JUDICIAL SUPREMACY v.

INDIAN CONSTITUTION
JUDICIAL SUPREMACY:
Judicial Supremacy is when the courts have the power of changing
laws that infringe the Charter of Rights and Freedoms, or when
courts make all the laws, abiding by the Charter. 
IN INDAN CONSTITUTION:
Indian constitution has given express provision for the
independence of judiciary. which is already explained in
“independence of judiciary” (ART-124 125,126 etc) There
is some more provisions which empowers the judiciary.

Art 13 gives the power to the judiciary to struck down any

law made by the parliament if that violates any of the
fundamental rights.
Art- 32 & 226-power to enforce the fundamental rights
Art -131 –original jurisdiction of the SC in any dispute b/w
central and states or b/w states and states.
Art -136-special leave to appeal
Art-143-power of president to consult with SC
 Some provisions in Indian constitution which restrict
the power of judiciary-
Art-13(4)-nothing in this constitution shall apply to any amendment of this
constitution made under art 368 . so art 368 is also a limitation on judiciary.

Art 245 – parliament may make any law for the territory of india and judiciary
is bound to respect that law.

Art 122-courts not to inquire into proceedings of parliament.

Emergency Provisions (352-359)- is also a restrictions upon the power of

judiciary. At the time of emergency the rights given under part iii can be
suspended.(except the right under art 20 n 21)

Judicial review of the proclamation under 356 is open to judicial review only on
some certain grounds (Rameshwar prashad v. UOI AIR 2006 SC 980)
IN U.S. CONSTITUTION:
U.S. Constitution: Article III, Section 2:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall be
made, under their Authority; to all Cases affecting Ambassadors, other public
Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to
Controversies to which the United States shall be a Party; to Controversies between
two or more States; between a State and Citizens of another State; between Citizens
of different States; between Citizens of the same State claiming Lands under Grants
of different States, and between a State, or the Citizens thereof, and foreign States,
Citizens or Subjects.
Due process :
 is the principle that the government must respect all of the legal
rights that are owed to a person according to the law. Due
process holds the government subservient to the law of the land,
protecting individual persons from the state.
Due process has also been frequently interpreted as limiting laws
 and legal proceedings . so judges - instead of legislators - may
define and guarantee fundamental fairness, justice, and liberty.
This interpretation has proven controversial, and is analogous to
the concepts of natural justice, and procedural justice used in
various other jurisdictions. It is also stated that the government
shall not be unfair to the people.
In the Magna Carta, due process is referred to as "law of the land" and
"legal judgment of peers." 
SUPREMACY CLAUSE OF AMERICAN CONSTITUTION WHICH
ESTABLISHES THE SUPREMACY OF CONSTITUTION:

In US constitution art (vi)(clause 2) accepts the supremacy of the constitution

which is also called the ‘supremacy clause’ says this constitution and the laws
of the US which shall be made in pursuance with there of …….shall be the
supreme law of the land. Further it says that ‘judges of the state shall be bound
there by’.
JUDICIAL “SUPREMACY”, IS IT? SPACIALLY IN
COMPARISION TO CONSTITUTION:
Dr.Ambedkar, best known as author of the constitution stated, while
delivering a speech in constitution assembly on 17th sep of 1949-in fact
the purpose of the constitution is not merely to create the organs of the
state but to limit their authority bcoz if no limitations was imposed upon
the authority of the organs, there will be complete tyranny and complete
oppression .

Constitution is the founding document and the preserver of the federal

system of India. So no document institution or authority is superior to it
DOCTRINE OF BASIC STRUCTURE:

ON April 24, 1973, a Special Bench comprising 13 Judges of

the Supreme Court of India ruled by a majority of 7-6, that
Article 368 of the Constitution "does not enable Parliament to
alter the basic structure or framework of the Constitution"
(Kesavananda Bharati vs. The State of Kerala; AIR 1973 S.C.
1461, (1973) 4 SCC 225). It, however, overruled a decision of a
Special Bench of 11 Judges, by a majority of 6-5, on February
27, 1967, that "Parliament has no power to amend Part III of
the Constitution so as to take away or abridge the
fundamental rights" (I.C. Golak Nath & Ors. vs. The State of
Punjab & Ors.: AIR 1967 S.C. 1643, (1967) 2 SCJ 486).B
BASIC STRUCTURE: A STEP TOWARDS THE SUPREMACY
OF JUDICIARY

In keshavananda Bharti case,a bench of 13 judges by amajority of

7-6 overruled ‘Golaknath’ to declare that the constitution has some
‘Basic features’ that can not be altered or destroyed even though by
amending process.

Basic feature is a totally judges made law, there is no such text used
in our constitution and also not in any other constitution. It is difficult
to explain how and where the majority of judges discovered this unique
doctrine to curtail the parliamentary power of amendment which the court
Itself had repeatedly held before to be unfettred.

They told about the ‘doctrine of basic structure’ but they did not
told that ‘what is basic structure’. They left it like a open field ,I which
they can interpret ate the constitution as they want, as they think fit.
There is also a situation if any court makes any law and it is according to
the constitution but it against the will of the people then if legislsture
deems it necessary then legislature can struck down the law by making a
new legislation on that particular subject.

Shah bano’case in this the court had laid down a law on a particular religion
But it was very criticized by that particular community. Then it was struked
Down by the parliament by making a new legislature.
“Putting All The Eggs In The Wrong Basket: 
Judicial Supremacy, The Supreme Court, And Gun Rights”“by Erich Pratt”

 Thomas Jefferson, author of the Declaration of Independence and

third President of the United States, had this to say about the three
branches of government:
My construction of the Constitution . . . is that each department is
truly independent of the others, and has an equal right to decide for
itself what is the meaning of the Constitution in the cases submitted
to its action.4

Then he compares the situation if judiciary is the is the last

interpretator the constitution to the baseball game.
It’s one thing to give baseball umpires the final say in making tough
calls. Baseball is just a game. But its not a game of baseball
when the "judicial umpires" are dreadfully wrong?
• In 1857, the Supreme Court ruled in the infamous Dred
Scott decision that blacks were not entitled to the same
rights that are guaranteed to other Americans.

•In the 1940’s, the Supreme Court upheld President Franklin D.

Roosevelt’s order to put Japanese-Americans in prisons. Even
though none of them had been convicted of any crime, the Supreme
Court gave the "green light" and allowed more than 100,000
innocent people to be thrown into prisons that really amounted to
concentration camps
  the checks and balances should work

 The Congress passed the law, presumably thinking it had the

authority to pass such legislation.
The judges thought the law was constitutional, and thus they
passed sentence on those who broke the law.
But if the President did not believe the law was constitutional,
then he should not prosecute people for breaking that particular
law.
Thus, each branch should do what it thinks is right (within its own
scope of authority) and independently interpret the Constitution for
itself