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By Inderjit Badhwar

The unanimous decision by the highest court in the United Kingdom to enforce the supremacy of parliament and declare Prime Minister Boris Johnson’s decision to prorogue parliament as null and void is a resounding and timely lesson for all parliamentary democracies. It re-established the presence and importance of checks and balances, so vital for the lifeblood of a democracy. More crucially, it highlighted issues such as the separation of powers and the role of the Supreme Court in defining the limits to the power of the Executive. Writing in The Indian Express, internationally-known legal scholar and regular contributor to this magazine Professor Upendra Baxi called it a “Kesavananda Bharati moment”. The judgment he was referring to was a landmark decision of the Supreme Court in India that outlined the basic structure doctrine of the Constitution.

Back in 1973, a 13-judge Constitution bench of the Supreme Court deliberated…

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By Inderjit Badhwar

The unanimous decision by the highest court in the United Kingdom to enforce the supremacy of parliament and declare Prime Minister Boris Johnson’s decision to prorogue parliament as null and void is a resounding and timely lesson for all parliamentary democracies. It re-established the presence and importance of checks and balances, so vital for the lifeblood of a democracy. More crucially, it highlighted issues such as the separation of powers and the role of the Supreme Court in defining the limits to the power of the Executive. Writing in The Indian Express, internationally-known legal scholar and regular contributor to this magazine Professor Upendra Baxi called it a “Kesavananda Bharati moment”. The judgment he was referring to was a landmark decision of the Supreme Court in India that outlined the basic structure doctrine of the Constitution.

Back in 1973, a 13-judge Constitution bench of the Supreme Court deliberated on the limitations, if any, of the powers of the elected representatives of the people and the nature of fundamental rights of an individual. The apex court held that while Parliament has wide “powers”, it did not have the power to destroy or emasculate the basic elements or fundamental features of the Constitution. The Kesavananda case revealed the underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly. This was dramatically proved when Indira Gandhi declared the Emergency in 1975.

In Indira Nehru Gandhi vs Raj Narain, a Constitution Bench of the Supreme Court used the basic structure doctrine to pave the way for restoration of democracy. It also reaffirmed the concept of separation of powers as a model for the governance of a democracy. The typical division is divided into three branches—a legislature, an executive and a judiciary, which is called the trias politica model. The system of checks and balances rests on the principle that each of the branches has the power to limit or check the other two. It is often a delicate balance. The essential principle is to protect the people from government abuse.

India follows a constitutional democracy which offers a clear separation of powers. The judiciary is fairly independent of the other two branches with the power to interpret the Constitution. All three branches have checks and balances over one another to maintain the balance of power and not exceed constitutional limits. Under this, the president of India can set aside a law passed by the legislative which is deemed to be inconsistent with the Constitution. Even if the president accepts a law passed duly by the legislative, it can be repealed by the Supreme Court if it is against “the basic structure of the Constitution”. Similarly, Parliament has the power to impeach a president for any unconstitutional decision/decisions he/she may make, while the judiciary, equally, has the power to ask a president to step down if any of his/her orders are seen as unconstitutional. As a counter, Parliament has the power to impeach judges of the Supreme Court and High Courts for incompetence and intentions that are viewed as mala fide, or in bad faith.

However, occasional transgressions on the separation of powers have been generally seen as pro-people—the Vishakha case where guidelines on sexual harassment were issued by the apex court, and the decriminalisation of homosexuality declaring Section 377 of the Indian Penal Code to be unconstitutional. In 1983 when Justice PN Bhagwati introduced Public Interest Litigation (PIL) in India, Justice RS Pathak in the same judgment warned against the “temptation of crossing into territory which properly pertains to the Legislature or to the Executive Government”.  In that sense, the judgment by Britain’s highest court is not being seen as judicial overreach but as a timely reminder that heads of government cannot ride roughshod over established constitutional norms and take ad hoc decisions that not only undermine parliament but also the will of the people. It is a decision that will echo around the democratic world.

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