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  • Category: Miscellaneous

    Functions of Supreme Court

    While studying Public Administration, I studied that Indian democracy stands on three pillars. These are: Legislature, Executive and Judiciary. While Legislature and Executive and dependent on each other, Judiciary is independent and has a supervisory role on the other two.

    Supreme Court is the Apex Court of the country. It has originally three jurisdictions, viz., Constitutional Jurisdiction, Appellate Jurisdiction and Writ Jurisdiction. It generally doesn't interfere in the day-to-day administration/functioning of the Legislature and Executive. It only checks whether the law and implementation are violating the Constitutional provision(s), or not.

    However, of late, we can see that the Supreme Court has to take administrative role in various issues Many citizens file Public Interest Litigation (PIL) and the Supreme Court has to give directions which generally come under the ambit of Legislature and Executive. Same is applicable for High Courts also.

    Is this 'judicial activism' due to the failure (to perform) on the parts of Legislature and Executive? If this is so, doesn't it indicate failure of Parliamentary democracy?

    Members may kindly express their valuable opinion in this regard.
  • #611788
    As far as the supreme court is concerned it will be watching the functioning of Legislature and Executive functions and if it feels a warning is required it may warn the two systems. But of late what is happening is many citizens are filing Public Interest Litigation cases. In this cases the supreme court the SC is advising the other two. This is mainly happening due to the fact that people always feel that some injustice is being to them by the other two systems and they are approaching courts, This is good for the democratic system where citizens will have a system wherein they can go and ask for justice to them, At the same time we can also say that the other two systems are not performing their responsibility properly.
    always confident

  • #611790
    The Judiciary has to step in from time to time due to the failure of the Legislature and Executive wings and not the failure of the parliamentary system. The Legislature and Executive are under the control of the government. In a way, the failure of the Legislature and Executive is the failure of the Government.
    " Be Good and Do Good "

  • #611794
    I am also of the same opinion. The 'judicial activism' of the Higher Courts signifies the failure of the Legislature and of the Executive, which in turn points out the failure of the present Parliamentarian system of democracy. We have to seriously think to shift to Presidential form of democracy.
    Beware! I question everything and everybody.

  • #611795
    "The Legislature and Executive are under the control of the government."-This statement is incorrect. Legislature and Executive together form the Government.
    Beware! I question everything and everybody.

  • #611797
    Our opinions are different. I say it is the failure of the Government, whereas you are of the opinion that it is the failure of the present Parliamentary system. We have completed 70 years on this system. If at all there are any deficiencies they are to be addressed and rectified. Changing of the system is not a solution. In a country as diverse as India, the Presidential form of democracy will create problems with the federal structure of the States. Ther is no guarantee that the problems like appeasement raised by you will cease to exist. This matter was discussed in depth by the Committee for the drafting of the Constitution. They have studied different forms of Governments and their Constitutions. After weighing the pros and cons, the present system is adopted.
    " Be Good and Do Good "

  • #611802
    Drafting Committee of the Constitution studied Constitutions of many countries and copied parts from various Constitutions. Even the Preamble was copied from Swedish Constitution. However, there are provisions of amending the Constitution because the Drafting Committee understood that with the passage of time, there would be need to change/amend what the Committee had been drafting/copying.

    So, I think that the present system of Government may be changed, because its ineffectiveness is being proved by the judicial activism for the last 25 years.

    Beware! I question everything and everybody.

  • #611804
    The Supreme Court is the highest legal authority of the country. My legal knowledge is limited. I don't think the supreme court should not be burdened with PIL of frivolous nature. The loopholes to access SC via a PIL should be tightened. Yes, certainly if their is a PIL in the interest of National security, to expose a major scam, then by all means it should be permitted but the rest should be delegated to the lower courts.

    If the SC overlooks the Legislature and Executive arms ( the Government), then the three pillars should come together and see the issues that haunt or prevent the effective functioning of each other. because to me there is nobody higher than the top three.

  • #611811
    Rightly observed by the author. In the garb of having got majority votes, the government in power would stoop to the level of unlawful schemes and policies to which the people may vent anger and even approach the courts. Courts have been to the rescue of common man or those who seek justice on matters concerning many. Hence apart from reviewing its regular cases, the court also has to interfere and advise the government to tow its ideals and orders and thus courts have become watchdog for the people. Good that courts are taking PIL with great interest , otherwise we may have wrong rulers prolonging for no cause.
    K Mohan
    'Idhuvum Kadandhu Pogum "
    Even this challenging situation would ease

  • #611825
    Article 1 of the constitution states that India shall be the Union of States. Dr Ambedkar on the question of why the Parliamentary system was adopted, said that, after close observation of American and Swiss systems, they give more stability and less responsibility. The British system gives more responsibility but less stability. After due consultations, the present system is adopted giving weight to responsibility. On the question of amendments to the Constitution, he said, as the time goes on any system requires amendments from time to time. The process of amending the Constitution of India was made simple after observing that the amendment system of America requires referendums which is cumbersome.

    The Constitution of India was not copied. It was drafted after studying various countries Constitutions. The propaganda for the Presidential form of democracy is of recent origin. It is gaining momentum from a particular section of people. They have observed the efficiency of the present system and the difficulty of getting into power. In a Presidential system of democracy, the President does not need a majority in the Central and State legislatures. Anybody watching the political scene can very well understand politics behind this propaganda. One should have the courage to accept the motives behind this propaganda instead blaming the system.

    " Be Good and Do Good "

  • #611837
    #611825: An erudite response! However, I beg to differ on some points. These issues I am mentioning below:-

    (a) "Article 1 of the constitution states that India shall be the Union of States": This is factually correct. And Union of States must have Presidential form of Democracy. Example: The USA.
    (b) The Constitution of India was not copied. It was drafted after studying various countries Constitutions. "-I beg to differ. Does anyone admit after passing the examination that he had extensively copied? No. In actuality, the Constitution of India had extensively copied from various Constitutions, sometime even mindlessly. What an ordinary ''mango-man'' like me calls ''copying'', educated and sophisticated people say "heavily influenced''.
    (c) "The process of amending the Constitution of India was made simple"-Sometime it is very cumbersome and difficult and may take 20-25 years. GST and Lokpal are two examples.
    (d) "The propaganda for the Presidential form of democracy is of recent origin."-In actuality, this demand (not propaganda) was first heard in 1967, when many Congress stalwarts lost Lok Sabha elections. Again this demand was heard in 1980 when Indira Gandhi returned to power after failure of Janata experiment. In both cases, Indira Gandhi was the proponent of this demand.

    I feel that judicial activism by higher Courts for the last twenty years or so forces us to think about changing the present Parliamentary system of governance.

    Beware! I question everything and everybody.

  • #611852
    1. It is not Federation of States. It is the Union of States.Everything was specified in the Constitution. There is no scope for misunderstanding.
    2. With due apologies, I have to point out that you are insulting the Committee which drafted the Constitution of India, by implying that it was copied word to word from the Constitution of other countries. Prove me, I will stand corrected.
    3. Who stopped the GST from being implemented? It was the BJP. Why is BJP not implementing the Lokpal bill?
    The delay in implementing the bills is purely political but not any other reason. The Congress and BJP are both responsible for this.
    4. Here, I may have to agree with you to some extent.

    But for the Judiciary, the politicians may have created havoc for the public. People are happy that there is one place where they can go for justice. If you just ask the people they will all say that they are happy with the Judiciary. Why are people trying to kill the Judiciary? It is there to look after the Legislature and Executive to see that they are accountable to the public and are performing according to the Constitution.

    " Be Good and Do Good "

  • #611853
    1. In my previous response, I talked that the process of amendment of many parts of the Constitution is very complex and cumbersome. In that context I mentioned about GST and Lokpal. Both the bills took more than ten years. The Lokpal Bill was first initiated in 1969! I haven't mentioned any party. Here I am discussing Constitution and its amendment, not party politics. All parties are equally responsible for delay in GST, the most being Trinamool Congress, CPI(M) and Samajwadi Party.
    2. So far as drafting the Constitution of India and 'getting influenced' by various Constitutions are concerned, I would request you to go through the writings of Dr. Durgadas Basu and Dr. Subhash Kashyap, two greatest Constitutional experts of our country. The following link (although giving link is not allowed) would indicate the extent of copying/borrowing:
    3. Most probably, you are mixing up Union and Federation.

    Beware! I question everything and everybody.

  • #611877
    Dr Ambedkar while introducing the Constitution of India explained various aspects of it. Instead of how others interpreted it, it is better to study what he explained about it and then come to a conclusion. Regarding amendments to the Constitution also, It is better to refer what Dr Ambedkar, the Chairman of the Constitution Drafting Committee, said. That is first-hand information but not an interpretation.
    " Be Good and Do Good "

  • #611914
    I am adding this thread here as the topic can be widely discussed as such.
    'It is the mark of an educated mind to be able to entertain a thought without accepting it'. - Aristotle.

  • #611919

    Judicial activism and Parliamentary democracy are two different things. Even in any other system or Presidential system Judicary can be activist. For eg. Even supreme court of United states has been activistic on many occassions.
    Usually in any democracy initiallly Judiciary will play a conformist role to Nation building. Then gradually will become activist and then again a mature relationship will develop. This has happened in UK, USA, the two comparable democracies.
    US suprme court from days of John Adams to now has changes a lot with sometimes even dictating policy of Government. Similarly UK court has evolved in many ways.

    Indian Supreme court has also in same way has been evolving. It will evolve further.
    To start all these Supreme court playing activist role started in the very begining itself.
    Judiciary started involving in land disputes and stood in way of Government bringing tenancy laws, land ceiling acts, Land pooling acts. Judiciary often took stand Right to Property invioble (RTP). This favored Zamindars. Nehru congress made the first amendment to Constitution for the purpose and made Land acts immune. A new schedule namely 9th schedule was introduced by making it clear that Acts under schedule 9 which deal with policy domain of the Government are immune from Judicial dictat. It muted SC voice for some time. Activist SC was muted.
    The next a series of Judgements like Golaknath(1967), Beru Bari union (1960) case SC found a way to overcome 9th Schedule. This is questioning the legality of Amendments. Due process of law was invented by SC.
    Next during Indira Gandhi tenure Bank Nationalisation case, privy purse case brought out a balance between FR and DPSP. SC became activistic but a balance was established between policy and FR.
    In 1973 SC made a land mark Judgement. In Kesavanandha case 1973 SC inovated a new feature to constituion. It is "Basic Structure doctrine". Just 9Judges in a single stroke of pen changed the entire Constitution with 2 words. This meant SC can intervene whenever it wanted if any act of Government violated Basic struture. What is basic structure was consciously left ambigous. So any act virtually came under SC dictat. In a sense 1951 Amendment was overturned in a Single Judgement.
    But during emergency SC played a conformist role under Ray a Judge appointed by Indira Gandhi Superseding Judges who opposed emergency.
    In 1980s Justice Bagwathi introduced PIL, SAL. Though he brought it due to his conflict with Judges of those time, it opned a new arena. While introducing PIL even a letter can be petition, Judge can take case on his own if FR violated.
    A series of Judgments in Minerva Mills case, Maneka Gandhi case made SC activist.
    With 2nd and 3rd Judges cases SC appointed itself Chief Justices. So totally immune from execuive SC became activist. It is continuing until now in cases like Aadhar bill, Rohingya issue, etc which are policy domain.
    But the above can happend even if India had Presidential or any other system until Supremacy is given to Constituion. As SC becomes a Recors court because of this.
    It has happened even in US with SC involving in Foreign policy of US. Indian SC is better for it has not entered so much.

  • #611932
    Excellent responses so far. However, I feel that the increasing number of PILs does indicate that there are some problems with Legislature and Executive. The recent PIL filed against deportation of Rohingiyas from India (in Supreme Court) and PIL in Calcutta High Court seeking right to immersion of idol on the next day after Vijaya Dashami prove that the higher Courts are being forced to look into the matter which are administrative in nature (rightly or wrongly).

    So, we have to think changing the present system of governance (i.e., Parliamentary system of democracy).

    Mr. Gokul Aravindh has mentioned the pro-active role of the Supreme Court of the USA in this context. But I feel that the Supreme Court of the USA has confined itself in interpreting the Constituion of the country (which is incidentally the shortest Constituion of the world). the Supreme Court of the USA has not got itself entangled with purely administrative matters-it hasn't felt the need of doing so.

    Beware! I question everything and everybody.

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