Supreme Court ‘‘to issue directions or orders or writs’’, which is larger than
that of the British Courts issuing prerogative writs, although it is confined to
the enforcement of the rights conferred by part 3 dealing with fundamental
rights. The power of the High Courts of the various State under Article 226
of the Constitution to issue appropriate directions, orders, or writs ‘‘to any
person or authority including in appropriate cases any Government’’, within
the territories under its jurisdiction, extends to ‘‘any other purpose’’, that is to
say, to purposes other than enforcement of fundamental rights. Article 227
also contains the power of a High Court to superintend the functioning of ‘‘all
Courts and Tribunals’’ within its jurisdiction. These powers of the High
Courts are subject to appeals to the Supreme Court, which is also a
repository of a special jurisdiction under Article 136 to grant special leave to
appeal ‘‘from any judgment, decree determination, sentence or order in any
cause or matter passed or made by any Court or Tribunal in the territory of
India.’’ It is true that there is no mention or vesting of judicial power, as such,
in the Supreme court by any Article of our Constitution, but , can it be denied
that what vests in the Supreme Court and High Courts is really judicial
power? The Constitution undoubtedly specifically vests such power, that is to
say, power which can properly be described as ‘‘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. Could such a vesting of power in Parliament have been omitted
if it was the intention of Constitution makers to clothe it also with any
similar judicial authority or functions in any capacity whatsoever?
554. 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 constitutent authority,
cannot be substaintiated by a reference to any Article of the Constitution
whatsoever, whether substantive or procedural. Attempts are made to infer
such a power from mere theory and speculation as to the nature of the
‘‘Constituent power’’ itself. I do not think 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 judical power itself directly without vesting it in
itself first by an amendment of the Constitution. The last mentioned
objection may appear to be procedural only, but, as a matter of correct
interpretation of the Constitution, and even more so, from the point of view of
correct theory and principle, from which no practice should depart without
good reason, it is highly important.
555. This impels me to consider such theories of sovereignty as we may
find embedded in our Constitution. The term sovereign is only used in the
preamble of our Constitution, which says.:
‘‘We the people of India, having solemnly resolve to constitute India into a
Sovereign Democratic Republic and to secure to all its citizens:
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