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Judicial supremacy required after all

By Ravi Kishore | PUBLISHED: 15, Aug 2010, 12:29 pm IST | UPDATED: 15, Apr 2011, 12:29 pm IST

Judicial supremacy required after all

The Constitution of India, the most fundamental document that lays the framework on which the Indian Polity is to run and binds the Government and the people. The Constitution which is the superior to all laws of the country was drafted by the Constituent Assembly which met for the first time in New Delhi on December 9, 1946, in the Constitution Hall which is now known as the Central Hall of Parliament.

Those who adorned the front row were Pandit Jawaharlal Nehru, Maulana Abul Kalam Azad, Sardar Vallabhbhai Patel, Acharya J.B. Kripalani, Dr. Rajendra Prasad, Smt. Sarojini Naidu, Shri Hare-Krushna Mahatab, Pandit Govind Ballabh Pant, Dr. B.R. Ambedkar, Shri Sarat Chandra Bose, Shri C. Rajagopalachari and Shri M. Asaf Ali. Two hundred and seven representatives, including nine women were present.

The Indian Constitution is not merely a political and legal document but a socio-economic document as well, which sets out the legal framework and guiding principles and functions of the different organs of the state, and regulates the power bestowed upon them. The Constitution has also bestowed upon the Indian Judiciary more so on the Supreme Court the absolute power to adjudicate and resolve any dispute arising out of the federal structure of the governance or between an organ of the government and a citizen regarding rights and duties of each of them.

The  framers of the Constitution were fully aware that the  Constitution is not to be static but a  dynamic document, which  should be able to adapt itself to the changing needs of the society and polity. With the passage of time and under the impact of the  dynamic and ever evolving social and economic forces and needs, the pattern of government will require major changes.

No country or for that matter the world can remain static, being constantly in a dynamic state is the natural phenomenon of a vibrant and living society. Accordingly, the Indian Constitution and the Policy makers have  responded to the needs of  social transformation and change by bringing in several amendments since the adoption of constitution.

Keeping this factor in mind, the draftsmen of the Indian Constitution incorporated Article 368 in the Constitution which dealt with the procedure of amendment. The provisions in the Article 368 the Indian Constitution is neither too rigid nor too flexible but an ideal mix of both, being partly rigid and partly flexible.

The framers of the Indian constitution were fully aware of that fact that if the constitution was too flexible it would be at the mercy of the ruling party, enjoying majority in the Parliament, so they adopted a very balanced course. The provisions are neither too rigid to admit necessary amendments, nor too flexible which would have made it susceptible to undesirable changes. The most important aspect of the Indian Constitution is the   Fundamental rights and for the provision of an independent judiciary for protection of these rights.

The judiciary is vested with power to adjudicate upon the constitutional validity of all the laws. If laws enacted either by parliament or a state legislature violates any provision of the constitution, the Supreme Court has power to declare such a law invalid or ultra virus. This process of judicial scrutiny of legislative acts, also known as Judicial Review, has been provided in Article 368 of the Constitution.

However, it needs to appreciate that the function of an independent and impartial Judiciary is not to set itself in opposition to the policy and politics of the majority rule. On the contrary, the duty of the Judiciary is to evaluate and adjudicate upon the legislative policy of a statute in the light of the policy and provisos of the Constitution.

This amending power is one of the most desirable provisions in a Constitution, so as to ensure that the needs of change is addressed correctly in order to accomplish the goals, as enshrined in the Constitution. There is a great need for caution while expanding the parameters of judicial review.
The necessity of empowering the courts to declare a statute unconstitutional arise not because the Judiciary is to be made supreme but a system of checks and balances has to be in place so as to ensure that  the Legislature, and Executive functions as per the law of land..

The Hon’ble Supreme Court has not only interpreted the Constitution to safeguard the principles as laid down in it but through various landmark and innovative judgments have played a pivotal role in evolution of law.

Beginning with Keshvanand  Bharti  case which laid down the principle of basic structure of constitution and through a majority judgment held that the basic structure of the constitution cannot be changed/altered, which was  followed by decisions in Minerva Mills, Golaknath etc.

Similarly the Hon’ble Supreme Court opened  new and wide range of  area by pronouncing landmark judgments thereby laying law, by enforcing human rights and expanding the area of public interest litigation, the term being used for the first time, in the case of Fertilizer Corporation Kamgar Union Vs. Union of India.

Through the concept of  judicial activism, or more popularly known as Public Interest Litigation the Supreme Court enlarged the scope of habeas corpus, in Sunil Batra, Bandhua Mukti Morcha, Upendra Baxi cases.

Secularism was defined in S R Bommai case, the right to equality was reaffirmed in Maneka Gandhi’s case the guiding principles for selection of judges was laid down in Supreme Court Advocate-on- Record Vs Union of India, the sexual harassment at workplace was defined in Visakha case where comprehensive set of guidelines and norms were prescribed for employers, other responsible persons and institutions to ensure prevention of sexual harassment of women at the work place, the landmark judgment in Indra Sawhney case while dealing with the reservation issue and lately in Ashok Kumar Thakur Vs Union of India, the M C Mehta  case on environmental issues.

The above are only an indicative and not exhaustive list of watershed judgments of the  Supreme Court and the list is endless, with landmark judgments  being pronounced each day by the Supreme Court which governs and safeguards “We the people’’. An effort will be made to elaborate and bring to the readers these law making judgments and relevant issues through a series of articles to bring in focus not only the issues which are of prime value to us but also highlight the issues which are of immense importance today like criminalization of Indian politics, safeguarding the interest of minorities, environment, rights and duties of each citizen, terrorism etc.