Friday, 16 March 2012


Describe the role of Judiciary under the Indian Constitution. Is the Judiciary competent to examine the decision of the Parliament to expel its members from the House on charges of corruption?

While the power of the Parliament to legislate is supreme, at the same time the Judiciary has been made the watchdog of Indian democracy. As per the working of the Constitution for the past more than 60 years, a new role for the Judiciary has emerged. In view of various judgements of the apex court on amendments to the Constitution, the position today is that any amendment which aims at changing the basic structure of the Constitution would be unconstitutional. Hence, every proposed amendment is subject to judicial scrutiny if it is aimed at tinkering with the basic structure of the Constitution, which includes the federal system, parliamentary system, independence of judiciary, Fundamental Rights, etc. In addition, the Judiciary also has the right of judicial review. It implies that every piece of legislation passed by the Parliament is subject to judicial scrutiny by the Supreme Court. No specific provisions exist for this arrangement, but it is as per the law which has emerged through various judgements of the Supreme Court.

The Supreme Court, thus, has the power to strike down any piece of legislation aimed at amending the Indian Constitution on two grounds. Firstly, if the procedure prescribed under Article 368 is not followed and, secondly, if the amending Act seeks to violate one or more basic features of the Constitution.

In addition to the above, the apex court of the country has also assumed additional duties under a new concept called ‘Public Interest Litigation’ (PIL), under which any citizen can bring any matter of general importance to the general public for consideration of the Supreme Court. In case the apex court finds that the executive has been wanting in due discharge of its duties, it passes the required directions to the concerned authorities in government.

But there is still some conflict about the supremacy of the Parliament vis-à-vis authority of the Judiciary in general and the Supreme Court in particular. This conflict emerged in 2006 when the Parliament took a decision to unseat ten Members of Parliament who were exposed by the electronic media accepting bribe. The Parliament, under the directions of the Speaker, considered the report of a Parliamentary Committee appointed by the Speaker to inquire in to the episode and decided to unseat the members involved in this bribery incident.

It was a bold step by the Parliament to salvage its reputation and to show to the country that all the Members of Parliament were not corrupt and all the guilty were punished by an exemplary expulsion, though no specific provision exists in the parliamentary procedures to support this action. Some sort of constitutional crisis surfaced when the Judiciary decided to take cognizance of this action of the Speaker and issued notice to the Speaker to file his reply on the writ petition filed by the expelled MPs.

View of the Speaker was that it is an internal matter of the Parliament and there can be no interference of the Judiciary in its proceedings in any manner. The Parliament feels that cognizance by the Judiciary is not warranted in this case as the Speaker has final power to interpret the rules and procedures of the Parliament, and under Article 122, Speaker’s conduct in regulating the procedure or maintaining order in the House is not subject to jurisdiction of any court. The Parliament also feels that this act of the Judiciary is an interference with the supremacy of Parliament.

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