Judiciary and Parliament

Beyond the question of rights, the judiciary has also actively worked to prevent the Constitution from being subverted through ordinary political practice, and in doing so has drawn areas once thought completely beyond judicial reach — such as the powers of the President and State Governors — into the scope of judicial review. It has directed the CBI to open investigations against politicians and bureaucrats in several well-known cases, including the hawala case, the Narasimha Rao case, and the case of illegal allotment of petrol pumps — all instances of judicial activism reaching into territory once left entirely to the executive.

The Indian Constitution rests on a principle of limited separation of powers with checks and balances: Parliament is supreme in making and amending laws, the executive is supreme in implementing them, and the judiciary is supreme in settling disputes and in deciding whether the laws that have been made conform to the Constitution. Despite this seemingly clear division, conflict between Parliament and the judiciary — and between the executive and the judiciary — has been a recurring theme in Indian politics.

The clearest and longest-running example concerns the right to property. Soon after the Constitution came into force, a controversy arose over Parliament's power to restrict this right, since Parliament wanted to place limits on property ownership in order to implement land reforms. The Supreme Court held that Parliament could not restrict a fundamental right through an ordinary law; Parliament then tried amending the Constitution instead, and the Court held that even a constitutional amendment could not abridge a fundamental right. Four questions sat at the heart of this long-running fight: What is the scope of the right to private property? What is the scope of Parliament's power to curtail, abridge, or abrogate fundamental rights? What is the scope of Parliament's power to amend the Constitution itself? And can Parliament make laws that abridge fundamental rights while giving effect to the Directive Principles of State Policy? Between 1967 and 1973 the controversy widened well beyond property, drawing in laws on preventive detention, reservation in jobs, and the compensation payable for compulsorily acquired private property.

The turning point came in 1973, in the Kesavananda Bharati case, arguably the single clearest example of the judiciary using its power to interpret the Constitution. The Supreme Court ruled that the Constitution has a "basic structure" that cannot be violated by anyone — not even Parliament acting through a constitutional amendment. In the same ruling, the Court held that the right to property was not, in fact, part of that basic structure, and so could be suitably abridged after all — while also reserving to itself the power to decide, case by case, what does and does not count as part of the basic structure. That reservation of interpretive power is itself significant: it means the final word on the boundaries of Parliament's amending power rests with the judiciary, not with Parliament. …