NCERT Summary: Political Debate -1 | Indian Polity for UPSC CSE PDF Download

PRESIDENTIAL VS PARLIAMENTARY

Generally democracies are either Presidential or Parliamentary in form. In the former the Chief executive is directly elected by the people and is not responsible to legislatures. Removal of a President is normally through an impeachment procedure. The advisers to the President are chosen at random by the President and they are not members of legislature. On the other hand, in’ a parliamentary democracy the Chief executive and advisers known as Council of Ministers are all chosen from legislature. Both individually and collectively they are accountable to legislature. The members of the Prime Minister’s team are trained and tested in parliamentary system of governance and all of them go out if legislature chooses to cut their tenure.

Main features of a Presidential form of Government are:

1. No distinction between the Notional and the Real Executive. The executive powers of the Government are not only vested in the President, they are exercised by him in actual practice also. The President is, thus, both the head of the State and the head of the Government.

2. President is elected by the people for a fixed term. The President is elected, not by the Legislature, but directly by the entire electorate. Thus, both in regard to his election and tenure the President is not dependent on the Legislature.

3. The President is the sole Executive. All executive powers of the Government are vested in the President and are exercised by him. His Cabinet has merely the status of  an advisory body. Constitutionally, he is not bound by its advice. He may take the advice or may not take it at all. After getting the opinion of the Cabinet, he may refuse to accept it and may choose to act according to his own judgement.

4. Both the President and the Legislature are independent of each other in respect of their terms. The President and the members of his Cabinet are not members of the Legislature. The Legislature has no power to terminate the tenure of the President before its full constitutional course, other than by impeachment. Similarly, the President has no power to dissolve the Legislature before the expiry of its term. Thus, the President and the Legislature are elected for fixed terms.

Merits
The following are the merits of the Presidential form of Government:

1. Greater Stability: In the Presidential systems, the head of State has a fixed term. This ensures stability of the system. He is also free from day-today Legislative duties and control, which enable him to devote his entire time to administration.

2. Valuable in time of War or National Crisis: The Presidential executive is a single executive. In taking decisions, the President is not bogged down by endless discussions in his Cabinet. He can take quick decisions and implement them with full energy. Such a government, therefore, is very useful in the times of war or national crisis.

3. Experts may be obtained to head the Departments: The President can select the persons with proper expertise to head various departments of the Government. These heads of departments constitute his Cabinet. The Ministers under the Presidential system, therefore, prove to be better administrators, whereas Ministers in a Parliamentary system are appointed as Ministers not because of administrative acumen, but simply because of their political affiliation.

4. Less dominated by the Party Spirit: Once election to the office of the President is over, the whole nation accepts the new President as the leader of the nation. Political rivalries of the election days are forgotten. Both inside the Legislature and outside it, people look at problems from a national rather than a party angle. This gives the system greater cohesion and unity.

5. No concentration of Legislative and Executive powers: Presidential system is organised on the principle of separation of functions and checks and balances. This provides much better protection to personal liberties than in the Parliamentary system.

Demerits
Presidential system has been criticized on the following grounds:

1. Autocratic and Irresponsible: The Presidential system places immense powers in the hands of the President.  It is autocratic because the President is independent of the control of the Legislature. He may govern largely as he pleases. He cannot be made answerable regularly for the misdeeds of his administration. The Legislature (Congress) in the United States can turn down the appointments and treaties made by the President, but it can in no way remove him from the office, except through the impeachment. A power hungry President may misuse his powers to amass wealth, and to finish off political opponents.

2. Presidential Election is an Union Affair: The President in this system is elected directly. The election to this office generates great heat and tension. The whole national life gets disturbed. In countries where constitutional traditions are not as deep-rooted as in the United States, tensions and instability of the election time can even result in revolutions.

3. Friction and Discord between the President and the Legislature: The separation of the Executive and the Legislature may led to conflicts and deadlocks between the President and the Legislature. The Legislature may refuse to accept executive policies, or enact the laws suggested by the executive. The President, on the other hand, may show lack of interest in implementing the laws passed against his will. He may even veto the bills passed by the Legislature. Such deadlocks are more frequent when the party to which the President belongs does not have a majority in the Legislature.

4. Responsibility is hard to find: In the Presidential system, it becomes difficult to fix responsibility for the Governmental failures. The President may blame the Legislature, the Legislature may put the blame on President. In the US, most of the bills are referred to the committees of the Legislature, on the report of which the bills are passed. The powers of these committees are immense. The committees have not only seized the power of lawmaking, they have also made fixing of responsibility in this regard very difficult.

In Favour of Presidential form

The presidential form of government has some theoretical advantages:

• Cabinet of is based on competence and integrity;
• Ministers are not motivated by populist measures;
• No time is wasted in politicking;
• No incentive for desertions and defections; and
• The fixed tenure of the President ensures reasonable stability.

In Favour of Parliamentary form

• In India parliamentary form of democracy is better. Arguments in favour of Presidential type of democracy do not carry conviction. If the executive’s tenure is fixed for a few years, the executive would be able to pursue his policies without being  impeached or challenged by legislature.
• This is not a great advantage. Executive decisions well debated and discussed are more welcome than a single individual pursuing a policy. Very often rifts occur between executive and legislature in the Presidential form of Government. Indian society is plural.
• Cultural differences are quite prominent. In such a situation it is possible to choose the members of the Council of Ministers from various regions and cultures. If at all there is any lack of expertise on the part of the Council of Ministers it is compensated by the permanent executive and various advisory bodies, committees and commissions.
• Moreover, Indians have considerable experience in the parliamentary form of government. From 1923 onwards, leaders of India were well trained both as members of opposition and as treasury benches in legislatures. After all, a known devil is better than an unknown devil.
• Further more, in the composition of the Council of Ministers it is possible to accommodate leaders of various minorities which is not possible in the Presidential form of democracy. Presidential form of government has not solved many of the social, economic and cultural problems in many countries.
• In many countries of Asia, Africa and Latin America, the Presidential form has degenerated into dictatorship. The moral decay which is responsible for political rot will not disappear with the introduction of the Presidential system. There is perhaps no alternative but to give a fair trial to our parliamentary system, particularly in view of our socioeconomic problems, vastness of the country, its traditions, national genius and diversity.

SEPARATION OF POWER

The doctrine of separation of powers, ascribed to a Frenchman, Montesquieu has come to mean an organic separation or separation of government powers, namely, the legislative, the executive, and the judicial powers. Any two of these powers should not fall in the same hands. They should not assume or combine functions essentially belonging toe each other. This is necessary to ward off any kind of tyrannical government. Thus, doctrine of separation of powers stated in its rigid form means that each of the branches of. government, namely, executive or administrative, legislative and judicial should be. confined exclusively to a separate department or organ of government. There should be no overlapping either of functions or of persons.

Separation of Power Used in USA
The Constitution of the United States is usually quoted as the leading example of a constitution embodying the doctrine of separation of powers. While Constitution of the U.S.A. does not expressly provide for a separation of power, the doctrine has been incorporated into the Constitution by the provisions that:

• All legislative powers shall be vested in a Congress
• All executive power shall be vested in President
• All judicial power shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish. 

Separation Power Used in India

• Under the Indian constitution only executive power is ‘vested’ in the President while provisions are simply made for a Parliament and judiciary without expressly vesting the legislative and judicial powers in any person or body.
• Moreover, India has the same system of parliamentary executive as in England and the Council of Ministers consisting as it does of the members of legislature is, like the British Cabinet. Even, though the Constitution of India does not accept strict separation of powers it provides for an independent judiciary with extensive jurisdiction over the acts of the legislature and the executive.
• The Constitution in article 50, however, specifically ordains separation of the Judiciary from the Executive. The vitality and importance of the doctrine of separation of powers lies not in any rigid separation of functions, but in a working synthesis with the guarantee of judicial independence.
• Accordingly, the Indian Constitution has not recognised the doctrine of separation of powers in its absolute form but the functions of the different parts or branches of government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption by one organ or part of the State, of functions, that essentially belong to another.
• The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way.

JUDICIARY VS LEGISLATURE

Conflict between legislature and the judiciary has often given rise to anxiety and grave concern to the governments at the Centre and the States. The executive heaves a sigh of relief when the conflict gets resolved or the matter is put in the cold storage after initial heat over the powers each of these wings of the States enjoy under the Constitution subsidies. There are a number of cases where friction between the two has arisen. There has been a perennial conflict not only in India but also in England about the respective rights and privileges of Members of Parliament and the Judiciary.

Indian Scene

• In India, under the written Constitution, the three organs of the Government, viz. the Legislature, judiciary and the executive, have to function within their respective powers and none of them can exceed its powers. Whether, any one of these organs has exceeded its powers or not, is a matter of judicial interpretation.
• In several decisions of the Supreme Court, it has been held that the  Supreme Court is the ultimate interpreter of the Constitution and its interpretation is binding on all courts, tribunals and authorities in this country. Under article 141 of the Constitution, the law declared by the Supreme Court is binding on all parties.
• So, if there is any doubt that any particular organ of Government has exceeded its powers, the interpretation ultimately rests with the Supreme Court.
• Even the powers granted by the Constitution to the Members of Parliament and the Assembly are subject to other provisions of the Constitution. They cannot act arbitrarily; nor can they deprive the citizens of their fundamental rights arbitrarily.
• There is a provision in the Constitution for codifying the law relating to the privileges of legislatures and if Parliament makes such a law that will be a law within the meaning of Article 13 of the Constitution; validity of which can be tested before the Supreme Court in the same manner as any other legislation.
• The scheme of the Constitution does not contemplate that Parliament or a State Legislature is not at all liable to be questioned for any violation of law since rule of law is the corner-stone of the Constitution of India.
• Though Legislatures in India have plenary powers they function within limits prescribed by the material and relevant provisions of the Constitution.

Main Areas of Conflict
Following are the Main areas of conflict between the Legislature and the Judiciary:

• Existence, extent and scope of Parliamentary privileges and power of Legislatures to punish for contempt,
• Interference in the proceedings of Parliament/ Legislatures,
• Decisions given by the Presiding Officers of Legislatures under the Anti-defection law; and
• Decision given by the Presiding Officers of Legislatures in administration of their Secretariats.

Powers, Privileges and Immunities of Members of Legislatures

The relevant provision of the Constitution relating to powers, privileges and immunities of the members of Parliament and State Legislatures is incorporated under Article 105 and Article 194 respectively. These Articles provide that:

• Subject to the provisions of the Constitution and to the rules and standing orders regulating the procedure of the Legislatures, there shall be freedom of speech in the Legislature of the Union and of every State.
• No member of any Legislature shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof,  and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings.
• In other respects, the powers, privileges and immunities of a House of any Legislature, and of the members and committees of a House of such Legislature, shal be such as may from time to time be defined by that Legislature by law, and until so defined, shall be those of that House and of its members and committees immediately before the coming into force of section 26 of the Constitution (Forty-fourth Amendment) act, 1978.

LEGISLATIVE COUNCILS

Arguments in Favour of Legislative Council
The supporters of these Upper Houses of State Legislatures advance strong arguments. They feel that these Houses must be retained in the national interest. In favour of these Houses, it is said that:

• In India the Lower Houses are constituted on the basis of universal adult franchise. There are no voting qualifications based on education and property. In the Lower House, both the literate as well as illiterate vote on political considerations. It is argued out that in case democracy is to be saved from the caprice of uneducated persons, it is’ essential that there should be Upper House.
• Another argument advanced is that in every state there are people who have excelled in certain walks of life. The nation must take advantage of their abilities and capabilities. But these persons have no interest in contesting elections. Their services can best be utilised only with the help of Vidhan Parishads.
• It is also argued that the very fact that there is another House, creates a very sobering effect on the Lower House, which does not feel tempted to pass a bill either in haste or under the influence of some momentary impulses. In case any half cooked measure comes up then at least Upper House points that out to the duly elected representatives of the people, leaving to them to accept the suggestion or not. In other words, it points out gravity of problems and suggests solution but does not very much care whether suggestions have been accepted or not.
• Another utility of the Legislative Council is that minority communities in every state can be given representation in this House. Such representation is likely to keep them very much happy and satisfied. Similarly, the services of experienced persons who do not wish to contest elections can also be used in this House.
• Legislative work every where has much increased and it is becoming impossible for a single House to handle it efficiently. So some nonmoney bills or less controversial matters can be introduced in the  Upper House and in this way pressure of work in the Lower House is considerably reduced. This is always a welcome relief for the Lower House.
• It is accepted that law making process has become time consuming and sufficient time is taken by each House before a bill becomes an Act. It is also accepted that during this time, the people get an opportunity to express their view point.
• But when the bill goes to the Upper House, the people are bit more clear as to what is going to be passed. Moreover, this time interval is always a welcome because during this period the people can express them selves and if need be changes can even now be introduced.
• It is also argued that Upper House does not stand in any way on the determination of duly elected representatives of the people. All that they do is that they point out certain drawbacks and shortcomings, which should always be welcome. These Houses can serve very useful purpose in case all political parties return there men of eminence who have long and varied experience of life and maintain a good position in society.
• If they are the people with the strength of character and also capacity to render service to the society, they can do a lot of good to the society. Only those should be nominated who enjoy high reputation for their qualities of head and heart and a spotless life career.

Arguments Against Legislative Council

• In view of inherent weaknesses of Vidhan Parishads (Legislative Councils), some critics are of the view that these should be abolished. According to them, in case Parishad agrees with what is passed by the Assembly then it is simply a superfluous House. In case, it does not then it will be characterized as a mischievous. House and will be charged as citadel of reaction standing on the way of policies and programme of duly elected House.
• Another criticism levied against this House is that it is no check on the Assembly. A money bill can be delayed only for a period of 14 days, which is very insufficient period for the members to express their view point. Even in the case of non-money bills, it can only delay a bill for a period of 4 months and if the Assembly is bent upon passing a measure no efforts on the part of the Parishad can check it.
• The Council of Ministers also does not much fear from it because a vote of no confidence does not have any effect for the Ministry.
• It is also argued that the Parishads are usually not even progressive. These have no directly elected elements. Some of the members are nominated ones. Their composition is such that these are not supposed to know public sentiments. Thus, the House is characterised as reactionary and conservative.
• It is argued that in these Houses scholarly or literary or social workers are not nominated. Instead, this chamber is used for providing berth to defeated politicians or those active party workers who somehow or other could not be accommodated in the Assembly or dissidents in the party to avoid party frictions. In other words, the Upper Houses neither represent any caste, class or section of society but only vested interests. All elections or nominations are made on party basis and these chambers are only for increasing party interests and influences.
• A usual argument is that since these chambers do not serve much useful purpose, therefore, their maintenance is not worth the cost which the nation is required to pay for its upkeep and by way of salaries, allowances and other expenses of the members. In case Parishads are abolished the tax payer will be much saved and the money saved can be used for other useful purposes, including economic development.
• The very fact that only six States have retained Vidhan Parishad proves that bicameralism is not a very popular institution in India in the states. Moreover, practical experience has shown that those states which have no Legislative Councils are in no way doing work less efficiently than the other states. In case, the Councils had been doing very useful work, then the other states must have gone for it.
• Then it is not clear to whom the Parishads represent. In case it is said that in it the teachers, and graduates are to be given representation, along with those who are engaged, in the promotion of co-operative work, then why only these vocations and why not other very important vocations and occupations.
• In case it is felt that in that those who have excelled in any walk of state life, should be given representation, then why nomination has been kept at only 1/6th.  It should have been kept much higher.
• It is presumed that in this House there will be calm and serene atmosphere, where every problem will be discussed in a passionless atmosphere because the elders have held out no promises to the people at the time of their election.
• But again this is not true because in the Upper House also political considerations very much weigh with the members. Each member votes more or less on party lines and it is said that an Upper House is just extension of the Lower House, in so far as political parties are concerned. There is also no calm atmosphere in these Houses. The elders quite often quarrel with each other and do not provide much needed calmness. 
• According to some thinkers, Upper Houses are necessary because these give sufficient time to the people to express their views. According to them when a bill is traveling from the  Assembly to the Parishad, the people come to know what is going to be passed. Intervening time can be utilised for expressing opinion by the public and in case there are strong reservations, the bill can be modified as well.
• But again this is not correct because the time taken in passing each bill in one House and stages through which it passes are so many that the people have sufficient time to express themselves, through press and platform. On this ground also, the Upper Houses have no utility.

To conclude, the Upper Houses of State Legislatures are likely to remain under criticisms, in case these are used for providing berth to defeated politicians so that they can become Chief Ministers or Ministers by becoming a member of either House of legislature. Politicians must take the responsibility to firmly establish the prestige of these constitutional institutions.

Judicial activism is a political term used to describe judicial rulings that are suspected to be based upon personal and political considerations other than existing law. Judicial restraint is sometimes used as an antonym of judicial activism. The term may have more specific meaning in certain political contexts. Concerns of judicial activism are closely tied to constitutional interpretation, statutory construction, and separation of powers. The honorable Supreme Court issued a notice to the Union government seeking an explanation of the steps taken by it to ameliorate the plight of Indian students in Australia, who have been facing racially motivated attacks. Foreign policy is widely considered to be nonjusticiable, that is, courts cannot interfere. Yet, the interference by Indian courts has not wholly been condemned. The next, and almost equally striking, instance is a Supreme Court notice questioning the proliferation of Mayawati statues, allegedly worth crores of rupees, in Uttar Pradesh. Like foreign policy, budgetary allocations are non-justiciable. But judicial interference in this matter too has not been deprecated, nor is it worthy of serious censure. The Emergency of 1975 and its aftermath constituted defining moments for judicial activism in India. In the infamous decision in ADM Jabalpur v. Shukla (1976) the Supreme Court permitted civil liberties to be suspended during the Emergency. The very Constitution of India permitted the suspension of civil liberties in Part III, such as the right to personal liberty.

• The Constitution was also amended extensively to permit the excesses of the Emergency. In 1975, therefore, permitting civil liberties to be suspended during the Emergency would arguably have constituted deference both to the intent of the framers of the Constitution and to legislative wisdom - in other words “judicial restraint.”
• The Supreme Court’s decision in that case, however, despite being judicially restrained, struck a devastating blow to civil liberties in India, and was widely condemned thereafter. Justice H.R. Khanna’s eloquent dissent was activist, but celebrated.
• Judicial activism during the Emergency was clearly the need of the hour. Thus, “judicial activism” had a  strong moral basis after the Emergency - after all, the Emergency judges ought to have been activist.
• Judicial activism has virtually been constitutionalised in South Africa. The Indian Supreme Court has enforced socio-economic rights, though they are not considered enforceable by the Constitution - the right against malnutrition and the right to shelter are examples. Despite the fact that the Constitution did not permit socioeconomic rights to be justiciable or enforceable, the Emergency had taught Indian judges that express constitutional provisions may not necessarily translate into social legitimacy.
• Activist judges in India have consequently fashioned innovative remedies to enforce socio- economic rights. The traditional rule that courts will not issue injunctions requiring periodic supervision does not typically apply in socio-economic rights cases, where Indian courts periodically review the implementation of their orders almost in an administrative capacity.
• 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.
• The Indian Supreme Court’s gaze has now gone beyond the protection of the socially and economically downtrodden, and into the realm of public administration. However, its opinions often resemble aspirations rather than binding pronouncements.
• These opinions bear a strong resemblance to unenforceable, advisory opinions since it will be difficult to comprehensively enforce them as law. They nonetheless set the tone for public discourse and debate.
• Their greatest value lies in the creation of a dialogue with the other branches of government, in the consequent endeavor towards transparency in public administration, and in their giving a voice to the Indian citizen, albeit only the citizen who has the time and the resources to petition the courts.
• Attempts to petition the Supreme Court recently have demonstrated this trend towards dialogue and transparency. Following the Mumbai terror attacks of November 2008, a former Attorney General of India filed a petition before the Supreme Court seeking to better equip the Indian police. The public interest petition in the context of the attacks on Indian students in Australia tells a similar tale.
• However, a court which issues unenforceable (one should say enforceable with some difficulty) opinions, toys with the dangerous possibility of delegitimating its own existence. It also begs the question of institutional efficiency: of whether  such functions can be better performed by another institution which does not have the Supreme Court’s case load but one which matches its visibility - if such an institution were ever capable of being devised. However, whispers of corruption in the judiciary, and the act of withholding information regarding judges’ assets, do not make the case for judicial activism any stronger.
• For the first time during the judgment of the majority in the Keshavananda Bharati case (the fundamental rights case) court held that a Constitutional Amendment duly passed by the legislature was invalid if it damages or destroying its basic structure. This was a gigantic innovative judicial leap unknown to any legal system. The masterstroke was that the judgment could not be annulled by any amendment to be made by Parliament because the basic structure doctrine was vague and amorphous.
• 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. Krishna Iyer and P.N. Bhagwati. The Supreme Court gained in stature and legitimacy. Later, when the independence of the judiciary was threatened by punitive transfers, the court entered the arena of judicial appointments and transfers.
• With the increasing criminalisation and misgovernance and the complete apathy of the executive, the court (under the leadership of Chief Justice Verma and Justices Bharucha and Sen) took up the case of terrorist funding linked to political corruption through the ‘hawala’ route in the Vineet Narain Case (Jain hawala Case). A cover-up by the Central Bureau of Investigation to protect its political masters was exposed and the court monitored the investigation upholding the principle “Be you ever so high the law is above you.”
• The courts on several occasions have issued directions in public interest litigation (PIL) covering a wide spectrum such as road safety, pollution, illegal structures in VIP zones, monkey menace, dog menace, unpaid dues by former and serving legislators, nursery admissions, and admissions in institutions of higher learning. There is no doubt that sometimes these orders are triggered by righteous indignation and emotional responses.
• The common citizens have discovered that the administration has become so apathetic and non-performing and corruption and criminality so widespread that they have no recourse except to move the courts through PIL, enlarging the field for judicial intervention.
• The great contribution of judicial activism in India has been to provide a safety valve in a democracy and a hope that justice is not beyond reach. Judicial activism has come to stay in  India and will prosper as long as the judiciary is respected and is not undermined by negative perceptions, which has overtaken upon the executive and the legislature.
• There is concern among the public about lack of transparency in judicial appointments and a sense of increasing unease because of a lack of a credible mechanism to deal with serious complaints against the higher judiciary.

JUDICIAL REVIEW

• Law will not be in force until an amendment of the constitution relating to the same matter.
• In such situation the provision of that law will again come into force, if it is compatible with the constitution as amended. This is called the Theory of Eclipse.
• In a similar manner, laws made after adoption of the Constitution by the Constituent Assembly must be compatible with the constitution, otherwise the laws and amendments will be deemed to be void-ab-initio.
• Judicial review is actually adopted in the Indian constitution from the constitution of the United States of America. In the Indian constitution, Judicial Review is dealt under Article 13. Judicial Review actually refers that the Constitution is the supreme power of the nation and all laws are under its supremacy. Article 13 deals that
• All pre-constitutional laws, after the coming into force of constitution, if in conflict with it in all or some of its provisions then the provisions of constitution will prevail and the provisions of that pre-constitutional.

• A High Court cannot pronounce invalid any Central law,
• The Supreme Court shall not pronounce a State law as unconstitutional unless a Central law has also been challenged. 

Further, the minimum number of judges of the Supreme Court who shall sit to determine the constitutional validity of any Central or State law shall be seven and in the case of High Court, five. It was also stated that a majority of not less than two- thirds of the judges hearing such a case must agree before a law is declared invalid. But after this the 43rd Amendment was passed which restored the pre-emergency position of the Supreme Court’s power of judicial review over laws passed by state legislatures and Parliament. 

• As far as Parliament’s sovereignty with regard to amending the Constitution is concerned, there is no change. The power of Parliament to amend the Constitution exists as under the 42nd Amendment.
• The judgment of the Supreme Court in the Minerva Mills case in May 1980 was a setback to the position of unlimited powers claimed by the Parliament to amend any part of Constitution. This judgment recognized only limited powers of the Parliament to amend the Constitution without altering the basic structure.
• In such situations, the Supreme Court or High Court interprets the laws as if they are in conformity with the constitution. If such an interpretation is not possible because of inconsistency, and where a separation is possible, the provision that is inconsistent with constitution is considered to be void. In addition to article 13, articles 32, 124, 131, 219, 226 and 246 provide a constitutional bases to the Judicial review in India.
• The Indian Constitution has not recognized the doctrine of separation of powers in its absolute form but the functions of the different organs have been clearly differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ of the functions that essentially belongs to another.
• Though the Constitution has adopted the parliamentary form of government, where the dividing line between the legislature and the executive becomes thin, the theory of separation of powers is still valid.
• The Judiciary plays a very important role as a protector of the constitutional values that the founding fathers have given us. They try to undo the harm that is being done by the legislature and the executive and also they try to provide every citizen what has been promised by the Constitution under the Directive Principles of State Policy.
• In such type of situations Supreme Court or High Court interprets the law as if they are in conformity with constitution or not. If find it not in conformity, they declare it either whole & if possible to separate, then only that much of provision to be void which are inconsistent with that of the Constitution.
• Judicial review in India comprises of three aspects: judicial review of legislative action, judicial review of judicial decisions and judicial review of administrative action. The judges of the superior courts have beefy entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it.
• It is they who have to ensure that, the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of functions, transgress constitutional limitations. Thus, judicial review is a highly  complex and developing subject.
• Judicial review has its roots long back and its scope and extent varies from case to case. It is considered to be the basic feature of the Constitution.
• The court in its exercise of its power of judicial review would zealously guard the human rights, fundamental rights and the citizens’ rights of life and liberty as also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds, which could be expended on building, hospitals, roads and the like, or overseas aid, or compensating victims of crime.