The Constitution of India is mostly a written one. The legislature, the executive and the judiciary have well defined areas of responsibility and powers. They should not overlap. Stepping on other's toes may spell trouble.
THE CONSTITUTION of a country is sacrosanct. It should not be tampered with except through the due process of law as provided in the constitution itself. Every constitution in democracies of the world have been amended from time to time to keep pace with time. As a matter of fact, the will of the people is supreme. If people wish to change their own constitution handed down to them generation after generation, pray what can stop them from doing so.
Basic characterThe Constitution of India is mostly a written one. The Constitution of the United Kingdom is, generally speaking, an unwritten one and is based on convention and tradition respected by one and all. The three pillars of democracy- legislature, executive and judiciary ensure that the constitutional provisions are followed both in letter and spirit. A few years ago, the Constitution of India was amended by the legislature through due process provided in the constitution itself. However, the Supreme Court of India, the highest court of the country, ruled that since the said amendment altered the basic character of the constitution, it was ultra vires and can’t be implemented. With a view to change the basic character of the constitution, the executive or the legislature will have to go to the people with a specific agenda and obtain the mandate to amend the basic character of the constitution. In other words, it would amount to forming another constituent assembly to take a relook at the articles concerned and reframe them. Thus, the basic character of the present constitution can be changed by another constituent assembly bearing the mandate of the people to do so. Well, it has not happened so far. The procedure was too cumbersome and was given up by the activists concerned. Clash of Titans In the United States, president is the most powerful constitutional authority. He is a king who reigns and rules. However, the legislature and the judiciary functioning within constitutional authority do have a stick to wield lest the president becomes an autocrat. Nevertheless, it is the President of the United States who has the last laugh. In the present context, the Supreme Court of USA has opened the electoral system to a new torrent of corporate money. Why did the bench of judges do so? It is for them to explain. However, the judges owe no explanation to anyone for what they say in their judgment and order.
President Obama did refer to this sorry state of affairs in his state of the Union address. On this, Justice Samuel Alito could not restrain himself and displayed his unhappiness over President's criticism of the Supreme Court's decision. Well, this is not the first time that the top executive and the top judiciary clashed over what they perceived to be right. This is not the last clash of the Titans either. In fact, it is a healthy clash of constitutional authorities and it is considered to be good for the democracy. Mother of democracies The British Parliament is the mother of parliaments and their democracy is the mother of democracies. The British Parliament is so powerful constitutionally that for changing the gender of a person, it can do anything. The powers of the British Parliament are not restricted like that of the Indian Parliament. One thing common to both is observance of rule of law. They follow the maxim. Howsoever high you may ever be, the law is above you. No one is permitted to make a hash of it. The British Parliament even dictates who the sovereign may marry and who he may not marry. The case of King Edward VIII is the most recent example of this supremacy of the elected body. In the United States, both the legislature and the president are elected but the judges are nominated. Subsequent to nomination and confirmation by the Senate, the judges are not liable to be removed by anyone except through impeachment proceedings. Impeachment is rarely successful. Can it lead to judicial autocracy? Well, there are checks and balances. Traditionally, judges themselves are guided by traditions to apply judicial restraint. By and large they do so. Checks and balances help the constitutional machinery function properly. No pillar of democracy assumes autocratic powers to the extent of leading to a crash of other pillars. The in-built mechanism ensures proper functioning of the constitution and the will of the founding fathers prevails.