Legislature / Judiciary - Which has the upper hand in India...
Our Constitution has provided fundamental rights for the citizen and judicial review is a necessary concomitant of these Rights, as it is meaningless to enshrine individual rights in a written Constitution if they are not enforceable in courts of law ,against any organ of the state,legislative or executive. The framers of our constitution have effected a harmony between parliamentary sovereignty and a written Constitution with a provision for judicial review. The Supreme Court of the USA has the power to invalidate a low duly passed by the legislature on the grounds that is posted to some general principles vaguely laid down in the Constitution. Under the English Constitution, on the other hand, Parliament is supreme and can do everything that is not naturally impossible. The courts there cannot nullify any acts of the parliament on any ground whatsoever.
The Indian constitution,however,adopts the middle course between the American system of judicial supremacy and the English principle of parliamentary supremacy. It has endowed the judiciary with the power of declaring a law as unconstitutional if it is beyond the competence of the legislature or it contravenes the fundamental rights or any mandatory provisions of the Constitution. Our constitution has thus placed supremacy in the hands of the legislature only as much as is possible within the bounds of a written constitution. However, after the Emergency,the judiciary has gained ground by itself declaring that 'judicial review' is the 'basic feature' of our constitution. Considering these facts a balanced view has to be taken between the supremacy of legislation and judiciary. In a country like India, with written constitution,both these organs are supreme for the proper functioning of the largest democracy of the world.
The Constitution of India is the most the lengthy and detailed constitutional document the world has so far produced. It includes fundamental rights, fundamental duties, directive principles and detailed administrative provisions. It has special provisions for Jammu and Kashmir. It attends to define powers of the Central and the States,legislature, executive and judiciary. According to the framework of the Constitution, the executive and the legislature practically appeared to be one entity. Thus, out of the three organisations,we have to choose between two-The legislature and the judiciary-on the basis of their supremacy. One may claim that the constitution is supreme and its provisions cannot be questioned. However, the fact remains that it can be amended. However, there is no provision for the referendum for the amendment of the Constitution. It is not easy to amend the Constitution. Special procedures have been prescribed for an amendment in the Constitution itself. So when a constitutional amendment is made,The judiciary should honour it. After all, the legislature represents the will of the electorate and includes their elected members. They are supposed to take into consideration the feeling of the voters while proposing amendments to the constitution.
At some point we may think that neither legislature nor judiciary can claim supremacy in isolation. Both should work in co-operation with each other,avoiding conflict or collision. Both should consider the problems and appreciate the roles played by each other. Each of them has its assigned role to perform under the Constitution, which is important for democracy. Both have revised and amended their stands, rulings,laws and pronouncements several times. Moreover, all this is unavoidable. Legislature is repealing and amending earlier laws, introducing new ones frequently. Judiciary is also playing its own role by declaring some laws or parts thereof as unconstitutional. Thus, there is confusion and instability all the time. A sort of rivalry and competition has started between the two most important organs of the government. For the success of democracy both should act in co-operation and understanding, keeping in view the general welfare of the people.
We have also seen that how our judiciary was made in effective during Emergency. Liberties of the individuals where curtailed and made unjustifiable. The Supreme Court has declared that the basic structure of constitution cannot be altered. However the basic structure has not been defined either in the Constitution or by the apex court. The court has extended its jurisdiction to examine and hear any matter of public interest and give its judgment. Some of these regiments have had far-reaching consequences and were highly appreciated by the legal experts. The legislators who are sometimes uneducated,and have a criminal background can always be tempted to play with the sentiments of the masses and pass irrelevant legislation to create vote banks. The judges, on the other hand, are learned the persons, with their independence ensured under the Constitution. They do not care for such thing. They are rightly called the defenders of the Constitution. Thus, either role is more objective than that of the legislators. So, some may think that the supremacy of the judiciary will help in sustaining and healthy growing of the democracy in India.
In India, the question of independent judiciary has been a subject of heated national debate over the last few years. It has exercised the minds of legislatures, jurists, politicians, and as well as non-professionals. The supporters of absolute independence of the judiciary argue that in the absence of an independent judiciary democracy cannot succeed. The first political philosopher who propounded the idea of an independent judiciary was Hontesquiu,A famous French philosopher. In India, the Supreme Court strikes down a law only if it violates the basic structure of the Constitution. The Supreme Court is held in high esteem by the parliament,the government and the people of India for its role in protecting and guarding the rights of the citizens,advising the government on complex Constitutional issues,dispensing justice to people,awarding, confirming, reducing or enhancing the punishment awarded. It makes us think that if the judiciary is allowed to function freely it can prove to be a benefit.
The question today is whether the judiciary should have more power than Parliament. If the parliament passes any law for economic and social uplift and of the people and the establishment of a socialist pattern of the society,the judiciary should not strike down such laws and stand in the way of progress. The Parliament represents the verdict of the electorates and the people in the parliament actually represent the masses. re, any activity to throttle parliament can lead to suffocating democracy. In the UK, the parliament is supreme and the judiciary there has not been separated from the legislature. However, the judges there have liberty to give decisions without fear or favour on matters coming to them.
The fathers of American constitution had a very strong faith in the judiciary and hence an independent judiciary was established in their country. They are convinced that if any fetters are placed on the independence of the judiciary,The rights and liberties of the people might be endangered. If experience is any guide, the Supreme Court has invariably shown a high degree of independence in awarding judgements,Some of the even against the Government.
An independent judiciary can safeguard the rights of the people as enshrined in the constitution and thereby ensure rule of the law in the country. In reality, an independent, impartial and fearless judiciary should function as an independent body.
The judges of the Supreme Court are appointed by the President in consultation with the Chief Justice of India. A judge of the Supreme Court can be removed from office by an order of the president passed after an address by each house of parliament supported by a majority of the total members of that house and be the majority of not less than two third of the members of that house present and voting and has been presented to the same session for such removal on the ground of proved misbehavior or incapacity. This means that in India, though the judiciary is an independent body, it indirectly remains under the control of parliament and more often than not, the judgements against the government are biased. Moreover, in a democratic country like ours,if the judiciary is given complete freedom,it may go against the government and thereby cause social revolution. Both judiciary and legislature should have some power to control each other. But it's good to give some more importance for judiciary. There is no doubt that even the framers of constitution might have thought over this issue, before making the judiciary an independent body, but refrained form making it the supreme authority. The best way for the functioning of a democracy is that the legislature, judiciary and executive should work independently while helping each other to maintain the high standards of democracy.
The judiciary should not be completely independent, because the people sitting on the highest chair of law are also human beings and can commit mistakes and pass judgements that can have an adverse effect on society. Moreover, if we look at society today, people have began losing faith in judiciary and taking the law into their own hands. This must be stopped. We should retain the faith in judiciary. It is important for the proper functioning of democracy.
Justice delayed is justice denied : this is apt for the Indian judiciary sometimes. Hence the judiciary should not be made into an independent body; rather it should be accountable to the people regarding the delay in handling justice.
How many people in India get justice? How many judgements are awarded unbiased? Does law and order existed powerfully in India? If it does, then it is only for the rich who sometimes buy the law for their welfare. This cannot be tolerated. We should prevent judiciary from affecting the dirt of corruption. Otherwise, awarding judiciary the supreme most power will be inadvisable. Corruption has entered into judiciary also,we should prevent it. If we look at the judgment of the Supreme Court,some of them can give shock to the people. The delay in receiving justice sometimes turns a person criminal and against the law.
If the judiciary is given a free hand, can we say that justice will be given without any barriers. In fact, judges are also under pressure from powerful lobbies and deliver judgements in their. Not saying that the judiciary is completely corrupted, but there are problems. Agreeing that nothing is completely clean. The judiciary is also under the pressure to please the political parties in order to obtain a ticket for the parliamentary elections,Which makes judgements partial sometimes, judgements of the Supreme Court are ignored by the people in power on some flimsy pretext or the other.
Considering all sides, it will be better if the judiciary and legislature have some control on each other. But, judiciary should be given an upper hand. Because always the law should be given more importance for the proper functioning of the democracy...!!