What is the Relationship between the Legislature and the Judiciary?

In a parliamentary system, legislature assumes a pivotal role, as the executive is also a part of the legislature. It comes out of the legislature, remains responsible to it and exercises powers of gover­nance only on its behalf.

Under the provisions of the Constitution, the parliament is not sovereign and the judiciary (Supreme Court) is not supreme except in its own domain. The parliament and the judi­ciary come into contact with each other in many ways. Their interface and interrelationship, therefore, assumes greater significance.

In a democratic set up, parliament, no doubt, is the repository of the will of the people and it is the supreme representative institution in the country possessing great powers. Pandit Nehru believed in the primacy of parliament in the Indian polity, and once said that "no Supreme Court and no judiciary can sit on judgment over the will of the Parliament representing the entire will of the community" (Constituent Assembly Debates, 1949).

In these words, we see a clear hint about the possible relation­ship between the parliament and the judiciary. Pandit Nehru further added "but we must respect the judiciary, the Supreme Court and other High Courts in the land".

The founding fathers of the Constitution tried to strike a balance between parliamentary supremacy (as prevalent in Britain) and judicial supremacy (as prevalent in United States of America), and arrived at middle course. We are governed by the rule of law and judicial review of administrative action is an essential part of rule of law.

The parliament is expected to keep in view the judicial pronouncements and rulings. This assumes importance due to three reasons. Firstly, the power of the judiciary to interpret the parliamentary legis­lature, to give meaning to the words used in a statute and to fill in the gaps, secondly, the judicial power to declare a statute unconstitutional and thirdly, tine power of the courts to invalidate constitutional amendments.

The system of governance in India has witnessed phases of close contact between the legislature and the judiciary, the legislature swearing by the principle of parliamentary sovereignty and the judiciary seeking to assert its independence and power of judicial review.

In the initial years, (1950-1964) when there was dominance of the Congress Party, both at the centre and in the states; the judiciary had pursued 'harmonious construction' and adopted the attitude of judicial restraint. It gave a strict and literal interpretation of the Constitution.

Hence confrontation between the legislature and the judiciary was avoided. In A.K. Gopalan case, the judiciary accepted the principle of judicial subordination to legislative wisdom. In this case, Justice Dash observed that "the parliament and state legislatures are supreme in their respective fields.

The judiciary will not question the wisdom or policy or legislative authority in enacting the particular law, however harsh, unreasonable, or archaic the provisions of that law may be."

The judiciary also accepted the power of legislature with regard to amending the Constitution as supreme.

During the second phase (1967-1977), a series of changes in the political system brought about recurrent conflicts between the two. In the Golak Nath case, we witnessed open conflict between the judiciary and the legislature. The legislature asserted its supremacy and the judiciary asserted its power of judicial review.

It resulted in a series of constitutional amendments in which the legislature tried to limit the power of judicial review. In the Golak Nath case, the court declared that the parliament has no right to take away or abridge the fundamental rights. It cannot even do so by amendment of the Consti­tution.

The court further held the nationalization of banks and the President's order derecognizing the princes and abolishing their privy purses as unconstitutional. These judgments' were criticized by the legislature and the ruling elite as detrimental to the socio-economic progress of the country. The con­frontation between the two was further witnessed in the Keshavananda Bhakti case, Maneka Gandhi case, Minerva Mills's case etc.

During the Emergency, the authority of the judiciary was undermined and was made subservient to the legislature and the executive. The judges whose judgments were not liked by the executive were transferred or denied promotion or even reverted. The 42nd Constitutional Amendment Act was also passed putting new limitations on the judiciary. However, after the Emergency, the 44th Constitutional Amendment Act was passed which restored the position of judiciary.

Thus, the 1980s saw the emergence of judiciary as a powerful factor in the governance of Indian polity. The judiciary was no longer exercising, judicial restraint.

During the present times (i.e. the era of coalition government), the judiciary is seen becoming more and more active and assertive. It has become so active and expanded its area of jurisdiction so much that the decade of 1990s, can easily be described as the decade of judicial activism. In a coalition government, the legislature as well as the executive is so weak that the judiciary automatically becomes powerful and supreme.