DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY VISAKHAPATNAM, A.P., INDIA

PROJECT TITLEPOLITICIANS AND LAW

SUBJECT LAW AND LITERATURE

NAME OF THE FACULTY

ARVIND NATH TIRPATHI

M.KRISHNA KOUSIKI

2ND SEMESTER, 2014065

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TABLE OF CONTENTS

1. INTRODUCTION

2. RELATIONSHIP BETWEEN POLITICIANS AND LAW

3. RAGHURAJ PRATAP SINGH

4. POLITICIANS INTERFERE WITH THE JUDICIAL SYSTEM

5. LAWMAKERS V. LAWBREAKERS

6. POLICE REFORMS

7. WAR BETWEEN PARLIAMENT AND JUDICIARY

8. CONCLUSION

9. BIBILOGRAPHY

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CERTIFICATE

TITLE OF SUBJECT: LEGAL WRITINGS

NAME OF FACULTY: ARVIND NATH TRIPATHI

I KRISHNA KOUSIKI hereby declares that this project case study:

POLITICIANS AND LAW. Submitted by me is an original work undertaken by

me. I have duly acknowledged all the sources from which the ideas and extracts

have been taken. The project is free from any plagiarism issue.

PLACE: Vishakhapatnam.

(Signature of the student)

Roll no: 2014065

Semester-2

Section-A

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INTRODUCTION1:

The subject is obviously much to complex to be dealt with in all possible aspects here; however,

some fundamental issues of theoretical and practical, importance are presented with special

emphasis. For example, there is an argument to be made that certain checks and balances

between law and politics are critical for the relatively peaceful and value-positive (constructive)

development of mankind and democratically organized societies. The relatively high level of the

autonomy of modern law is one of the most significant factors that define the limits of politics

and thus contributes to the constructive development of different societies.

RELATIONSHIP BETWEEN POLITICIANS AND LAW

Law and politics as social phenomena are two emanations of the same entity (a monistic

ontological conception), regarding which their separate existence is only a consequence of a

human dualistic or pluralistic perception of the world (a dualistic ontological conception).

Furthermore, the difference between law and politics is, from a deeper ontological perspective, in

fact only illusory, for reason of which also in the fields of legal and political theory and

philosophy there are conclusions regarding the partial or complete overlapping of law and

politics, sometimes even the equating of the two that raises a crucial question of how both

notions are defined. Regardless of such findings, the distinction (i.e. consciously persisting in a

distinction) between law and politics at the current level of human development is necessary and

Indispensable. With politics, it is necessary to distinguish three fundamental dimensions: the

institutional dimension, the normative dimension, and the process-related dimension. The

institutional dimension is expressed by the term polity and entails the operation of various

regulated state and non-state institutions like political parties, social movements, public media,

the legislature, and the government. The normative dimension is expressed by the term policy

and entails the creation of normative ideas or ideals that define basic societal values and

objectives geared towards a practical realization of such. Lastly, the process-related dimension is

expressed by the term politics, which is expressed in the formation of the political will through

the implementation of the social power and authority and built up through conflict and

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consensus. The relation2 between politics and law has both a progressive function and a

safeguarding function. Law and politics, separately or together, both encourage and suppress the

development of societal relations, while they both also function to bring about justice and order.

The essence of their "separate and connected" but not integral existence is to help set each other's

borders. These borders prevent excessive one-sidedness in politics or the law, similar to a

"checks and balances" mechanism. In actuality, all legal institutes are a partial reflection of

individual or collective political decisions at a certain time and in a certain environment, which

have assumed a legal form and nature. This is true in systems where the main rule-framer is an

extremely politically legitimized body (e.g. the parliament as legislature) and also in systems

where judicial-precedent law has a strong influence because even the most autonomous judiciary

is always determined by some sort of political influence. Legal institutes, however, have a

reverse influence on politics in that they limit and direct politics as part of a wider legal

awareness or specific legal ideology.

RAGHURAJ PRATAP SINGH

In my project taking Raghuraj pratap singh popularly known as Raja Bhaiya as an example. An

independent M.L.A. hails from royal Bhadri (estate) of Oudh, presently representing fifth term

as Member of Legislative Assembly from his native assembly constituency Kunda, Uttar

Pradesh. He is cabinet minister of Uttar Pradesh in ministry of Minister of Food and Civil

Supplies in Akhilesh government. On 15 March 2012, he was assigned the ministry of Food and

Civil Supplies as well as the Prison ministry in the newly elected Akhilesh Yadav government.

On 4 March 2013, Raghuraj resigned as minister from Akhilesh's cabinet when his name was

surfaced in conspiracy murder of Deputy Superintendent Officer Zia Ul Haq in Kunda. In

the Indian general election, 1999, he put up Akshay Pratap Singh against the incumbent Ratna

Singh (als from a related family). It is in this election that Raghuraj started using strong arm and

criminal intimidation tactics. In the years 1997, 1999 and 2000, he was made minister in the BJP

governments of Kalyan Singh, Ram Prakash Gupta and Rajnath Singh respectively. For the 2004

elections, he changed his stand and began supporting Samajwadi Party which made him minister

in the 2004 Mulayam Singh Yadav government and the 2012Akhilesh Yadav government. In

March 2013, he had to resign from the Akhilesh Yadav cabinet after he was booked for the

2 http://www.fas.harvard.edu/~histecon/exel/objective.html, 11/2/2015, 3:10pm

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murder of Deputy Superintendent of Police Zia-ul-Haque. Later he joined politics and became a

cabinet minister in the newly elected SP government led by Mulayam Singh Yadav's

son Akhilesh Yadav. He was assigned the Food and Civil Supplies ministry as well as prison

department.

In 2002, on an FIR filed by a dissident Bharatiya Janata Party (BJP) MLA Puran Singh

Bundela of alleged kidnapping and threatening with dire consequences, got Raghuraj arrested on

the orders of then Chief Minister Mayawati at the early hours about 4:00 a.m. of 2 November

2002. Later Mayawati-led government in Uttar Pradesh declared him a terrorist, and he was sent

to jail under Prevention of Terrorism Act (POTA), along with his father Uday Pratap Singh and

Cousin Akshay Pratap Singh. Subsequently, Akshay managed to get bail, but Raghuraj's pleas

were rejected many times. Within 25 minutes of the Mulayam Singh Yadav's government

coming to power in 2003, all POTA charges against him were dropped. However, the Supreme

Court debarred the state government from dismissing POTA charges. Eventually the POTA act

was repealed in 2004, and although the court again refused to release Raghuraj3, he subsequently

became a powerful man in the government, and was accused by police officer R.S. Pandey (who

led the raid on his house) of having launched a vendetta against him. Eventually R.S. Pandey

was killed in a road accident, which is currently being investigated by the CBI. In 2005, he

became the minister for Food and Civil Supplies, and despite his pending criminal cases, he

came to be assigned the highest level of security (Z-category) provided by the state, though the

threats against him were not specified.

On 3 March 2013, Deputy Superintendent of Police (DSP) Zia Ul Haq was killed during clashes

between villagers and police in Kunda, Raghuraj Pratap Singh alias Raja Bhaiyya's constituency.

Following a complaint by the slain officer's wife, Parveen Azad, Pratapgarh police have

registered a case against Raja Bhaiyya for his alleged involvement in the "conspiracy" which

resulted in the gang war and subsequent murder of the police officer. In the FIR, Parveen has

said her husband was killed by the henchmen of Raja Bhaiyya. She has named Gulshan Yadav,

chairman of Kunda Nagar Panchayat, Harion Srivastava, a representative of Raja Bhaiyya and

Guddu Singh, Raja Bhaiyya's driver as prime accused. She has also named two other villagers –

Kamta Prasad Pal and Rajesh Kumar Pal. The police have registered a murder case against other

accused who were named in the FIR. Further this case was handed over to elite investigation

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agency CBI on dated-07.2.2013 for further investigation. The CBI has registered four different

cases in the murder of senior police officer Zia-ul-Haq and two others who were shot dead on

Saturday in the constituency of former Uttar Pradesh minister, Raja Bhaiya. The politician will

be investigated for criminal conspiracy. He was forced to resign from office after he was accused

in a police case of criminal conspiracy. On 1 August 2013, the CBI filed the final report in the

CBI court giving a clean chit to Raja Bhaiya. On opposition by the DSP Zia-ul-Haque's widow

Parveen Azad the special CBI Magistrate Lucknow ordered for furthur enquiery mentioning that

the Raghuraj Pratap Singh and others are nominated in FIR lodged by the slain DSP's widow, so

CBI are required to collect the evidences against Raghuraj Pratap Singh4 and others.

POLITICIANS INTERFERE WITH THE JUDICIAL SYSTEM

By above paragraphs we can easily say about Indian politicians who are miss using the law and

taking the judicial power into their own hands and using it for their own purpose. Raghuraj was

first arrested by the Mayawati government under POTA act in 2002 and Mulayam Singh Yadav's

government coming into power in 2003 within 25 minutes they released him and also dismissing

POTA charges against him. Supreme Court also questioned the government of U.P on this topic.

But the politicians who are in power cover it up by using their power. There are so many

examples to show that how politicians are miss using the law and taking the judicial powers to

their hands. This how corruption is increasing in India day by day and not only corruption but

also injustice is happening to all citizens. In a democratic country like India where “All are equal

before the law” sentence is remained only to paper not to the present system. India is a country

where all can get justice and it is only limited for thinking only not for actions done in the

society. The person who has power is destroying everyone who is against him by miss using the

power given to him by the people. Actually politicians are the one “of the people, by the people,

for the people”, but by seeing the present system we can say that politicians are “off the people,

buy the people, far the people”. Now-a-days in India money is given more priority than justice.

Corruption is the biggest problem in India. Corruption is done by the people who are in power.

For example, if any allegations came against any politician and the bench given to him were

strict and he easily manages to transfer them or transfer his case to another bench. Finally, we

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can say that politicians are interfering with the judicial system in order to complete their personal

work. If any son of a politician committed crime, he can easily escapes from the sentence by

creating fake evidence’s or destroying original evidence’s by using their power.

LAWMAKERS V. LAWBREAKERS

The criminalisation of politics has reached menacing proportions. Parliament and the State

Assemblies have a healthy number of members with serious criminal charges against them. The

trend must end. There are standards, both ethical and legal, laid down for most professions

including medicine and law5. Even for an entry into Government service, police verification is

necessary and the applicant’s past record is checked before he (or she) is appointed. Similarly,

before judges are appointed, their reputations are examined with a fine tooth-comb. Any doubt

can mean that the person under inquiry is not fit to be trusted even with the simplest of jobs.

When the Constitution was being written, our founding fathers had possibly not imagined that

there will be a time when the lawbreakers would become lawmakers and govern India. Indeed,

after independence, local marauders have replaced foreigners in stripping India of its wealth.

Earlier, criminals supported otherwise legitimate political candidates for elections. Now, they

themselves have jumped into the fray of electoral politics. A number of them have made it to

Parliament and State Assemblies. This is because the most important criterion for political

parties when they select their candidates is the latter’s ‘ability to win’, not their ethics or morals.

Consequently, our State Legislatures, for instance, have been captured by criminals. An analysis

of affidavits filed by 4,807 sitting MPs and MLAs, carried out by the Association for Democratic

Reforms and the National Election Watch, reveals that 688 (14 per cent) of the total number of

analyzed legislators have serious criminal cases against them. Clearly, when it is a question of

power and self-preservation, all political parties band together. Last month, political parties

closed their ranks after the Supreme Court ruled that legislators in jail will not be allowed to

contest elections. Political leaders, almost in one voice, demanded that the situation be rectified

by Parliament. In other words, Parliament should pass a law to nullify the judgment, which

would of course be open to review by the Supreme Court. But on its part, the Government also

expressed concern over the “erosion of supremacy” that Parliament enjoys. Good governance

and the socio-economic development of the country cannot happen unless there is a fair and

honest administration. Moreover, since the Constitution guarantees equality, why should a law

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be made to bring about disparity between persons contributing to the parties and others? Such a

law will be ultra vires to the Constitution6. There is no such a thing as a free lunch. Naturally, a

person with cases pending in the court, who has since become a legislator, will demand his

pound of flesh from the party in power — not only by throwing around his weight but also in

being bailed out in criminal activities. Fortunately, we have constitutional courts which

safeguard the interest of the common man. Instead of finding fault with the judgments of the

Supreme Court, political parties should come together and thank the jurists for trying to cleanse

politics. Heavens are unlikely to fall if a few criminals are shown the door by political parties,

and in their place, men of probity are selected. Any time is the right time to do what is right.

POLICE REFORMS

Draft bills to reform the police system are pending in many states. But while most of them

include independence from political interference and more autonomy, they almost all leave out

the crucial reform that must make the police accountable to the people. The power of the State is

often institutionalized through legitimacy-building mechanisms such as elections, as well as

through the coercive arms of the State. The most obvious form of coercive power of the State is

expressed through the police. The very term ‘police’ implies ‘order’ and ‘power’, through the

maintenance of ‘law and order’ and security. As the coercive arm of the State, the police are

expected to ensure security and the rule of law for all citizens. The police impact the social,

economic and political situation in a country in many ways and play a significant role in the

process of governance. 

 In a diverse, multi-religious, multi-ethnic country like India, the process of policing has huge

implications for the integrity and security of the country and the people. Though policing in a

democratic country is expected to be an enabling public service to ensure security, freedom and

human rights of all people, the very sight of the police evokes fear, terror or cynicism in

citizens of this country. This is primarily because the police are still a force used to control the

people by instilling fear and sometimes terror. The use of abusive language, torture and violence

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are perceived as part of ‘normal’ police7 conduct. Despite India gaining independence in 1947,

the character and nature of the elite Indian bureaucracy and the police are still influenced by the

ghosts of colonial power -- the power to control, oppress and regulate, rather than the enabling

characteristics of public service.   In spite of the importance of the police in maintaining law

and order and the rule of law, there is hardly any adequate public debate or discussion on the

role of the police in democratic governance. In fact, the criminal justice system as a whole is

little discussed and debated in various studies and research on governance. There have been

relatively few empirical studies on the Indian police. Except for the reports of the National

Police Commissions of 1904 and 1978, and the reports of various state police commissions,

there is hardly any comprehensive or detailed independent analysis or research on policing in

India. Serving or retired police officers have written books, but there is little, if any, critical

evaluation or monitoring of the performance and practice of the Indian police. The major

government source of information still remains the annual [I] Crime in India[/I] report which

provides statistical information and official data about various crimes and police resources.

Most discussions and debates on policing take place among the policy elites or retired police

officers and there has been hardly any public scrutiny or systematic citizen monitoring of

policing in India.  

 The few ongoing discussions and debates on police reform need to expand to include debates

on the relevance, implications and impact of the police. However, the agenda and advocacy

for police reforms is yet to catch the attention of the public and the media. While civil society

organisations such as the Commonwealth Human Rights Initiative (CHRI), the People’s Union

for Civil Liberties and some other human rights groups have played an important role in

advocating for police reforms, the primary proponents of police reforms are retired police

officers. These important initiatives need to be appreciated and supported. However, they have

not spurred wider political and public debate on the role and character of policing in India. For

example, there is hardly any public debate about the much-needed administrative reform of the

police force and of the criminal justice system in India.  

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 Despite India being an independent country with its own Constitution8, its criminal justice

system is still driven by its colonial legacy. The administrative and police systems first

developed by the East India Company and then institutionalized by the imperial power were

primarily extractive and repressive in nature. So the Police Act of 1861, enacted to strengthen

the repressive authority of the police in the aftermath of the first war of Indian Independence

in 1857, still remains the cornerstone of Indian policing in the 21st century – after 63 years of

freedom! The Act of 1861 was accompanied by a whole range of new laws that still define our

criminal justice system in India. The Indian Penal Code of 1860, the Criminal Procedure Code

of 1862, the Evidence Act of 1872 and the Criminal Tribes Act of 1868 form the defining base

of our criminal justice system. Though a Police Commission was appointed by Lord Curzon in

1902-03, the British did not make significant changes in the police system as recommended by

the commission. In fact, the very first report of the National Police Commission in 1904 pointed

out that “the police force is far from efficient; it is defective in training and organisation; it is

inadequately supervised; and it is generally regarded as corrupt and oppressive.” A hundred

years later, nothing much has changed. 

 The character and purpose of policing in a democratic polity and society will be substantially

different from that of a police force designed to control and oppress people under a colonial

dispensation. It is indeed a matter of deep concern that it took more than 60 years of

independence and more than 30 years of active campaigning by citizens of this country to

influence the government to go beyond the spirit and substance of the British Colonial Police

Act of 1861. The major challenges to the character of Indian democracy and the rule of law

have emerged from the lack of accountability of the police and the misuse of police forces by

vested interests within the government and political system. During the Emergency regime,

from 1975 to 1977, police raj was the most evident form of the coercive arm of the State. The

entire police machinery was misused by vested interests to control and oppress any voice of

dissent. Shocking examples of police torture came to light after the fall of the Emergency

regime. It is in this context that the National Police Commission was appointed by the newly

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elected government9 in 1977. However, over the years its reports have been put in the deep

freeze and the agenda of police reform has been brushed under the carpet by various

governments.   

The four dark chapters in the history of Indian democracy the Emergency in1975-77, violence

against the Sikh community in 1984, willful destruction and demolition of the Babri Masjid in

1991 and the Gujarat pogrom against the Muslim community in 2002 -- exposed the biases and

lack of accountability of the police. In fact, minority communities and poor people have been at

the receiving end of an ineffective and indifferent police force. When thousands of innocent

people were killed right in front of an indifferent and ineffective police force in Delhi or

Ahmedabad, the very integrity and impartiality of the Indian police was questioned, leaving

deep scars on the character and content of the Indian democratic system. More recently, the

attacks against Christians in Orissa clearly show how the police can still be part of a repressive

power relationship; the most virulent attack and advocacy against the minority community

came from a retired senior police officer in Orissa. This indifference, inefficiency, bias and

repressive character of the Indian police undermine the sprit and content of the Indian

Constitution and the very future of Indian democracy. In spite of the eight reports submitted by

the National Police Commission (1977-82), and in spite of numerous state commissions, the

recommendations by the National Human Rights Commission, and the recent Model Police

Act 2006 developed by the government-appointed committee headed by Soli Sorabjee, it seems

the political establishment is reluctant to initiate or pass the much-needed police reforms in

various states and union territories. Now the Supreme Court of India – responding to the petition

filed by Prakash Singh, a former director-general of police and others – has very clearly

prescribed clear measures for police reform. 

 The seven directives by the Supreme Court in 2006 provide the practical mechanisms for

police reform. As a study by CHRI indicated, the directives incorporated recommendations

from many of the commissions and committees on police reform that have sat in India over the

last 25 years.  

The Supreme Court directed the state and central governments to:

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Constitute10 a state and national Security Commission to

(i) ensure that the state government does not exercise unwarranted influence or

pressure on the police,

(ii) Lay down broad policy guidelines,

(iii) Evaluate the performance of the state police

Ensure that the Director General of Police is appointed through a merit-based, transparent

process and enjoys a minimum tenure of two years.

Ensure that other police officers on operational duties (including Superintendents of

Police in-charge of a district and Station House Officers in-charge of a police station)

also have a minimum tenure of two years

Set up a Police Establishment Board, which will decide all transfers, postings,

promotions and other service-related matters of police officers of and below the rank

of Deputy Superintendent of Police and make recommendations on postings and transfers

of officers above the rank of Deputy Superintendent of Police

Set up a National Security Commission at the union level to prepare a panel for selection

and placement of chiefs of the Central Police Organisations (CPO), who should also be

given a minimum tenure of two years

Set up independent Police Complaints Authorities at the state and district levels to look

into public complaints against police officers in cases of serious misconduct, including

custodial death, grievous hurt or rape in police custody

Separate the ‘investigation’ and ‘law and order’ functions of the police.

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It is in the context of the Supreme Court directive and in the spirit of democratic policing that

the government should envision and enact a new Police Act to ensure that policing is a public

enabling service to guarantee freedom, human rights and security to all people. Following the

directive of the Supreme Court, many state governments have introduced an ordinance for police

reforms and many of them have also developed a draft bill for enacting a new Police Act (as

policing is a state subject). However, while the draft documents of the various Police Acts stress

the autonomy and authority of the police, most of them do not have any clear and tangible

provisions for public accountability or for the citizen’s right to effective and accountable

policing. In fact, while many retired or serving police11 officers advocate the need for relative

autonomy from political interference, and seek more authority for the police, there is less

enthusiasm to advocate for strong provisions to protect human rights and create mechanisms to

make the police accountable to the public. 

It is interesting to note that advocacy for police reforms stems from different assumptions, and

for different reasons. Many of those in the forefront of calling for police reforms are former

police officers and many of them strongly feel that political interference in appointments and

transfers and the misuse of the power of the police are at the core of the problem. Then there

are those civil society advocacy groups which see police reforms through the lens of

governance, that is, accountability, responsiveness, efficiency and quality of service.

The third advocacy perspective is based on a human rights approach to policing. Such an

approach would stress that the police is essentially a coercive force used by those in power.

And given the fact that the police and army have almost a monopoly over coercive power, they

are bound to abuse power and violate human rights. Hence, the police must be necessarily

accountable in terms of respecting and protecting human rights and should be monitored by an

independent public process. Citizens need to regularly evaluate the performance of the police

through independent and credible civil society initiatives.  

While these three approaches to police reforms are not mutually exclusive, the human rights-

based approach cannot be compromised. Whether we call it a ‘police service’, a ‘police force’

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or a ‘police authority’, by its very nature it is the coercive arm of the State and this necessarily

means the use of ‘power over’ and ‘control of’ people. Hence, there is an urgent need for

citizens and independent civil society formations to monitor and watch the act of policing.

A reading of most of the draft bills shows that though there is some rhetoric and minimalist

provisions for accountability, there are very strong provisions for more ‘authority’. While

most police officers advocate ‘functional autonomy’ (from political interferences) and seek

more ‘authority’, there is hardly any corollary provision for public accountability. More

autonomy and authority without more accountability can actually be counterproductive to the

very purpose of the police reforms. 

 “Police12 laws are put in place to regulate policing. The rationale for any police legislation is

to regulate policing; to provide the police with a new vision of itself; to change the underlying

assumptions on which it functions; articulate the relationships that the police establishment will

have with the political executive, the civil administration and the public; define its role and

function; delimit its powers and activities and define its structure. The Police Act should not go

beyond this remit to give extraordinary powers to the police or create obligations for the

public. Large portions...are in the nature of an emergency law (like the Disturbed Areas Act),

and encroach on areas of administration that fall outside the purview of a Police Act.

Emergencies of public order and the problems of insurgency or militancy require a coordinated

and integrated approach that goes beyond the policing requirements and includes action by

various other wings.”

WAR BETWEEN PARLIAMENT AND JUDICIARY

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On August 15, 1947, after ruling the subcontinent for over 200 years, the British surrendered

power and India became a free country. India adopted the path of parliamentary democracy. The

British parliamentary13 system left a lasting impress on it; due to the colonial legacy the framers

of the Indian Constitution borrowed this system primarily from England. The freedom of the

judiciary was taken from the USA. The USA did impart considerable power to the judiciary and

made the judiciary free of the biased influence of the executive and the legislature. So the USA

set an example of the freedom of judiciary before the whole world.

It is pertinent to point out that the Supreme Court of the USA is the earliest in the modern

democratic world. The USA is one of the countries to have adopted the ‘principle of separation

of powers’. There is a clear and distinct line that separates the three major organs—the

executive, the legislature and the judiciary. As a result the USA had had a glorious past of 200

years of peace, progress and harmony. Its chief reason is that the powers of the three organs of

the government are obviously written in the Constitution.

To keep the Constitution supreme in the country, India made the biggest written Constitution in

the world. Jennings also describes it as “the largest written Constitution in the world”. So the

Constitution of India gave powers to the three pillars of the government—the executive, the

legislature and the judiciary. The Founding Fathers of our Constitution gave importance to

justice at the highest pedestal than the other principles in the Preamble of our Constitution. The

Preamble clearly demonstrates the precedence of social and economic justice over political

justice because the people go to the judiciary in quest of justice. The Constitution lays down the

structure and defines the limits and demarcates the role and functions of every organ of the state,

including the judiciary, and establishes the norms for their inter-relationship, checks and

balances. Independence of the judiciary is essential for upholding the rule of law. So checks and

balances with separation of powers is one of the most characteristic features of our Constitution.

It is to be noticed that the powers of the three pillars must be balanced and none of these should

be in excess of the others.

Since the legislature represents the people, controls the government and makes law, no one can

interfere with its freedom and authority to do so. The judiciary has to adjudicate disputes,

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interpret the Constitution, “declare the law” and pass the necessary order “for doing complete

justice”. The Supreme Court is the final authority for interpreting and pronouncing on the

provisions of a law. Any law which is violative of constitutional provisions is invalidated. The

power of judicial review has always been there with the Supreme Court and cannot be taken

away. The executive operates and enforces the law made by the legislature. However, a number

of occasions have come in the parliamentary history of our country when there is a tug of war

between the legislature and the judiciary14. In fact the tug of war between the executive

government and courts has occurred ever since the courts have been established. In 1608 in the

case of Bonham Lord Coke systemized the judicial review of the laws made by Parliament in

Britain that if any law which is against the Constitution or impossible to enforce, the judiciary

will invalidate such law.

After almost two centuries in 1803 Marshall, the Chief Justice of the American Supreme Court,

systemized in the same way referring to the case Marbury versus Madison. The government

objected to it raising the query as to how the unelected judges could invalidate those laws made

by the elected members of Parliament while there is no provision for this in the Constitution of

the USA. In the world the legislature is mostly troubled by the fact that the unelected judges

interfere with the functions of other organs of the government in the name of interpretion. US

President Jefferson pointed out: “Judicial activism makes a thing of wax in the hands of judiciary

which it can give the shape as it wishes.” According to Lord Saimond, “Judicial activism abducts

directly the legislative functions in the name of interpretation.”

In India, the courts started invalidating the agriculture and land reform acts after independence in

the name of violation of the fundamental right to property; on this there was conflict between the

government and the judiciary. Consequently, the First Amendment was made in 1951, by which

the Ninth Schedule was added and a provision was made that the laws given in this Schedule will

not be subject to judicial review. In the context of the Ninth Schedule of the Indian Constitution,

Prime Minister Jawaharlal Nehru said: “It is not with any great satisfaction or pleasure that we

have produced this long Schedule. We do not wish to add to it for two reasons. One is that the

Schedule consists of a particular type of legislation generally speaking, and another type should

14 http://archive.indianexpress.com/news/constitution-not-parliament-is-supreme/571610/, 23/3/2015, 9:30PM.

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not come in. Secondly, every single measure included in this Schedule was carefully considered

by our President and certified by him” But, instead of repealing the Ninth Schedule the powers

were included in this Schedule for their political use.

In the Golaknath case the Supreme15 Court gave the judgment that Chapter 3 of the Indian

Constitution dealing with the fundamental rights of Indian citizens cannot be amended. The

judgment in this case was considered to be a case of judicial over-activism to some extent.

Creating a stir in Indian politics, the Supreme Court gave its historic judgment on the

Keshavananda Bharati case in 1973; In this case the Supreme Court held that Parliament cannot

change the Basic Structure of the Constitution. The judgment was criticised saying that the

judiciary had crossed its limits. When the 39th Amendment was carried out in the Constitution

making the provision that the election of the Prime Minister cannot be defied in the Court, the

Supreme Court invalidated it by declaring it violative of the Basic Structure of the Constitution.

In this way, in 1985 there was again a tug of war between the government and judiciary

regarding the Anti-Defection Act. The Chairmen of Assemblies were given the power to decide

the issue of defection of political parties. After the decisions of the Chairmen of Assemblies like

those of Mizoram, Goa, Nagaland, Manipur and UP on the issue, these were challenged in the

courts. As a result many kinds of disputes cropped up.

Thus it is obvious that the conflict between the judiciary and Parliament about the constant

enhancement of their respective powers has grown with the passage of time. On April 8, 2007

Prime Minister Manmohan Singh told the Chief Ministers and Chief Justices of the High Courts

in the conference on Administration of Justice on Fast Track Issue: “The dividing line between

judicial activism and judicial overreach is a thin one a takeover of the functions of another organ

may, at times, become a case of over-reach.” But the Chief Justice of India, K.G. Balakrishnan,

declared that tension between the judiciary on the one hand and the legislature and the executive

on the other was “natural and to some extent desirable”.

Such comments considerably accentuated the dispute over judicial activism. The comment of

Prime Minister Manmohan Singh was viewed in the context of introduction of various pieces of

15 http://indiatoday.intoday.in/story/supreme-court-vs-parliament/1/156562.html, 23/3/2015, 9:30PM.

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legislation nullified by the Supreme Court last year. The ban on several pieces of legislation in

the Ninth Schedule, the constitutional16 invalidation in relation to 27 per cent reservation of the

OBC quota in government aided educational institutions, the Muslims in UP being declared non-

minority by the Allahabad High Court, the expulsion of 12 MPs from Parliament being declared

valid by the Supreme Court etc. are also to be included in this backdrop.

It is clear that the Prime Minister expressed his political views rising above party politics and

Balakrishnan said how invalid and irresponsible criticism can prove to be harmful. The views of

both should be discussed cautiously.

The privileges of Parliament are often mentioned in any discussion. It is said that the privileges

of the Indian Parliament are not similar to those of the British Parliament according to the Indian

Constitution. The British Parliament has expelled its several members and even today, if it likes,

it can do so but the question is not of privileges, it is a question of aptness or obligation because

the democratic form of system has been adopted in India.

The opinion of the people is supreme in a democracy. The people are sovereign and their power

cannot be reduced but the people themselves do not use this power. They use it through their

elected representatives. If the people themselves use their sovereign power, lawlessness will

spread in the country. Thus the sovereignty of the people has been changed into the sovereignty

of Parliament. But the Supreme Court is not such a body as can dishonour Parliament or consider

Parliament to be of no consequence. The Supreme Court analyzed the laws terminated by

Parliament on the judicial basis. As Edmund Burke also said, “The fire-alarm at midnight may

disturb your sleep, but it keeps you from being burned at night.”

In the same way, the Supreme Court cooperates in the activities of the other organs of the state to

ensure the control and balance available in a developing democracy.

It can be said that the unelected judges availing so many powers and refusing to heed the

intentions of the elected representatives is undemocratic. But it is also true that the division of

powers among the organs of government is the fundamental feature in the Constitution of India

and this should be maintained. Because the Constitution does not give unfettered power to any

16 http://india.gov.in/my-government/indian-parliament, 23/3/2015, 9:45PM.

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organ. Just as parliament is supreme in Britain, similarly the Constitution is made sovereign in

our country. Therefore, just as the judiciary has supreme rights in its sphere in the same way the

legislature is also supreme in its sphere under the Articles 122 and 212. So the supremacy of the

Supreme Court ends where the supremacy of Parliament starts.

In the parliamentary history of India17 it has happened several times that when the legislature or

the executive failed in its constitutional duties, then the judiciary had to interfere to safeguard the

provisions of our Constitution and in public interest. As corruption is rampant among top

bureaucrats and political leaders, the increased expectation of common man from the judiciary

can easily be understood. However, it must also be realized that unless different organs of the

Constitution cross the limits of each other, there is no possibility of a real tug of war between

them.

CONCLUSION

The main political theories assume the ethical and hence political primacy of humanity – at least

on this planet – and accordingly proceed to define what they consider the most appropriate

institutions for human survival, development, morality and happiness. Environmentalism differs

from this approach but all the political theories sketched out in this article are governed by and

are dependent on ethical theories of human nature as it relates to the world and to others.

Because political theory predominantly deals with human social nature, it must also deal with

human individuality as well as our relationships to groups – with one's sense of self as a political

and ethical entity as well as one's need and sense to belong to overarching identities. The major

theories provoke in turn a vast range of discussion and debate on the subtleties of such issues as

the law, economy, freedom, gender, nationality, violence, war, rebellion and sacrifice, as well as

on the grander visions of our proper political realm (utopianism) and the criticism of present

institutions from the local to the international level. The present mainstream debate between

communitarianism and liberalism certainly offers the student a fertile ground for examining the

nuances generated in the clash between collectivism and individualism, but alternative as well as

historical political18 theories ought not to be ignored: they too still provoke and attract debate.

17 http://india.gov.in/my-government/indian-parliament, 23/3/2015, 10:00PM.18 http://plato.stanford.edu/entries/law-ideology/, 24/3/2015, 3:30PM.

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BIBILOGRAPHY

Fisher, W.W. et al., 1933, American Legal Realism, New York: Oxford University Press.

Halpin, Andrew, 2006, ‘Ideology and Law,’ Journal of Political Ideologies, 11: 153–168.

Hirst, Paul, 1975, On Law and Ideology. London: MacMillan.

Kennedy, D., 1976, ‘Form and Substance in Private Law Adjudication,’ Harvard Law Review,

89 (8): 1685–1778.

Aguilar-Moreno (2006), Avalos (1994), Carter (1964), Kellogg (1995), Smith (2003), and Seus

(1969).

CREW: Citizens for Responsibilty and Ethics in Washington.

Nolo's Legal Dictionary.

Journal of the Supreme Court.

West law.

Law & Policy Institutions Guide.

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