CHANGING EQUATION BETWEEN INDIAN PARLIAMENT & JUDICIARY

Author(s): Walekar Dasharath

Source: The Indian Journal of Political Science , JAN. - MAR., 2010, Vol. 71, No. 1 (JAN.
- MAR., 2010), pp. 163-167
Published by: Indian Political Science Association

Stable URL: https://www.jstor.org/stable/42748377

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The Indian Journal of Political Science
Vol. LXXI, No. 1 , Jan.-Mar., 2010, pp. 163-167

CHANGING EQUATION BETWEEN

INDIAN PARLIAMENT & JUDICIARY

Walekar Dasharath

The period of last six decade is very important to be taken into consideration to study the
interrelations and intra relations of two important pillars of the Indian democracy i.e. Indian
parliament and Judiciary. In the preamble of Indian constitution the importance is given to
justice at the highest level. The constitution lays down the structure and defines the limits
and demarcates the role and functions of parliament and judiciary and establishes the
norms for checks and balances. In India there is a separation of functions and not of
powers. The equation of Indian parliament and judiciary changed in 1985 regarding the
anti defection Act, the Speaker of State Assemblies were given the power to decide the
issue of defection of political parties. There remained constant changing equations between
Indian parliament and judiciary. The criticism should be based on facts & performance.
The tension between Indian parliament and the judiciary was natural and to some extent
desirable. Theory of basic structure is the only theory to judge validity of constitutional
amendments. The Indian constitution does not give unfettered power to any organ.

This article aims to study the changing relations between Indian Parliament & Indian
Judiciary. The period of last six decade is very important to be taken into consideration to study

the inter relations and intra relations of these two important pillars of the Indian democracy.

This Article contributes the brief sense in which changing future is useful in the social science

in general and constitutional law in particular. It examines the nature of separation of powers

between the parliament and judiciary in the Indian Constitution, which is a critical area that
needs careful attention in the next fifty years. Recently historiography has come to take the

claim that the study of future may be conducted with the rigor and methods of history. The
Indian Constitution will need articulation of the principles which will guide the separation of
powers between Indian Parliament and judiciary. The principle of separation of power has
received legal and public attention in the last two decades. The proper role of these two organs

must be ensured through the provisions of Indian Constitution and the interpretations made by

the Supreme Court of India. We will need a more careful articulation of the principals which will

guide this separation in the coming days.

India adopted the path of parliamentary democracy. The British parliamentary system
left a big impression on Indian Constitution. The freedom of judiciary was taken from the
United States of America. In U.S.A. there is considerable power given to judiciary rather than

parliament. Therefore we can say that U.S. A is an example of freedom of judiciary before the
whole world. In U.S.A there is a clear and distinct line that separates the three major organs,

the executive, the parliament and the judiciary. To keep the constitution supreme in the country,

India made the biggest written constitution in the world1. In the preamble of Indian constitution

the importance is given to justice at the highest level. The people go to the judiciary in the

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 The Indian Journal of Political Science 164

quest of justice. The constitution lays down the s

the role and functions of parliament and judic

balances. Independence of the judiciary is essentia
will sketch the outlines of current debate on the p

theory.

In Indian constitution there is an express mention that the executive power of union and

of state is vested by the constitution in the president of India and the Governor of State
respectively by article 53 and 154. There is no corresponding provision vesting the legislative
and judicial power in any particular organ. Hence we can say that, there is no rigid separation

of powers, judiciary is independent in its field and there can be no interference with its judicial

functions by legislature. Constitution imposes the restrictions on the discussion of conduct of

any judges in the parliament. The High Court & Supreme Court has been given the power of
judicial review and they can declare any law passed by parliament as unconstitutional. On the
other side certain constitutional provisions also provide for power, privileges, and immunities

to the Member of Parliaments, immunity from judicial scrutiny in to the proceedings of the
house. These provisions make the parliament independent. If studied carefully, it is clear that,

the doctrine of separation of power has not been accepted in India in its strict sense. The
executive is a part of legislature. It is responsible to the legislature for its actions. In Indian
constitution president is also empowered to exercise legislative functions like while issuing
ordinance framing rules & regulations relating to service matters formulating law where
emergency is in force. These are the special feature of Indian constitution.

In India there is a separation of functions and not of powers. Whether article 368 confers

an unlimited amending power on the parliament, the Supreme Court held that, amending
power was now subject to the basic structure of constitution and parliament can not change
the basic structure of constitution - Keshvanand Bharati3.

In India strict separation of power like in American sense is not followed but, the provisions

of principle of checks and balances are made. Normally the query was raised that, as to how
the unelected judges could invalidate those laws made by the elected members of parliament.
Now days the legislature is mostly troubled by judicial review. In India the courts held the
agricultural and land reforms laws invalid and unconstitutional after independence in the name

of violation of fundamental rights to property. To over come the problem first amendment was

made in 1951 by which the 9th schedule was added and a provision was made that, the laws
included in the 9th schedule will not be subject to judicial review4. Now a day the use of this 9th

schedule is made for political purpose. The confrontation between parliament and judiciary

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Changing Equation between Indian Parliament & Judiciary 165

regarding 9th schedule is being brought under judicial review5. In Golaknath VS Stat
Punjab the Supreme Court held that, the provisions relating to chapter III in respect
Fundamental rights can not be amended. The judgment in this case was considered to
case of judicial over activism to some extent6.

The provision relating to the election of Prime Minister can not be defied in the court

made by 39th amendment was declared unconstitutional by Supreme Court ás .violativ

basic structure of the constitution.

The equation of Indian parliament and judiciary changed again in 1985 regarding
anti defection Act the Speakers of State Assemblies were given the power to decide the
of defection of political parties. Accordinçfto the Supreme Court the decisions of the speake

of Assemblies should come under judicial review.

There remained constant changing equations between Indian parliament and judic
in respect of reservation policy and law relating to creamy layers. Supreme Court rec
stayed the implementation of 27% OBC quota in institutions of higher education. Justice K.G

Balakrishnan, Hon. Chief Justice of India recently declared that, no institution in a democra

is above criticism. What is important is that, the criticism should be based on facts
performance. The tension between Indian parliament and the judiciary was natural a
some extent desirable7.

In the last twenty five years, the Supreme Court nullified the various pieces of legislati

The privileges of Indian parliament are often discussed in relation to the British parlia
The British parliament has expelled its several members and even today if it likes, it can do

but the question is not of privileges ifs a question of obligation because the democratic form

system has been adopted in India. The opinion of people is supreme in a democracy.
people are sovereign and their powers can not be curtailed in any way. The power is us
them through elected members. In India the sovereignty of people is transformed int
sovereignty of parliament.

It can be said that, the unelected judges availing so many powers and refusing to h
the intentions of the elected representatives is undemocratic. The doctrine of basic stru
has essentially developed from the German Constitution. The Supreme Court held tha
basic structure- are systematic principals under laying and connecting provisions of constit

They give coherence and durability to constitution. These principals are part of constitution

law even if not expressly stated8. Theory of basic structure is the only theory to judge validi
constitutional amendments.

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 The Indian Journal of Political Science 166

The Indian constitution does not give unfet

has supreme rights in its sphere in the same way

under article 1 22 and 21 29. We can say that the

supremacy of parliament starts.

Conclusion :

The Indian constitution contains detailed provisions intended to secure the institutional

independence for the judicial wing essential to deliver free and fair justice even against the
State.

Independence of judiciary is a sine qua nonA for an effective democracy. The Indian
constitution has made elaborate provisions to secure the independence of judiciary. The
independence of judiciary has been held by Supreme Court to be a fundamental feature of the

constitution. Therefore it cannot be encroached upon by legislation and even by constitutional

amendment10.

The future of separation of power can be well determined by the scope and extent of
judicial power. In the next fifty years we will need to focus our attention, on the application of

this principle to the relationship between Indian parliament & judiciary. We need to critically

examine the use of British constitutional law and to interpret the relations of these two wings o
government.

A) sine qua non : originally a Latin legal term for "(a condition) without which it could not be" or "but for. .
or "without which (there is) nothing." It refers to an indispensable and essential action, condition, or
ingredient

Therefore, the doctrine of separation of power is a theoretical concept and is impracticable

to follow it absolutely. According to this differentiation one organ can not claim the power
essentially belonging to other organ because that would be a violation of principles of separation

of powers. This distinction prevents encroachment of an organ in to the essential sphere of

activity of the other. Now a day's legislature & judiciary both are overburdened with work.

According to our constitution Parliament is supreme in enacting laws and amending the

constitution, but the Supreme Court is supreme in deciding whether the laws enacted and the

amendments made by parliament are within the ambit of the constitution11. The power of
judicial review is a preventive measure in a democratic country like India. The representatives

of people can be subjected to judicial review process. Two recent Supreme Court judgments
on the cash for query case and on the 9th schedule have once again brought the powers and
roles of the legislature and the judiciary in to focus. The court upheld the Loksabha's decision

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Changing Equation between Indian Parliament & Judiciary 167

to expel members of parliament, who were caught cn camera while taking bribes but cl
rejected the contention that it can not review parliament's power to expel MPs and claimed f

itself the role of final arbitrator. The judgmenťon 9th schedule has curtailed parliament's po

to keep certain progressive laws out side the judicial review.

Finally we can say that there is no strict separation of powers but a thin line is alread

drawn for demarcating the functions of different branches of the government. Thus there

no inherent conflict between the two independent organs of the State; both contribute disti
in re-structuring the society in their own way by operating within the constitutionally demarc
areas12.

References :

1. Fali S. Nariman : Constitution under Threat, The Tribune, Aug. 15, 2007, P. 1

2. K. G. Balkrishnan : Executive to Blame for delayed justice, The Tribune, Apr. 10, 2007, P 10

3. Keshwanand Bharati VS State of Kerala : AIR 1973 SC 1461

4. Abhishek Singhvi : Back to the Drawing board, Hindustan Times Delhi, Jan. 17, 2007, P. 10

5. H. K. Dua : 9th Schedule route plugged, The Tribune, Jan. 15, 2007, P. 10

6. Golaknath VS State of Punjab, AIR 1967 SC 1643

7. K. G. Balkrishnan : Journal of Indian Law Institute. 50 JILI (2008) P 461

8. M. Nagraj & Ors. VS Union of India & Ors. : AIR 2007 SC 71

9. Subhash Kashyap : Sabse Uper Sansad, Sahara Samay, Jan.21, 2006, P. 7

10. B. P. Sehgal (ed), Law, Judiciary and justice in India, Deep & Deep Pub. Delhi 1993 pp 1 12-25

11. S.L. Sikri, Indian Government and Politics, Kalyani Publisher Ludhiyana, P206 12. Virendra Kumar : Jo
of Indian Law Institute, 50 JILI (2008) P 480

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