Submitted To:- Submitted By:-

PROF. DR. D.K. BHATT ARZOO KHAN

FACULTY OF LAW ALMORA. LL.M. 1ST SEM.

ROLL. NO.
 TABLE OF CONTENT
ABSTRACT………………………………………………………………………………..3

INTRODUCTION………………………………………………………………………….3,4

CONSTITUTION AND CONSTITUTIONALISM………………………………………4

COSTITUTIONALISM IN INDIA………………………………………………………...5

PREAMBLE………………………………………………………………………………..5,8

RULE OF LAW…………………………………………………………………………..8,10

SEPARATION OF POWER BY JUDICIARY FOR THE PROMOTING

CONSTITUTIONALISM………………………………………………………………….10

OTHER SC JUDGEMENTS……………………………………………………………….11

CHECKS AND BALANCES BY THE JUDICIARY FOR THE PROMOTING

CONSTITUTION…………………………………………………………………………...12

CHALLENGES FACE BY THE COURT IN PROMOTING

CONSTITUTIONALISM…………………………………………………………………..13

CONCLUSION……………………………………………………………………………..14

2
 ABSTRACT
“The court is the bureaucracy of the law. If you bureaucratise popular justice then
you give it the form of a court.”
― Michel Foucault

During the study of this paper it has been found that the Supreme Court has changed in its
outlook and functioning, drastically in the last about 50 years uphold the constitutionalism.
Judiciary checks that human rights are not jeopardize, protector of the constitution and
promoter of peace and cordiality in country. However, sometimes there are some situation
where even judiciary gets confused to pass any judgement then it takes help from the
principal of constitutionalism, that can be referred as judicial activism, as too much of any
thing is bad, and democracy is no exception. We all know that nothing is permanent and our
thoughts are always evolving and that changes the principal of constitutionalism and judiciary
plays important role in that as it has power of judicial review and can emend the law and can
check the validity of the law existing. It is satisfying to see that its achievements have been
significant in all areas of the nation's life. It has not shied away from its responsibility of
upholding the goals of the constitution. One of the most powerful institutions of the world,
the court decides cases touching all facts of human life and relationship. It is the defender of
the constitution and the principles enshrined therein guardian of human rights and promoter
of peace, cordiality and balance between different organs of the Government. Therefor we
can say judiciary plays vital role in upholding the constitutionalism.

INTRODUCTION
There are three important organs of government one of them is judiciary. Legislature and
Executive are other two respectively and these two are responsible for making law and
executive them. Whereas judiciary has complex work as it is said to be the backbone of the
government it comes under play when any dispute arises between the central and the state,
between the states or even between state and a citizen. Judiciary is the only organ which
controls the dispute and pass judgment. Judgment passed by the Judiciary is binding on all
whether it may be citizens or government. Constitutionalism is an ideology a way of life a
believe system these are the goals to be achieved for which constitution exists. Now the
question arises whether Judges in India are free from political influence? As we all know that
judiciary is responsible to safe guards the fundamental rights of the citizens in the country for
that purpose a huge power has been given courts so that can maintain peace and harmony and
fulfil the goals and objective set out in the preamble of the constitution of India. Therefor if
the judges become partial or if they work under influence of politicians, the whole system
will paralyze. That‟s why the supreme power is given to the judiciary as the rule of law so we
can say that there is no control of politics over the judicial system this all because of our great

3
and largest constitution of India. The judiciary in India, specially the higher judiciary has
been assigned a vital role in various areas like upholding the federal principle, interpretation
of the laws made by respective legislatures, testing the validity of such laws and more
importantly in protecting the fundamental rights of the citizens.

In all over the world this effort of our Judiciary found recognition and appreciation.

CONSTITUTION AND CONSTITUTIONALISM

The Constitution of India lays down a shape for political, economic, and social democracy. It
underlines the dedication of the human beings of India for asserting, ensuring, and reaching
the diverse countrywide desires via non-violent and democratic ways. It isn't simply a prison
manuscript; rather, it's far a car that steers the country to comprehend the goals and
aspirations of the human beings through accommodating and adapting to the converting
desires and realities of the times. Making India, this is Bharat, as a Union of States, equality
earlier than the regulation and same safety of the legal guidelines is the essence of the
Constitution. At the equal time, the Constitution is touchy to the desires and issues of the
underprivileged and deprived segments of society too. The idea of constitutionalism is that of
a polity ruled with the aid of using or below a charter that ordains basically confined
authorities and rule of regulation in preference to arbitrary authoritarian or totalitarian rule.
Constitutional authorities, therefore, have to always be democratic authorities. In different
words, Constitutionalism is a political philosophy wherein the features of presidency of a
country ought to be according with the provisions of the charter which means thereby the
movements of presidency ought to replicate constitutionality. Constitutionalism is a political
spirit or philosophy, so it isn't essential that the states who have a charter should be embodied
with the idea of constitutionalism.

-According to Douglas Greenberg, Constitutionalism is a dedication to boundaries on normal

political energy, it revolves around a political process, one which overlaps with democracy in
looking for to stability kingdom energy and person and collective rights, it attracts on precise
cultural and historic contexts from which it emanates and it is living withinside the public
consciousness.

4
 COSTITUTIONALISM IN INDIA
Now to identify whether constitutionalism is present in India or not, it can be analysed with
help of various provision of constitution that are

-Preamble

-Judicial Review

-Rule of Law

-Separation of power

Checks and balances and so on.

There is not exhaustive list of features by which the validity or existence of constitutionalism
can be tested; but the every feature which limits the government and proves helpful to
establish a position of sovereignty under fundamental principles of constitutional
jurisprudence may be considerable point for constitutionalism.

PREAMBLE
Preamble is a checking hub for the constitutionalism. Our constitution enacted on 26th
November 1949, since then , a question always a matter of great concer that whether
preamble is part of constitution or not , and after a long struggle 13 judges bench the largest
bench ever stated in Keshavanad Bharti v State of Kerala[i] declared that yes Preamble is part
Indian Constitution, and overruled the Re Beru Beri case 1960 and the term secularism was
added to it with the 42nd amendment.

According to justice Subbarao, Preamble is the soul of the constitution without which which
the body cannot survive

Preamble and responsibility of the judiciary for the upholding constitutionalism:

Reiterating what I have emphasized in the previous paragraphs that judicial interpretation and
judicial legislation has a very thin line of difference; one could easily face confusion while
discerning or interpreting the same. Judicial Activism is also alleged to have taken a form of
judicial legislation. But it is through this tool, the judiciary has also taken up the
responsibility to fill up the legislative vacuum in order to uphold the preamble. The silence of
the Constitution and the abeyances left to be filled by the growth of conventions within the
meaning of the enacted provisions and under the ground of preamble. This exercise has been
performed by the Supreme Court of India in consonance with the constitutional preamble and
scheme.

The Preamble expressly states that the Constitution of India is the product of “WE THE

5
PEOPLE OF INDIA” who adopted, enacted and gave to themselves this Constitution on 26
November 1949. The people “resolved to constitute India into a SOVEREIGN SOCIALIST
SECULAR DEMOCRATIC REPUBLIC”. Thus, India is a sovereign country with a socialist,
secular, democratic and republican polity. The words „socialist‟ and „secular‟ were
introduced by an amendment in 1976. India‟s sovereignty, secularism, democracy and
republican form of government have been recognized as basic features of the Constitution
and as such beyond the power of amendment.1

All these goals of the Constitution have been comprehensively incorporated into its
provisions. It is worth noting that unlike the Preamble of the statutes the Preamble of the
Constitution is part of it and can be invoked just like any other provision for direct
application. Therefore, any change in the Preamble may also be the subject matter of
litigation on the ground of violation of basic structure of the Constitution.2 And this is the
case Kesavananda Bharati v State of Kerala where court is tried to implement the concept of the
constitutionalism. And this is one of the role of the judiciary upholding constitutionalism on the basis
of preamble of the India.

Judicial Review by the judiciary for the upholding constitutionalism:

Judicial Review refers to supervising the exercise of power by the judiciary of other
government coordinating bodies with a view to ensuring that they remain within the limits set
by the Constitution on their powers.

It is the court‟s right to review legislative and executive decisions, and even review judicial
acts. It is the power to scrutinize the validity of legislation, or any practice, whether or not it
is legitimate. Judicial review doctrine is based on the principle of rule of law and separation
of powers. Judicial review is the process for testing and balancing the separation of powers.

Judicial Review‟s key purposes are as follows;

 to determine the unconstitutionality of Legislative Acts

 to maintain supremacy of the Constitutional Law
 to protect the Fundamental Rights
 to maintain federal equilibrium between Centre and the States
 to check arbitrariness, unjust harassing and unconstitutional laws

In India, judicial power is a power given to the court to create a mechanism of regulation and
balance between the legislature and the executive.

1
4 LRI 647; M P Singh, „Constitutionality of Market Economy‟ (1996) 18 Delhi Law Review 272. See also
Balco Employees Union v Union of India AIR 2001 SC 350; Centre for Public Interest Litigation v Union of
India AIR 2003 SC 3277.
2
See Kesavananda Bharati v State of Kerala, AIR 1973 SC 1461.

6
There are various provisions in the Indian Constitution explicitly laying down the power of
judicial review to the courts, such as Articles 13, 32, 131-136, 141, 143, 226, 227, 245, 246
and 372.

The Supreme Court of India has declared it as Supreme Court‟s and High Court‟s power as a
fundamental constitutional structure which cannot be taken away by a Constitutional
amendment.

If any legislative act / executive order of either state government or central government is
found to be in violation of the Constitution, it will be declared unconstitutional during the
judicial review.

In the article 13 of the Indian constitution, the law explicitly mentioned about the power of
Judicial Review to be endowed to the high court and Supreme Court. Chief Justice Kania in
the landmark case of A.K.Gopalan vs. State of Madras,3 stated that “it was only through
caution and care that the framers of our constitution added the specific provisions mentioned
in Art 13. In a country like India, it is the constitution which is the most supreme and hence
all statute laws should be in conformity with it and it should be for the interpreters to decide
whether any law is constitutional or not”. The doctrine was further brought into confidence
through several landmark cases which would be discussed in the article further.

Landmark judgements for the implement of the constitutionalism are:

After the A.K Gopalan case, in another case of L. Chandra vs. Union of India,4 the court gave
certain facets to the Judicial Review and also claimed that while interpreting the legislation, it
must be made sure that the law is in coherence with the constitution. This case emphasizing
on the need of coherence.

In the case of Shankari Prasad vs. Union of India ,5 the amendment was challenged on the
reason that it is violating the Part-III of the Indian constitution and hence, the amendment
should be considered not valid. The Supreme Court claimed that the legislative organ, under
Article 368, has the power to change any part of the constitution including the fundamental
rights. Here the court used its power of Judicial Review.

Similarly, in the case of Sajjan Singh vs. State of Rajasthan ,6 where the validity of the 17th
Amendment Act of 1964 was in question, the court followed the provision laid in the
Shankari Prasad vs. Union of India AIR 1951, SC 455, under article 368, the parliament has
the power to amend the constitution.

But in case of Golakhnaath Vs. state of Punjab,7 the courts changed its decision when,
amendment in question in the case of Sajjan Singh vs. State of Rajasthan AIR 1965 SC 845

3
A.K.Gopalan vs. State of Madras AIR 1950 SC 27
4
L. Chandra vs. Union of India AIR 1997 SC 1125
5
Shankari Prasad vs. Union of India AIR 1951, SC 455
6
Sajjan Singh vs. State of Rajasthan AIR 1965 SC 845
7
Golakhnaath Vs. state of Punjab 1967 AIR 1643, 1967 SCR (2) 762)

7
was again challenged. The court this time stated that under article 368 there is only the
procedure to amend laid down but not the power for the parliament.

With time the doctrine of Judicial review came more into application by the courts the deeper
its roots were embedded in the law. In the case of Ramesh Thapper vs. State of Madras,8 the
Supreme Court under its power of Judicial review struck down the Madras Maintenance of
Public Safety Act 1949, on the fact that unless any certain law which is restricting freedom of
speech and expression is pointed against eroding the security of the state or to topple it, any
such law will not fall within the reservation of clause mentioned in Article 19(2) of the Indian
Constitution.

In the year 1972, the honourable Supreme Court was summoned to check on the validity of
the 24th, 25th and 29th Amendment in the Keshvananda Baharti‟s case.9 The Supreme Court
asserted its power of Judicial Review through the doctrine of basic structure. It was since then
that the doctrine of basic feature became an inseparable power of the constitution.

In a very popular case of Minnerva Mills Ltd vs. Union of India,10 the Supreme Court struck
down clauses (4) and (5) of Article 368 which was inserted through the 42nd Amendment of
the year 1976, stating the ground that these certain clauses damage and do not follow the
essential features of the basic structure of the constitution.

One could witness the power of basic structure in the constitution through the case of I.R.
Coelho vs. State of Tamil Nadu,11 in which the Supreme Court affirmed that any certain law
which is placed in the 9th schedule (subject after April 1974) will be open to challenge under
the judicial review. The Court claimed that even though this act is under the 9th schedule of
the constitutional Amendment yet its provisions would be open to challenge in case they
damage the basic structure/feature of the constitution.

RULE OF LAW
Responding to the changing times and aspirations of the people, the judiciary, with a view to
see that the fundamental rights embodied in the Constitution of India have a meaning for the
down-trodden and the under-privileged classes, pronounced in Madhav Haskot‟s case12 that
providing free legal service to the poor and needy was an essential element of Indra Sawhney
v. Union of India,13 Rule Of Law & Access to Justice the „reasonable, fair and just
procedure‟. Again, in Hussainara Khatoon‟s case14while considering the plight of the
undertrials in jail, speedy trial was held to be an integral and essential part of the right to life
and liberty contained in Article 21 of the Constitution. In Nandini Satpathy v. D.L. Dani 15,

8
Ramesh Thapper vs. State of Madras, AIR 1950 SC 124
9
Keshvananda Baharti‟s case AIR 1973 SC 1461
10
Minnerva Mills Ltd vs. Union of India AIR 1980 SC 1789
11
I.R. Coelho vs. State of Tamil Nadu AIR 2007 SC 8617
12
Madhav Haskot‟s case AIR 1978 SC 1548
13
Indra Sawhney v. Union of India, (2000) 1 SCC 168 1616 AIR 1978 SC 1548 6
14
Hussainara Khatoon‟s case AIR 1979 SC 1819
15
Nandini Satpathy v. D.L. Dani AIR 1978 SC 1025

8
the Supreme Court held that an accused has the right to consult a lawyer during interrogation
and that the right not to make self-incriminatory statements should be widely interpreted to
cover the pre-trial stage also. Again, in Sheela Barse v. State of Maharashtra16 , the Supreme
Court laid down certain safeguards for arrested persons. In Bandhua Mukti Morcha‟s case,17
the Supreme Court held that right to life guaranteed by Article 21 included the right to live
with human dignity, free from exploitation. The courts have, thus, been making judicial
intervention in cases concerning violation of Human Rights as an ongoing judicial process.
Decisions on such matters as the right to protection against solitary confinement as in Sunil
Batra v. Delhi Administration,18 and Apparel Export Promotion Council v. A.K. Chopra19 are
just a few pointers in that directions and can be referred to by the members themselves.

In Indian Constitution, Rule of Law has been adopted under the Preamble where the ideals of
justice, liberty and equality are enshrined. The Constitution has been made the supreme law
of the country and other laws are required to be in conformity with the Constitution.
Nonetheless, the courts have the onus to declare any law invalid, which is found in violation
of any provision of the Constitution.

In India, the meaning of rule of law has been much expanded and applied differently in
different cases by the judiciary. It is regarded as a basic structure of the constitution and
therefore, it cannot be abrogated or destroyed even by parliament.20 The principle of natural
justice is also considered as the basic corollary of rule of law. The Supreme Court of India
has held that in order to satisfy a challenge under Article 14, the impugned State act
(enactment in the form of law passed by parliament) must not only be nondiscriminatory, but
also be immune from arbitrariness.21 unreasonableness or unfairness (substantively or
procedurally)22 and also consonant with public interest.23 In A.D.M Jabalpur v Shivakant
Shukla,24 the question before the apex court was, whether there was any rule of law in India
apart from Article 21 of the Indian Constitution. The court by majority held that there is no
rule of law other than the constitutional rule of law. However, Justice Khanna did not agree
with the above view.

He rightly said, “Even in the absence of Article 21 of the constitution, the State has no power
to deprive a person of his life or liberty without the authority of law.” Similarly, the Supreme
Court while explaining the rule of law in K.T. Plantation Pvt. Ltd. v. State of Karnataka,25
held as follows; “The rule of law as a principle contains no explicit substantive component

16
Sheela Barse v. State of Maharashtra 1983 (2) SCC 96
17
Bandhua Mukti Morcha‟s case AIR 1984 SC 802
18
Sunil Batra v. Delhi Administration 1978 (4) SCC 494
19
Council v. A.K. Chopra 7JT 1999 (1) SC 1086
20
Indira Gandhi v Raj Narain, AIR 1975 SC 2299 (2369-71),
21
Nakara v Union of India, (1983) UJSC 217 (Paras. 13, 14)
22
Maneka Gandhi v Union of India, AIR 1978 SC 597
23
Kasturi v State of Jammu & Kashmir, AIR 1980 SC 1992 (2000)
24
A.D.M Jabalpur v Shivakant Shukla (1976) 2 SCC 521, AIR 1976 SC 1207
25
K.T. Plantation Pvt. Ltd. v. State of Karnataka (2011) 9 SCC 1

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like eminent domain but has many shades and colours. Violation of principle of natural
justice may undermine the rule of law resulting in arbitrariness, unreasonableness, etc. but
such violations may not undermine the rule of law of law so as to invalidate a statue.

Violation must be of such a serious nature which undermines the very basic structure of the
constitution and the democratic principles of India. But once the court finds, a statue
undermines the rule of law which has the status of a constitutional principle like the basic
structure, the said grounds are also available and not vice versa.

Any law which in the opinion of the court is not just, fair and reasonable is not a ground to
strike down a statute because such an approach would always be subjective not the will of the
people because there is always a presumption of constitutionality for a statue. The rule of law
as a principle is not an absolute means of achieving equity, human rights, justice, freedom
and even democracy and it all depends upon the nature of the legislation and the seriousness
of the violation. The rule of the law as an overarching principle can be applied by the
constitutional courts, in the rarest of rare cases and the courts can undo laws, which are
tyrannical, violate the basic structure of the constitution and norms of law and justice.” For
the constitutionalism in this field judiciary also played a vital role on the basis of the
constitution

SEPARATION OF POWER BY JUDICIARY FOR THE

PROMOTING CONSTITUTIONALISM:
In India, a separation of functions rather than of powers is followed. Unlike in the US, in
India, the concept of separation of powers is not adhered to strictly. However, a system
of checks and balances have been put in place in such a manner that the judiciary has the
power to strike down any unconstitutional laws passed by the legislature.

Today, most of the constitutional systems do not have a strict separation of powers between
the various organs in the classical sense because it is impractical. In the following sections,
we will see the prevailing system in India, what the relationship between each organ is, and
the constitutional provisions thereof.

Judicial Pronouncements Upholding constitutionalism of the Separation of Powers Doctrine:

Kesavananda Bharati Case (1973): In this case, the SC held that the amending power of the
Parliament is subject to the basic features of the Constitution. So, any amendment violating
the basic features will be declared unconstitutional.

Swaran Singh Case (1998): In this case, the SC held the UP Governor‟s pardon of a convict
unconstitutional.

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 OTHER SC JUDGEMENTS
 The Honourable Supreme Court in Ram Jawaya Kapoor V State of Punjab held that
the Indian Constitution has not indeed recognised the doctrine of separation of powers
in its absolute rigidity but the functions of the different parts or branches of the
government have been sufficiently differentiated and consequently it can be very well
said that our Constitution does not contemplate assumption by one organ or part of the
state of functions that essentially belong to another.

 In Indira Nehru Gandhi V Raj Narain, Ray, CJ observed that in the Indian
Constitution there is a separation of powers in a broad sense only. A rigid separation
of powers as under the American Constitution or under the Australian Constitution
does not apply to India. The Court further held that adjudication of a specific dispute
is a judicial function which Parliament even acting under a constitutional amending
power cannot exercise. Apart from difficulties inherent in the enforcement of the strict
doctrine of separation of powers in the functioning of the modern government, there is
also an inherent difficulty in defining, in workable terms, the division of powers into
executive, legislative and judicial.

 In P Kannadasan V State of Tamil Nadu, it was held, “the Constitution has invested
the Constitutional Courts with the power to invalidate laws made by Parliament and
the state legislatures transgressing Constitutional limitations. Where an Act made by
the legislature is invalidated by the Courts on the basis of legislative incompetence,
the legislature cannot enact a law declaring that the judgement of the Court shall not
operate; it cannot overrule or annul the decision of the Court. But this does not mean
that the legislature which is competent to enact the law cannot re-enact the law.
Similarly, it is open to the legislature to alter the basis of the judgement. The new law
or the amended law can be challenged on other grounds but not on the ground that it
seeks to in effectuate or circumvent the decision of the court. This is what is meant by
“checks and balance” inherent in a system of government incorporating separation of
powers.

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CHECKS AND BALANCES BY THE JUDICIARY FOR THE
PROMOTING CONSTITUTION:
The strict separation of powers that was envisaged in the classical sense is not practicable
anymore, but the logic behind this doctrine is still valid. The logic behind this doctrine is of
polarity rather than strict classification meaning thereby that the center of authority must be
dispersed to avoid absolutism. Hence, the doctrine can be better appreciated as a doctrine of
checks and balances.

In the early years, the Supreme Court held twice, in Sankari Prasad (1951) and Sajjan Singh
(1965), that there were no restrictions in amending powers of Parliament. As a result, all
official reviews of the Constitution – First Amendment (1951), Fourth Amendment (1954),
and Forty Second Amendment (1976) – were ways governments found to get around the
original Constitution. It was only in the 1973 Kesavananda case that the court began to
enforce the doctrine of basic structure, limiting the powers of government. As for limiting
the power of government over appointment of judges, in 1993 the court presumed that role as
well. But now India has a system of judges appointing judges behind a veil of secrecy. There
is no public scrutiny of their appointment or their performance.

 In Indira Nehru Gandhi‟s case, Chandrachud J. observed – No Constitution can

survive without a conscious adherence to its fine checks and balances. Just as courts
ought not to enter into problems intertwined in the political thicket, Parliament must
also respect the preserve of the courts. The principle of separation of powers is a
principle of restraint which “has in it the precept, inmate in the prudence of self-
preservation; that discretion is the better part of valour”.

 The doctrine of separation of powers in today‟s context of liberalization, privatization

and globalization cannot be interpreted to mean either “separation of powers” or
“checks and balance” or “principles of restraint”, but “community of powers”
exercised in the spirit of cooperation by various organs of the state in the best interest
of the people.

12
CHALLENGES FACE BY THE COURT IN PROMOTING
CONSTITUTIONALISM:
Although the Supreme Court of India has widened its scope of interference in public
administration and the policy decisions of the government, it is well aware of the limitations
within which it should function. In the case of P Ramachandran Rao v State of Karnataka26,
reported in, has observed that “The Supreme Court does not consider itself to be an imperium
in imperio or would function as a despotic branch of the State”.

The Indian Constitution does not envisage a rigid separation of powers, the respective powers
of the three wings being well-defined with the object that each wing must function within the
field earmarked by the constitution. The Supreme Court of India took all this into account in
the judgment reported in the case of State of Kerala v A Lakshmi Kutty27, stating that

“Special responsibility devolves upon the judges to avoid an over activist approach and to
ensure that they do not trespass within the spheres earmarked for the other two branches of
the State.”

Judiciary plays an important role in the transformative constitutionalism as what we are now
is result of billions of year evolution and the values people change morally, socially and
economically change so for those changes our rule must change as well because what‟s
constitutionalism today is might not be after 5 years for instance rights of LGBTQ, in many
countries it has been decriminalised including India. That was not morally correct before but
now as constitutionalism works by and for the people. In such matter‟s judiciary can give
judgements and make new laws. Judicial system is the only system which has been protecting
our rights no other system can apart from your sex, caste state of birth.

26
P Ramachandran Rao v State of Karnataka (2002) 4 SCC 578
27
State of Kerala v A Lakshmi Kutty AIR 1973 SC 1461

13
 CONCLUSION
Here in India we have adopted the concept of Separation of power so we cannot assume the
power of judicial review in full extended form. If the courts presume full and arbitrary power
of judicial review it will lead to the poor performance of work by all the organs of
government. So to keep all the functions work properly each has to work in its provided
sphere. In India, we have the concept of judicial review embedded in the basic structure of the
constitution. It helps the courts to keep a check and balance upon the other two organs of
government so that they don‟t misuse their power and work in accordance with the
constitution. Finally, we have developed the concept of judicial review and it has become the
part of basic structure in case of Minerva Mills V. Union of India. So, at last, it is correct to
say that judicial review has grown to safeguard the individual right, to stop the use of arbitrary
power and to prevent the miscarriage of justice. The Supreme Court in Indian Democracy
plays a provital role. It is the highest court in the Indian Judiciary system and one of the three
coequal branches of the national government. It has primary, though not exclusive
responsibility for interpreting the Indian constitution and for defining the scope and content of
its key position. As a principle guardian of the constitution, the courts are frequently called
upon to assess the validity of statutes passed by legislative majority. The Supreme Court in
India also maintains a check and balance on the other two organs of the government.

The courts must stay-off from political arena by not donning the political role. They should
remember that the court cannot save the country but they may be able only to buy the time
necessary for revitalization of other institution of the government. Though it is a very well
established fact that the judicial activism of the Supreme Court has helped in enforcing the
rights and interests of the citizens and also in keeping the other branches of the government
within their constitutional boundaries, the judiciary should constantly remind itself that the
need of the hour is the supremacy of the constitutional and not the supremacy of the judiciary.

To sum up the judicial activism in India, it will be very appropriate to quote the words of
Dr. A.S. Anand, Chief Justice of India, who said:

“26th January 2000 marks the completion of fifty years of the Supreme Court of India. At this
juncture, it is time to weigh that it has contributed and where it has lagged behind. This all
the move so when the Supreme Court is the custodian of the Indian Constitution and
exercises judicial control over the acts of both the legislature and the executive.”

14