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Shifting Tides: The Rise of Judicial Authority

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The Constitutional framework of India embraces the parliamentary form of government, a derivation from the British Constitutional ethos, and like other borrowed provisions, it is also not mere mimicry. The Indian Parliament is not a sovereign body like the British Parliament but rather operates within limited powers delineated by the Constitution. The Supreme Court can declare the parliamentary laws as unconstitutional through its sword of Judicial Review. 

In a harmonious symphony, the constitution presents a synthesis of Parliamentary Sovereignty and Judicial Supremacy, where Parliament can amend the major portions of the constitution, and the Supreme Court can check the constitutionality of the laws passed by the parliament, serving as a guardian. It’s been over seven decades since the inception of the Constitution, and in this period, this system of checks and balances has undergone significant changes. The tides seem to have shifted towards the judiciary, assuming a more pronounced role, with the once-dominant Parliament waning.

Separation Of Powers and the Constitution of India 

The notion of the separation of powers finds its origins in the ancient works of Aristotle during the 4th century BCE, wherein he delineated the tripartite structure of government encompassing the General Assembly, Public Officials, and Judiciary. This conceptual framework holds immense significance as it serves as a formidable barrier against autocracy, safeguarding individual liberty. The Indian Constitution provides for a principle of limited separation of powers and a system of checks and balances between the three organs. In the Indian context, it is perhaps more appropriate to characterise this as a separation of functions rather than a separation of powers.

The doctrine of separation of powers, a part of the Indian Constitution’s basic structure, is not explicitly mentioned but restricts the legislature from passing laws that violate this principle. Articles like Article 50 emphasise the obligation to separate the Judiciary from the Executive, albeit non-enforceably under Directive Principles. Article 123 grants the President legislative powers in specific conditions. Articles 121 and 211 restrict legislatures from discussing judges’ conduct, allowing it only in cases of impeachment. Article 361 provides immunity to the President and Governors from court proceedings.

The Indian Constitution strives for a balanced relationship between the Judiciary and the legislature, drawing inspiration from the British concept of Parliamentary Sovereignty and the American doctrine of Judicial Supremacy. The power of judicial review vested in the Supreme Court of India is more limited as compared to its American counterpart. Article 21 guarantees a 'procedure established by law' rather than the 'due process of law' enshrined in the United States. India thus amalgamates the principles of British parliamentary sovereignty and American judicial supremacy, allowing the Supreme Court to declare parliamentary enactments unconstitutional while granting Parliament, wielding constituent power, the authority to amend substantial portions of the Constitution.

Conflict Between the Judiciary and Legislature

In India, where there is a lack of strict separation of powers, the ongoing conflict between judges and legislators has been aggravated by their infringement on each other's rights. This conflict traces its roots to the struggle between the supremacy of judicial review and parliamentary sovereignty in interpreting the Constitution. These tensions escalated notably a number of times, for instance, in 2007 when the provisions of Schedule IX of the Indian Constitution, encompassing laws immune to challenges based on Fundamental Rights violations, came under the scrutiny of judicial review. The Judiciary was alleged by many to have encroached upon the legislative in the name of judicial activism. Another instance of alleged judicial encroachment occurred when the Supreme Court issued directives concerning the legislation aimed at reserving 27% of educational institution seats for Other Backward Classes (OBCs). The balance of power in India shifted from a widely accepted dominance of Parliament in the initial two decades after independence to an inclination towards the judiciary, following the Kesavananda Bharati case.

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The Initial Years

During the Initial years after the commencement of the Constitution of India, the court went ahead with a strict literal interpretation of the Constitution. It had great implications on the relationship between Judiciary and legislature, as we can notice the existence of Parliamentary primacy through the numerous judgements of the Judiciary.  In the case of Shankari Prasad v/s Union of India(1951), the court held that the Parliament has absolute power to amend the constitution, including the fundamental rights.

In the A.K. Gopalan v/s State of Madras(1950) case, the court said that it does not have powers to check the reasonability of the law, as the constitution provides for the system of 'Procedure established by Law' and not the American system of 'Due process of Law'. ‘Due process of Law’ is different from ‘Procedure established by Law’ as the former grants the Supreme Court broad authority to invalidate laws not just for substantive unlawfulness but also for procedural unreasonableness, protecting citizens' rights. In contrast, the Indian Supreme Court focuses solely on the substantive aspect when assessing a law's constitutionality, checking if it falls within the authority's powers, without delving into its reasonableness, suitability, or policy implications. The court in that case took a very narrow view and vested powers with the legislature to enact a law that may be arbitrary and unfair.

Landmark Judgement of the Kesavananda Bharati Case

The Judgement of the largest-ever bench of the Supreme Court to date in the Kesavananda Bharati Case(1973) had deep implications for the relationship between the two organs of the government. In this case, the Supreme Court held that the Parliament can amend any part of the Constitution, but the amending power of the Parliament is subject to the basic features of the Constitution. So, any amendment affecting the basic principles of the Constitution will be declared unconstitutional. The Court provided for a non-exhaustive list of principles to be a part of the Basic Structure and left the powers to further elaborate the Basic Structure Doctrine with the Court. The Kesavananda Bharati case had significant implications on the interplay between the Judiciary and legislature in India, altering the dynamics of their relationship. This landmark case significantly shaped the constitutional framework of India and defined the limits of parliamentary power. The case limited parliamentary powers to amend the constitution, thereby emphasizing a checks-and-balances approach between the two branches of government. This made the Judiciary a lot more powerful, as the judgement asserted the judiciary's role in interpreting and protecting the constitutional framework. It played a major role in increasing Judicial authority, clearly visible in further judgements.

Judicial Activism: Slow Transition to ‘Due Process of Law’?

The increasing role of the Judiciary is called Judicial Activism by some, which denotes the proactive role played by the Judiciary in the protection of the rights of citizens and in the promotion of justice in society. While others say that the Judiciary has encroached upon the legislative in the name of judicial activism. The increasing role of the Judiciary is clearly visible in a number of judgements it delivered. In the Maneka Gandhi v/s Union of India (1978) case, the Supreme Court overturned its decision in the A.K. Gopalan Case while interpreting the scope of Article 21 of the Constitution, had stated that the “due process of law” is an integral part of “procedure established by law”, explaining that such procedure must be fair, just and reasonable. In the Minerva Mills Case(1980), the Court declared that the Parliament cannot make any law that takes away the Judicial Review powers of the Court. In the IR Coelho Case(2007), the court stated that the laws placed under Schedule IX of the Constitution of India do not enjoy blanket immunity. Presently, the Judiciary wields more extensive powers compared to the time of the Constitution's inception.


In conclusion, the evolution of the relationship between the Judiciary and legislature in India reflects a dynamic interplay of constitutional principles. From the initial years marked by a strictly literal interpretation favouring parliamentary primacy, the tides have shifted with landmark judgments like Kesavananda Bharati Case (1973). The judiciary’s assertion of the Basic Structure Doctrine has elevated its role, acting as a check on parliamentary actions. Judicial activism, exemplified in cases like Maneka Gandhi v/s Union of India, has further shaped a nuanced understanding of constitutional principles, transitioning towards a more expansive interpretation akin to ‘due process of law.’ While conflicts persist, the delicate balance between parliamentary sovereignty and judicial supremacy continues to define India’s constitutional landscape, illustrating a fascinating evolution in the distribution of powers over the seven decades since the inception of the constitution.


By: Atul Kumar

Atul Kumar is a second year student majoring in Political Science at Hindu College, University of Delhi. He has a keen interest in Constitutional Studies, International Relations, Diplomacy, and Public Administration. He enjoys engaging in intellectual discussions and exploring different perspectives to broaden his horizons. 



 “Indian Polity”, by M. Laxmikant

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