to provide any quais-judicial procedure in Article 368 which apparently,
furnishes a self-contained code, means that no such power was meant to be
included here at all Proper exercise of judicial power is in separable from
appropriate procedure.
(Para 577)
The Constitution undoubtedly specifically vests ‘‘judicial power’’ only in
the Supreme Court and in the High Courts and not in any other bodies or
authorities whether executive or legislative, functioning under the
Constitution.
(Para 553)
The claim therefore that an amalgam or some undifferentiated residue of
inherent power incapable of precise definition and including judicial power
vests, in Parliament in its role as a constituent authority, cannot be
substantiated by a reference to any Article of the Constitution whatsoever,
whether substantive or procedural. It cannot be said that because the
constituent power necessarily carries with it the power to constitute judicial
authorities, it must also, by implication mean that the Parliament, acting in
its constituent capacity, can exercise the judicial power itself directly without
evesting it in itself first by an amendment of the Constitution.
(Para 554)
The term ‘‘sovereign’’ is only used in the preamble of our Constitution. The
Constitution is a document recording an act of entrustment and conveyance
by the people of India the political sovereign of legal authority to act on its
behalf to a ‘‘Sovereign Democratic Republic’’. The expression ‘‘this
Constitution’’ in the preamble has a basic structure comprising the three
organs of the Republic: the Executive, the Legislature and the Judiciary. It is
through each of these organ that the Sovereign will of the people has to
operate and manifest itself and not through only one of them. Neither of
these three separate organs of the Republic can take over the function
assigned to the other. This is the basic structure or scheme of the system of
Government of the Republic laid down in this constitution whose identity
cannot according the majority view in Kesvandanda’s (AIR 1973 SC 1461) be
changed even resorting to Article 368.
(Paras 555)
The republic is controlled and directed by the constitution to proceed to
wards certain destinations and for certain purposes only. The Power to
change even the direction and purposes is itself divided in the sense that a
proposed change if challenged must be shown to have the sanction of all the
three organs of the Republic each applying its own methods and principles
and procedure for testing the correctness or validity of the measure. If the
judicial power operates like a break or a veto, it is not one which can be
controlled by any advice or direction to the judiciary as is the case in
totalitarian regime. In our system which is democratic its exercise is left to
the judicial conscience of each individual judge. This is also a basic and
distinguishing feature of Democracy. AIR 1973 SC 1461, Foll.