Introduction
The concept of separation of powers was one that received the status of what was probably the highest priority while the Constituent Assembly drafted what is now known as the Constitution of India. Power was separated horizontally on the same level between the Legislature, the Executive and the Judiciary. This paper will focus on the Doctrine of Separation of Powers, Judicial Review and Judicial Activism in India. Government stands on three equally crafted pillars, the Legislature, the Executive and the Judiciary. These pillars work independently of each other and at the same time create a system of checks and balances upon each other. All three pillars derive their powers from the Constitution, the supreme law of the land. The Judiciary is particularly focused upon in this paper, being the enforcer and protector of the law and Constitution, the Judiciary is invested with three roles – to interpret the Constitution as and when any conflicting interpretations come up, to protect the Fundamental Rights of the people and to resolve disputes. Under a federal Constitution with a horizontal separation of powers, the Judiciary also decides matters of disputes between federal bodies and State authorities. The Judiciary checks and balances power between the three pillars by reviewing the actions of the other two pillars, and seeing if they are exceeding the limit of their power and scope of its reach. The Judiciary also plays a primary role in protecting the rights of the people against encroachments through laws set by the legislature and actions taken by the Executive. This article aims to look into the Judiciary, in the most basic sense, as a reminder to the other pillars of how far they may reach and how much they may do, as the ultimate protector of the Constitution.
Judicial Review
Judicial Review was first recognised in Marbury V. Madison[1] in the United States in 1803, however the historical origins of the same may be traced back to the 4th Century. In around 415 B.C The Athenian Legal system had mechanism called ‘Graphe Paranomon’. ‘Graphe Paranomon was a legal procedure to challenge the legislations proposed by the Athenian Assembly which were contrary to the existing (contemporary) Codes. Any male member could challenge the validity of the legislation proposed (It was immaterial whether the legislation has actually been passed or not) and, if such legislation is nullified by the jury then the Proposer thereof was punishable, typically with a fine’.[2] The name of the concept is self explanatory, wherein, it means the power of a higher court to re-visit the decisions made by a lower court, or in this case, the power of the highest court to review and assess the validity of a law passed and enacted by the legislature. The logic behind this is that since the Judiciary is the highest authority regarding constitutional interpretation, and it is the de facto protector of the Constitution, it is obliged to ensure that the vision enshrined in the same is enacted and not deviated from.
In English law, in 1610, Lord Edward Coke observed “it appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void.”[3]
Although the decision in Marbury was the first recognition of Judicial Review, the basic idea and its origins were traced back to English law, which further traced back to Athenian law. However, the Marbury case was where the idea manifested in its modern iteration – it was held : “….that the people have an original right to establish, for their future government, such principles, as in their opinion shall most conduce to their happiness is the basis on which the whole American fabric has been created… the principles, therefore so established, are deemed to be fundamental… This original and supreme will organize the government, and assigns to different department their respective powers… the powers of the legislature are denied and limited and that those limits may not be mistaken or forgotten, the Constitution is written… certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the national and, consequently… An act of the legislature, repugnant to the Constitution is void, so if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case. The court must determine which of these rules govern the case… If, then the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution and not such ordinary act, must govern the case to which they both apply”. The court continued that “the interpretation of the laws is the proper and peculiar province of the courts. A Constitution is in fact and must be regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body”[4]
In India, Judicial Review is closely related to the Fundamental Rights enshrined in the Constitution. As per Article 13[5], which states:
“Laws inconsistent with or in derogation of the fundamental rights
(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void
(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas
(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality” [6]
As far as the rest of the Constitution is concerned, Judicial Review is implicit through writ jurisdiction.
In post-independent India, while drafting the Constitution, the Chairman of the Constituent Assembly, Dr. B.R. Ambedkar described Judicial Review as the “Heart of the Constitution”. It was believed that Explicit recognition of Judicial Review was critical in ensuring the protection of rights bestowed by the text of the document. This is evident from the text of Article 13(2).
The framers of the constitution were aware of the inherent weaknesses of Judicial Review, therefore they tried to define its scope and adopted several devices to prevent courts from abusing their powers and acting as “super legislature” or permanent “third chambers”[7]. Thus, Judicial Review, while found in Article 13, is further built upon in Articles 32 and 226.
Separation of Powers
The Doctrine of Separation of Power is key in understanding how Judicial Review and Fundamental Rights ensure the Balance of Power between the branches of government. The principle was first enunciated by French jurist Montesquieu in 1748. In his book, he said:
“When the legislative and executive powers are united in the same person, or in the same body or magistrates, there can be no liberty. Again, there is no liberty if the judicial power is not separates from the legislative and executive powers. Where it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control; for the Judge would then be the legislator. Where it joined with the executive power, the Judge might behave with violence and oppression. There would be an end of everything were the same man or the same body to exercise these three powers…”[8]
However, since the doctrine is extremely rigid and thus unacceptable to many countries, it was held in 1955 by the Supreme Court in Ram Jawaya v. State of Punjab[9] The Court was of the opinion that the doctrine wasn’t fully accepted in India, however, its essence was clearly evident from the distribution of power between the three pillars by the Constitution.
In the Golaknath case, it was opined that:
“The constitution brings into existence different constitutional entitles, namely the union, the state and the union territories. It creates three major instruments of power, namely the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function with the spheres allotted to them.”[10]
Further, it was decided by the Court in the Keshavananda Bharati case [11]thatthe amending power of the Legislature was not unlimited and that the basic structure and essential parts of the Constitution were outside of the scope of this power.[12] The case was celebrated as the case that saved democracy in India. It was held that:
“Separation of powers between the legislature, the executive and the judiciary is a part of the basic structure of the Constitution; this structure cannot be destroyed by any form of amendment.”
Judicial Activism
Definition: A philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.[13]
In India, Judicial Activism means the power of the Supreme Court and Constitutional Courts to declare a law null and void if it is unconstitutional or if it infringes superior laws, mainly those found in the Constitution. However, the preferred approach is for courts to give new meaning by re-interpreting laws so as to suit the ever-changing socio-economic and political landscape as by exercising the power to strike down a legal provision the court does not have the power to replace that which it strikes down. The preferred mode is highly constructivist in nature and ‘Activist Courts’ are responsible for various progressive improvements in India.
Supreme Court of India began off as a technocratic court in the I950s yet gradually began obtaining more power through further elucidation of the Constitution over the years. Its change into an Activist court has been progressive and vague. Actually, the underlying foundations of legal activism are to be found in the court’s initial stand with respect to the idea of Judicial Review.
In Maneka Gandhi V. Union of India[14], The Supreme Court finally introduced Judicial Activism in India. In a stark shift from the Gopalan Case[15]. The court successfully extended its power to interpret the Constitution to a degree as to enable natural law to go inside its ambit. In the decision that theright to travel was a fundamental right and could not be denied without “due process of law”. In ruling that the right to travel could not be denied without legal basis and that any denial could not be arbitrary in nature, the Court had finally engaged in Judicial Activism.
In the practice of Judicial Activism, articles 14, 19 and 21 made up the ‘Golden triangle’ of fundamental rights. By noting the exclusivity and simultaneous inter-connectedness of these rights the Judiciary created the formula of checking Executive and Parliamentary over-reaches and judicial encroachments as well.
Conclusion
Fundamental Rights denote the line that the other branches of Government cannot cross in carrying out of their functions. It is the Judiciary’s power through implementing Judicial Activism and Judicial review, in invoking article 32, in applying the Doctrine of Separation of Powers and in protecting the Constitution it serves, to assert its role in ensuring that other branches of Government discharge their constitutional duties in accordance to the principles enshrined in the Constitution of India. The ultimate protection of Fundamental Rights through the above examples and explained approaches leads to the Balance of Power being maintained between the branches of Government. While it may seem that the Judiciary has the power to subdue the other branches altogether, similar checks and balances exist on the other side, for example, the Parliament has the power to remove judges who do not discharge or abuse their positions in the Judicial System. Further, it has been time and again by eminent jurists about how judicial overreach will inevitably lead to the obliteration of the credibility and legitimacy of judgements.
[1]Marbury v. Madison (5 U.S. 137 [1803])
[2] M.J. SUNDAHL, THE USE OF STATUTES IN THE SEVEN EXTANT GRAPHE PARANOMON AND GRAPHE NOMON ME EPITEDEION THEINAI SPEECHES, Unpublished Ph.D. Dissertation (Brown University 2000.
[3]Thomas Bonham v College of Physicians, (1610) 77 Eng. Rep. 646,652.
[4]Marbury v. Madison (5 U.S. 137 [1803])
[5]INDIAN CONST. ART. 13
[6] Article 13, Constitution of India
[7]Sarkar, R.C.S., op.cit., p. 353.
[8]L. Esprit Des Lois, 1748
[9]AIR 1955 SC 549.
[10]I. C. Golaknath&Ors vs State Of Punjab &Anr. [1967 AIR 1643, 1967 SCR (2) 762]
[11](1973) 4 SCC 225
[12]http://www.ijtr.nic.in/articles/art35.pdf
[13]Black’s Law Dictionary, As quoted in “Takings Clause Jurisprudence: Muddled, Perhaps; Judicial Activism, No” DF O’Scannlain, Geo. JL & Pub. Pol’y, 2002
[14]AIR 1978 SC 1643
[15]AIR 1950 SC 27
