Battle between judiciary and legislature in India: Lessons for Nepal

Anjum Parvez and Jivesh Jha


When can we say that proper democracy is maintained? The simple answer is that when the smooth and independent functioning of three pillars of democracy—legislature, executive and judiciary—is ensured.

However, when the confrontation of these branches arises then the democratic credentials are bound to fall short in a country. Ask someone “Is it just for the parliament to enact a law retrospectively to nullify the judgment of the higher judicature?” A prudent person may respond, “The judiciary and legislature should perform their own separate functions within their limits, otherwise there will be chaos in the country.”

Importantly, the legislature cannot overrule the judgments of the Court by amending a law retrospectively as it would shake the foundation of the principle of separation of power among the three wings of the state which is unwarranted in a fair democracy. It will not be a healthy practice for a Republic if the legislature interferes in the arena of judiciary or vice-versa.

Also, the judicial department cannot ask the parliament to enact a law on a particular point but it can examine the same under the celebrated concept of judicial review. It means although the parliament is a supreme body, the Constitution is even higher than this constitutional institution.

However, in India—if past practices are something to stand by—the scores of enactments in a bid to nullify the judicial decisions show a horrifying picture: The judicial credibility is at stake. After all, the frequent confrontation between the legislature and judiciary will ultimately erode the judicial credibility and damage our well-established democratic system of governance.

In this context, the Narendra Modi-led government on April 2 asked the top Court to review its order made on March 20 that bans the automatic arrest and registration of criminal cases under Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989. The highest Court had banned the automatic arrests and registration of criminal cases under the SC/ST Act which triggered a widespread criticism and chorus of disapproval from Dalit community.

The protests that swept north India cost the world’s largest democracy dearly as it claimed as many as 12 lives (on April 2), and huge loss of public property.

The Act bars a Court from granting anticipatory bail to a person accused of offence. This impugned law allows the police to immediately register an FIR and arrest a person who is accused of making racial discrimination against a SC/ST community member. Interestingly, the available data shows that the SC/ST community people were found misusing this law by lodging fake criminal complaints against innocent people who usually belonged to General category. A report of The Hindu reveals, “In 2016, for example, the National Crime Records Bureau recorded that the national rate of conviction for cases filed under the SC/ST Act stood at 15.4 percent.” Now, it’s understandable that this Act was massively misused by a section of society.

The apex Court was of the view that the public servants be not prosecuted without the approval of the appointing authority and private citizens too should be arrested only after an inquiry under law. It further ruled that the preliminary inquiry in a case under the Act would be conducted by the Deputy Superintendent of Police (DSP) to make sure that the allegations are not frivolous.

The Supreme Court’s initiative of dynamic interpretation of the law was a bid to protect the honest public servants, discharging duties in good faith, from being blackmailed with false cases under this Act.

The Central government as well as Dalit people argued that the ruling of the Court has potential to dilute a law meant to protect the community. Hence, with this “rationale” the Central government asked the top Court to review its March 20 decision.

Nevertheless, history is full of examples where the legislature or government of the day was seen taking steps to nullify the decisions of the higher Court in the similar fashion.

The Supreme Court in 2012 in Vodafone case had held that the government of India had no jurisdiction to tax the share sale by the Hutchison Essar to Vodafone and quashed the demand of Rs 11,000 Cr tax.

In a fresh bid to nullify this judgment, the parliament came up with an amendment aimed at overcoming the “defects” pointed out in judgment. The government had contended that with an amendment in Income Tax Act, 1961 it could recover Rs 11,000 Cr again from Vodafone and also from others if they were found evading tax.

In yet another instance, the top Court in the case of Union of India v People’s Union for Civil Liberties (2003) held that it’s the right of a voter to know about the antecedents of his candidate as a part of fundamental rights envisaged under freedom of speech and expression clause. Democracy cannot survive without free and fairly informed voters. The Court ruled that the candidates contesting for the polls would have to disclose their antecedents, assets, and educational qualifications to help the electorates make right choice.

The Court wrote, “Votes cast by uninformed voters in favour of a candidate would be meaningless.” Unsurprisingly, the Supreme Court in 2018 as well in the case of Lok Prahari v Union of India extended the disclosure obligation to further include the source of income of candidates and their associates and government contracts where candidates or their associates have direct or indirect interest.

In the similar fashion, the top Court in the case of Lily Thomas v Union of India (2013) held that any MP, MLA or Member of Legislative Council who is convicted of a crime and awarded a minimum two years of imprisonment loses membership of House with immediate effect. This decision gave a blow to earlier position wherein the convicted politicians used to stick to the chair until they exhausted all judicial remedy in lower Court, High Court and finally Supreme Court. The Court struck down Section 8(4) of Representation of People’s Act which allowed elected representatives three months to appeal against their conviction.

In an attempt to overturn this decision, parliament introduced an amendment in the Act which provisioned that a member would not be disqualified immediately after conviction. The amendment was also held unconstitutional by the Court.

Meanwhile, the parliament gave birth to Article 15(5) through 2005 amendment to push the decision of PA Inamdar v State of Maharastra (2005) at backburner. Since fundamental rights are enforced against state, the private educational institutions cannot be made bound to ensure reservation—the apex Court ruled. To overturn this decision, Article 15(5) provisions for reservation in private institutions as well.

The ill-intent of parliament came at floor at the time when it rushed to enforce the National Judicial Appointment Commission Act (NJAC), 2014 in an endeavour to ensure a say of the government of the day in entire appointment and transfer of the judges of higher judiciary. This attempt was in contrast to longstanding Collegiums system. In India, the names of judges are recommended by Collegiums of judges and appointed by the President. This arrangement has been introduced by the Supreme Court itself and its in place since 1993. After sensing the NJAC Act as a planned ploy to politically influence the judicial system, the Supreme Court in 2015 held the entire Act unconstitutional.

In yet another political slugfest, the parliament introduced Article 21A in the Constitution to overshadow the judgement of Mohini Jain v State of Karnataka (1992) wherein it was held that the right to education flows directly from the right to life and right to education being concomitant to right to life and liberty clause envisaged under Article 21. On the contrary, Article 21A casts an obligation on the state to ensure free and compulsory education to children of age of six to 14 years. However, this amendment was in consonance with the observation of Unni Krishnan v State of Andhra Pradesh.

Violation of established principle  

The parliament’s approach to bring a fresh law to nullify the decisions of the Court violates the doctrine of separation of power. This principle envisaged under the Constitution mandates that a judgment cannot be made inoperative by a legislature.

Still, the parliament can change the basis or alter the foundations on which the judgement is based. Once this change takes place, the judgement itself becomes inoperative.

Here, a pertinent question arises: Has the writ jurisdiction of the High Court or Supreme Court been watered down? Unfortunately, it appears that the writ jurisdiction is whittled down with frequent amendments made to nullify the decisions of the top Court. Dr BR Ambedkar, the chief architect of Indian Constitution, authoritatively and explicitly, said that the provision of writs is the very soul of the Constitution without which other provisions would become meaningless. However, the government and parliament are reluctant to buy the words of Ambedkar.


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Jurisprudential criticism       

The theory of social contact, nearly as old as philosophy itself, obliges the “legislature” to appear as protector of the rights of the subjects. After all, the legislature is composed of elected members who had reached a contract with electorates to spearhead their rights and concerns at political spectrum.

But when the judiciary comes in motion to “guarantee” the rights of the citizens by exercising its inherent power of judicial review, the parliament, which is literally supposed to enact the laws that could best serve the interest of the people, rushes to nullify the decisions of the Court by placing a new adverse law before the people which is absolutely not understandable in a democratic set up.

Yet, why should the judicial department be answerable for all questions?

Parliament has got the mandate from the people and the elected representatives are under obligation to tailor the laws in a fashion that could fulfil people’s aspirations. The legislative body should be responsible in itself for the solution of emerging problems in the country.

Moreover, the legislative approach to overturn the judgement also hits the realist school of jurisprudence which gives emphasis to judge-made law. The theory argues that letters of law is made by parliament but spirit is filled in it by judiciary. Acknowledging this theory, almost every Constitution of the world has made provisions for judicial precedent clause in an effort to ensure the full faith and credit to judgments of the Court.

Lessons for Nepal

It’s a well-settled principle that the parliament is a supreme institution in any parliamentary democracy but the Constitution enjoys pre-eminence over it.

The federal republic of Nepal should bestow the time-honoured doctrine of judicial review in a full-fledged manner. The state, unlike India, should take the decisions of Court as binding and final.

Also, every organ of the democracy—legislature, executive and judiciary—should acknowledge the American model of democracy and hence must work in coordination with one another. Political interest under the guise of legislation should not counter the actions of judicial department.

It’s advisable for the Himalayan state to maintain Constitutionalism in the Republic. The emerging Federal Democratic Republic of Nepal should learn lessons from the bitter experiences of 70 years old federal democracy of India in maintaining the credibility of judiciary.

Mr Parvez is a faculty member at Constitutional Law in Uttaranchal University, Dehradun, India and Mr Jha is a student of LLM (Constitutional Laws) at Uttaranchal University, Dehradun, India. 

Published on 5 April 2018