The court has been active in seeking to prevent subversion of the Constitution through political practice. Thus, areas that were considered beyond the scope of judicial review such as powers of the President and Governor were brought under the purview of the courts.
There are many other instances in which the Supreme Court actively involved itself in the administration of justice by giving directions to executive agencies. Thus, it gave directions to CBI to initiate investigations against politicians and bureaucrats in the hawala case, the Narasimha Rao case, illegal allotment of petrol pumps case etc.
Many of these instances are the products of judicial activism. The Indian Constitution is based on a delicate principle of limited separation of powers and checks and balances. This means that each organ of the government has a clear area of functioning.
- the Parliament is supreme in making laws and amending the Constitution;
- the executive is supreme in implementing them;
- the judiciary is supreme in settling disputes and deciding whether the laws that have been made are in accordance with the provisions of the Constitution.
Despite such clear cut division of power the conflict between the Parliament and judiciary, and executive and the judiciary has remained a recurrent theme in Indian politics.
Immediately after the implementation of the Constitution began, a controversy arose over the Parliament’s power to restrict right to property. The Parliament wanted to put some restrictions on the right to hold property so that land reforms could be implemented. The Court held that the Parliament cannot thus restrict fundamental rights. The Parliament then tried to amend the Constitution. But the Court said that even through an amendment, a fundamental right cannot be abridged.
The following issues were at the centre of the controversy between the Parliament and the judiciary.
- What is the scope of right to private property?
- What is the scope of the Parliament’s power to curtail, abridge or abrogate fundamental rights?
- What is the scope of the Parliament’s power to amend the constitution?
- Can the Parliament make laws that abridge fundamental rights while enforcing directive principles?
During the period 1967 and 1973, this controversy became very serious. Apart from land reform laws, laws enforcing preventive detention, laws governing reservations in jobs, regulations acquiring private property for public purposes, and laws deciding the compensation for such acquisition of private property were some instances of the conflict between the legislature and the judiciary.
In 1973, the Supreme Court gave a decision that has become very important in regulating the relations between the Parliament and the Judiciary since then. This case is famous as the Kesavananda Bharati case. In this case, the Court ruled that there is a basic structure of the Constitution and nobody—not even the Parliament (through amendment)—can violate the basic structure. The Court did two more things.
- First, it said that right to property (the disputed issue) was not part of basic structure and therefore could be suitably abridged.
- Second, the Court reserved to itself the right to decide whether various matters are part of the basic structure of the Constitution. This case is perhaps the best example of how judiciary uses its power to interpret the Constitution.
This ruling has changed the nature of conflicts between the legislature and the judiciary.
The right to property was taken away from the list of fundamental rights in 1979 and this also helped in changing the nature of the relationship between these two organs of government.
Some issues still remain a bone of contention between the two —
- can the judiciary intervene in and regulate the functioning of the legislatures?
- In the parliamentary system, the legislature has the power to govern itself and regulate the behaviour of its members. Thus, the legislature can punish a person who the legislature holds guilty of breaching privileges of the legislature. Can a person who is held guilty for breach of parliamentary privileges seek protection of the courts?
- Can a member of the legislature against whom the legislature has taken disciplinary action get protection from the court?
These issues are unresolved and are matters of potential conflict between the two.
Similarly, the Constitution provides that the conduct of judges cannot be discussed in the
Parliament. There have been several instances where the Parliament and State legislatures have cast aspersions on the functioning of the judiciary. Similarly, the judiciary too has criticised the legislatures and issued instructions to the legislatures about the conduct of legislative business. The legislatures see this as violating the principle of parliamentary sovereignty.
These issues indicate how delicate the balance between any two organs of the government is and how important it is for each organ of the government in a democracy to respect the authority of others.
Bibliography : NCERT – Indian Constitution At Work