The Constitution remains a living document that reflects the will of the people as expressed through its founding principles and values. The Constitution of India is made up of several key components that include the Preamble, Part III & Part IV of the Constitution of India. Additionally, it includes fundamental principles like democracy, secularism, socialism, and sovereignty, which guide the functioning of the Indian state. The Constitution establishes a federal parliamentary structure backed by three concrete independent yet assimilated and synergized pillars of powers separated out as the executive, legislative, and judicial branches.

DISTRIBUTION OF CONSTITUTIONAL & LEGAL POWERS

The Constitution ensures the separation of powers by defining the roles, functions, and limitations of each branch. Additionally, it includes mechanisms to prevent one branch from unduly encroaching upon the powers of another. The specific allocation of powers in the Indian Constitution is a crucial feature that evolved to concretize a balance of power amongst all three domains and simultaneously ensure that one power constituent does not infringe upon the other’s sphere. The separation of powers is a fundamental feature of our Constitution that ensures the allocation of roles, responsibilities and powers to three distinct branches with inbuilt checks and balances.

EXECUTIVE BRANCH

The executive branch consists of two separate sub-branches; one is administrative & the other is political executive. The administrative branch is committed to implementing and enforcing rules and regulations and protects the sanctity of the law of the land. The Political executive is represented by the President of India, the Vice President, and the Council of Ministers (headed by the Prime Minister). The executive branch is expected to run the day-to-day affairs of the government, making policy decisions, and implementing laws passed by the Legislature.

LEGISLATIVE BRANCH

The legislative branch is primarily responsible for formulating laws. The legislative power is demonstrated by two houses – the Lok Sabha and the Rajya Sabha. The Parliament of India has the power to make, amend, and repeal laws on various subjects listed in the Constitution.

JUDICIAL BRANCH

The judiciary is owed with responsibility to dispense justice & also interpret the laws. It is independent of the other two branches.

ARTICLE 13

Article 13 primarily focuses on safeguarding fundamental rights. It states that any law whether pre- or post-Constitution which is found in conflict with or at variance with fundamental rights shall be revoked to the extent of variance. It empowers the judiciary to review laws and, if necessary, strike them down if they violate fundamental rights. Article 13 provides a protective umbrella to maintain the inviolability of fundamental rights due to any legislative or executive action. The term “law” in Article 13 includes not only statutes and legislation passed by Parliament or State Legislatures but also ordinances, regulations, orders, bylaws, rules, and other forms of delegated or subordinate legislation. Article 13(2) empowers the judiciary, especially the Supreme Court and High Courts to review the constitutionality of laws where if any law is assessed to be in violation of fundamental rights and inherent spirits, the same can be suitably declared void to the extent of inconsistency.

The Court held that an amendment under Article 368 is “law” within the meaning of Article 13 of the Constitution and therefore, if an amendment “takes away or abridges” a Fundamental Right conferred by Part III, it is void. In essence, Article 13 serves as a safeguard for the fundamental rights of Indian citizens and ensures that any existing law or new legislation that violates these rights can be declared void by the judiciary, upholding the supremacy of the Constitution. Article 13 is a critical tool in ensuring that fundamental rights are not violated or undermined by any legislative or executive action. It provides a mechanism for citizens to challenge laws that infringe upon their fundamental rights in the courts.

ARTICLE 368

Article 368 of the Constitution of India deals with the power of Parliament to amend the Constitution. It outlines the procedures and mechanisms for amending various parts of the Indian Constitution. It grants Parliament the power to amend various provisions of the Constitution. Article 368 confers upon the Parliament of India the power to amend the Constitution. It can amend any provision of the Constitution including the provisions related to the fundamental rights of citizens.

Amendments can be made by introducing a bill in either house of Parliament (Lok Sabha or Rajya Sabha). Some amendments can be passed by a simple majority of the members present and voting in each house. Certain other amendments, which are not related to the federal structure but still affect significant parts of the Constitution, require a special majority. This means they must be passed by most of the total membership of each house and by a two-thirds majority of the members present and voting. Article 368 itself contains an exception. It specifies that certain provisions of the Constitution, such as the federal structure, Parliamentary form of government etc. cannot be amended without the ratification of most state legislatures. Article 368 is crucial in understanding the process by which the Indian Constitution can be amended. The theory of Basic Structure impinges upon the ambit of amendment to any provisions of the Constitution of India.

THE RELATIONSHIP BETWEEN ARTICLE 13 AND ARTICLE 368 CAN BE UNDERSTOOD AS FOLLOWS

Article 13 acts as a watchdog on the power of Parliament as provided under Article 368. It ensures that while Parliament has the authority to amend the Constitution, it cannot do so in a manner that violates fundamental rights. Article 13 does not make all constitutional amendments invalid. Instead, it applies specifically to amendments that violate fundamental rights. If a constitutional amendment infringes upon fundamental rights, it can be declared void to that extent, as per Article 13. The doctrine of Basic structure limits the amending power of Parliament, is a product of judicial interpretation and was established in the Keshvanand Bharati case (1973). It harmonizes the powers of Article 13 and Article 368 by allowing amendments that do not affect the basic structure of the Constitution and ensuring that fundamental rights are protected. While Article 13 and Article 368 have different purposes, they work together to maintain a balance between amending the Constitution and protecting fundamental rights. The basic structure doctrine which is a judicially evolved concept in the epoch-making Keshwa Nand

The Bharti case is a key element that reconciles by setting limits on the amendment power to prevent any alteration of the core principles of the Constitution. The Basic Structure is however not defined & is left to the interpretation of Justices of the bench, every time it gets constituted.

OVERSTEPPING OF ORGANS

Legislature Overstepping:

The legislature may sometimes pass laws that are in violation of the Constitution. In such cases, the judiciary has the authority to strike down these laws through judicial review.

Executive  Overstepping:

The executive can issue ordinances in exceptional circumstances when Parliament is not in session. However, if the legislature excessively uses ordinances to bypass the normal legislative process, it can be seen as overstepping its authority. The President, on the advice of the Cabinet, can declare a state of emergency under specific circumstances. However, if the executive misuses emergency powers for political gain or to suppress dissent, it can be seen as overstepping its authority.

Judiciary  Overstepping:

While the judiciary’s role includes interpreting the Constitution and protecting fundamental rights, excessive judicial activism, where the judiciary takes on roles that are traditionally the domain of the executive or legislature, can be seen as overstepping. It’s important to note that the allocation of powers in the Indian Constitution is designed to create a delicate balance and each branch has specific checks and balances on the others to prevent overstepping. Additionally, the concept of judicial review allows the judiciary to strike down laws and actions that violate the Constitution, serving as a vital safeguard against overreach by the legislature and executive.

In practice, maintaining this balance is an ongoing challenge, and instances of overstepping can arise. However, the system relies on the vigilance of each branch, as well as public awareness and engagement, to ensure that the principles of democracy and the rule of law are upheld. In any democratic system, including India, there is always the potential for one branch of government to overstep its authority, which can lead to a disruption of the system of checks and balances. Here are some common examples of overstepping of authority by the three branches of government in India: where the judiciary is perceived to have overstepped its boundaries into the legislative and executive domains in India, has been a subject of debate. While the judiciary’s role includes interpreting the Constitution and ensuring the protection of fundamental rights, there have been instances where it has made decisions that some critics argue encroach upon the functions of the other branches of government.

The term “judicial activism” is often used to describe instances where the judiciary takes an active role in shaping public policy and governance. Critics argue that at times, judicial activism has led to the judiciary overstepping its role. For instance, in the case of Vishakha v. State of Rajasthan, the Supreme Court formulated guidelines on workplace sexual harassment even before specific legislation was enacted. While this was seen as a necessary step to protect women’s rights, it raised questions about whether the judiciary was intruding into legislative territory. The judiciary has been actively involved in environmental matters, issuing directives and guidelines to address issues like air pollution, river cleaning, and industrial pollution. While this has been necessary to protect the environment and public health, critics argue that such interventions sometimes bypass the executive’s role in crafting and implementing environmental policies. made by the executive.

The judiciary has been involved in decisions related to religious practices. The Sabarimala temple entry case, where the Supreme Court allowed women of all ages to enter the temple, raised questions about whether the judiciary was infringing on religious traditions and practices, a domain traditionally left to religious authorities. The judiciary has been involved in issues related to reservation policies. In some cases, it has ordered changes in reservation criteria or questioned the implementation of reservation policies, which are primarily within the legislative domain. It’s essential to recognize that these instances of perceived judicial overreach often come with differing interpretations and perspectives.

Some view them as necessary interventions to protect fundamental rights and uphold the rule of law, while others argue that they encroach on the legislative and executive functions. To address concerns about judicial overreach, there have been calls for greater clarity in the separation of powers, the need for well-defined roles and responsibilities of each branch of government, and discussions on judicial reform to ensure that the judiciary respects the boundaries set by the Constitution while upholding the rights and welfare of citizens. While the judiciary’s role includes interpreting the Constitution and protecting fundamental rights, and excessive judicial activism, the judiciary takes on roles that are traditionally the domain of the executive or legislature, which can be seen as overstepping.

While judicial review is a crucial aspect of the separation of powers, an overly broad interpretation of this power can lead to a perception that the judiciary is encroaching on the legislative and executive domains. It’s important to note that the separation of powers in the Indian Constitution is designed to create a delicate balance and each branch has specific checks and balances on the others to prevent overstepping. Additionally, the concept of judicial review allows the judiciary to strike down laws and actions that violate the Constitution, serving as a vital safeguard against overreach by the legislature and executive. In practice, maintaining this balance is an ongoing challenge, and instances of overstepping can arise. However, the system relies on the vigilance of each branch, as well as public awareness and engagement, to ensure that the principles of democracy and the rule of law are upheld.

KESHVANAND BHARTI CASE

In the Keshvanand Bharati case, relief was sought against the Kerala government vis-à-vis two state land reform laws, which imposed restrictions on the management of religious property. Question underlying the case: Was the power of Parliament to amend the Constitution unlimited? In other words, could Parliament alter, amend, or abrogate any part of the Constitution even to the extent of taking away all fundamental rights? The Constitutional Bench in the Keshvanand Bharati case ruled by a 7-6 verdict that Parliament could amend any part of the Constitution so long as it did not alter or amend the basic structure or essential features of the Constitution. However, the court did not define the term ‘basic structure’, and only listed a few principles — federalism, secularism, democracy — as being its part. The ‘basic  structure doctrine has since been interpreted to include:

• the supremacy of the Constitution,
• the rule of law,
• Independence of the judiciary,
• doctrine of separation of powers,
• a sovereign democratic republic,
• the parliamentary system of government,
• the principle of free and fair elections,
• welfare state, etc.

BASIC STRUCTURE

The basic structure doctrine was established in Keshvanand Bharati v. State of Kerala in 1973. In this case, the Supreme Court ruled that Parliament has the power to amend the Constitution, however, cannot do so in a manner that violates or alters its basic structure. This doctrine is significant because it places limitations on the amending power of the Indian Parliament, ensuring that the core principles and values of the Constitution remain intact and unaltered. It was developed to determine the limits of the amending power of Parliament (under Article 368) and to protect certain core principles and values of the Constitution. The power of judicial review, which empowers the judiciary to measure the constitutionality of laws and actions including constitutional amendments, is a vital part of the doctrine of Basic Structure. The primary aim of the basic structure doctrine is to ensure that the fundamental principles and essential features of the Constitution, which are vital for maintaining democracy, justice, equality, and the rule of law, are not arbitrarily or substantially altered through constitutional amendments. The basic structure doctrine is a legal principle developed by the Indian judiciary, particularly by the Supreme Court of India.

CHANGE INEVITABLE

The architects of the Indian Constitution granted confirmed powers to Parliament as per the needs and demands of “We the People”. Article 368, which gives Parliament the power to amend the Constitution, can also be amended. The Constitution is an ever-developing index & a reflection of the collective consciousness of the citizens which embodies the spirit of the nation. The dynamism in the Constitution is integral, however, the Doctrine of Basic Structure impedes the dynamism. The impact of the past enriches it now and makes the future richer than the present.” A provision for amending the Constitution has been made to address any challenges “We the People” may face in the future as the Constitution functions since time is not static; it is always changing, just as the political, economic, and social circumstances of the people do.

APPOINTMENT OF JUSTICES PRIOR TO 1993

Before the introduction of the collegium system in 1993, the appointment of judges to the higher Courts in India, including the Supreme Court and High Courts, was primarily made under the provisions of Article 124 and Article 217 of the Indian Constitution. The Chief Justice of India, as the head of the judiciary, would recommend the names of candidates for appointment as judges to the President. These recommendations were often made after consultation with other senior judges, both within the Supreme Court and the concerned High Court.

The President of India, bound by the advice of the Council of Ministers (the executive branch), would make the final appointments based on the recommendations received from the Chief Justice and the Executive. The executive branch played a significant role in the appointment process. The President would consider the recommendations and could seek further information or clarification if necessary.

In practice, the government had a significant say in the appointment process. While the Chief Justice’s recommendations were considered, the government’s role in the final decision often led to allegations of political influence in judicial appointments. The introduction of the collegium system in 1993 marked a significant shift in the appointment process. Under the collegium system, a group of senior judges of the Supreme Court, including the Chief Justice of India, became responsible for recommending candidates for judicial appointments. This system was cited as aimed at enhancing the independence of the judiciary in the appointment process. It means that all appointments of justices up to 1993 were incorrect and subject to legislative and executive interference.

It is assumed that the frailties of the appointment of justice were over with the introduction of a collegium system with necessary transparency and accountability. The question of whether all judicial appointments made before the introduction of the collegium system in 1993 were “incorrect” or subject to legislative and executive interference is a matter of perspective and legal interpretation. The introduction of the collegium system was aimed at addressing certain perceived shortcomings in the earlier appointment process and enhancing the independence of the judiciary, but it does not inherently render all prior appointments “incorrect.”

ADVENT OF COLLEGIUM

The collegium system was introduced through a series of judicial pronouncements and not through a specific legislative enactment. It evolved gradually over several decades. The term “collegium” itself was coined in the 1990s. The idea of judicial consultation in the appointment of judges can be traced back to various judicial precedents. For example, in the 1977 case of S.P. Gupta v. Union of India, commonly known as the “First Judges Case,” the Supreme Court held that the Chief Justice of India (CJI) should consult with a plurality of judges to make recommendations for appointments of Justices. The significant development in the establishment of the collegium system came in the Second Judges Case, also known as the Advocates-on-Record Association v. Union of India (1993).

In this case, the Supreme Court held that the CJI should make recommendations to the President in consultation with a collegium of senior judges. The court ruled that the executive’s role should be limited to appointing judges based on these recommendations. Following the Second Judges Case, the collegium system became the standard practice for judicial appointments in India. The system evolved over time, and the composition of the collegium varied, but it generally included the CJI and a group of senior judges of the Supreme Court. Several other cases and judgments in subsequent years further clarified and reaffirmed the collegium system’s role in the appointments and transfers of judges.

NJAC

National Judicial Appointments Commission (NJAC): The issue of judicial appointments faced significant debate and controversy, leading to attempts to change the appointment process. The National Judicial Appointments Commission (NJAC) Act was passed in 2014 with the aim of introducing a new mechanism for appointments. However, in 2015, the Supreme Court struck down the NJAC Act, asserting that it violated the basic structure of the Constitution and upheld the primacy of the collegium system. NJAC was an attempt to reform the judiciary’s appointment process and may not be seen as legislative overreach per se, the judiciary’s concerns about the potential impact on judicial independence were central to the court’s decision. This complex issue reflects the ongoing debate about the balance between the branches of government and the role of the judiciary in safeguarding the Constitution in India’s democratic system.

EXISTING ARRANGEMENT

It is true that the appointment process before the judiciary evolved into the collegium system, allowing involvement and influence from the executive branch, particularly in the final decision-making stage. This sometimes led to allegations of political interference in judicial appointments. While the introduction of the collegium system was a significant step toward enhancing judicial independence in the appointment process, it does not necessarily render all appointments made before 1993 as “incorrect.” The issue of judicial appointments is complex and has evolved over time in response to various challenges and concerns.

The collegium system is one of the many mechanisms designed to address these concerns, but it is not without its own set of criticisms and debates. While the judiciary plays a vital role in safeguarding the Constitution, it also has its limitations. It cannot directly enforce its decisions, relying on the executive branch to implement them. Leaving the judiciary as the sole custodian may raise questions about democratic accountability. Judges are not elected representatives, and some argue that their power should be checked by elected officials who are directly accountable to the people. The theory of separation of powers suggests that no single branch of government should have unchecked authority. While the judiciary’s independence is crucial, an appropriate balance of powers among the branches is essential for a well-functioning democracy. The power to amend the Constitution (under Article

368) lies with the legislature. If the judiciary was the sole custodian, it could potentially limit the ability of the legislature to make necessary constitutional amendments. In practice, the Indian Constitution is committed to establishing a system of balance among the three branches of government: the executive, the legislature, and the judiciary. While the judiciary plays a significant role in interpreting and upholding the Constitution, it does so within the broader framework of democratic governance.

Ambedkar said, “However good the Constitution is, it might turn out not to be good if the people were administering it bad however bad the Constitution is, it might do its job well if people administering it happen to be good.” “Enlightened statesmen will not always be at the helm” and “if men were angels, no government would be necessary”, we get to an axiomatic idea of checks and balances.

The question of whether the judiciary alone the custodian of the Constitution of India should be is a matter of considerable debate and has been a subject of discussion in legal and political circles.

JUDICIARY AS CUSTODIAN OF THE CONSTITUTION

The judiciary is designed to be an independent branch of government, which is essential for interpreting and upholding the Constitution impartially. Its decisions are not influenced by political considerations.

Judges have legal expertise and training, which makes them well-suited to interpreting and applying the Constitution’s provisions and principles accurately.

The judiciary serves as a check on the actions of the executive and legislative branches to ensure that they are in conformity with the Constitution. This helps prevent potential abuse of power.

The power of judicial review allows the judiciary to strike down laws and actions that violate the Constitution. This is a critical mechanism for protecting individual rights and preserving constitutional values.

COUNTERVIEW OF JUDICIARY AS SINGLE CUSTODIAN OF THE CONSTITUTION

While the judiciary plays a vital role in safeguarding the Constitution, it also has its limitations. It cannot directly enforce its decisions, relying on the executive branch to implement them.

Leaving the judiciary as the sole custodian may raise questions about democratic accountability. Judges are not elected representatives, and some argue that their power should be checked by elected officials who are directly accountable to the people.

The separation of powers doctrine suggests that no single branch of government should have unchecked authority. While the judiciary’s independence is crucial, an appropriate balance of powers among the branches is essential for a well-functioning democracy.

The power to amend the Constitution (under Article 368) lies with the legislature. If the judiciary were the sole custodian, it could potentially limit the ability of the legislature to make necessary constitutional amendments.

The consensus in most democratic systems is that the Constitution should be a shared responsibility, with each branch of government playing a role in its protection and preservation. The exact balance between these branches can vary from one country to another, depending on the specific constitutional framework and historical context.

HERE IS HOW THE APPOINTMENT PROCESS WORKED PRIOR TO THE COLLEGIUM SYSTEM

Before the introduction of the collegium system in 1993, the appointment of judges to the higher courts in India, including the Supreme Court and High Courts, was primarily made by the President of India in consultation with the Chief Justice of India. This method was based on Article 124 and Article 217 of the Indian Constitution. The CJI, SC as the head of the judiciary,

would recommend the names of candidates for appointment as judges to the President. These recommendations were often made after consultation with other senior justices, both within the Supreme Court and the concerned High Court. President’s Decision: The President of India, acting on the advice of the Council of Ministers (the executive branch), would make the final appointments based on the recommendations received from the Chief Justice and the Executive.

The executive branch played a significant role in the appointment process. The President would consider the recommendations and could seek further information or clarification if necessary.

In practice, the government had a significant say in the appointment process. While the Chief Justice’s recommendations were taken into account, the government’s role in the final decision often led to allegations of political influence in judicial appointments.

The introduction of the collegium system in 1993 affected the process of appointment of judges significantly, tilting the weight towards the judiciary. Under the collegium system, a group of senior judges of the Supreme Court, including the Chief Justice of India, became responsible for recommending candidates for judicial appointments. The system was said to be committed to ushering in the independence of the judiciary. It’s important to note that the collegium system itself has faced criticism and debate, with some arguing that it lacks transparency and accountability. The issue of judicial appointments in India has been the subject of ongoing reform discussions, and various proposals for change have been considered over the years.

The question of whether all judicial appointments made before the introduction of the collegium system in 1993 were “incorrect” or subject to legislative and executive interference is a matter of perspective and legal interpretation. The introduction of the collegium system was aimed at addressing certain perceived shortcomings in the earlier appointment process and enhancing the independence of the judiciary, but it does not inherently render all prior appointments “incorrect.”

It is true that the appointment process before the collegium system allowed for involvement and influence from the executive branch, particularly in the final decision-making stage. This sometimes led to allegations of political interference in judicial appointments.

The introduction of the collegium system was one of several reforms aimed at improving the appointment process and reducing the potential for political interference. However, no system is without its own criticisms and challenges.

Appointing judges to the higher courts is a complex and nuanced process. It involves considerations of legal expertise, integrity, experience, and the need to uphold the independence of the judiciary. Different systems and mechanisms have been used to strike the right balance between these considerations.

The collegium system did not retroactively invalidate appointments made before its introduction. Judicial decisions made by judges appointed under the previous system remain valid and legally binding.

The debate over judicial appointments and reforms in this area continues in India. Various proposals and discussions have taken place regarding potential improvements to the appointment process, including increasing transparency and accountability.

In summary, while the introduction of the collegium system was a significant step toward enhancing judicial independence in the appointment process, it does not necessarily render all appointments made before 1993 as “incorrect.” The issue of judicial appointments is complex and has evolved over time in response to various challenges and concerns. The collegium system is one of the many mechanisms designed to address these concerns, but it is not without its own set of criticisms and debates.

The collegium system for the appointment and transfer of judges in India was introduced through a series of judicial pronouncements and not through a specific legislative enactment. It evolved gradually over several decades. The term “collegium” itself was coined in the 1990s.

Following the Second Judges Case, the collegium system became the standard practice for judicial appointments in India. The system evolved over time, and the composition of the collegium varied, but it generally included the CJI and a group of senior judges of the Supreme Court. The collegium system, as it stands today, remains the predominant method for appointing and transferring judges in the higher judiciary in India. It is based on judicial interpretations and pronouncements, making it a unique and distinctive feature of India’s legal system.

The issue of judicial appointments faced significant debate and controversy, leading to attempts to change the appointment process. The National Judicial Appointments Commission (NJAC) Act was passed in 2014 with the aim of introducing a new mechanism for appointments. However, in 2015, the Supreme Court struck down the NJAC Act, asserting that it violated the basic structure of the Constitution and upheld the primacy of the collegium system. The very fact that  the NJAC  was  struck  null  &  void is  itself a  violation  of  the  basic  structure  of  the

Constitution of India as it is nowhere prevalent that justice chooses justice which may lead to favoritism to family members & friends. In the absence of a strict definition of the Basic Structure of the Constitution, it is well nigh appropriate to deduce that the Judiciary overstepped & violated the Basic Structure & tenets associated with it. The provisions as enshrined in Article 124 and Article 217 of the Indian Constitution were inviolable & power & appointment could not have been concentrated within a fold by one of the organs unilaterally.

If that is true, all other constitutional & sensitive appointments may be determined by concerned departments under the same pleas of keeping interference of other organs let it be executive, legislative & judiciary. Judiciary alone cannot be accorded special status as fundamentally deemed non-interfering & neutral pillar out of three pillars. While preserving the independence of the judiciary is a paramount requirement, the NJAC with assimilated & synthesized composition would have offered a better & competent option within the ambit of the Basic Structure.