RULE 0F LAW AND SEPERATI0N 0F P0WER; AND JUDICIARY

ACTING 0VER PARLIAMENT

Abstract

In India, the Constitution is regarded as Supreme law of the land. No one is above the
Constitution. It provides for three organs of the Government, viz., the Legislature, Executive
and the Judiciary, each to function independently so that the rule of law in the state could be
upheld in the State. But, due to ineffective legislature and also because of the powers of the
executive being in the hands of one person, there has been a series of inaction by the
legislature. Henceforth, the Judiciary has involved itself to bridge the gap in the law which
the state is lacking by means of establishing new doctrines, expanding the horizons of the law
by giving wide interpretations and also by declaring new principles. Thus, the question
arouse is that whether in doing so, is Judiciary encroaching the powers of the Legislature?

INTODUCTION

The concept of Rule of Law is the supremacy of law and the doctrine of Separation of Powers
establishes that there should be different heads or organs of the Government; each acting
independently of each other so that the law of the State could be enforced properly; and the
true spirit of the Law gets reflected in its enforcement.

Rule of Law

The concept of the Rule of Law is of old origin. Sir Edward Coke is said to be the originator
of this concept, when he said that “the King must be under God and Law” and thus vindicated
the supremacy of law over the pretentions of the executives1. The concept of Rule of Law has
been developed by Dicey in the course of his lectures at the Oxford University in his book
“The Law of the Constitution” published in 1885. According to him, whenever there is
discretion there is room for arbitrariness.2

1
Judicial Activism’ and the enforcement of Socio-Economic Rights- The Indian Experience by C.J.Balakrishnan
2
Dicey: LAW 0F THE C0NSTITI0N, 8th Edn., p.198

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According to Prof. Diccy, “Rule of Law” contains three principles or it has three meanings as
stated below:

1. Supremacy of Law

2. Equality before Law; and

3. Predominance of Legal Spirit.

“However, Dicey's ‘Rule of Law’ was not accepted in full and John Finnis’ doctrine was
accepted in the Indian Constitution. According to Finnis, by “Rule of Law” is meant a system
in which:-

i. Its rules are prospective;

ii. Possible to comply with;
iii. Promulgated;
iv. Clear;
v. Coherent with each other;
vi. Sufficiently stable;
vii. The making of decrees and orders as guided by rules that are themselves promulgated,
clear, stable, and relatively general;
viii. Those who administer rules are accountable for their own compliance with rules
relating to their activities and who perform these consistently and in accordance with
law.”3

Separation of Powers

“Montesquieu, a French scholar, found that concentration of power in one person or a group
of persons results in tyranny. And therefore for decentralization of power to check
arbitrariness, he felt the need for vesting the governmental power in three different organs,
the legislature, the executive, and the judiciary. The principle implies that each organ should
be independent of the other and that no organ should perform functions that belong to the
other. Through his doctrine Montesquieu tried to explain that the union of the executive and
the legislative power would lead to the despotism of the executive, for it could get whatever

3
Jurisprudence (Legal The0ry) by Dr. S.R.Myneni, pg.411, 2nd Edn.,2004

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laws it wanted to have, whenever it wanted them. Similarly the union of the legislative power
and the judiciary would provide no defence for the individual against the state. The
importance of the doctrine lies in the fact that it seeks to preserve the human liberty by
avoiding concentration of powers in one person or body of persons.”4

Separating the executive from the judiciary has been a demand of the Congress Party and
others before independence. The same individual acting as prosecutor, judge, jury was
unacceptable.5 “The role of separation of powers in India is simple. The three organs of the
Government viz. the Legislature, the Executive and the Judiciary are not independently
independent but inter-dependently independent.”6 On a glance at the provisions of the
Constitution of India, it appears that the doctrine of Separation of Powers is accepted in India.
Under the Indian Constitution, executive powers are with the President, legislative powers
with the Parliament and judicial powers with the Judiciary - Supreme Court, High Courts and
subordinate courts.7

Acting of Judiciary over Parliament (Judicial Activism)

Judicial Review in India stands on a more solid basis than in United States because it
is not based on any judicial dogma, but is provided for by the constitution itself.8 ‘Judicial
Review’ means a form of court proceeding in which a judge reviews the lawfulness of a
decision or action made by a public body. In general terms judicial review may be
appropriate where:

ody has taken an

unlawful decision or action, and

4
Seperation of Powers: Its Scope and Changing Equations, Legal Service India.com
5
Working a Democratic Constitution by Granville Austin; p.139
6
Public Interest Litigation and Judicial Activism by Kamal Uddin;
http://twocircles.net/book/export/html/135427
7
Doctrine of Separation of Powers; LegalQuest.in
8
Dynamism of Judicial Control and Administrative Adjudication by Noor Mohammed Bilal, p.197

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Judicial review does not involve the court in deciding whether the public body has made the
‘right’ or ‘correct’ decision, but whether the correct legal basis has been used in reaching it.9

The scope of judicial review was illustrated by Garner in his book, Administrative
Law10, where in the courts have authority to review the law, if there is :- 1) breach of the
principles of natural justice, 2)excess of powers or are substantively ultra vires; 3)errors of
procedure or procedural ultra vires, 4) errors of law, 5) failure to perform a duty, 6) bad faith
or abuse of power.

“The power of judicial review gave birth of judicial activism in India”.11 The term
"judicial activism" was coined for the first time by Arthur Schlesinger Jr. in his article "The
Supreme Court: 1947," published in Fortune magazine in 1947.Though the history of judicial
activism dates back to 18o3, when concept of Judicial review was evolved by Chief Justice
Marshall in celebrated case of Mar Bury v/s Madison The emergence of judicial review gave
birth to a new movement which is known as judicial activism.12

Judicial Activism means "a philosophy of judicial decision making whereby judges
allows their personal views about public policy among other factors to guide their
decision".13

“Judiciary has become the centre of controversy in the recent past. The judiciary has
shed its pro-status-quo approach and taken upon itself the duty to enforce the basic rights of
the poor and vulnerable sections of society, by progressive interpretation and positive action.
The violation of basic human rights has also led to judicial activism. Finally, due to the
misuse and abuse of some of the provisions of the Constitution, judicial activism has gained
significance. Besides the above mentioned factors, there are some other situations that lead to
judicial activism. These are:

 When the legislature fails to discharge its responsibilities.

 In case of a hung parliament where the government is very weak and instable.

9
The Public Law Project
10
7th Edn.p 115-117
11
Article: Judicial Activism and Democracr by Anil Diwan
12
Article: Judicial Activism in India by Kanchan Jha
13
Black Law Dicti0nary, 8th Edn.

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 When the governments fail to protect the basic rights of the citizens or provide an
honest, efficient and just system of law and administration,
 When the party in power misuses the courts of law for ulterior motives as was done
during the Emergency period, and
 Finally, the court may on its own try to expand its jurisdiction and confer on
themselves more functions and powers”.14

Moreover, “Judicial Activism has become necessary because of a number of lacunae in the
functioning of the legislature and the executive. Both the legislature and the executive are
guilty of either over-action or inaction”15. According to Justice Douglas, Judiciary is the
guardian of the conscience of the people as well as of the law of the land.

Indian Constitution itself provides scope or makes space for emergence of judicial activism.
Articles 13, 32,226,141 and 142 are of considerable importance in judicial activism. “Article
13 conferred wide power of judicial review to the Apex court. In the exercise of the judicial
review, it can examine the constitutionality of executive or legislative act. The High Courts
have also the same power in this regard. Article 32 and 226 makes the Supreme Court as well
as the High Courts the protector and guarantor of the fundamental rights. Article 141
indicates that the power of the Supreme Court is to declare the law and not enact it, but in the
course of its function to interpret the law, it alters the law. Art 142 enables the Supreme Court
in exercise of its jurisdiction to pass such order or make such order as is necessary for doing
complete justice in any cause or matter pending before it.”16 Judicial Activism was explained
and recognized by the Supreme Court in Golaknath’s case17 wherein “the court laid down the
judicial principle of Prospective overruling by giving wider beneficial interpretation of
Article 13 of the Constitution of India.”18 Through these Articles, the Supreme Court as well
as High Courts have redressed several social, environmental and other issues.

14
Short Essay in Judicial Activism in India by Dnyanesh Kumar;
http://www.preservearticles.com/2011092714143/short-essay-on-judicial-activism-in-india.html
15
Is judiciary crossing its limits: Law Resource India; http://indialawyers.wordpress.com/2011/03/12/is-
judiciary-crossing-its-limits/
16
J.N. Pandey, The Constitutional Law of India, CLA 2010
17
I.C. Golaknath & ors. Vs State of Punjab & another, 1967 SCR (2) 762
18
Ibid

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In “S.P Gupta v/s Union of India19, popularly known as Judges Transfer case, the
strict rule of locus-standi was given a final rest”. In this case Justice Bhagwati observed
“where a legal wrong or legal injury is caused or threatened to a person or determinate class
of persons and as such person or determinate class of person is by reason of poverty,
helplessness or disability of socially or economically disadvantaged position, unable to
approach the court of relief; any member of public can maintain an application for an
appropriate direction, order or writ in the High Court under Art 226 and in Supreme Court
under Art 32, seeking judicial redress for the legal wrong or injury caused to such person.”20

This gave a new horizon to Indian Judiciary to deal with cases for the benefit of the public by
the introduction of Public Interest Litigation (PIL). Now, any public spirited citizen can move
or approach the Court of Law for the any cause either in the interests of the public or for
public welfare by filing a petition before:

1. the Supreme Court under Article 32 of the Indian Constitution;

2. the High Courts under Article 226 of the Indian Constitution; and
3. the Court of Magistrate under Section133 of the Code of Criminal Procedure.

Justice Krishna Iyer in “Fertilizer Corporation, Kamgar Union vs. Union of India21,
enumerated the following reasons for liberalization of the rule of Locus Standi:-

 Exercise of State power to eradicate corruption may result in unrelated interference

with individuals' rights.
 Social justice wants liberal judicial review for administrative action.

 Restrictive rules of standing are antithesis to a healthy system of administrative

action.

 Activism is essential for participative public justice".22

Judicial activism earned a human face in India by liberalising access to justice and giving
relief to disadvantaged groups and the have-nots under the leadership of Justices V.R.

19
1981 Supp SC 87
20
Ibid.
21
A.I.R 1981 SC 344
22
Ibid.

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Krishna Iyer and P.N. Bhagwati.23 However, judicial activism in India has now taken on an
interesting face. The courts in India pursue a form of review which can be described at best as
‘dialogic’ — a term used famously by Peter Hogg and Allison Bushell in the context of the
Canadian Supreme Court’s decisions.24

Cases pertaining to new principles and/ or guidelines laid

down by Judiciary

 Rule of Absolute Liability

In M.C.Mehta Vs. Union of India25, the Hon’ble Supreme Court of India introduced
the doctrine of Absolute Liability. The Court directed the Company manufacturing
hazardous and lethal chemicals and gases posing danger to health and life of workmen
and people living in its neighbourhood, to take all necessary measures and to pay
compensation to the victim of Oleum gas.

 Sexual Harassment at work places

In Vishaka Vs. State of Rajasthan,26 the Supreme Court has laid down exhaustive
guidelines to prevent sexual harassment of working women in places of their work
until a legislation is enacted for that purpose. The court held that it is the duty of the
employer or other responsible person in work-places or other institutions, whether
public or private, to prevent sexual harassment of working women.

 Colourable use of Legislation invalid

27
In S. R. Bommai v. Union of India, the Supreme Court discussed at length
provisions of Article 356 of the Constitution of India and related issues. This case had

23
Judicial Activism in India, Anil Diwan
24
Dialogic Judicial Activism in India, Abhinav Chandrachud
25
(1986) 2 SCC 176
26
AIR 1997 SC 3011
27
AIR 1994 SC 1918

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huge impact on Centre-State Relations. The misuse of Article 356, to impose central
authority on states, was stopped after this judgement.

 Right to Privacy

“By the expression, ‘right to privacy’ is meant, the right to be left alone, to live one’s
life with the minimum degree of interference. In the expanded form, it includes a right
against interference with his or her private life, family and home life, attack on his
honour and reputation. It is a right against disclosure of irrelevant and embracing
facts relating to his private life; spying, prying, watching and be setting and
interference with his correspondence.”28 In Kharak Singh vs State of U.P, the
Hon’ble Supreme Court has held that the domiciliary visits is an infringement of right
to privacy and is violative of citizen’s fundamental right of personal liberty
guaranteed under Article 21 of the Constitution of India.29

In People’s Union for Civil Liberties vs Union of India, popularly known as phone
tapping case, the Supreme Court has held that right to life and personal liberty
includes right to privacy and right to privacy includes telephone conversation in
privacy at home or office and thus telephone being a serious invasion of an
individual’s right to privacy and violates Article 21 of the Indian Constitution.30

 Right to Travel Abroad

In Satwant Singh vs. Assistant Passport Officer, New Delhi, it was held by the
Supreme Court that the right to go abroad is a part of person’s ‘personal liberty’
within the meaning of Article 21 of the Constitution of India, and consequently no
person can be deprived of this right except according to the procedure prescribed by
Law.31 In this case, it was contended on behalf of the Union Government that the right

28
Dr. H.0.Agarwal: Human Rights, p.273, Edn.2010
29
AIR 1963 SC 1295
30
AIR 1997 SC 568
31
AIR 1967 SC 1836

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to travel is not included in the personal liberty, but it was not accepted by the Court.32
The court observed that the expression personal liberty provided under Article 21
takes in right of locomotion to go where and when one pleases, and to travel abroad.33

In Maneka Gandhi vs. Union of India34, the Supreme Court upheld the decision of
Satwant Singh’s case. “The Court held that no person can be deprived of his right to
go abroad unless there is a Law made by the State prescribing the procedure for so
depriving him and the deprivation is effected strictly in accordance with such
procedure.”35

 Right to Speedy Trial

“Anyone arrested or detained on a criminal charge shall be brought promptly before

a judge and shall be entitled to trial within a reasonable time or to release. This
principle is not expressly stated in the Indian Constitution. The Fundamental rights
enshrined in the Constitution does not include that a person has a right to be tried
without undue delay. However, the Supreme Court in Hussainara Khatoon vs. Home
Secretary, State of Bihar36 has held that though speedy trial is not specifically
enumerated as fundamental rights, yet it is implicit in broad sweep and content of
Article 21 which deals with right to life and liberty.”37

 Right to provide Free Legal Assistance

“Everyone shall be entitled to be tried in his presence and to defeng himself in person
or through legal assistance of his own choice; to be informed if he does not have legal
assistance of his right to have legal assistance in any case where the interest of justice
so require and without payment by him in any case if he does not have sufficient

32
Ibid. at p.1837
33
Ibid. at p.1852
34
AIR 1978 SC 597
35
Ibid. at p.622
36
AIR 1976 SC 1360
37
Ibid at p. 276

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means to pay for it.”38 This principle was laid down by the Supreme Court in
M.H.Hoskot vs. State of Maharashtra39 that the right to free legal services is an
essential ingredient of reasonable, fair and just procedure for a person accused of an
offence and is implicit in Article 21 of the Indian Constitution.

 Right of Prisoners to be treated with Humanity

All persons deprived of their liberty shall be treated with humanity and with respect
for the inherent dignity of the human person.40 “But in the Indian Constitution there is
no such provisions in Part III which can safeguard the discretionary and sometimes
brutal treatment given to the prisoners. However, Justice Krishna Iyer of the Supreme
Court in Charles Shobraj vs. Superintendent, Central Jail, Tihar, New Delhi41;
recognised that the right to life is more than mere animal existence, or vegetable
substance. Even in prision, a person is required to be treated with dignity.”42

 Right of not to be Imprisoned for Inability to fulfil a Contractual

obligation

No one shall be imprisoned merely on the ground of inability to fulfil a contractual

obligation. However, in the Indian Constitution this right is not specifically guranted
under Part III. But in Jolly George Verghese vs. Bank of Cochin,43 it was held by the
Supreme Court that to cast a person in prison because of his poverty and consequent
inability to meet his contractual liability is a violatin of Article 21 of the Constitution
of India.

 Right to Compensation
Anyone who has been a victim of unlawful arrest or detention shall have an
enforceable right to compensation. This right was upheld bythe Hon’ble Supreme

38
Article 14 of the Covenant on Civil and Political Rights
39
AIR 1978 SC 1548
40
Article 10 of the Covenant of Civil and Political Rights
41
AIR 1978SC 1514
42
Ibid. at p. 281
43
AIR 1980 SC 470

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Court in D.K. Basu vs. State of West Bengal44 held that monetary compensation
should be awarded for established infringement of fundamental rights guaranteed
under Article 21.

 Right to Information

Everyone shall have the right to freedom of expression. This right shall include
freedom to seek, receive and impart information and ideas of all kinds, either orally
or in writing or in print or in the form of art or through any other media of his choice.
The Indian Constitution while under Article 19 (1) (a) gurantees the freedom for
speech and expression as fundamental rights, the right to information is not
specifically mentioned in Part III of the Constitution. In S.P.Gupta vs. Union of
India45, Justice Bhagwati stated that the concept of an open Government is the direct
emanation from the right to speech and expression guranted under Article 19(1)(a).
Therefore disclosure of information in regard to the functioning of the must be the
rule and secrecy an exception justified only where the strictest requirement of public
interest so demands.

The efforts of the highest Court in preventing social evils, environmental pollution, etc, is
indeed laudable when the legislature is lagging behind in bridging the lacuna in existing legal
system and administration is not well equipped to meet the challenge.46

Whether the Judiciary is encroaching upon the powers of the Legislature?

The accent of the provisions of the Constitution of India is towards securing all round
development of the individual and ensuring his dignity through Rule of Law47. Even the
Indian Constitution does not provide for absolute Separation of Powers. The main idea
behind this concept among the framers of the Constitution of India was that the rule of law
can be maintained only when there is no absolute concentration of powers in one single
44
AIR 2006 SC p.1117 to p.1129
45
SCC Supp. (1981) 87 p.275
46
Ibid, p.260
47
Introduction to Jurisprudence; Dr. Avtar Singh, p.369, 2nd Edn. 2008

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organ. The main frame of the principle of Rule of Law excludes “arbitrariness”. Whenever
there is arbitrariness or unreasonableness, there is denial of rule of law. In Bachan Singh Vs.
State of Punjab,48 it was held that the Rule of Law has three basic and fundamental
assumption. They are:-

1) Law making must be essentially in the hands of a democratically elected legislature;

2) Even in the hands of the democratically elected legislature, there should not be
unfettered legislative power; and
3) There must be independent judiciary to protect the citizens against excesses of
executive and legislative power.

Law is the manifestation of the principles of justice, equity and good conscience.49 “Law
is a Social Engineering to remove the existing imbalance and to further the progress, serving
the needs of the Socialist Democratic Bharat under the Rule of Law. The prevailing social
conditions and actualities of life are to be taken onto account in adjudging whether or not the
impugned legislation would sub serve the purpose of the society.”50

Adjustment of law to the social needs is a continuing process. Law must always be
responsive to the social development. This continuing process requires watchful legislature
and alert judiciary.51

In India, there are mainly three organs of the Government; i.e, Legislature, Executive and
Judiciary. India is a welfare state, and being a welfare state, Government plays a very
dominant role in moulding the society; or in large perspective; the State. Directive principles
laid down in Part IV of the Indian Constitution establishes duty on the Government to seek
welfare of the people. Legislature is to legislate laws and enact laws for achieving the welfare
of the people. Executive are given the responsibility to execute the laws made by the
legislature and the Judiciary to adjudicate them. Moreover, the Supreme Court has been made
the protector and guardian of the Constitution. The Constitution also empowered the Supreme
Court and the High Courts to protect the Rights and Freedoms granted under Part III. Any

48
Bachan Singh v. State 0f Punjab, (19820 3 SCC 24; 1982 SCC (Cri) 535; AIR 1982 SC 1325
49
Dalmia Cement (Bharat) Ltd. V. Union of India,(1996) 10 SCC 104
50
Ashok Kumar Gupta v. State of UP, (1997) 5 SCC 201; 1997 SCC (L&S) 1299
51
Intoduction to Jurisprudence; Dr. Avtar Singh, p.369, 2nd Edn. 2008

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law made by the parliament or by the legislative body would in all circumstance be
considered as unconstitutional by the Supreme Court and High Courts and they can protect
them by issuing writs, directions and orders as is considered essential to meet the
requirements of a democratic and welfare state.

The outer frame appears to be a perfect democratic state, but the inner framework is
based on a very weak foundation. India is a State, where a considerable population are
illiterate and are unaware of their rights guaranteed under Part III of the Constitution of India.
Although, there is a separation of power, but the legislative and the executive power, both are
mostly in the hands of one. Thus, there is only Judiciary on one hand and other two organs
(Executive + Legislative) on one hand. As a result of it, the rule of law has been put at hold
in reality. As the masses are ignorant of their rights, and the corrupt and inefficient legislature
through their executive actions are seeking to achieve their inert desire to loot the people
without paying any hindrance to protect them in reality. Moreover, the legislature of our
democratic state has been very weak. It has been lacking both in duty and ability to enact any
progressive laws for the people of this democratic nation. As a result, the rights of the people
are getting hampered. The Indian society is filled with lots of social evil which needs to be
eliminated.

As there has been constant inaction from the legislative organ of the government to solve
the major issues which people are facing, the judiciary had stepped into the shoes of the
legislature. The legislature has mainly two important duty to perform, i.e, to reform the laws
to meet the present situation and to enact new laws which may be necessary to remedy the
future wrongs that may arise in course of development in science and technology or due to
progress in society and criminal or wrongful intent in the minds of the people.

As the Judiciary itself cannot suo moto initiate legal proceedings even if it has
knowledge about the wrongs, happening around it. So, it had taken steps to out rule the locus
standi formulae in cases pertaining to public domain, which made it possible to protect the
rule of law. As a result of it, the principle of Public Interest Litigation came to play. All these
are done simply to promote the remedy which the law itself intended, i.e, to protect and

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uphold the interest of each individual against any arbitrary and unreasonable action of the
Government.

For these reasons, the Hon,ble Supreme Court of India has expanded Article 21 to
include in its broad interpretation right to bail, the right to a speedy trial, immunity
against cruel and unusual punishment, the right to dignified treatment in custodial
institutions, the right to legal aid in criminal proceedings and above all the right to live
with basic human dignity. It has also established new doctrines, such as, public trust
doctrine, doctrine of promissory estoppel, doctrine of absolute liability, and host of
principles such as polluter’s pay principle, etc. and offered guidelines in most important
case as those relating to women, i.e, sexual harassment at work places, and most
importantly laid down the foundation of Public Interest Litigation.

Hence it can be deduced that the principles laid down and or laws declared by the
Judiciary in India does not at all encroach upon the powers conferred on the Legislatures by
the Constitution of India. These are merely the powers which are being granted to the
Judiciary by the Constitution and the Judiciary is making best use of it for the betterment of
the society and citizens at large.

As rightly pointed out by M.C.Chagla52, former Chief Justice of India, that “the Courts
are not a department of Government. They are an authority coordinate with the Legislature
and the Executive. Even Parliament, however wide and vast its powers, can only function
under the Constitution. Even if legislation is passed by an overwhelming majority and
Parliament has expressed its clear intention in no unequivocal terms, the legislation can be
tested on the anvil of judicial review and if it falls the test, Parliament must submit to the
decision of the Court. It is a mistake to call this a confrontation between Parliament and the
Judiciary. Each is discharging its duty assigned to it by the Constitution. If we have faith in
our Constitution, we should call it collaboration between two coordinate authorities
rather than confrontation.”

52
The Role of Judiciary in Parliamentary Democracy

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Conclusion

Henceforth, it can be said that the rule of separation of power in today’s scenario cannot be
worked out in a proper way. There is a need for a new and better doctrine which serves the
purpose of the present democratic need, whether it is a parliamentary or presidential type of
government. If we take the background of the major countries like U.S.A, U.K, India, Russia,
France, Germany, Spain and U.A.E, it can be seen it there is no complete separation of power
which Montesque had advocated. All the organs of the Government are subject to each
other’s scrutiny by way of checks and balance. Thus, it can be better said that all the organs
of the government should behave in a way that they do not violate the principal law or the
rule of law of the country and it should be upheld in all circumstances for the better
protection of the rights, liberties and freedoms of the people of that state. So, each organ are
impliedly required to restraint their powers to the sphere which has been provided or set forth
in the Constitution and to undertake steps that serves the purpose for which it is there. Any
act, inaction or abuse of such powers by one organ calls for interference of the other organ.
Reference can here be made of Nuremberg trial, where in the Court has held that the judges
are not to act upon the laws which are against the humanity or based on unreasonable
classification or are arbitrary in nature or are against the moral principles; even if such laws
are passed by the parliament. They are to restraint themselves from participating in it and
serve the purpose of the nation by bringing in modification or interpretations to the laws.
Similarly, Parliament is to observe that the law made by it are not against the rule of law, or
against the Constitution or against the public morale and humanity. It should also from time
to time keep an eye on the social changes and scientific advancement so that the laws meet
the demands of the time and must not involve in colourable legislation. The Executive should
also refrain from executing the laws which are against natural justice or which is in violation
of the rights, liberties and freedoms of common man or is against the state or constitution in
particular. This is the doctrine of Self Restraint, whereby, all the organs try to fulfil the
aspirations of the nation and uphold the rule of law, without interfering into the domain of the
other. The Constitution must in all circumstances be considered supreme, and the laws made
by the legislature should pass the test of reasonableness and the objectives of the
Constitution. If any organ of the Government crosses its limits or encroaches upon the

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powers of the other organs or exceeds its jurisdiction, the act shall be considered as invalid
and any abuse of law or any action shall be termed as void ab initio; and the principle of
checks and balance will come into play.

***

16