The Judiciary versus the Legislature - forever and ever

1. INTRODUCTION

The judiciary of any country is the legal system, whose function is to describe the law and ensure its application. On the other hand, the process of creating laws and regulations is done by the legislature. In any democracy a healthy relationship between the judiciary and the legislature is desirable. However, conflicts often arisees due to different interpretations of a law by the two organs of the state. Their interconnected nature of governance brings them into conflict. Since gaining its independence, India has witnessed numerous conflicts between the two organs, and critics argue that these conflicts will persist as long as the two state's organs will exist.

2. EARLIEST CONFLICT IN INDEPENDENT INDIA[1]

The constitutional crisis of Uttar Pradesh in 1964 is one of the earliest examples of a confrontation between the judiciary and the legislature. It started when Keshav Singh distributed a pamphlet accusing a Congress MLA of corruption, which the Assembly deemed to be a violation of privilege. Keshav Singh was summoned to the state assembly but he did not appear citing financial difficulties. An arrest warrant was released in the name of Keshav Singh. The arrest of Keshav Singh was opposed by the HC who ordered his release. The Assembly was disappointed with the High Court's decision to release Singh and decided to call the judges involved in the decision to the state legislature for questioning. But after this conflict came to a standstill the Union government stepped in. President at the time, Radhakrishnan sent the case to the Supreme Court, which upheld the judges' judgment to release by a majority vote.

The dissenting viewpoint emphasized how the crisis could have been avoided and how both branches must use restraint to avoid future confrontations of this kind.

3. CAUSES OF CONFLICT BETWEEN THE LEGISLATURE AND THE JUDICIARY

Vice President Jagdeep Dhankhar caused a stir when he brought up the issue of judiciary allegedly encroaching into the legislatures domain. Any intrusion by one, no matter how minor, into the territory of the other, he continued, "has the potential to upset the governance apple cart." To understand the statement, we need to know the reasons why one organ of the state is conflicting or encroaching upon another when the jurisdiction of each is clearly demarcated in our constitution.

A. Law-making power of the Legislature: In the Indian constitution, the power to make laws for the country vests with the parliament( legislature). The legislature can make laws according to the 8th Schedule. But sometimes, the hunger for more power in the parliament has made lawmakers bring laws and amendments to the Indian constitution which is not in consonance with the constitution of India, and which was subsequently struck down by the judiciary. The 42nd Amendment to the Constitution is one such example which gave unlimited power to the parliament to bring amendments to the Constitution and change any part of the constitution. But the apex court, in the famous Keshavananda Bharati case[2] significantly curtailed Parliament's power to amend the Constitution(which it acquired through 42nd Amendment) by asserting the doctrine of basic structure. The judiciary stated that there is a basic part of the constitution which cannot be curtailed by bringing amendments to the constitution.

B. Protection of Fundamental Rights: In independent India, parliament has brought laws that curtailed the Fundamental Rights of the citizen. On the other hand, the Judiciary has always stated the paramount nature of Fundamental Rights in our constitution. The judiciary has always taken a pro-rights stance which has erred the parliament for a long. In the case of Maneka Gandhi[3], a major conflict was resolved on the Fundamental Rights aspect. Maneka Gandhis passport was confiscated by the authorities, limiting her ability to travel overseas. She was not allowed to contest the restriction placed on her passport or to review the government's decision. Maneka Gandhi challenged this action of the government. The government took the stance that the Fundamental Right to Life can be curtailed by law. However, the Honourable Supreme Court expanded the scope of Article 21 and stated that the right to life and personal liberty is a broader concept of due process and cannot be restricted arbitrarily or without fair and just procedures. This judgement marked a shift in the understanding of Fundamental Rights, asserting the significance of Fundamental Rights and also stating that it cannot be taken away by the legislature in an arbitrary manner.

C. Judicial Review: Judicial review is the process of examining the constitutionality of any law passed by the Parliament. If the law passed is found to be violating or infringing the provisions of the Indian Constitution, then either the high courts or the Supreme Court of India can declare them as void thereby not allowing them to be enforceable.[4] Judicial review has become a bone of contention between the legislature and the judiciary over time. One of the recent conflicts is the issue of the National Judicial Appointments Commission (NJAC). Parliament passed the Constitution (99th Amendment) Act, 2014 along with the NJAC Act, 2014, which provided for the creation of an independent commission which would have appointed judges to the higher judiciary and would have replaced the present collegium system. The NJAC Act was challenged in the Apex Court which held the NJAC Act to be unconstitutional and an encroachment on the independence of judiciary. The judgement did not go well with the government while the judiciary saw the decision as safeguarding judicial independence and acting as the guardian of the constitution.

D. HISTORICAL REASONS

One of the important reasons for conflict emerges with the notion of parliament seeing itself as a direct representative of the people and representative of the people, historically having supreme power to make laws for its citizens. In ancient times, the ruler had absolute power and the judiciary was either subordinate to him or he himself had the judicial powers. It was only with the coming of Montesquieu and his idea of separation of powers between executive, legislative, and judicial that the power was distributed among different organs of the state. Strong leaders of modern time, tend to relate himself/herself to some past glorified figures to gain more legitimacy. It is obvious that these glorified figures are of the times of monarchy when the kings supremacy prevailed. So, their desire for equal power and prestige leads them to pass laws that supersede the judiciary's authority. Imposition of Emergency by Indira Gandhi in 1975 is one such example. The election of Indira Gandhi, also called the Iron Lady of India and people equated her to Rani of Jhansi, was held invalid by the Allahabad High Court. But the government's reaction(Indira Gandhi in power) to this decision was imposing the Emergency which nullified the judiciarys decision. Clearly, the conflict arose between the legislature and the judiciary due to a very strong leader having power at the centre, who subverted the judiciarys decision for more power.

4. SEEKING A DELICATE BALANCE

A balanced and harmonious relationship between the judiciary and the legislature is needed. A conflict is bound to happen in any functional democratic setup but both organs of the state need to have restrains while respecting each other jurisdiction. Both branches play crucial roles in upholding the rule of law and fulfilling the constitutional mandate. Legislatures must ensure that they formulate a well-defined law in harmony with the Constitution. The basic structure must be respected and any law that undermines the judiciarys role must be avoided. Important laws can be discussed with the judiciary before bringing the legislation. This will avoid any future conflicts. Similarly, the judiciary must interpret laws without overstepping its jurisdiction. Judicial review must not become judicial overreach. This creates an imbalance in the separation of powers and conflict arises. The judiciary also needs to open up and make its process more transparent to the enhance confidence of the people. Processes like the appointment of judges need to be more transparent. Working together to tackle new issues, like changing the law to reflect new societal needs, can ease tensions and improve the efficiency of government.

5. CONCLUSION

In India, there is a dynamic interplay of constitutional duties, checks, and balances between the legislature and the judiciary. To ensure that future conflicts between the legislature and the judiciary are avoided, the judiciary must refrain from using judicial review as a pretext for overreaching their authority and legislators must refrain from using legislation to circumvent the judiciary's authority. For the nation's democracy to remain intact, the division of powers must be respected, communication be improved between the two branches and constitutional values be upheld and respected.