Separation of Powers in the Indian Constitution & Why the Supreme Court was Right

in Intervening in the "Jharkhand" Imbroglio

Author(s): Shashank Krishna
Source: Student Bar Review , 2006, Vol. 18, No. 2 (2006), pp. 13-37
Published by: Student Advocate Committee

Stable URL: https://www.jstor.org/stable/44306653

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 Articles

The H. M. Seervai Gold Medal Essay in

Constitutional Law 2005

Separation of Powers in the Indian

Constitution & Why the Supreme Court was
Right in Intervening in the Jharkhand
Imbroglio

Shashank Krishna*

The Supreme Court's intervention in the recent Jharkhand episo

once again raised questions regarding the exact scope and natur
of the powers of two vital organs of the State - the Legislature and
the Judiciary . Inevitably no discussion on this point can be complet
without examining the doctrine of Separation of Powers, which seek
to delineate the extent to which organs of the State can exercis
their powers vis a vis other organs . This paper attempts this exercise
in the backdrop of the Jharkhand case. The paper has dual aims
First, it discusses the doctrine of Separation of Powers to gain a
indepth understanding of the meaning and utility of the doctrin
Secondly, it aims to study the doctrine in light of the events
surrounding the Jharkhand case, so as to illustrate the actual
application of the theoretical notions discussed earlier. In conclusion
the paper seeks to discover whether the Supreme Court's
intervention in the Jharkhand case was defensible in light of the
doctrine of Separation of Powers.

I. Introduction

II . The Controversy

III . Separation of Powers

A. Features of Separation of Powers

* V Year, B.A. LL.B. (Hon

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Vol. 18(2) Student Bar Review 2006

B. Separation of Powers under the Indian Constitution

(I) Features of the Indian Constitution Militating Against

the Textual Understanding of the Separation of Powers

(II) Indira Nehru Gandhi v . Raj N

Powers in Practice

(in) The Arg

Power

C. Test for Application of Separation of Powers

IV. Application of the Doctrine of Separation of Powers in the

Jharkhand case

A. The First Question - Underlying Values in the Jharkhand case

(I) Rule of Law

(II) Constitutionalism

(in) Democracy

B. The Secon
Protect Constitutional Values

C. Other Issues in the Jharkhand case

(I) Article 164 - Scop

(II) Articles 212 and

V. Judicial Review and Separation of Powers

A. Democracy and Judicial Review

B. Justiciability and Judicial Review

C. The Fluid Nature of Constitutional Adjudication

VI. Constitutional Interpretation and Recent Developments

A. State of Affairs in the Legislature and Judicial Activism

B. Interpretation and Accommodation in the Constitution

C. Developmentalism as an Approach towards Constitutional

Interpretation

VII. Conclusion

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 Separation of Powers in the Indian Constitution

I. Introduction

The Supreme Court's directive in the case of Anil Kumar Jha v.

India,1 brought to the fore the simmering tension between the Legislatu
Judiciary, which has been brewing for sometime. The increasingly acti
the Supreme Court has brought it into hitherto uncharted territory in
does not have a sound jurisprudential basis for intervention. Therefore,
need for construction of arguments based on first principles and jurisp
justify these repeated forays into what was previously looked upon as o
realm of judicial intervention. For example, in the aforementioned
Supreme Court of India issued directives on the manner in which trust v
Jharkhand Assembly should be conducted. This prima facie appea
interference in the affairs of the Legislature by the Judiciary and led
from several quarters, most notably from the Speaker of the Lok S
argued that the principle of Separation of Powers, which forms a basic
of the Indian Constitution, was breached by the Supreme Court, and th
acted beyond its constitutionally mandated role.

Thus the debate surrounding the Jharkhand case , revolved ar

doctrine of Separation of Powers. This doctrine forms one of the b
which the Indian Constitutional setup is built. Therefore, it becomes im
delineate the nature, scope and functions of this doctrine, especially in l
current socio-political context of the Indian polity. In this respect
attempts to study the doctrine of Separation of Powers particularly in l
issues raised in this regard by the Jharkhand case. The initial Part of t
gives a background to the discussion by detailing the controversy su
the Jharkhand case . Part III looks at the doctrine of Separation of
features and its application in the Indian context. It carves out a two pr
for the application of the doctrine in any given situation. Part IV then a
test to the facts of the Jharkhand case to examine whether the interv
the Supreme Court in the instant case amounted to a breach of the
Separation of Powers. This Part also discusses other related issues th
the Jharkhand case. Drawing from this discussion, Part V then exa
relationship between the doctrine of Separation of Powers and the power
review in light of the often opposing natures of these two fun
constitutional principles. Part VI looks at the recent developments in
constitutional interpretation which ought to govern the application of the doctrine
of Separation of Powers by the courts in the future. The paper concludes with the
opinion that the Supreme Court was right in intervening in the manner that it did,

1 (2005) 3 S.C.C. 150. [hereinafter Jharkhand casé].

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Vol. 18(2) Student Bar Review 2006

in the Jharkhand case, and that its inte

contrary to the doctrine of Separation of

II. The Controversy

The Jharkhand case arose from the fact that after the elections to the
Jharkhand State Legislature in 2005, no single party or pre-poll alliance had a
majority in the Legislative Assembly. The National Democratic Alliance ("N.D.A.")
emerged as the single largest pre-poll alliance, falling five seats short of the
majority, whereas, the Rashtriya Janta Dal - Jharkhand Mukti Morcha ("R.J.D. -
J.M.M.") alliance was second by a distance. Going against established norms and
conventions, the Governor of Jharkhand, Mr. Syed Sibte Rizvi invited Mr. Shibu
Soren, leader of the R.J.D. - J.M.M. alliance to form the government, and gave
him one month to prove its majority in the Legislative Assembly- allegedly giving
enough time for bribery and "horse trading" amongst members of the Legislative
Assembly. In addition to this, the Governor tried to nominate an Anglo - Indian
member to the Legislative Assembly before the floor test, to tilt the balance in
favour of the R.J.D. - J.M.M combine.

The Governor did not call the leader of the largest pre-poll alliance or the
leader of the largest single party (who happened to be the same person). He called
the person who in his individual judgement was likely to provide a "stable
government." Mr. Arjun Munda was elected leader of the largest pre-poll alliance.
Also, he had the established support of 41 M.L.A.s, which constituted a clear
majority. This included five independent M.L.A.s, whom the Governor met
separately and individually to ascertain their views.2 This generated a political
storm in the country and the Opposition at the Centre took the government to
task for allegedly calling the shots in the states through pliant governors. Further,
the actions of the Governor was challenged in the Supreme Court, in the case of
Anil Kumar Jha v . Union of India.3

In its directive dated 9th March, 2005, the Supreme Court ordered that the
session of the Jharkhand Assembly be held on 11-03-2005 instead of the later
date specified by the Governor. It went on to direct the senior officials to ensure

2 It is submitted that it is not the function of the Governor to take a head count. Several
Supreme Court judgments have held, that the strength of the government has to be
tested on the floor of the House. See S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1.
[hereinafter Bommai ]; Jagdambika Pal v. Union of India, 1999 (9) S.C.C. 95;
Narendra Kumar Singh Gaur v. Union of India, MANU/UP/0092/1998.
3 Jharkhand case, supra note 1.

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 Separation of Powers in the Indian Constitution

that the voting was peaceful, free and fair, and devoid of any interference. It also
required of the Protem Speaker to record the proceedings of the Assembly and
send a copy of the video recording to the Supreme Court. Furthermore, it
restrained the Governor from nominating any Anglo Indian member to the
Assembly till the Floor Test was conducted.4

The decision of the Supreme Court was attacked in various quarters as being
violative of the doctrine of Separation of Powers, as the Judiciary had over-stepped
its limits and encroached upon the powers of the Legislature. The following parts
discuss this issue, by examining the doctrine of Separation of Powers, and
extending the analysis to the facts of the present case.

III. Separation of Powers

The doctrine of Separation of Powers is found in one form or the o

many modern Constitutions. It essentially postulates that powe
responsibilities of the three wings, namely, the Legislature, the Executi
Judiciary, should be so delineated that no one wing should exercise the
the other.5 In this, all the three wings are equal and independent and have
powers and functions. The doctrine is opposed to the concentration of s
in a single person or group as this may pose a threat to the ideal of a d
government. The idea that powers of the state should be divided among
and distinct authorities has a long history in western constitutionali
Locke observed the need for Separation of Powers as early as in 169o.7 He
to the human predilection for grasping power and danger of such powe
absolutely in one person or institution.8 The doctrine of Separation of P
developed further by the French jurist, Baron Montesquieu in the e
century. He underscored the threat to the liberty of individuals if
concentrated in one individual or a group.9

4 Jharkhand case, supra note 1.

5 T.R.S. Allen, Law Liberty and Justice 3 (1995).
6 D.J. Galligan, Discretionary Powers: A Legal Study of Official Discretion
[hereinafter Galligan].
7 John Locke, Second Treatise of Civil Government ch. XII H 143 (1690).
8 Id.

9 5 Charles Louis De Secondât, Baron Montesquieu, De L'Esprit Des Lois ch. 19 (1748) :

[W]hen the Legislature and executive powers are united in the same
person, or in the same body of magistrates, there can be no liberty.... Again
there is no liberty, if the judicial power be not separated from the

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Vol. 18(2) Student Bar Review 2006

It is important to understand the polit

doctrine was developed. This was the pe
were trying to make a break with the m
vested in the king. The doctrine of Sep
powers that were attendant with sovereig
then have an interest in protecting their
to be noted. First, it is a political doctr
rather than a legal one such as consider
the emphasis of this doctrine is not so mu
but on the underlying values that it seek
doctrine of Separation of Powers; a num
the specific constitutional systems as per

legislature and executive. Where it joine

and liberty of the subject be exposed to
would then be the legislator. Were it joine
judge might behave with violence and op
to everything, were the same man, or
nobles or of the people, to exercise thos
laws, that of executing the public resolu
individuals

Before Montesquieu, several other authors have noted and discussed the doctrine
Separation of Powers starting from Aristotle, Politics (1297); Viscount Henry St. Joh
Bolingbroke, Remarks on The History of England 80-83 (1748). Sir William Blackstone
adopted and adapted this doctrine, reworking this central idea to incorporate t
theory of mixed government. See 1 Sir William Blackstone, Commentaries on The Laws
England (1765 - 69).
10 It has been noted that The United States system is the one having closest resemblance
to the doctrine as discussed by Montesquieu. The United Kingdom has a close
resemblance but academic writing argues for it whereas court cases hold otherwise.
Montesquieu wrote about this doctrine while studying the British system but he did
not purport to give an account of it, rather he outlined an ideal type of the Constitution
appropriate to an ideal state. For academic writing refuting the existence of Separation
of Powers in United Kingdom, see generally C.S. Emden, Principles of British Constitutional
Law (1925); W.A. Robson, Justice and Administrative Law 16 (1951); 6 Sir William
Holdsworth, Halsbury's Laws of England 385 (1932); J A.G. Griffith And H. Street, Principles
of Administrative Law 16 (1973); O Hood Phillips, A Constitutional Myth: Separation of
Powers , 93 Law. Q. Rev. 11 (1974); S.A. de Smith, The Separation of Powers in New
Dress , 12 Mcgill. Law J. 491 (1966). For cases acknowledging the existence of
Separation of Powers in United Kingdom see Hinds v. R, [1976] 1 All. E.R. 353 (Lord
Diplock); Duport Steels Ltd. v. Sirs, [1980] 1 All. E.R. 529 (Lord Diplock & Lord
Scarman); R v. HM Treasury, ex parte Smedley, [1985] 1 All. E.R. 589 (Sir John
Donaldson); M v. Home Office, [1993] 2 All. E.R. 537 (Lord Templeman).

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 Separation of Powers in the Indian Constitution

A. Features of Separation of Powers

A pure form of the Separation of Powers doctrine has the following features:

1 . The functions of the government are to be divided into the Legislative, the
Executive, and the Adjudicative;
2. Different functions are to be vested in separate and appropriate institutions;

3. The members of one institution should not be members of any other

institution;

4. The functions of one institution should not encroach on the functions of

another.11

Therefore, power is divided across three institutions rather than being

concentrated in one, and each institution is independent of the other in terms of
functioning and personnel. By this process, each arm of the government is able to
control or maintain some checks on the functioning of the other. The doctrine
does not imply that all institutions act independently of each other without any
interaction. It will be incredulous to believe that a state can function in such a
manner at all. Sir Ivor Jennings has interpreted Montesquieu's work on Separation
of Powers to mean that institutions have influence over each other but they should
refrain from exercising the powers of the others.12 The doctrine necessarily requires
that each institution has some power to regulate the functions of others. This is in
the form of an ancillary principle of "checks and balances" where an institution is
able to act as a check on the functioning of the other.13 The extent of such a check
will differ between constitutional systems.

From the foregoing discussion, certain key points emerge. First, Separation
of Powers is not rigid and is moulded to fit into the requirements of a system. So
there can be two states "X" and "Y", having Separation of Powers as a
Constitutional principle, but with widely differing systems in place to effectuate
this doctrine. Second, it is not so much the doctrine that is important but the
underlying value that it seeks to preserve- that power should be divided within
the institutions so that one institution does not become all powerful, subverting

11 Galligan, supra note 6. See also J.M.C. Vile, Constitutionalism and the Separation of Powers
45 (1967); W.B. Gwyn, The Meaning of the Separation of Powers 78 (1965); Hans Kelsen,
General Theory of Law and State (1961).
12 Sir Ivor Jennings, Law and the Constitution app. 1 (1959) [hereinafter Jennings].
13 Colin R. Munro, Studies in Constitutional Law 306 (1999). Munro notes that checks and
balances represent the doctrine in its highest form.

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Vol. 18(2) Student Bar Review 2006

the Constitution itself. Thirdly, doctrine req

on each other. Other institutions must step
institutions and restore the balance. From a
view, the phrase "checks and balances" requ
conventionally accepted limits respected i
erring institution back in place. Therefore,
facet of the doctrine and should necessarily
for the purposes of this paper and shall be

B. Separation of Powers under t

The Constitution of India has not recogn

Powers in its absolute rigidity. However, the
branches have been sufficiently differe
assumption by one organ or part of the stat
to another.15 Separation of Powers has been
of the Constitution.16 Unfortunately, cases
aspect. This leaves us with the difficult task
for the doctrine under the Indian Constituti
one understanding of the doctrine and this
interpretations within different jurisdict
period of time, an activist Supreme Court h
itself giving it an opportunity to legislat
emanates from the unique powers that the
way of Article 136, 141, 142 and 144. Thi
model of Separation of Powers will be differ
or that which is followed in other countries.

(i) Features of the Indian Constitution Militating Against

the Textual Understanding of the Separation of Powers

Under the Indian Constitution, the Legislature has the power to impeach
judges and overturn judgments of higher courts by legislating on the subject. At

14 Ram Jawaya Kapur v. State of Punjab, A.I.R. 1955 S.C. 549.

15 Id.

16 Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C. 225; Indira Nehru Gandhi
v. Raj Narain, A.I.R. 1975 S.C. 2299. [hereinafter Indira Nehru Gandhi ].

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 Separation of Powers in the Indian Constitution

the same time, higher courts have the power of judicial review over administrative
and legislative action. Also, the Executive is accountable to the Legislature.
Simultaneously, the Executive, through its power to promulgate ordinances,
exercises Legislative power. Various administrative bodies exercise quasi -
judicial functions during the course of theirs works. As for its legislative functions,
it is now an accepted fact that Indian courts have legislated or issued policy
directives while exercising the powers of judicial review. Another significant
feature of the Constitution which, shows that there is no strict separation of power,
is the fact that the Executive is drawn from the Legislature and therefore, there is
commonality of personnel.

Furthermore, in Part XX of the Constitution dealing with special and

temporary articles, certain special powers, normally attributed to the Legislature,
have been given to the Governor of the specified states. For instance, the Governor
has the power notify that an Act of Parliament may not apply to the concerned
> state. This and other powers specified in this Part militate against the textual
understanding of the Separation of Powers.

(ii) Indira Nehru Gandhi v. Raj Narain - Applying

Separation of Powers in Practice

Looking at the Supreme Court's treatment of the doctrine of Separation o

Powers, it is seen that the only case where this doctrine was examined in detail
was in Indira Gandhi v. Raj Narain.17 In this case, the election to the Parliament
the then Prime Minister, Mrs. Indira Gandhi, was challenged in the Allahab
High Court on grounds of use of corrupt practices in the election process. T
High Court disqualified Mrs. Gandhi and an appeal was pending in Supreme Cou
when Parliament passed the 39th Constitutional Amendment, whereby the cour
jurisdiction over matters involving the Prime Minister and other high officials
was withdrawn. This was challenged in the Supreme Court on several groun
including the breach of Separation of Powers. A Constitution Bench of the Supre
Court held the amendment unconstitutional on the ground of breach of Separati
of Powers, among others. It noted that in the Indian Constitution, there
Separation of Powers in the broad sense, as opposed to the strict Separation
Powers as recognised in the U.S..18 Khanna, J. opined that a declaration that an

17 Id.

18 The following cases were cited in support of this proposition: In re Delhi Laws Act,
A.I.R. 1951 S.C. 332; Jayantilal Shodhan v. F. N. Rana, MANU/SC/0046/1963;
Chandra Mohan v. State of U. P., MANU/SC/0052/1966; Udai Ram Sharma v.
Union of India, MANU/SC/0154/1968.

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Vol. 18(2) Student Bar Review 2006

order made by a court of law is void is norm

legislative function. Although there is n
Constitution of India, by and large the sphe
function have been demarcated, and it is no
encroach upon the judicial sphere. He cite
Legislature is entitled to change with retros
the basis of the judicial decision, it is not per
the judgment of the court to be void or not

(iii) The Argument of Separation of Powers vis-à-vis

Constituent Power

In Indira Nehru Gandhi , the government advanced a novel argume

defense of the 39th Amendment with reference to the doctrine of Separati
Powers. It was argued that the power of amendment under Article 368
constituent power, "the very original power of the people which is unbrok
the legislative and the executive and the judicial." It was submitted that the i
limitations, to which the majority decision in Kesavananda Bharati v . S
Kerala 21 had committed this Court for the time being, were no longer ava
when considering the "unbroken" power. Therefore, in the hands of the const
authority there was no demarcation of powers. This demarcation emerg
when it leaves the hands of the constituent authority through well defined c
into distinct pools. The constituent power is independent of the fett
limitations imposed by the doctrine of Separation of Powers, on the organs o
Government amongst whom the supreme authority of the State is allocated
other words, the constituent power is independent of the doctrine of separ
of powers. The doctrine comes into operation only after the Constitution is f
laying down the distribution of the powers in the different organs such as
legislative, executive and the judicial power.

Beg, J. dealt with this argument in detail. Apart from technical objec
he noted that the above argument implies that the constituent power is "ab

19 Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, MANU/SC

1969; Janapada Sabha, Chhindwara v. The Central Provinces Syndicate Ltd.,
MANU/SC/0398/1970; Municipal Corporation of the City of Ahmedabad v. New
Shorock Spg. & Wvg. Co. Ltd., MANU/SC/0451/1970; State of Tamil Nadu v. M.
Rayappa Gounder, MANU/SC/0402/1970.
20 Indira Nehru Gandhi , supra note 16, 1 190.
21 Kesavananda Bharań, supra note 16.

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 Separation of Powers in the Indian Constitution

outside" the Constitution itself and hence "independent" of it. He dismissed the
argument, noting that there is no authority for it,22 and observed that

[I]f we were to accept the theory indicated above, it would make it

unnecessary to have a Constitution beyond one consisting of a single
sentence laying down that every kind of power is vested in the constituent
bodies which may, by means of a single consolidated order or declaration
of law, exercise any or all of them themselves whenever they please whether
such powers be executive, legislative, or judicial. Could this be the ambit of
"constituent power" in our Constitution? Would such a view not defeat the
whole purpose of a Constitution? Does the whole Constitution so crumble
and melt in the crucible of constituent power that its part cannot be made
out? Before we could accept a view which carries such drastic implications
with it we will have to overrule the majority view in Kesavananda Bharati's
case... The majority view in that case, which is binding upon us, seemed to
be that both the supremacy of the Constitution and separation of powers
are parts of the basic structure of the Constitution.23

C. Test for Application of Separation of Powers

As pointed out earlier, the doctrine of Separation of Powers is not a doctrine

of law but one that seeks to protect certain fundamental values. The proposed test
for application of the doctrine of Separation of Powers will entail asking two crucial
questions. First, what are the underlying values that were sought to be protected?
In the Indian context, these values may be understood to mean the "basic features"
of the Constitution.24 Rule of law25 and democracy26 have been held to be the basic
features of the Constitution. These were some of the ideals that were under threat
in the Jharkhand imbroglio. Secondly, whether a "check and balance" action was
undertaken to protect the underlying values of the system?

22 Indira Nehru Gandhiy A.I.R. 1975 S.C. 2299, at I 520.

23 Id. 1 521.
24 Subhash C. Kashyap, Basic Constitutional Values 3 (i994). The author states:

[T]he concept of values is a tricky one. It is rarely defined. It is the quality

of viewing some norms or beliefs as necessary and desirable or worth
preserving at all costs for an individual or a group. It may be understood
as the conception of the "ought" - what is desirable and what is non
desirable.

25 Indira Nehru Gandhi , supra note 22.

26 Kihoto Hollohan v. Zachillhu, A.I.R. 1993 S.C. 412.

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Vol. 18(2) Student Bar Review 2006

Having examined the nuances of the doct

seen how in practice this doctrine should be
application of this doctrine in the Jharkhan
for application of the doctrine of separation
this doctrine should have been used in the instant case.

IV. Application of the Doctrine of Separation of

Powers in the Jharkhand case

A. The First Question - Underlying Values in the

Jharkhand case

(i) Rule of Law

The rule of law is a magnetic and multi dimensional concept.27 In

conceptualisation, is akin to pornography- difficult to define, but you know it
when you see it. The rule of law is founded on the notion that the Constitution
provides that the government and society are to be regulated by law and are not
subjected to whims of certain individuals. It rests on the belief that no one in
power should be above the law.. Even the Legislature is bound to respect the
principles and limitations of the Constitution.28 Powers of the Legislature are not
unfettered and an independent Judiciary is imperative to keep it in check.29 Rule
of Law does not mean rule according to statutory law but it connotes a higher
form of law, which is reasonable, just and non-discriminatory.

(ii) Constitutionalism

Modern political thought draws a clear distinction between

"Constitutionalism" and "Constitution." A country may have a "Constitution" but
not necessarily "Constitutionalism." For instance, a country with a dictatorship
where the dictator's word is law can be said to have a "Constitution" but not
"Constitutionalism." The underlying difference between the two concepts is that
a Constitution's main purpose is not merely to confer powers on the various

27 A.V. Dicey, Introduction to the Study of the Law of the Constitution (1885).
28 Indira Nehru Gandhi, A.I.R. 1975 S.C. 2299.
29 Bachan Singh v. State of Punjab, A.I.R. 1982 S.C. 1325.

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 Separation of Powers in the Indian Constitution

organs of the government, but also to restrain those powers. Constitutionalism

envisages checks and balances and puts the powers of the Legislature or Executive
under restraints.30 It has been noted that a written Constitution, independent
Judiciary with powers of judicial review, the doctrine of rule of law, Separation of
Powers, free elections to legislature, accountable and transparent democratic
government, fundamental rights of the people, federalism, and decentralization
of power, are some of the principles and norms which promote Constitutionalism
in a country.31 A healthy and developed democracy has several inbuilt structures
of equilibrium. There is a balance amongst different branches of government.
Separations of Powers and checks and balances are useful deterrents against
growth of authoritarian rule. In a democracy, equilibrium results from
decentralization and dispersion of powers. In India, for example, where the
Constitution is supreme, there is a consciousness among the organs of the
government that their powers are not unconditional and permanent.

(iii) Democracy

Democracy is a basic feature of the Indian Constitution.32 The essence of a

democracy is that sovereignty vests in people and their choice as to government
should be respected. The foundations of the Indian -Constitution lie in the fact that
the Indian people gave this Constitution to themselves.33 Parliamentary
democracy respects and protects their choice as to the group of people they want
to be governed by. The Indian Constitution fused the classical republican ideals
of the rule of law and limited government with liberal principles of liberty and
popular sovereignty.

30 M.P. Jain, Indian Constitutional Law 6 (2002).

3* Id.

32 Indira Nehru Gandhi, A.I.R. 1975 S.C. 2299.

33 Constitution Of India, 1950, Preamble reads:

We, the people of India, having solemnly resolved to constitute India into
a Sovereign, Socialist, Secular, Democratic Republic and to secure to all
its citizens: Justice, social, economic and political; Liberty of thought,
expression, belief, faith and worship; Equality of status and of opportunity;
and to promote among them all, Fraternity assuring the dignity of the
individual and the unity and integrity of the Nation; in our constituent
assembly this twenty-sixth of November, 1949, do hereby adopt, enact
and give to ourselves this Constitution.

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Vol. 18(2) Student Bar Review 2006

B. The Second Question - Exer

Balance and Protect Constitutional Values

The Jharkhand imbroglio was the latest in a long series where the
Government, acting through a pliant Governor, sought to upstage the m
the people by inviting their own party to form the Government, and th
go by to constitutional conventions. The Governor acted in an i
unconstitutional manner, which posed a threat to the underlying consti
values outlined above. For example, the entire democratic process w
go by and political power was bestowed on a party, not through the exe
the democratic will of the people, but by the whims and caprice of one
- the Governor. This went against the fundamental values of rule
constitutionalism as well as democracy, and mandated the need for
the actions of the Governor. If the Supreme Court had not "stepped out
conventionally accepted limits to exercise a "check and balance" on the E
an irreparable harm would have been caused to the constitutional system
country. As has already been discussed before, there is no fixed concept
doctrine of Separation of Powers and each system has is own model base
experience and philosophy. The Indian experience, with judicial review h
that the Supreme Court has increasingly taken an activist role to e
erring institutions remain and act within their own spheres. It is unrea
test actions of the Supreme Court on the touchstone of Separation of P
propounded by Baron Montesquieu. Therefore, the Supreme Court direc
within the parameters of the doctrine of Separation of Powers as under
India and not an infringement of it.

C. Other Issues in the Jharkhand case

(i) Article 164 - Scope of Exercise of Discretion by Gover

Article 164 (1) states that the Chief Minister shall be appointed by
Governor. On the face of it, Article 164 (1) gives an unregulated power
Governor to appoint anyone as the Chief Minister. Under the federal system
government as adopted by our Constitution, the Governor is the form
constitutional head of the state and he exercises all his powers and fun
conferred upon him by the Constitution with the aid of his Council of Ministe
the same time, there are certain exceptional situations where the Governor
exercise his discretion. It is now a settled position of law that the Gover
discretion is amenable to judicial review.34 In our constitutional system,

34 Bommai, (1994) 3 S.C.C. 1.

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 Separation of Powers in the Indian Constitution

such a person can be appointed as Chief Minister who can carry with him a majority
of the members of the Legislative Assembly. Therefore, in these exceptional cases,
where he does not have to act on the advice of the Council of Ministers, since
there is none in existence, the Governor is still bound by the language and spirit of
the Constitution.

J.R. Siwach argues that in cases where it is not clear who among several
claimants commands majority support, the leader of the largest party in the
Assembly must be appointed as Chief Minister.35 Shri H.M. Seervai and other have
also echoed similar views.36 In the era of coalition politics, this may mean the
largest pre or post-poll alliance. In other words, the party which commands the
widest support in the Assembly must be called upon to form the government. In
Bommai,37 K. Ramaswamy J., noted that Governor should exercise his discretion,
where he is so authorized by the Constitution, keeping in view the Constitution
and conventions of the Parliamentary system of government. This again indicates
that the Governor is bound to call the leader of the party with the widest support
to form the government.

Article 164 (1), therefore, cannot be read in a manner authorising the

Governor to do as he pleases. Constitutional conventions and the overall
philosophy of the Constitution assume even greater significance in the absence of
instructional provisions. They act as the suitable guideposts to action.38 There
are many things that are left unwritten in the Constitution and the discharge of
these requisite functions is governed by constitutional conventions. Sir Ivor
Jennings, in this context observes that "conventions provide the flesh which
clothes the diy bone of law, they make the legal Constitutions work... keep in touch

35 J.R. Siwach, Appointment and Dismissal of the Chief Ministers, 2 J. of Const. Parl. Stud.
75 (1968).
36 Shri H.M Seervai has noted that "in the era of coalition politics, this may mean the
largest pre or post poll alliance. In other words, the party which commands the
widest support in the House must be called upon to form the government." H.M.Seervai,
Constitutional Law of India 2063 (2002). M.C. Setalvad and M.C. Mahajan have noted
that the Governor, like the Queen in England, should invite the "most influential
leader of the party or the group commanding a majority in the House of Commons."
Response to a Request to Advice from Home Minister S.B. Chavan in 1967 , cited in
Granville Austin, Working a Democratic Constitution 587 (1999). Setalvad also emphasized
the Queen's impartiality when making her selection. This is difficult in India since a
Governor in reality is neither independent nor impartial in practice, being an
appointee of Central Government.
37 Bommai , (1994) 3 S.C.C. 1.
38 D.D. Kaushik, Governor: The Façade and the Fact , 16(2) Indian Bar Rev. 185 (1989).

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 Vol. 18(2) Student Bar Review 2006

with the growth of ideas. A Constitution does

by men."39

Further, the Supreme Court has observed that the Indian Constitution is
modelled on the British Parliamentary system where the executive is deemed to
have primary responsibility for the formulation of Governmental policy and its
transmission into law. The condition precedent to the exercise of this responsibility
is its retaining the confidence of the legislative branch of the State.40 This can only
be achieved when the Chief Minister has the confidence of the House (and not of
the Governor). Hence it is imperative that the leader of the largest single party or
the largest single pre-poll alliance should have been invited first to form the
government.

(ii) Articles 212 and 122 were not Infringed by the Directive

Another challenge that has to be surmounted is the express language of

Articles 21241 and 12242 of the Constitution. These Articles draw a line between the
Legislature and Judiciary in the sense that the latter may not inquire into the
proceedings or interfere in any manner in the affairs of the former until and unless
specially mandated by the Constitution. The key point to be noted is that the bar
is on the ground of any alleged "irregularity of procedure." Immunity from judicial
interference is confined to matters of "irregularity of procedure" and not its
"illegality."43 There would be no immunity if the proceedings are held in defiance
of the mandatory provisions of the Constitution or by exercising powers which

39 Jennings, supra note 12.

40 Ram Jawaya Kapur v. State of Punjab, A.I.R. 1955 S.C. 549.
41 Constitution Of India, 1950, Article 212 reads:

Article 212. Courts not to inquire into the proceedings of the Legislature.
(1) The validity of any proceedings in the Legislature of a State shall not
be called in question on the ground of any alleged irregularity of
procedure.
(2) No officer or member of the Legislature of a State in whom powers
are vested by or under this Constitution for regulating procedure or
the conduct of business, or for maintaining order, in the Legislature
shall be subject to the jurisdiction of any court in respect of the
exercise by him of those powers.

42 Constitution Of India, 1950, Article 122 uses identical language and makes similar
arrangements for the Parliament.
43 In Re Keshav Singh, A.I.R. 1965 S.C. 745.

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 Separation of Powers in the Indian Constitution

the Legislature has not been granted under the Constitution. Accordingly, if the
impugned procedure is illegal and unconstitutional, it would be open to scrutiny
in a court of law.44 Since the actions of the Governor went against established
constitutional conventions, there is no doubt that his actions were illegal and
unconstitutional. As per the above analysis, such actions can be inquired into by
the Judiciary since they transcend the borders of mere "irregularity" and enter
the domain of patent "illegality."

It should also be noted that similar orders were given in the case of
Jagdambika Pal v. Union of India,45 thereby creating a precedent applicable to
the facts of the present case. Also, in the case of State of Punjab v. Satya Pal
Dang,46 the Court had held that even if the Speaker adjourned the Assembly, the
Governor could summon it and direct the Assembly to transact only one specified
business. In determining this case, it was accepted by implication that the Court
has power of judicial review to "interfere" to this extent in the affairs of the
legislature and the same does not amount to the breach of Separation of Powers
or unwarranted intrusion into the domain of the Legislature. By the same accord,
directives of the Supreme Court to the Jharkhand Assembly in the Jharkhand
case do not constitute breach of this doctrine. It is a mere exercise of the power of
judicial review.47

The discussion above brings into sharp focus the inter-relationship, and
often contradictory natures of the doctrine of separation of powers and the power
of judicial review. These two constitutional principles need to be carefully
balanced to ensure that the constitutional setup is maintained as envisaged. The
following part discusses the issues raised by the application of the power of judicial
review in a Constitution which is premised on the separation of powers.

V. Judicial Review and Separation of Powers

As already discussed, the Constitution of India gives ample scope for

review. The question is only of degree and extent. It may appear that be
point, exercise of judicial review may infringe the doctrine of Separation o

44 Id. See also Vinod Kumar v. State of H.P., A.I.R. 1959 S.C. 223; Anand Bih
v. Ram Sahay, A.I.R. 1952 M.B. 31; Kihoto Hollohan v. Zachillhu, A.I.R.
412.

45 (1999) 9 S.C.C. 95.

46 A.I.R. 1969 S.C. 903.
47 Rajinder Sachar, Judiciary vs Legislature: A case of Political Amorality, 20 Econ. &
Wkly. 2221 (2005).

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Vol. 18(2) Student Bar Review 2006

This part of the paper will refute this

unelected body to review the actions o
consternation to legal scholars.48 There
Judiciary in India exercises the power of
by the framers of the Constitution.49
remarkable adaptability is to a very consi
of the Supreme Court of India, to jud
Constitution in accordance with felt necessities of the times.

It is further submitted that judicial review is not antithetical to the doctrine

of Separation of Powers. On the contrary, it serves to uphold the same fundamental
premises of the Constitution that are sought to be safeguarded by the doctrine of
Separation of Powers. This part of the paper will illustrate this point by examining
the application of judicial review vis a vis the doctrine of Separation of Powers.

A. Democracy and Judicial Review

In what sense may we say that judicial review enhances democracy? Courts
are neither accountable to the Parliament for their actions, nor to the democratic
process in any other direct way. Like any public institution, courts are bound to
be influenced by the political process. However, they are not responsible to the

48 In the case of Marbury v. Madison , 2 L. Ed. 30, the Supreme Court of the United States
asserted that "it is, emphatically, the province and duty of the judicial department,
to say what the law is." It needs to be noted that when this decision was given, its
status was not effectively established and there was a real possibility that Congress
may reclaim the ground by enacting legislation or by simply ignoring the decision.
However, The Supreme Court's assertion of judicial review in Marbury v. Madison
went largely unchallenged for two reasons. First, although claiming the right to
review legislation, the Court avoided a confrontation with the President and Congress.
Secondly, the provision invalidated by the Court was not a major element of public
policy. Rather, it was a minor provision of a law dealing with the judicial process
itself, an area in which the Supreme Court might be presumed to have greater
expertise, and hence a greater claim to exercise judicial review. See Otis H. Stephens
& John M. Scheb II, American Constitutional Law 35 (2003).
49 D.N.Saraf, Limit of Judges Domain: Some Policy Considerations , 30(1) J. of Indian L.
Inst. 46 (1988). Eminent Senior Advocate, K.K.Venugopal has noted that Indian
Supreme Court is the most powerful Supreme Court in the world. See generally A S
Anand, Judicial Review - Its content - Its reach , 87 (11) All. Ind. Rep. (J.) 161 (2000);
Ravi P Jashuva & Shahin Shaik, The Necessity of Accountability in Judicial Review
Power , 29 (03 - 04) Indian B. Rev. 203 (2002); A S Anand, Judicial Review - Judicial
Accountability - Need for Caution , 42 (2-4) J. of Indian L. Inst. 149 (2000); Sathe
argues in his book that a necessary corollary of judicial activism in India is the need
for courts to step out of their limits and step into other domains to enforce the law. S
P Sathe, Judicial Activism in India 245 (2002).

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 Separation of Powers in the Indian Constitution

Parliament for their everyday decisions. It is submitted that democracy means

more than simply majority rule. It connotes a relationship between each
individual and the majority, within which each individual is guaranteed certain
protections. These in turn may constitute fetters upon majority rule. The
justification then is that courts are enhancing democratic principles rather than
acting against them.50 It is imperative to consider Alexander Hamilton's arguments
in this regard, in defence of judicial review.51 He contended that judicial review
secures the supremacy of the people, not the judges. His reasoning was that by
securing the supremacy of the Constitution over the Legislature, courts insure
the supremacy of the people and thereby strengthen democracy.52 The Indian
Constitution has given a special role to the Judiciary as a guardian of the
Constitution.53 The Supreme Court has the final authority to interpret the
Constitution and to settle constitutional controversies. The Legislatures have to
function within the limits of constitutional provisions; adjudication of any

50 Galligan, supra note 6, at 236.

51 Alexander Hamilton, The Federalist No. 78, available at http://www.constitution.org/
fed/ federa78.htm. (last visited May 25, 2005).
52 Id.

53 The wide powers for judicial review given by Articles 136, 141, 142 and 144 of the
Constitution of India, 1950 and its predominance over the adjudicative process are
settled conclusively by a combined reading of these articles:

136. Special leave to appeal by the Supreme Court.- (1) Notwithstanding

anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any court or
tribunal in the territory of India.

(2)...

141. Law declared by Supreme Court to be binding on all courts.- The

law declared by the Supreme Court shall be binding on all courts within
the territory of India.

142. Enforcement of decrees and orders of Supreme Court and orders as to

discovery, etc.-
(1) The Supreme Court in the exercise of its jurisdiction may pass such
decree or make such order as is necessary for doing complete justice in
any cause or matter pending before it, and any decree so passed or order so
made shall be enforceable throughout the territory of India in such manner
as may be prescribed by or under any law made by Parliament and, until
provision in that behalf is so made, in such manner as the President may
by order prescribe.

(2)...

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Vol. 18(2) Student Bar Review 2006

controversy as to whether legislative author

left to the Judiciary.

It is submitted that constitutional values,

by the Supreme Court in recent years, ev
judicial legislation, furthers democratic cr
restores belief in the rule of law.

B. Justiciability and Judicial Review

A deeper aspect of the controversy is the rationale behind traditionalist

arguments of non-justiciability of the proceedings in the Assembly even if they
may subvert the Constitution. The notion of non-justiciability is used in two
primary senses. In the first place, it is used to indicate that for certain kinds of
policy reasons there is to be no review since the matter is of a political nature.54 In
a second sense, it refers to the fact that a particular issue is analytically unsuited
for resolution by adjudicative procedures. Here, appeal is made implicitly to
effectiveness; certain issues are settled most effectively by adjudicative processes,
while others are not, and to force the latter into adjudicative forms is to reduce
the rational effectiveness of decision making. In practice, they are mixed in a
single situation.55

It is submitted that it is difficult to split a case clearly between justiciable

and non-justiciable aspects. The question of its justiciability will boil down to that
of degree. What is the acceptable degree to which courts may intervene in a matter
involving both justiciable and non-justiciable elements? Again there are no fixed
scales. Scales may tilt depending on the political atmosphere and legitimacy given
to the judicial institution by the community, which habitually receives and respects
the decision or counters it by legislation. These issues have significant relevance
for the relationship between the Judiciary and the Legislature in India. An
argument against judicial intervention in the affairs of the Legislature is that it is
primarily a political body. The judiciary has been careful and cautious while
entering into the "political thicket."56 However, where the court has "judicially

144. Civil and judicial authorities to act in aid of the Supreme Court.- All
authorities, civil and judicial, in the territory of India shall act in aid of
the Supreme Court.
54 Attorney General v. Gouriet, [1978] A.C. 435; Council of Civil Service Unions v.
Minister for Civil Service, [1984] 3 W.L.R. 1174.
55 Galugan, supra note 6, at 241.
56 State of Rajasthan v. Union of India, A.I.R. 1977 S.C. 1361; Bommai, (1994)
3 S.C.C. 1.

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 Separation of Powers irt the Indian Constitution

discoverable and manageable standards"57 to decide the particular controversy

placed before it, it may intervene.58 The Jharkhand case had both justiciable and
non-justiciable elements. For instance, the justiciable element would be the
breach of constitutional convention of not inviting the leader of largest single
party or pre-poll alliance to form the government, whereas the non-justiciable
element would arise due to Article 212 which bars the courts from inquiring into
the affairs of the Legislature. The real question that the courts should ask in such
situations is as to the ensuing consequences if it declined to intervene. The answer
to this question should decide the issue in favor of or against intervention.
Therefore, after determining the "degree", the courts should consider the impact
on the constitutional system in India and specifically on democracy itself.

C. The Fluid Nature of Constitutional Adjudication

It is not necessary that certain questions, that have normally been

considered to be non-justiciable, may continue to remain so. Therefore, what has
traditionally been considered as within the domain of the Legislature may not
continue to remain so, if the political climate changes within the system and
community in the sense of people accepting and welcoming the same.

Further, on the issues of effectiveness as discussed above, if there are

"judicially discoverable and manageable standards" then effectiveness concerns
can be addressed. Therefore, if the Judiciary can effectively discover and manage
evidentiary and other procedural aspects of adjudication of a matter tilting more
towards traditionally political rather than traditionally legal, it may adjudicate
on the dispute. Courts may not impose upon themselves, restrictions that may no
longer have relevance in the changed political scenario. Matters that are
traditionally considered as non-justiciable may be treated as justiciable in such
circumstances.

57 Gilligan v. Morgan, (1973) 37 L. 2Ed. 407; Bommai , (1994) 3 S.C.C. 1, where

Bhagwati, J. and A.C. Gupta, J. noted that merely because exercise of power under
Article 356 involved essentially a political question it can not be said that the same
is not amenable to judicial determination. They observed that:

[M]erely because a question has a political complexion that by itself is no

ground why the court should shrink from performing its duty under the
constitution if it raises an issue of constitutional determination... [M]erely
because a question has a political colour, the court cannot fold its hands in
despair and declare "judicial hands off".
58 Id.

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Vol. 18(2) Student Bar Review 2006

It is perhaps a law of evolution that ins

acquire distinctive characteristics, not so
planning, but in response to the tasks set ou
sense,59 may have been the traditional occupat
to deal with discretionary decisions, they ma
undermining their traditional position and f
Supreme Court of India. The Indian Supreme
void created by the irresponsible attitude
governance. Over a period of time, it adapted
delivering the goods. Innovations in terms
Litigation, Basic Structure Doctrine, etc. are
it had introduced in the Indian constitutio
regarding breach of Separation of Powers du
judicial review are no longer valid in the se
reached in the Indian constitutional adjudic

VI. Constitutional Interpretation and Recent

Developments

In addition to what has been discussed in the paper, the follo

also reflect the need for a liberal, non-static understanding of th
separation of powers in the current socio-political milieu of the coun

A. State of Affairs in the Legislature and Judicial

Over the years, the balance of power has decisively shifted

Legislature and Executive towards the Judiciary. There are severa
this but the most notable of all is the sharp decline in standards of
public life. The present state of affairs in the 14th Lok Sabha is best
"cash for questions" scam,61 legislations and Constitutional Amendm

59 Lon. L. Fuller, The Morality of Law 124 ( 1965).

60 Galugan, supra note 6, at 250.
61 R. Suryamurthy, 11 MPs caught on camera ! No one will be spared : Speaker ,
December 13, 2005, available at http://www.tribuneindia.c0m/2005
maini.htm (last visited January 25, 2006); Stung : 11 MPs take cash to ask
in Parliament , The Times of India, December 12, 2005, available at
timesofindia.indiatimes.com/articleshow/1327921.cms (last visited De
2005); B. S. Raghavan, Cash-for-questions scam - Implications for dem
society, The Hindu Business Line, December 22, 2005.

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 Separation of Powers in the Indian Constitution

passed without any substantive debate on policy issues, lack of legislative business
and its systematic disruption leading to lost business hours, etc. The Supreme
Court is probably the only institution left with some credibility before the public.62
It has also acted in the past to set at rest issues that were threatening to divide the
country.63 It is submitted that its increasing activism is in the best interest of the
Indian democracy.

B. Interpretation and Accommodation in the Constitution

The question from the point of view of constitutional law is whether the
proposed interpretation of Separation of Powers is possible within constitutional
law theory and practice? In the past two hundred years, Constitutions have been
the most visible and most symbolic manifestation of a people's determination to
establish an entirely new basis of its polity.64 The Indian Constitution not only
presents a purely descriptive "power map"65 but also sets bounds on political
rule, in order to guarantee the freedom of citizens.66 The Constitution not only
performs the task of allocating powers amongst different institutions, it also lays
down the fundamental goals and aspirations of the society. It is a document that

62 This was one reason which forced Mr. Shibu Soren to resign from the Chief
Ministership of the State of Jharkhand, after repeated disruptions by the RJD - JMM
alliance ensured that no "Floor Test" could be conducted, contrary to the express
orders of the Supreme Court. The general political consensus was that order of the
Supreme Court was the law of the land and should be respected even if fit was
constitutionally untenable. See Manmohan Singh cuts UPA losses , available at http:/
/www.samachar. com/features/140305-editorial.html (last visited June 25, 2005);
There is Merit in Respecting Limits , The Tribune, March 14, 2005, http://
www.tribuneindia.c0m/2005/20050314/edit.htm#1 (last visited June 25, 2005);
Tempering Vigilance with Restraint , The Hindu, March 11, 2005,
www.hindu0nnet.c0m/2005/03/12/st0ries/2005031201141000.htm (last visited
June 25, 2005).
63 The disruptive and divisive politics of Mandai and Kamandal were set at rest in the
former case by a Supreme Court judgment and in the latter by Allahabad High
Court sitting over the dispute. In both the instances, since the matter became sub
judice, it cooled the politically charged atmosphere created by insensitive politicians
for their narrow political gains. Furthermore, the inter - state river water disputes
is another area where the Executive has been more than willing to surrender its
jurisdiction to the Judiciary contrary to the Constitution's mandate. See Article
262, Constitution of India.
64 Ulrich K. Preuss, Constitutionalism - Meaning, Endangerment, Sustainability , in Rules,
Laws, Constitutions 172 ( Satish Saberwal et al. eds., 1998).
65 Eric Barendt, An Introduction To Constitutional Law 6 (1998).
66 Jutta Limbach, The Concept of the Supremacy of the Constitution 64 Mod. L. Rev. 1,
10 (2001).

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Vol. 18(2) Student Bar Review 2006

points to, without precisely defining, the co

and ideals. It is submitted that the changi
faces and the ever present challenge of im
interpreters frequently re-examine the India
experiences with working a democratic Cons

C. Developmentalism as an Approach towards

Constitutional Interpretation

After agreeing that the Constitution is a dynamic document which may

change according to the times, the next aspect is to consider the approach of the
Supreme Court towards this process of interpretation. In the context of the
Legislature - Judiciary relations, courts have predominantly followed the
"developmentalism" approach to constitutional interpretation. This approach
accepts the value of incremental additions of judge made doctrine, but goes further
by enlarging the interpretative arena to include broader historical events, such
as informal practices, usages, and political culture.68 By its veiy nature, it commits
itself to the legitimacy of what it calls constitutional change.69

"Developmentalism" rejects static understandings of constitutional

meaning. By locating the sources of constitutional evolution in the broad political
culture, developmentalists claim to build innovations on the solid ground of broad
popular consensus. An attendant feature of "developmentalism" is that it forces
the interpreters to make and defend controversial moral judgments to justify
constitutional change. In India, controversial judgments70 were made keeping in
mind the existing state of affairs and such radical interpretation made a clear
break from the past. These judgments were progressive in the sense that they
developed or introduced a principle of law; moving away from their traditional
positions, in accordance with the necessities of the times. These judgments were
initially criticized for going beyond the conventional limits of the law or for radical
interpretation of a point of law, but soon became a natural part of the law of the
land. It appeared to be a normal progression. For instance, after the Bommai

67 Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 67 (1991).
68 Edwin Messe III, The Law of the Constitution, 61 Tul. L. Rev. 979 (1987).
69 American Constitutional Interpretation 410 (Walter F. Murphy et al. eds. 2003).
70 With reference to the legislature and the judiciary, some of these cases are
Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C. 225; In Re Keshav Singh,
A.I.R. 1965 S.C. 745; Bommai, (1994) 3 S.C.C. 1; Jagdambika Pal v. Union of India,
(1999) 9 S.C.C. 95; Kihoto Hollohan v. Zachillhu, A.I.R. 1993 S.C. 412.

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 Separation of Powers in the Indian Constitution

judgment, the Central Government has been cautious in the application of Article
356. These decisions have ensured that Legislature and the Executive act within
their respective domain.

VII. Conclusion

It is unfortunate that in the entire Jharkhand episode, political

instead of focusing on the sharp decline in political standards and moralit
the Legislature, were more interested in hiding behind a misconceived n
the doctrine of Separation of Powers. As has been argued throughout th
there is no merit in the claim that the Judiciary breached the doctrine of
of Powers or any other principle for that matter. The notion that there is som
fixed about the interpretations of the provisions of the Constitution
stand scrutiny. There is no such thing as an eternal interpretation o
principles of the Constitution. They are subject to change, so as to
effectively to the needs of the times and demands of the people. In the J
crisis the Judiciary intervened only to act as a check on the functionin
erring Legislature, and to protect the underlying constitutional valu
system.

It is also necessary to do away with the notion that Constitutions w

their own. Constitutions, by their very nature, are malleable; they may
mere parchments or may be moulded into the conscience keeper of t
They are worked by the citizens and political leaders and by involvemen
facets of a democratic society like India.71 There is a larger messa
protecting the independence and activist approach of the Indian Suprem
Institutions matter - a casual survey of the failed democratic experiment
of Asia, Africa and South America will explain why.

71 Granville Austin, The Expected and the Unintended in Working a Dem

Constitution India's Living Constitution: Ideas, Practices, Controversies 319 (Zoy
al. eds. 2002), where the author states:

[T]he fact that any people are able to govern themselves democratica
is an act of faith even more than one of reason, particularly becaus
constitutions and their institutions may shape men's actions, but the
cannot improve human character. Democracy is a messy business: subj
to greatness, meanness, and error. Constitutional government is work
progress; a matter of never ending adjustments. Each generation mu
cope with one anew.

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