Conflict of Jurisdiction: Government V. Judiciary

Introduction
Indian populace has recently observed rising conflicts between Appointed
Judiciary and elected Government on various front. This started with Passing of
Constitution 99th Amendment Act, 2014, which sought to replace entrenched
“Collegium System” for appointment of Judiciary with National Judicial
Appointment Commission. In Supreme Court Advocates-on-record
Association vs. Union of India, a Constitutional bench has declare the
amendment null and void, irrespective of the intent of Ld. Judges to preserve the
independence of Judiciary, their judgement was hit by violation of long
established rule that is “Nemo debet in causa sua” that is no one can be a judge
in his own matter.
An aspect of this conflict also affected internal functioning of Apex Court when
an issue regarding allocation of cases. It was for the first time Judicial discipline
was shattered when three most senior judges appeared before the Media as they
could find no other platform to air their grievances.
Recently, speaking on the Constitution Day, the way Her excellency the President
Smt. Draupadi Murmu, dealt with the running tensions between the Judiciary and
Government, actually did credit to this institution.
The President:
The President is considered, as the first Citizen of India and according to the
original scheme of Indian constitution also the head of the executive. His power
is a curious mixture of a King (pardon, infallibility, highest in chain of protocol

etc.) and President of United States of America (commander in chief of the armed
forces, chief executive, answerable to the people, electable etc.).
This curiosity has led to a confused situation was multiplied by the form of Indian
Political structure where President is a Head of State but Prime Minister, who is
also the leader of cabinet holds true reigns of powers.
In short the President is an “Elected King” whose duty is to defend and protect
the constitution, as according to his oath:
“I, A.B., do swear in the name of God that I will faithfully execute the office
solemnly affirm of President (or discharge the functions of the President) of
India and will to the best of my ability preserve, protect and defend the
Constitution and the law and that I will devote myself to the service and wellbeing of the people of India.”
Since time immemorial an Indian sovereign wielded only the power given to him
by the people and he was never more than a symbol for people. Constitution also
favoured this position, however with a twist. It favoured the degree of power a
British sovereign has over his cabinet, where the people were sensitive towards
his slight objections. There the sovereign can reserve his assent, send the act for
reconsideration or even some times refuse it (never done since 1707, but the
power still exists!) if he finds it against the people or policy, and the house
honours his disagreement as per the circumstance.
Rajendra Prasad-Nehru Conflict (1951)
This power came under threat when, the then Prime Minister Nehru, sought to
reform Hindu law by getting passed Hindu Code bill, this was resisted by Then

President Dr. Rajendra Prasad, who denounced this act on the ground of being
biased and Communal.
It became further an issue when President openly rejected Advise of the First PM
against visiting Somnath Temple, which was restored recently. The President
using his own judgment defied this advice and went to attend this ceremony, on

ND March 1951
Later, this impasse was again come to fore when on the festering issue of Hindu
Code Bill both parties came face to face and President Dr. Rajendra Prasad has
written a letter to the PM citing that law should be uniform for all and not for one
community only and therefore the dictum of society is against the Bill is justified,
and the same shall not be signed by him even if it is passed by the house.
Therefore, a reference is made by Prime minister to the Supreme Court of India,
where it was held by the Ld. Judges that President is bound to obey the
Parliament, although he can as a measure of prudence ask the parliament to
review their decision, he cannot deny putting his consent over their decisions.
46th amendment 1976
The remaining discretionary power of president was nullified by 46th
amendment 1976 of the Constitution of India, Article 74 of the constitution read
as:
“74. Council of Ministers to Aid and Advise President.—1 [(1) There shall be
a Council of Ministers with the Prime Minister at the head to aid and advise the
President who shall, in the exercise of his functions, act in accordance with
such advice:] …”
Subsequently only nominal powers were restored when 44th amendment, 1978
added following proviso to the Article:

“[Provided that the President may require the Council of Ministers to reconsider
such advice, either generally or otherwise, and the President shall act in
accordance with the advice tendered after such reconsideration.]…”
Therefore, despite in essence being representative of the members of
Legislations, he was left with no power, and became merely a functionary of
Elected Government, rather than an independent voice of wisdom as he was
intended originally.
Indian Judiciary
India has an independent judiciary, by independent, it is meant that other limbs
of state namely executive or legislature can not interfere in the decisions of the
judiciary. In order to protect judicial independence, various provisions were made
such as:
• There is always a Supreme Court presided by Chief Justice of India
(Article 124)
• Terms of appointment, pensions, salaries and privileges of Judges
never varied to their disadvantage (Article 125 (2)).
• Supreme Court and High Courts are the Court of Record, that is they
can punish for contempt of their decree (Article 129 and Article 215).
• A Judges of Supreme as well as High Courts cannot be removed but
by a process of impeachment (Article 124, clause (4) and (5) etc.
Over the years after emergency and sacrifices by Justice Hans Raj Khanna, and
Justice Jagmohan Lal Sinha, people have started considering Judiciary as the
ultimate resort and this has led to increase in its power incredibly.

Judicial Review and Basic Structure: Rising power of judiciary

Over the centuries, it was well established by jurists and scholars that he who sits
in the chair of a Judge, should never be biased and he could not be judge in a
matter that concerns him. He must treat friend and foe alike while he is a judge,
his task is to apply the law to decide objectively and not to make or change the
law.
However, as per the need of the hour, Judiciary was granted power under article
13 of the Indian constitution, where Judiciary can decide whether “Law” violates
the scheme of Constitution or not, and then can decide against such laws which
are against Part III of the Indian Constitution.
Therefore, as a general rule, a Judge acting under his mandate should avoid
declaring that an act passed by the Legislature unconstitutional, except where it
violates the Fundamental rights.
It becomes clear from the oath of a Supreme Court Judge, which reads:
“I, A.B., having been appointed Chief Justice (or a Judge) of the Supreme
Court of India (or Comptroller and Auditor-General of India) do swear in
the name of God that I will bear true faith and solemnly affirm faith and
allegiance to the Constitution of India as by law established, that I will
uphold the sovereignty and integrity of India,] that I will duly and faithfully
and to the best of my ability, knowledge and judgment perform the duties of
my office without fear or favour, affection or ill-will and that I will uphold
the Constitution and the laws.”
and of High court:
“I, A.B., having been appointed Chief Justice (or a Judge) of the High Court
at (or of) ……….….. do swear in the name of God that I will bear solemnly
affirm true faith and allegiance to the Constitution of India as by law
established, 1 [that I will uphold the sovereignty and integrity of India,] that
I will duly and faithfully and to the best of my ability, knowledge and

judgment perform the duties of my office without fear or favour, affection
or ill-will and that I will uphold the Constitution and the laws.”
that they are not defenders or watch dogs of law, they merely are a functionary
working under its aegis.
Furthermore, the power of judicial review of an act of Parliament was never
recognised by the makers Indian Constitution, and only originated from the land
mark decisions like in Golaknath V. Union of India where Right to property
was came under threat, later in Kesavanand Bharati and Ors. V. Union Of
India, where constitution 24th (Fundamental rights made subservient to directive
principles of the state policy), 25th (the word “Compensation” in article 31(2) is
replaced by “Amount”, no challenge to the amount on ground of inadequacy can
be made, abridgement of article 31 was allowed to the extent of article 39), 26th
(abolishment of privy purses) and 29th (insertion of Kerala Land reform bill to
ninth schedule ) amendments were challenged. And it was held by the Hon’ble
Supreme Court that any law which harms “Basic Structure” of the constitution is
ultra vires under article 13.
With the introduction of basic structure doctrine, objectivity of constitution
became totally reliant upon the subjective interpretation of any constitutional
provision. It is no more how beneficial an act is, if a judge deems it violative of
not tangible Part III of the constitution but illusive and undefined “Basic
Structure” something generated by toil of days and deliberation of hundreds of
legislators is declared dead.
Supreme Court even taken upon itself eventually to deliberate over power of
President that to grant clemency (Shatrughan Chauhan V. Union of India) or

the consultation with the cabinet (S. R. Bommai v. Union Of India), squarely
within the domain of President.
Issues
But question arises who can arbitrate the conflict between Government and
Judiciary?
Solution and Conclusion:
The weakening of institution of President, has thus led to a power vacuum which
could only be filled by an institution which can speak freely without the fear of
Public or political backlash or perception of bias.
Depending upon the circumstances Judiciary or Government fit the bill but when
the dispute arises among these two, an impartial arbitrator must exist to whom
both must surrender.
Only the institution of President, which is majestic enough could take this
responsibility and for this he needs to be restored to the powers which were
originally granted to it, without any interreference from Government or Supreme
Court. His decision must be inviolable by either of two. It is only right as he
appoints the two to run the country and keeps the people assured that nothing
wrong will happen under his watch.

By: Advocate Shatrunjaya Shukla, LLM.
With inputs from Advocate Mukesh Kumar Pandey