Itís all about public
good and not individual or institutional power
Our Constitution is a
very well-built document. It assigns different roles to all three wings of
governance-the legislature, the judiciary and the executive. There is no
ambiguity about each wingís powers, privileges and duties. Parliament
should enact laws, judiciary has to interpret them and the executive has to
enforce them. There is supposed to be no overlapping or
A conflict can,
nevertheless, arise as in practical application of statutes there can sometimes
be overstepping. Who then is to decide? Who has been entrusted with the
responsibility of conflict resolution in such cases? Ultimately it has been left
to the judiciary to decide whether indeed there has been a trespass on each
otherís territories. And while taking the decision, the judiciary has to keep
true to the tenets of the Constitution.
But what if the verdict
oversteps? The decision of the judiciary, while being in consonance with the
existing laws, may appear to be against what Parliament thinks. It is then,
it has been envisaged that Parliament should enact. It can remove the basis of
the judgement itself.
Under Article 121, the
conduct of a judge cannot be debated in Parliament. There is a procedure
for impeachment. Similarly under Article 122, the proceedings of Parliament can
not be questioned by the judiciary - even if a point of order has been given in
Parliament which appears contrary to the statutes.
Suppose a House
committee moves a bill, it canít be challenged in the courts on the grounds that
proper procedure has not been followed. Similarly, a bill once passed
canít be bad in law simply because some procedures were not followed. The
resolution over the President or the governorís address canít come in for
The only proviso to all
this is what I call the ďsubstantive provisionsĒ of the Constitution. The
rights of the legislature are limited only by the book itself. And the book
ordained the judiciary to strike down laws passed outside the substantive
provisions. Such a breach by Parliament can occur if it happens to
legislate on a subject in the state list. The judiciary can then intervene,
otherwise there is no intervention in the law-making process itself. The
courts cannot call for material related to any bill under consideration, nor
question the procedure being adopted. The contents of a bill are also
privileged knowledge of those entrusted with moving it.
I have heard arguments
based on extracts from the Constitution claiming the superiority of one wing
over the other over some pretext. This is absurd and misses the point
completely. It should be clear to anyone interested in the high ideals of
democracy that the Constitution enjoins upon each wing to perform its duties to
the best of its ability with a sense of purpose and honesty. The
Constitution should be honoured in its letter and spirit at all times. In
the end it is about public good and not individual or institutional power.
The author is Former Chief Justice of India.