Judiciary and Parliament

Judiciary and Parliament. Besides protecting rights, the courts have acted to prevent subversion of the Constitution through political practice: they brought the powers of the President and Governors under judicial review, and directed agencies like the CBI to investigate politicians and bureaucrats in several cases.

The Constitution rests on a limited separation of powers with checks and balances: Parliament is supreme in making laws and amending the Constitution, the executive in implementing them, and the judiciary in settling disputes and deciding whether laws conform to the Constitution. Even so, conflict between the organs has recurred.

The early conflict. Right after 1950, Parliament wanted to restrict the right to property to carry out land reforms. The Court held that Parliament could not restrict fundamental rights; Parliament amended the Constitution; the Court said even an amendment could not abridge a fundamental right. The issues were:

• the scope of the right to private property;
• the scope of Parliament's power to curtail fundamental rights;
• the scope of Parliament's power to amend the Constitution;
• whether Parliament can abridge fundamental rights while enforcing Directive Principles.
• Between 1967 and 1973 the conflict sharpened, also over preventive detention, reservations, and compensation for property acquired for public purposes.

Kesavananda Bharati case (1973). The Supreme Court ruled that the Constitution has a basic structure that no one, not even Parliament through amendment, can violate. It also held that the right to property was not part of the basic structure and could be abridged; and it reserved to itself the right to decide what is part of the basic structure. This is perhaps the best example of the judiciary interpreting the Constitution, and it changed relations between Parliament and the judiciary. The right to property was removed from the Fundamental Rights in 1979 (by the 44th Amendment, passed in 1978).

Issues still unresolved:

• Can the judiciary regulate how legislatures function? Legislatures can punish breaches of their privileges and discipline members; can those punished seek the courts' protection?
• The Constitution says judges' conduct cannot be discussed in Parliament, yet legislatures have sometimes criticised the judiciary; and courts have criticised legislatures and directed them on conducting business, which legislatures see as violating parliamentary sovereignty.
• These show how delicate the balance is, and how important it is for each organ to respect the authority of the others. As Alladi Krishnaswami Ayyar warned in the Constituent Assembly, judicial independence should not let the judiciary become a 'super-legislature or super-executive'.

Conclusion: the judiciary's prestige has grown despite tensions, and so have expectations: citizens worry about delays, easy acquittals and witnesses turning hostile. Democracy depends on a delicate balance between judiciary and Parliament, each working within the Constitution's limits.

Example (new): if Parliament passed an amendment ending judicial review altogether, the Supreme Court could strike it down as destroying a basic feature of the Constitution, even though it was passed by the required majority.