The Legislature and the Judiciary: Conflicts
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The article “The Courts and the legislature in India” by Phiroze K. Irani talks about the conflict between the Judiciary and the Legislature, the two of the three pillars of India. The problem between the two bodies dates back to the commencement of the constitution, within one and a half year, the legislature amended the constitution so that certain important judicial decisions could not come into effect. Phiroze K. Irani proposes to deal with the clashes between the legislative and the judiciary from three aspects. First, the judicial approach to the legislation especially in the public welfare field. Focusing the public welfare, sometimes legislature has to pass certain bills and make certain laws which may be different from the strict guidelines of the legal values and the constitution, but morally correct for the welfare of the people at that period of time. In such cases, the judiciary deals with the legislature in a strict way and questions the socialistic manner of government.
The second aspect is the reaction of the legislature towards the judicial interpretations of the constitution. The clash here emerges when the judiciary experiences a need for a new law and the legislature is reluctant to it. The judiciary interprets the constitution in its way to have the need of a new law fulfilled. The legislature reacts to this in an opposite way many a times, which creates tension between the two bodies. The third way, the problems between the judiciary and the legislature should be dealt, is, the judicial attitude towards the legislative privilege. The legislature enjoys the privilege of law making and the judiciary has to follow and protect those laws, whether they are in the favour or not. Also the legislature thinks that they should be true arbitrator of the constitution because they have the power to amend the constitution. The parliament can amend the constitution by simple majority. In simple terms the constitution can be amended easily in India unlike US, where it is much difficult. That’s why the legislature feels greater urge to amend the constitution to nullify the effects of some judicial decisions. In fifteen years the constitution has been amended eighteen times.
The list of reasons why the clashes happen between the legislature and the judiciary are not just a handful, but many. In the period before the independence, judiciary has convicted many present times legislators, therefore there is some kind of bitterness in the legislators towards the judiciary. A big reason, why the legislature tries to prove its upper hand is that, the member of the constituent assembly framed the constitution, at the time of the enactment of the constitution the whole assembly dissolved and was as it was taken in the legislature, due to this, the present day legislators still think, that they know the constitution better than the judiciary as they were the one, who were the framers of the constitution.
At times they forget that they are only one of the three equal bodies, i.e. the judiciary, the executive, and the legislature. Rather than legislature develops superiority complex amongst the three. A feeling of bitterness comes into the mind of the judiciary, when the lawyers are not treated as the respected member of Indian community, they are looked upon as a manipulator. When it comes to the matter of social reforms, the problem between the judiciary and the legislature can clearly be seen. The point which the legislature rises is that they know the good of the people and their needs well, and they work for the public welfare, while the power of deciding what is good or bad is given to the judiciary.
The speech by the Prime Minister of India tells better the conflict between the judiciary and the legislature. In his speech PM clearly stated that the judiciary is not supposed to go against the will of the legislature. He openly deals with threatening judiciary, that if the judiciary will not be upto the aspirations of the legislature, then they won’t hesitate to amend the constitution, or will appoint the judges of their choice. The power of judicial review of the judiciary is completely ignored while making such comments over the judiciary. The land reform measures by the legislature also led to the conflicts between the judiciary and the legislature. The landlordism was removed and the actual tiller of those lands became the owner. The enactment ran into problem in high courts and they ordered that the enactment was against the fundamental rights. This led to an amendment again. In the root cause of these problems between the two bodies, there is the constitution itself. There are some loopholes, due to them the various powers of the judiciary and the legislature collide with each other. For instance, as per the article 194- Legislature is a sovereign body, and the immunity is given to every member of the Legislature against what is being said or published against them. Similarly, the judiciary is also kept away from the intervention of the legislature, over the function of the Supreme Court of India, except in case of the impeachment of any judge.
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[ 1 ]. This article is part of a lecture by Phiroze K. Irani, delivered at the British institute of International and comparative Law. [ 2 ]. Three pillars are: The Legislature, the judiciary and the Executive. [ 3 ]. First amendment in the constitution: 1952
[ 4 ]. Majority of more than 50% members in the house.
[ 5 ]. A two-part process of three steps: amendments are proposed then they must be ratified by the states. An Amendment can be proposed one of two ways. Both ways have two steps. It can be proposed by Congress, and ratified by the states. Or on demand of two-thirds of the state legislatures, Congress could call an Article V Convention to propose an amendment, or amendments, which would only be valid if ratified by a vote of three-fourths of the states. [ 6 ]. Amendments in the Indian Constitution ( Chronological order), refer http://en.wikipedia.org/wiki/List_of_amendments_of_the_Constitution_of_India [ 7 ]. Bombay V. RMD Chamarbaugwalla
[ 8 ]. Article 31 was amended
[ 9 ]. Article 121 and 211