Legislature v. Judiciary: Which is more powerful?

25 May 2023  Read 2055 Views

Let us take you back to the 6th Standard, when we all learned about the three branches of the Government: the Legislature, the Executive, and the Judiciary. The Legislature makes the law, the Executive implements it, and the Judiciary interprets it. If you are wondering why we are suddenly teaching you 'civics', please bear with us; we have an explanation!

The three branches have distinct functions to perform, and the powers are separated to create a system of checks and balances. Are these branches completely separate, though?

In this article, we will look at some of the instances where moves have been made by one branch against another, specifically between the Legislature and Judiciary. 

Why is Legislature v. Judiciary in news?

The Supreme Court of India recently held that the Government of Delhi has executive and legislative power over administrative services except for land, police, law and order (Government of NCT of Delhi vs Union of India). So? What’s wrong with the judgement? Well…just some days after this judgement, the Central Government moved an ordinance which basically reversed the judgement. It's not the first time the Government has gone against the order of the Apex Court of India and not the last! So, historically speaking, a number of times, these two branches have pulled the same card. Let’s have a look at them!

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  • 1967: Golaknath v. State of Punjab

One of the earliest instances where the Supreme Court of India went against the decision of the Government and observed that a constitutional amendment by the Parliament could not curtail the fundamental rights of the citizens of India.

In reply to the Golaknath judgement, the then Government made three amendments to the Constitution, after which the Supreme Court held that the Parliament does have the power to amend the Constitution, including fundamental rights. Still, it has no power to change the basic structure of the Constitution.

  • 2015: Supreme Court Advocates-on-Record Association v. Union of India

In 2014, the Parliament, through the 99th amendment to the Constitution, introduced the National Judicial Appointments Commission (NJAC), which would have replaced the collegium system of appointing judges. The Supreme Court, by a 4:1 majority, declared the NJAC Act unconstitutional and void and upheld the collegium system. 

  • 2018: Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India

The Government of India introduced Aadhar in 2010, and various institutions made it mandatory over time. For instance, Rule 9 of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005, made linking Aadhar to the bank account compulsory. The Supreme Court held that linking aadhaar is not mandatory for availing of banking services or for any other process like getting admissions.

  • 2018: Subhash Kashinath Mahajan v. State Of Maharashtra

In 2018, the Supreme Court division bench held that the police might conduct a preliminary enquiry to establish whether an atrocity has been committed under the SC/ ST Act. The Central Government reversed this judgement by introducing an amendment stating that no preliminary enquiry is needed to register an FIR against any person. The Supreme Court then upheld the amendment in the case of Prithvi Raj Chauhan v. Union of India (2020).

  • 2021: Madras Bar Association v. Union of India

In 2021, the Supreme Court of India, by a 2:1 majority, struck down certain provisions of the Tribunals Reforms Ordinance, 2021, including the tenure of the Chairperson and Members of the Tribunal. The Parliament passed the Act without striking down the provisions as ordered by the Supreme Court. The Act is now challenged before a three-judge bench of the Supreme Court by the Madras Bar Association.

Powers of Legislature and Judiciary under the Constitution

The Constitution provides for functions and powers of the machinery of the Government. While both the Legislature and the Judiciary enjoy a lot of powers, the ones relevant to us in the context of power tussle are just these two:

  • Article 121: The Parliament cannot discuss the conduct of any Supreme Court or the High Court judge when such an act has been done in the exercise of his duties.

  • Article 123: This Article deals with the power of the President to promulgate Ordinances (as has been done in the recent case of the Government of NCT of Delhi vs Union of India).

Causes behind the never-ending saga

  • Law-making power of the Legislature: one of the biggest points raised by the legislative bodies against the orders of the Courts is that the law-making power vests with the Legislature, and thus, the Judiciary should not interfere with such matters. 

  • Protection of Fundamental Rights: the Supreme Court of India has, on the other hand, maintained its stand that the fundamental rights of the citizens and the basic structure of the Constitution of India are paramount. Thus, even Parliament cannot disturb the basic structure of the Indian Constitution.

  • Judicial Review: The debate of Parliamentary supremacy and judicial review explain the never-ending tussle accurately. The power of the Judiciary to review any legislation of Parliament if they are against the Constitution has frequently led to clashes between the organs of Government.


The recent decision of the Supreme Court in Govt. of NCT Delhi, then the action of the Central Government to pass an Ordinance to reverse the same and then the Review Petition filed by the Government against the decision of the Apex Court again raised the topic of Legislature v. Judiciary. There is no denying that the Parliament has the power to make and amend laws, but by doing so, will it not bring into question the credibility of Supreme Court decisions? At which point should a line be drawn between the powers and functions of the three organs of the Government? 

Which branch of the Government, according to you, is more powerful? The Legislature or the Judiciary?

Comment us below!

About the Author: Anubha Mishra | 13 Post(s)

She has completed her BA.LLB. from Raipur and is currently pursuing LL.M from TISS Mumbai. She also has a practicing experience of 2 years at District Court, Raipur, as a Junior Advocate.

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