Judges’ Power to Override Legislation (in India) – Essay

Thus, though under our Constitution, ob­served Shri M.C. Sctalwad, Attorney-General, Government of India, the legislative power is supreme; its supremacy is subject to the super­visory functions of the judiciary in certain respects.

The Constitution of India makes provisions in regard to funda­mental rights. In the Constitution of Britain, Canada and New Zealand, there is no provision for fundamental rights. The British have a distrust of abstract principles. Their approach to the question of fundamental rights has been different from that of people of the United States and many States of Western Europe.

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They have attached more importance to remedies for individual liberty than to any flamboyant declarations of the right of man. But in a written constitution the definition of individual rights as an assurance to people against the possibility of high-handedness on the part of the executive.

Our Constitution has not only laid emphasis upon rights but has also provided remedies by granting to Courts the power of issuing writs of Habeas Corpus, Mandamus, Quo Warranto, Prohibition and Certiorari.

Thus, a new role has been assigned to the Courts in India by the Constitution. It is the duty of the Courts to decide, whoever called upon to do so, if the restrictions placed by a certain piece of legislation on the exercise of the fundamental rights were reasonable or not.

Even the legislature, otherwise all powerful, observed the Attorney-General, could not affect or destroy those rights. He however, added that it could not be disputed that courts making observations on the wisdom or desirability of any legislation would be overstepping the limits of their true function. It was for the people through their representatives in the legislature to decide what the policy of the law shall be.

Such is the sanctity attached to the judiciary by the constitution and it is on the fulfillment of the duty cast on it that the welfare of the training millions of India ultimately depends, for a country may pos­sess the most perfect constitution in the world yet and it may fail to work it satisfactorily if it has not the right human material. It is the of the people which determines the manner in which a con­stitution is worked.

The recent trend of views is to subordinate fundamental rights of individuals to the directive principles of the State policy as also to curtail the authority of the Courts for judicial review by conferring powers on tribunals to deal with disputes and claims emanating from the social and economic functions of Government.

In a written constitution the precise sphere of activity and power of the executive, the legislature and the judiciary are defined and fixed and it is made the duly of the judiciary to see that each keeps within its sphere, and if any of them gets out its legitimate sphere to put back into its proper place.