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8/7/2019 JUDICIAL SUPREMACY v

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Judicial Supremacy is when the courts have the power of changinglaws that infringe the Charter of Rights and Freedoms, or whencourts make all the laws, abiding by the Charter.


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Indian constitution has given express provision for the

independence of judiciary. which is already explained in

independence of judiciary (ART-124 125,126 etc) There is

some more provisions which empowers the judiciary.

Art 13 gives the power to the judiciary to struck down anylaw made by the parliament if that violates any of the

fundamental rights.

Art- 32 & 226-power to enforce the fundamental rights

Art -131 original jurisdiction of the SC in any dispute b/w

central and states or b/w states and states.

Art -136-special leave to appeal

Art-143-power of president to consult with SC


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Art-13(4)-nothing in this constitution shall apply to any amendment of thisconstitution made under art 368 . so art 368 is also a limitation on judiciary.

Art 245 parliament may make any law for the territory of india and judiciaryis bound to respect that law.

Art 122-courts not to inquire into proceedings of parliament.

Emergency Provisions (352-359)- is also a restrictions upon the power ofjudiciary. At the time of emergency the rights given under part iii can besuspended.(except the right under art 20 n 21)

Judicial review of the proclamation under 356 is open to judicial review only onsome certain grounds (Rameshwar prashad v. UOI AIR 2006 SC 980)


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JurisdictionJurisdiction


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Due process :

is the principle that the government must respect all of the legal

rights that are owed to a person according to the law. Due process

holds the government subservient to the law of the land,protecting individual persons from the state.

Due process has also been frequently interpreted aslimiting laws and legal proceedings . so judges - instead of

legislators - may define and guarantee fundamental fairness,

justice, and liberty. This interpretation has proven controversial,and is analogous to the concepts ofnatural justice, and procedural

justice used in various other jurisdictions. It is also stated that the

government shall not be unfair to the people.In the Magna Carta, due process is referred to as "law of the land" and

"legal judgment of peers."


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In US constitution art (vi)(clause 2) accepts the supremacy of the constitutionwhich is also called the supremacy clause says this constitution and the lawsof the US which shall be made in pursuance with there of.shall be thesupreme law of the land. Further it says that judges of the state shall be boundthere by.


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Dr.Ambedkar, best known as author of the constitution stated, while

delivering a speech in constitution assembly on 17th sep of 1949-in factthe purpose of the constitution is not merely to create the organs of thestate but to limit their authority bcoz if no limitations was imposed uponthe authority of the organs, there will be complete tyranny and completeoppression .

Constitution is the founding document and the preserver of the federalsystem of India. So no document institution or authority is superior to it


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ON April 24, 1973, a Special Bench comprising 13 Judges of

the Supreme Court of India ruled by a majority of 7-6, that

Article 368 of the Constitution "does not enable Parliament to

alter the basic structure or framework of the Constitution"

(Kesavananda Bharati vs. The State of Kerala; AIR 1973 S.C.1461, (1973) 4 SCC 225). It, however, overruled a decision of a

Special Bench of 11 Judges, by a majority of 6-5, on February

27, 1967, that "Parliament has no power to amend Part III of

the Constitution so as to take away or abridge thefundamental rights" (I.C. Golak Nath & Ors. vs. The State of

Punjab & Ors.: AIR 1967 S.C. 1643, (1967) 2 SCJ 486).B


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BASIC STRUCTURE: ASTEP TOWARDS THE SUPREMACY

OF JUDICIARY

In keshavananda Bharti case,a bench of 13 judges by amajority of

7-6 overruled Golaknath to declare that the constitution has some

Basic features that can not be altered or destroyed even though by

amending process.

Basic feature is a totally judges made law, there is no such text used

in our constitution and also not in any other constitution. It is difficult

to explain how and where the majority of judges discovered this unique

doctrine to curtail the parliamentary power of amendment which the court

Itself had repeatedly held before to be unfettred.

They told about the doctrine of basic structure but they did not

told that what is basic structure. They left it like a open field ,I which

they can interpret ate the constitution as they want, as they think fit.


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Thomas Jefferson, author of the Declaration of Independence andthird President of the United States, had this to say about the threebranches of government:My construction of the Constitution . . . is that each department istruly independent of the others, and has an equal right to decide for

itself what is the meaning of the Constitution in the cases submittedto its action.4

Then he compares the situation if judiciary is the is the lastinterpretator the constitution to the baseball game.Its one thing to give baseball umpires the final say in making toughcalls. Baseball is just a game. But its not a game of baseball


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In 1857, the Supreme Court ruled in the infamous DredScottdecision that blacks were not entitled to the samerights that are guaranteed to other Americans.

In the 1940s, the Supreme Court upheld President Franklin D.Roosevelts order to put Japanese-Americans in prisons. Eventhough none of them had been convicted of any crime, the SupremeCourt gave the "green light" and allowed more than 100,000innocent people to be thrown into prisons that really amounted to

concentration camps


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ythe should work

yThe Congress passed the law, presumably thinking it had theauthority to pass such legislation.yThe judges thought the law was constitutional, and thus theypassed sentence on those who broke the law.yBut if the President did not believe the law was constitutional,

then he should not prosecute people for breaking that particularlaw.

Thus, each branch should do what it thinks is right (within its ownscope of authority) and independently interpret the Constitution foritself


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