Judiciary versus the Others – Recent Trends in the light of Supreme Court’s Power to interpret t
INTRODUCTION
The Constitution of India is the supreme law of the land, which is essential in the governance of India. The Constitution of India was enacted on 26th November, 1949 and was adopted on 26th January, 1950. The Draftsmen of the Indian Constitution took brainwave from Constitutions all over the world and integrated their Smartness into the Indian Constitution. For example A quasi-federal form of government (a federal system with a strong central government) is taken from Constitution of Canada, Part III on Fundamental Rights is partly derived from the American Constitution, Part 1V on Directive Principles of State Policy from the Irish Constitution and Part IV-A Fundamental duties is taken from Russian constitution. Constitution of India defines the main organs of the government that is the Executive, the Legislature and the Judiciary, not only its power but also demarcates the responsibilities. It regulates the relationship between the different organs and between the government and the people. They also make the line of control between them therefore no body can interfere the function of other. If any of organ overstep its powers was not healthy for democracy.
The Preamble of the Constitution
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 day of November, 1949, do hereby Adopt, Enact And Give To Ourselves This Constitution
The Preamble to our Constitution serves two purposes
It indicates the source from which the Constitution derives its authority
It also states the objects, which the Constitution seeks to establish and promote.
The first words of the Preamble - "We the people" - indicate that power is vested in the hands of the people of India. Parliament represents the people of India. It has every right to rewrite a law or constitutional provision. But who would ensure that the law does not violate soul of the Constitution? The courts have to do the job. Therefore, judicial review is an integral part of any democratic system . The constitution of India is the supreme law of the land. The framers of the Indian constitution were also aware of the fact that if the constitution was so flexible it would be like a flying wings of the ruling party therefore they adopt the middle course that is, it is neither too rigid to admit necessary amendment, nor too flexible for undesirable changes. According to Constitution, Parliament and State Legislature in India have the power to make the laws within their respective jurisdiction. This power is not absolute in nature. The constitution vests in judiciary, the power to adjudicate upon the constitutional validity of all the laws. If a laws made by parliament or state legislature violates any provision of the constitution, the Supreme Court has power to declare such a law invalid or ultra virus. So the process of judicial scrutiny of legislative acts is called Judicial Review therefore we know judiciary is the Guardian, Protector and Watchdog of the constitution.
Judiciary v. Legislature (Parliament)
The framers of our Constitution took infinite care to provide for an independent and impartial judiciary as the interpreter of the Constitution and as the custodian of the rights of the citizens through the process of judicial review, which gives the mandate to the judiciary to interpret the laws but not to make them, nor to lay down general norms of behaviour for the government or to decide upon public policy. The concept is "judicial review" and not "judicial activism" which is of recent coinage and extends, as one finds, much beyond review. The phenomenon of the judiciary versus the legislature is not new to Indian constitution History. Indira Gandhi made a series of attempts through 24th, 25th and 42nd constitutional amendments to establish Supremacy of Parliament over the judiciary. She even tried to dishearten the highest judiciary by appointing a junior judge as the chief justice superseding senior judges. The matter could be settled with the accent of the "Doctrine of Basic Structure" in the Keshavananda Bharati case of 1973. The core of this judgement is that the Indian constitution has certain basic features, which hold a transcendental position and which cannot be altered by either parliament or Supreme Court. This judgement was able to establish supremacy of the constitution but only with respect to its "Doctrine of Basic Structure". History of Basic Structure - The question whether fundamental rights can be amended under article 368 came for consideration in the Supreme Court in Shankari Prasad case where the 1st constitutional amendment act, 1951 which insert Art 31-A and 31-B is challenged in this case. Supreme Court says that parliaments have a power to amend the constitution (including fundamental rights) under Article 368 and same view has taken in Sajjan Singh case . In Golaknath case validity of 17th constitutional amendment was challenged. The Supreme Court ruled that parliament had no power to amend Part III of the constitution and overruled its earlier decision in Shankari Prasad and Sajjan Singh. To avoid Golaknath case decision parliament enacted 24th constitutional amendment. The Supreme Court realized the theory of basic structure in Keshavananda Bharati v. State of Kerala . The Supreme Court declared that Article 368 did not enable Parliament to alter the basic structure or framework of the Constitution and parliament could not use its amending powers under Article368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework of the constitution. This decision is not just a landmark in the evolution of constitutional law, but a turning point in constitutional history. In Indira Gandhi v. Raj Narayan the Supreme Court applied the theory of basic structure and struck down cl.(4) of article 329-A,which was inserted by the 39th Amendment in 1975 on the ground that it was beyond the amending power of the parliament as it destroyed the 'basic feature' of the constitution. The amendment was made to the jurisdiction of all courts including SC, over disputes relating to elections involving the Prime Minister of India. In Minerva Mills case the Supreme Court by majority by 4 to 1 majority struck down clauses(4) and (5) of the article 368 inserted by 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the constitution. It was ruled by court that a limited amending power itself is a basic feature of the Constitution.
In Indra Sawhney v. union of India properly known as Mandal Commission case Supreme Court say some important rule with reference to Reservation:-
There shall not be reservation in promotion.
In any case Reservation shall not exceed 50%.
But in 77th & 81st amendment slap the Mandal Commission & modified the decision of the commission. In 77th amendment 1995 by this in Article 16th new clause has been added that is Art 16(4)(a) which provided that reservation is given in promotion or in 81st amendment Art 16 is again amended and by this new clause is added i.e. 16(4)(b) which provided that in any case Reservation may exceed. This is shown that how the parliament amends the constitution beyond his scope and interrupt the democracy and how judiciary use his power, protect the democracy.
Judiciary v. Media
Media is the fourth pillar of the Indian democracy. Media is the best by to communicate the people and also discuss the current problem. Freedom of the media is indeed an integral part of the freedom of expression and essential requisite of a democratic set up. The Indian Constitution has granted this freedom in the form of Fundamental Right. The media, which is obligated to respect the rights of individual, is also obligated to work within the framework of legal principles and statutes. These legal/statutes have been framed by way of minimum standards and do not intend to detract from higher standards of protection to the freedom of expression. Issue whether the media is crossing limits in commenting on celebrities and encroaching on the privacy of public figures, blackmailing those in authority and promoting trial by media in cases pending consideration before the various courts of the country. Media also create bias opinion in the people related with many cases. There seems to be some discomfort in the judiciary about the media coverage of legal proceedings. According to an IANS(Indo-Asian News Service) report The Hoot carried, the Supreme Court strongly deprecated media interference with the administration of justice by publishing one-sided articles on cases pending in the courts. For example-. When disposing a bail petition filed in a dowry death case, a bench of Justices N. Santosh Hegde and S.B. Sinha expressed distress at an article appearing in a Kolkata magazine titled "DOOMED BY DOWRY" and described it as a trial by the media. The article was based solely on an interview with the parents of a woman who committed suicide because of alleged harassment by in-laws. Noting that the facts narrated in the article are likely to be used during the trial, the judges said that this type of article would interfere with the administration of justice. The country has a history of confrontations between the judiciary and the legislatures. There have been several skirmishes between the judiciary and the media that still have not reached a point of confrontation, mainly because of judicial restraint. Soon after the jailing of Arundhati Roy for contempt of court, some editors used intemperate language against the judiciary and called for its dissolution. The tendency of the media to hijack judicial business has become a constant trait and should cause public concern. It has already delivered its judgment in the case of Paritala Ravi, a Telugu Desam Party leader in faction-ridden Rayalaseema of Andhra Pradesh, even as the CBI has just begun its investigation. Minutes after Ravi's murder outside the Telugu Desam Party (TDP) office in Anantapur, TV tickers were identifying the killer as a person serving a term in Charlapalli jail for an earlier attack on Ravi in Hyderabad's Jubilee Hills. Newspapers carried scores of stories with fiction as the main ingredient, dragging the names of the chief minister's son and the name of a director-general of police. All this even before the CBI team began its investigations. Freedom of expression is not a divine right. It comes with several riders that can be found both in our Constitution, the Indian Penal Code and several other laws. That right is based on the respect the media extends to other sections of the society. Ten years ago, India Today sought and obtained permission from an additional session's judge to interview gangster Babloo Srivastava cooling his heels in Tihar jail. The jail authorities successfully appealed to the Supreme Court against the grant of permission. Justices G.B. Pattanaik and M.B. Shah ruled that the press did not have an unfettered right to interview an under trial prisoner .
As stated above media is the fourth pillar or democracy it is expected form media to help other pillar i.e. Executive, Judiciary & Legislature because when one pillar of any building fails to support it the whole building get collapsed hence it expected that all these organ of the government should go hand in hand
CONCLUSION
The Constitution has to be changed at every interval of time. Nobody can say that this is the final. A constitution which is static is a constitution which ultimately becomes a big hurdle in the path of the progress of the nation. And this change can be done by the way of Amendments. Provisions for amendment of the constitution is made with a view to overcome the difficulties which may encounter in future in the working of the constitution. The time is not static; it goes on changing .The social, economic and political conditions of the people go on changing so the constitutional law of the country must also change in order toward it to the changing needs, changing life of the people. If no provisions were made for amendment of the constitution, the people would have recourse to extra constitutional method like revolution to change the constitution. The framers of the Indian constitution were anxious to have a document which could grow with a growing nation, adapt itself to the changing circumstances of a growing people.
According to Abraham Lincoln, democracy meant a Government of the people, by the people and for the people. So in democratic nation whenever any law passed by parliament violates any provision of constitution or takes away any fundamental rights of the person, the Supreme Court has right and power to strike down that law or act. According to me this jurisdiction of Supreme Court is essential for protection of basic features of the constitution. That the power of Judicial Review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure . Judiciary has no personal grudge over any other body/authorities he can do their duty. He can only use there power where there is a need and protect the constitution as well as democracy.
Bibliography
1. Brayan A Garner's 'Black's Law Dictionary', West Group, 7th Edition 1999.
2. D.D.Basu's, 'Shorter Constitution of India'13th Edition 2002, Wadhwa &Co. Nagpur,
3. M.P.Jain, 'Indian Constitutional Laws'5th Edition 2004, Wadhwa & Co. Nagpur.
The Constitution of India is the supreme law of the land, which is essential in the governance of India. The Constitution of India was enacted on 26th November, 1949 and was adopted on 26th January, 1950. The Draftsmen of the Indian Constitution took brainwave from Constitutions all over the world and integrated their Smartness into the Indian Constitution. For example A quasi-federal form of government (a federal system with a strong central government) is taken from Constitution of Canada, Part III on Fundamental Rights is partly derived from the American Constitution, Part 1V on Directive Principles of State Policy from the Irish Constitution and Part IV-A Fundamental duties is taken from Russian constitution. Constitution of India defines the main organs of the government that is the Executive, the Legislature and the Judiciary, not only its power but also demarcates the responsibilities. It regulates the relationship between the different organs and between the government and the people. They also make the line of control between them therefore no body can interfere the function of other. If any of organ overstep its powers was not healthy for democracy.
The Preamble of the Constitution
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 day of November, 1949, do hereby Adopt, Enact And Give To Ourselves This Constitution
The Preamble to our Constitution serves two purposes
It indicates the source from which the Constitution derives its authority
It also states the objects, which the Constitution seeks to establish and promote.
The first words of the Preamble - "We the people" - indicate that power is vested in the hands of the people of India. Parliament represents the people of India. It has every right to rewrite a law or constitutional provision. But who would ensure that the law does not violate soul of the Constitution? The courts have to do the job. Therefore, judicial review is an integral part of any democratic system . The constitution of India is the supreme law of the land. The framers of the Indian constitution were also aware of the fact that if the constitution was so flexible it would be like a flying wings of the ruling party therefore they adopt the middle course that is, it is neither too rigid to admit necessary amendment, nor too flexible for undesirable changes. According to Constitution, Parliament and State Legislature in India have the power to make the laws within their respective jurisdiction. This power is not absolute in nature. The constitution vests in judiciary, the power to adjudicate upon the constitutional validity of all the laws. If a laws made by parliament or state legislature violates any provision of the constitution, the Supreme Court has power to declare such a law invalid or ultra virus. So the process of judicial scrutiny of legislative acts is called Judicial Review therefore we know judiciary is the Guardian, Protector and Watchdog of the constitution.
Judiciary v. Legislature (Parliament)
The framers of our Constitution took infinite care to provide for an independent and impartial judiciary as the interpreter of the Constitution and as the custodian of the rights of the citizens through the process of judicial review, which gives the mandate to the judiciary to interpret the laws but not to make them, nor to lay down general norms of behaviour for the government or to decide upon public policy. The concept is "judicial review" and not "judicial activism" which is of recent coinage and extends, as one finds, much beyond review. The phenomenon of the judiciary versus the legislature is not new to Indian constitution History. Indira Gandhi made a series of attempts through 24th, 25th and 42nd constitutional amendments to establish Supremacy of Parliament over the judiciary. She even tried to dishearten the highest judiciary by appointing a junior judge as the chief justice superseding senior judges. The matter could be settled with the accent of the "Doctrine of Basic Structure" in the Keshavananda Bharati case of 1973. The core of this judgement is that the Indian constitution has certain basic features, which hold a transcendental position and which cannot be altered by either parliament or Supreme Court. This judgement was able to establish supremacy of the constitution but only with respect to its "Doctrine of Basic Structure". History of Basic Structure - The question whether fundamental rights can be amended under article 368 came for consideration in the Supreme Court in Shankari Prasad case where the 1st constitutional amendment act, 1951 which insert Art 31-A and 31-B is challenged in this case. Supreme Court says that parliaments have a power to amend the constitution (including fundamental rights) under Article 368 and same view has taken in Sajjan Singh case . In Golaknath case validity of 17th constitutional amendment was challenged. The Supreme Court ruled that parliament had no power to amend Part III of the constitution and overruled its earlier decision in Shankari Prasad and Sajjan Singh. To avoid Golaknath case decision parliament enacted 24th constitutional amendment. The Supreme Court realized the theory of basic structure in Keshavananda Bharati v. State of Kerala . The Supreme Court declared that Article 368 did not enable Parliament to alter the basic structure or framework of the Constitution and parliament could not use its amending powers under Article368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework of the constitution. This decision is not just a landmark in the evolution of constitutional law, but a turning point in constitutional history. In Indira Gandhi v. Raj Narayan the Supreme Court applied the theory of basic structure and struck down cl.(4) of article 329-A,which was inserted by the 39th Amendment in 1975 on the ground that it was beyond the amending power of the parliament as it destroyed the 'basic feature' of the constitution. The amendment was made to the jurisdiction of all courts including SC, over disputes relating to elections involving the Prime Minister of India. In Minerva Mills case the Supreme Court by majority by 4 to 1 majority struck down clauses(4) and (5) of the article 368 inserted by 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the constitution. It was ruled by court that a limited amending power itself is a basic feature of the Constitution.
In Indra Sawhney v. union of India properly known as Mandal Commission case Supreme Court say some important rule with reference to Reservation:-
There shall not be reservation in promotion.
In any case Reservation shall not exceed 50%.
But in 77th & 81st amendment slap the Mandal Commission & modified the decision of the commission. In 77th amendment 1995 by this in Article 16th new clause has been added that is Art 16(4)(a) which provided that reservation is given in promotion or in 81st amendment Art 16 is again amended and by this new clause is added i.e. 16(4)(b) which provided that in any case Reservation may exceed. This is shown that how the parliament amends the constitution beyond his scope and interrupt the democracy and how judiciary use his power, protect the democracy.
Judiciary v. Media
Media is the fourth pillar of the Indian democracy. Media is the best by to communicate the people and also discuss the current problem. Freedom of the media is indeed an integral part of the freedom of expression and essential requisite of a democratic set up. The Indian Constitution has granted this freedom in the form of Fundamental Right. The media, which is obligated to respect the rights of individual, is also obligated to work within the framework of legal principles and statutes. These legal/statutes have been framed by way of minimum standards and do not intend to detract from higher standards of protection to the freedom of expression. Issue whether the media is crossing limits in commenting on celebrities and encroaching on the privacy of public figures, blackmailing those in authority and promoting trial by media in cases pending consideration before the various courts of the country. Media also create bias opinion in the people related with many cases. There seems to be some discomfort in the judiciary about the media coverage of legal proceedings. According to an IANS(Indo-Asian News Service) report The Hoot carried, the Supreme Court strongly deprecated media interference with the administration of justice by publishing one-sided articles on cases pending in the courts. For example-. When disposing a bail petition filed in a dowry death case, a bench of Justices N. Santosh Hegde and S.B. Sinha expressed distress at an article appearing in a Kolkata magazine titled "DOOMED BY DOWRY" and described it as a trial by the media. The article was based solely on an interview with the parents of a woman who committed suicide because of alleged harassment by in-laws. Noting that the facts narrated in the article are likely to be used during the trial, the judges said that this type of article would interfere with the administration of justice. The country has a history of confrontations between the judiciary and the legislatures. There have been several skirmishes between the judiciary and the media that still have not reached a point of confrontation, mainly because of judicial restraint. Soon after the jailing of Arundhati Roy for contempt of court, some editors used intemperate language against the judiciary and called for its dissolution. The tendency of the media to hijack judicial business has become a constant trait and should cause public concern. It has already delivered its judgment in the case of Paritala Ravi, a Telugu Desam Party leader in faction-ridden Rayalaseema of Andhra Pradesh, even as the CBI has just begun its investigation. Minutes after Ravi's murder outside the Telugu Desam Party (TDP) office in Anantapur, TV tickers were identifying the killer as a person serving a term in Charlapalli jail for an earlier attack on Ravi in Hyderabad's Jubilee Hills. Newspapers carried scores of stories with fiction as the main ingredient, dragging the names of the chief minister's son and the name of a director-general of police. All this even before the CBI team began its investigations. Freedom of expression is not a divine right. It comes with several riders that can be found both in our Constitution, the Indian Penal Code and several other laws. That right is based on the respect the media extends to other sections of the society. Ten years ago, India Today sought and obtained permission from an additional session's judge to interview gangster Babloo Srivastava cooling his heels in Tihar jail. The jail authorities successfully appealed to the Supreme Court against the grant of permission. Justices G.B. Pattanaik and M.B. Shah ruled that the press did not have an unfettered right to interview an under trial prisoner .
As stated above media is the fourth pillar or democracy it is expected form media to help other pillar i.e. Executive, Judiciary & Legislature because when one pillar of any building fails to support it the whole building get collapsed hence it expected that all these organ of the government should go hand in hand
CONCLUSION
The Constitution has to be changed at every interval of time. Nobody can say that this is the final. A constitution which is static is a constitution which ultimately becomes a big hurdle in the path of the progress of the nation. And this change can be done by the way of Amendments. Provisions for amendment of the constitution is made with a view to overcome the difficulties which may encounter in future in the working of the constitution. The time is not static; it goes on changing .The social, economic and political conditions of the people go on changing so the constitutional law of the country must also change in order toward it to the changing needs, changing life of the people. If no provisions were made for amendment of the constitution, the people would have recourse to extra constitutional method like revolution to change the constitution. The framers of the Indian constitution were anxious to have a document which could grow with a growing nation, adapt itself to the changing circumstances of a growing people.
According to Abraham Lincoln, democracy meant a Government of the people, by the people and for the people. So in democratic nation whenever any law passed by parliament violates any provision of constitution or takes away any fundamental rights of the person, the Supreme Court has right and power to strike down that law or act. According to me this jurisdiction of Supreme Court is essential for protection of basic features of the constitution. That the power of Judicial Review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure . Judiciary has no personal grudge over any other body/authorities he can do their duty. He can only use there power where there is a need and protect the constitution as well as democracy.
Bibliography
1. Brayan A Garner's 'Black's Law Dictionary', West Group, 7th Edition 1999.
2. D.D.Basu's, 'Shorter Constitution of India'13th Edition 2002, Wadhwa &Co. Nagpur,
3. M.P.Jain, 'Indian Constitutional Laws'5th Edition 2004, Wadhwa & Co. Nagpur.
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