.

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