Judicial powers and its scope
Judiciary enjoys neither the legislative nor executive power. Its duty is to preserve Constitution, its mandates and make the people wielding power to act within limits provided by the Constitution and make them directly accountable for their acts to the authorities provided under the hierarchy of Constitution. It is said constitution is just to be common sense of the people and was never designed for trial of logical skills or visionary speculation.
Once the limits are imposed by law or Legislature, consequences are inevitable. The acts can only be done in accordance with the enactment. Judges’ morality or morality of one section may be pernicious. Courts cannot impose their views for the governance of the people who have a right to be governed by law or elective representatives but not by an unelected representatives and unaccountable committee of lawyers applying no will but their own. More and more interference in the executive does not represent the smooth working of the constitutional machinery. Rather, it reflects deep seated malice and causes possible distress in each other’s institution and a state of approach in decadence. It is a famous saying that Judge may act only where authorised to do. He comes to apply the law. Where law stops, the Legislature may move on to create more but where law stops the Judge must stop.
The power of Courts to invalidate statute and executive action in the name of Constitution would have been abandoned, for, the choice would then be either rule of Judges according to their own desire or rule of people according to theirs. The distinction between the authoritarian and judicial oligarchy and the representative democracy can only be that Judges are not the dictatorial oligarchy but the guardians of liberties. Constitution is not a law, is advanced by people who have dramatic expansion of judicial governance in the name of Constitution. It must rise above all. Frankfurter observed, “the ultimate test of the constitutionality is the Constitution itself and not what we have\said about it.” Law is what the public thought of, what the Constitution meant and not the subjective intentions. It is how the words would have been understood at the time.
Judicial supremacy
While exercising the power of judicial review, Courts would not advance judicial process in the matter of political opinion, question of social and ethical controversy, allocation of resources, lack of objective criteria as the Courts are ill-equipped to do so. Reference may be made to 1999 ACJ 521 at 597-7, 1986 (1) AC 112 at 193, 1995 Vol.11, All England Reports 129.
While exercising the power of judicial review one cannot be permitted to rewrite the Constitution. Once sufficient bar has been provided by the Constitution itself that the Governor shall not be answerable to any Court for his acts done or supposed to have been done in the discharge of his Constitutional functions by any stretch of interpretative law by importing implications and giving credence to the other section of the Constitution, giving a precedent meaning, as the basic structure of the Constitution cannot render the specific unambiguous Constitutional provisions solely on the thought what the constitutional provisions should be. If one person can demand his Constitutional rights the other person cannot be denied the rights specifically conferred on him. The dignity of the highest Constitutional executive post cannot be denuded of its dignity on assumptions that he would not discharge his constitutional duties in accordance with the Constitution.
Our Constitution is a written Constitution intertwined with separation of powers yet the same are defined by the Constitution itself. Power of judicial review unexceptionally by now has been accepted as the basic structure of the Constitution while the Constitution itself puts a restriction on each wing or pillar of the Constitution.
The scheme of Constitution which provides for justice be it social or otherwise which is again a basic structure of Constitution in its operation, vested the executive power of Union of India in the President of India, and in the case of a State in the Governor of the State who holds the office during the pleasure of the President of India. Constitution has conferred certain privilege on the institution like that of Governor, Parliament, Members of Parliament, etc. It has put an embargo on the powers of judiciary too as in the case of two other equally important participating independent wings of the State i.e., Parliament and State Legislature either expressly or impliedly. It provides that no member of the Legislature would be liable for anything done in any proceeding, in the Court meaning thereby his act is taken out of the purview of judicial scrutiny. Similarly, Court’s jurisdiction has been ousted from inquiring into the proceedings in Parliament. Protective umbrella for independent working of the officer was provided by Constitution that no officer shall be subject to Court’s jurisdiction with respect to powers exercised by him. Logistic provisions were made in the Constitution with respect to executive and Legislative wings.
The Constitution provides that executive powers would vest in the Governor who would hold the same during the pleasure of the President who can further authorise him to discharge the functions not provided by the Constitution. Governor appoints the Chief Minister and the Ministers at his advice. Council of Ministers are required to advise the chief executive i.e., the Governor and the Governor is required to act on their advice. They are provided to be responsible to the Legislative Assembly. The scheme and powers conferred, both procedural and substantial, are in conformity with checks and balances and avoiding complete power on the principle that the absolute power conferred corrupts absolutely. In order that the Legislative and executive wings exercise the power independently without fear and favour, complete immunity from Court’s scrutiny was provided not only to the Legislative proceedings but also to the officers and Legislators from being subject to Court’s jurisdiction with respect to specified subjects and acts of theirs. Inspite of the blanket general powers conferred on the Courts to issue writs, orders, direction for any purposes, the specific acts, subjects, constitutional office holders and persons covered by constitutional provisions are taken out of the judicial purview or being subject to judicial review.
Mystery of Law and Justice 