Category Archives: Legal

What Everyone Should Know About Criminal Attorneys

56If you’ve been accused of a crime, the attorney you decide upon can affect the outcome of your case tremendously. The defense used, in addition to the overall strength of your case, should be designed by an experienced criminal attorney. It’s important to find an attorney who understands the details of your unique situation. Criminal lawyers will represent clients of all types who are being accused of a crime. This is quite unlike civil lawyers, who deal in divorces, property disputes and other transactions. As the title suggests, criminal attorneys defend individuals accused of crimes.

Crimes in general are grouped into either the “misdemeanor” or “felony” category. Misdemeanors are considered less severe in nature, including traffic violations and petty theft such as shoplifting. Felonies, on the other hand, are viewed as considerably more severe. Felony charges included serious allegations like are rape, sexual assault and murder.

DUI charges and allegations of sex crimes are two possible charges that generally involve a criminal defense lawyer:

DUI Charges

DUI laws are becoming increasingly tough, and the laws across the county are getting even tougher. Most individuals have no real understanding of how sever the consequences of a DUI can be, unless they actually know someone who has been found guilty. In many instances, a first DUI can include mandatory jail time. This is one obvious incentive to becoming more aware in itself, and it’s a reason to hire the best criminal defense lawyer that you can find if you are accused.

Simply put, a DUI or DWI is a charge of intoxication leading to impairment while driving a motor vehicle. This isn’t limited to alcohol, but includes other substances. DUI is a common charge across the country. It is estimated that over 1 million people will be charged with drunk driving every year.

Sex Crimes

Criminal attorneys may defend those charged with offenses like prostitution, sexual molestation and rape. Since these charges carry serious consequences, including jail time, most individuals will want to find the best criminal lawyer to represent them. Since there is a stigma attached to accusations like rape and other sexual offense charges, many will want their name cleared. This is yet another reason secure the aid of a seasoned criminal defense lawyer.

Of course, drunk driving and sex crime allegations are not the only cases criminal law firms handle. Other defense law subjects include family violence, white collar crimes, property crimes and parole violations.

In the Face of Absurdity

55Let’s watch cable news, for a while. Or any news, broadcast, posted, streamed or written.

If we do this during a political season, we will hear or see what resembles dramatic comedy, or maybe tragic comedy. Candidates of opposing parties fling incessant attacks, campaign staffs spout strange rationales, and political reporters thrust endless questions at those seeking office.

But serious discussion and critical ideas do emerge. And while alternately entertaining and depressing, the political process, and the news that reports on the process, provide bulwarks against oppression by the powerful and safeguards for the freedoms of our country.

So in the absurdity of politics lies the defense of our liberties.

But on the news, politics does not present the greatest absurdity.

Rather keep watching. The truly heart-rendering will break through, the distressing reality of real, devastating tragedy. Floods destroying homes, war devastating nations, hurricanes wreaking destruction, earthquakes leveling whole towns, starvation sweeping drought-ravaged countries, diseases spreading through communities, bombs demolishing entire city areas, crime gripping cities. And people. People suffering and dying, Senselessly, endlessly, innocently. Including children. Children, who should be happy, but instead stricken, scared, scarred, gaunt, withdrawn, and dying.

Clearly, it is not in these tragedies that the absurdity lies. No, these tear the heart and sear the sensibilities.

But keep watching. News outlets must pay the bills. So commercial breaks come. With long sequences of ads. Improved dog food, better pillows, superior laundry detergent, magical facial crèmes, luxury clothers, better pizzas.

The juxtaposition assaults the mind, depicting in one minute a destitute child beside a bombed out building desperate for food and clothing, then in the next minute a cheery ad on how to remove a food stain from one’s clothes. The stark and unspeakable pain and trauma of that destitute child renders trivial the concern of the ad character over a stain on the back of their shirt sleeve.

But then again not. Our economy, the economy across the world, now depends on the purchase of that laundry detergent, or that dog food, or those facial crèmes, or hundreds of other convenience, beauty, fashion and other products and services. Those purchases drive jobs for workers, and working people make incomes for the sustenance and nurturing of children and families.

Here then lies the absurdity we face. The tragedy of war juxtaposed with the minutia of laundry detergent juxtaposed with the underpinnings of our economy.

How do we respond? How do we remain sane when we, or our neighbors, or our fellow citizens support their families, or we support ours, by dedicating dozens of hours a week at a job say color testing laundry detergent? Or doing focus groups on pillow shape? Or optimizing packaging machines for dog food? How, knowing thousands, even millions, suffer and at the extreme die during those dozens of hours of starvation, disease, crime, war, conflict, and natural disasters?

Well, some certainly see this absurdity, and make the leap. They drop their lives and go to help. Maybe we all should, but then again, most of us lack the skills to doctor the sick or expertise to instruct the hungry on agriculture or the techniques to build the illiterate a school, and certainly the experience to step in and negotiate a peace.

And we must care for our own families.

So what do we do? We could ignore. No law, or contract, or promise forces us to care for individuals removed from us, including and especially those in other countries and of foreign cultures. We could rationalize. In most situations, we did not cause the suffering and plight of others, and we may even conclude those in need brought it on themselves. We could plead a lack of time or energy, or of being overwhelmed by life’s burdens. Just making it through our daily efforts saps us.

Deep in our conscience though, we sense the inadequacy of these responses. While some of us truly are burdened, many of us enjoy a reasonable existence, maybe not comfortable, or always pleasant, but a life with bearable hardships and sufficient necessities, with adequate even significant happiness and love.

So we, when all is said, feel a duty to those in deep need, to the severely sick, the constantly hungry, the unendingly exposed to war, the suddenly devastated by natural disaster.

What do we do? Can we do something meaningful, even in our frenetic modern lives? Can we really assist?

Yes, and even if we doubt our efforts render much improvement, we must.

What then do we do?

First, if one believes in a supreme entity, pray. This may seem to some odd as the first action listed. But yes many, including maybe you, believe, and to the degree a God exists, to ask that God to assist others in need stands as reverent and noble. Physical miracles seem rare in our times, and we may judge a God will not directly stop a war or halt a hurricane. But we can believe a God will intervene with those who are open to Him, to strengthen those individual’s commitment, energy, wisdom and fortitude to help those in deep need.

And donate. If we can not go to directly help those in need, we certainly can financially support those that can and do. Small donations, large donations, regular donations, donations of whatever amount we can afford, together enable both ongoing and emergency help. Concerns can arise as to the legitimacy of some charitable groups, but reputable organizations publish information about their sources and uses of funds.

Then attend to family. This may seem obvious, but each family, extended or small, and however defined, caring for their own creates an enormous web of support and consideration. Parents securing their children’s well-being and development, siblings pitching in for each other in times of need, grown children caring for their aging parents, the cycle of the family underpins the strength of the entire community, nation, and world.

And act in noble character. We enter this world, especially in America, blessed. We enter a country that offers freedoms, a culture that allows diversity, and an economy that provides opportunity. Not perfectly, or even acceptably in cases, with much improvement needed, but nonetheless better than any nation or time previously. We did not pay for these blessings; they arrived at birth. And while every day we must work and toil to use these benefits, and maintain and improve them, we should respect the gifts that arrived at our birth. We do so by acting in noble character, by withstanding daily slights, by spreading kindness and cheer, by lending a quick helping hand. To act such may not directly help those in the middle of a civil war, but does respect that those and others face worse tribulations that most of us.

These steps take effort, and focus, and energy. They represent a strong moral response. We should embrace them as best we can and as best we are inclined as our give back to our fellow individuals and as our duty to our community, nation and world.

But some may judge they must do more.

Volunteer. We spend almost innumerable hours with video entertainment, whether streaming, or watching television, or with our electronic devices. The weight and frenzy of modern life does sap our energy and drive, and our time relaxing with the video, or game, or social media, of our choice does provide recharge and diversion. But, at the margin, we could divert time to volunteer.

Many do. The next-to-saintly go all in, traveling across the country or throughout the world to assist the sick, the hungry, the war-torn, the disaster-stricken, the poor. I stand in admiration. They possess a special spirit. If we can not match such beneficence, we can volunteer in a meaningful way. Coach a youth sports team, serve on a school advisory board, assist in a church fund raiser, run a pledge race, hand out groceries at a local food bank. Of even work the phones to secure contributions of construction materials for that group going overseas to build medical buildings.

Advocate. Not stridently. Not myopically. But with intelligence. If a local high school needs updated lab equipment, certainly advocate for that, and bring others in since numbers bring strength. But help work the solution. Funding always creates a hurdle, and seeking discounts, or grants, or product tie-ins, might ease the needed equipment into the budget.

Embrace possible complexity. Does the increasing presence of driver assisted technology in autos provide an avenue to reduce drunk driving? Can social media allow the community elder center to keep better in touch with its users? Advocacy thus seeks not only to uncover issues and needs, but to also solve, and as necessary cooperate and innovate.

We can not (readily) end the absurdity of news juxtapositions, of heart-wrenching images of refugees fleeing war-devastated cities followed by hair-coloring commercials. Admittedly, news includes more serious commercials, for heart medications, or legal redress. But then again, a child suffering from malnutrition cares not of heart medications he or she may never reach an age to need, and a family caught in a tribal purge can not stop their danger with a law suit.

And ending the absurdity creates ripples. Neighbors make their living working in stores that sell hair coloring, and fellow citizens work for the firms producing the product.

So as we observe this absurdity, rather than shut off our mind to ignore, or throw up our hangs in a futility, we take rational steps. We pray, if that falls in our world view. We donate, we care for our family, we embrace nobility. And if we can, and we should examine deeply what prevents us, we would volunteer, and advocate.

 

What to Do If You Are a Victim of Employment Discrimination

Businessman harassing his colleague at workI am not revealing any great secret by stating that our country is in the middle of tremendously difficult economic times. The smallest businesses to the largest corporations are forced to lay off employees or close their doors altogether. It is likely that every person who is reading this article knows someone who has lost his job, or maybe even is facing this terrifying reality personally. In most instances, I am certain that the employers are taking every step possible before affecting their workforce and are careful in their decisions when employee cuts have to be made. However, there are some unfortunate instances in which bosses make personnel choices that are unfairly based on prejudice, illegal cost-cutting efforts, or pure retaliation. If you believe that you have been a victim of discrimination at your work, or have even been wrongly terminated from your position, it is important that you contact an employment law attorney immediately.

You need to know that the laws of Texas are not set up in a way that favors employees. Our state operates under the concept of “at will” employment, which essentially means that you work at the pleasure of your boss and he or she can fire you at any time. There does not need to be any reason given for your termination. However, you are protected by both Chapter 21 of the Texas Labor Code and Title VII of the Civil Rights Act of 1964 , which spell out certain instances that constitute employee discrimination. According to the law, you cannot face adverse effects to your employment status for any of the following reasons:

– Your race, color, national origin, religion, sex, or age (with certain exceptions)
– Disabilities that are covered under the Americans with Disabilities Act
– Requesting unpaid leave as warranted by the Family and Medical Leave Act (FMLA)
– Reporting acts of fraud or environmental or safety violations at your place of employment
– Your contract explicitly states only certain reasons that you can be fired
– Refusing to commit an illegal act on behalf of your employer

Claims of employment discrimination have increased both in Texas and nationally over the past several years, likely due in part to the faltering economy. The Equal Employment Opportunity Commission (EEOC) in Texas investigated approximately 13,000 more complaints filed in 2008 than they did in 2007, with a total of 95,402 charges being issued against employers last year. There are several possible reasons for which the economy may be a factor in these numbers. When forced to downsize, an employer may make decisions based on bias. Also, someone who has been fired and knows that the possibility of finding another job quickly is not good will more closely examine the reasons for his termination. Finally, if a person has been dealing with unemployment for an extended period of time, he may get frustrated and think back on how his former employer may have wronged him. All of these factors, as well as the unfair discrimination that has always occurred in the workplace to some extent, are affecting the need for, and the approach of, employment law attorneys.

If you believe the discrimination you faced fits into one of the protected areas, what steps must be taken in moving forward with a complaint? As I mentioned before, your first action should be to contact an attorney to partner with you through the process. An experienced lawyer will be able to ask you the right questions to determine the strength of your case, find witness who will corroborate your story, and assist you should the case reach mediation or even the courtroom.

Once you have secured legal representation, you will want to file an official complaint with the Equal Employment Opportunity Commission (EEOC) and/or the Texas Workforce Commission Civil Rights Division. You will need to be prepared with as many details about your allegations as possible, including the reasons that your employer gave for his actions, the reasons that you believe that actions constitute discrimination, other employees who either can be a witness to the inappropriate behavior or who were clearly treated differently under similar conditions, and the specific dates on which the incident(s) occurred. If you were passed over for a promotion, why do you think you were more qualified than the person who received the job? If you received a poor performance evaluation, how can you prove that you were doing an effective job? The more substantive and detailed information that you can offer, the stronger your case will appear.

You then will be assigned an investigator who will gather as much information as possible from both you and your employer, and may attempt an initial effort at mediation to resolve the issue as quickly and as effectively as possible. If mediation is not a viable option of proves unsuccessful, the investigation will continue until one of three conclusions is reached and presented to you in the form of a “right to sue” letter ; there is cause for your complaint, there is no cause for your complaint, or there is insufficient evidence to determine either way. In any instance, you retain the right to sue your employer in state or federal court for at least ninety days after a decision is reached by the investigator. The letter you receive is simply meant to support or refute your claim of a viable case. If you do have an attorney working for you, he or she will be able to help you make the best decision concerning the future of your case.

Being treated unfairly at work or being laid off from a position you may have held for many years is always a difficult situation with which to cope. However, if you know that the reasons for the actions taken against you are based in discrimination, the situation quickly becomes much more personal and painful. While Texas is not a state that favors the employees in most situations, there are certain, well-defined reasons for which you cannot face bias from your employer. You need to know your rights and the most effective ways to assert these rights as you travel through the administrative and legal process of filing a complaint. Do not take this journey alone. You deserve the right to support your family, move forward in your career, and maintain a solid professional reputation without the ugly threat of discrimination hovering over you. Take that first step today.

Know Why Emigrating to Australia Remains to Be an Exciting

53The welcoming country down under beckons you to check out vast landscapes, rugged mountains, pleasant, sunny climate and rich culture. Australia definitely has the best ingredients to make a comfortable and convenient life.

Perhaps these are some of the reasons it has remained a favorite tourist destination. The wonders in this country have just lured many visitors from different nations. However, while visiting for a great vacation is a good option for a million people or so each year, emigrating to Australia is a wise choice for hundreds of thousands of migrants. Immigration is no surprising thing. It has been happening for a long time.

Australia is one of the least heavily populated countries. People actually get much relief after seeing crowded streets and overpopulated cities elsewhere.

Sunny weather welcomes anybody who visits the country in the south, which has a warm climate that spans from tropical forests of Queensland to the subtropical New South Wales. Nonetheless, there really is a broad range of climates in this continent, from the hot, dry desert conditions in the western regions to the cold snowy peaks of Victorian alpine areas. One may travel from west to east to see a dramatic change of landscape, wildlife and vegetation.

The country is not selective towards immigrants. In fact, it fosters tourism, urging people from different countries to come and visit. There is no issue with regards to religious faith, race, skin color, ethnicity, or nationality.

Currently, there is a shortage of workers in Australia and this is good news for people who are looking for overseas employment because the country welcomes those with the right experience and skills. Skilled and well-experienced professionals, administrators, managers, and trade persons are needed due to domestic labor force shortage. The country is also interested in business immigrants who can make possible positive contributions to economic growth. Note that it serves a home to twenty thousand people doing business and these people come from over a hundred different places all over the world – a proof of the economic strength of Australia whose resilience astounds people from developed nations in the west. There is no debate over the economic power of the country, which remains stable despite today’s global economic dip.

On the other hand, one can enjoy the lifestyle in Australia. People are responsible workers but spend ample time for family bonding and recreation. A typical professional can work conscientiously on weekdays but spend great leisure on weekends. There is no need to be too workaholic.

Holiday destinations include the Blue Mountains, Ayers Rock, Kangaroo Island, Great Barrier Reef, Fraser Island and various national parks. Furthermore, sparkling rivers, fascinating flora and fauna, magnificent mountains, captivating countryside scenery, and amazing beaches and shores make this 7.68-million-square-km country the perfect tourist destination.

More than a tourist haven, Australia has dazzling cities, efficient transportation systems that enables fast travel to far cities, and generally high standard of living. People moving to Australia are often greeted by multifaceted culture, rich cuisine, and facile lifestyle and convention.

Intrusion In Judicial Powers – Endangering Constitutionality

52Introduction
The Supreme Court is the ultimate repository of all judicial powers at National level by virtue of it being the Summit Court at the Pyramidal height of administration of Justice in the Country and as the upholder and interpreter of the law and Constitution of India and defender of the fundamentals at Rule of law as observed in P. RamachandraRao v. State of Karnatka. Administration of justice derives its strength only from the people’s confidence in the system the loss of confidence can lead to instability and threaten the edifice of democracy. Maladministration and non governance would invariably affect the people’s rights, giving rise to judicial intervention.

Separation of powers is one of the components of basic structure. As against executive power, Checks and balances are exercised by the Judiciary and the Legislature. But against the Legislature, it is exercised by the Judiciary. The executive and legislative actions are amenable to severe public criticism and their actions may be a doom’s day and incur public wrath resulting in overthrowing them out of power. The legislature is accountable for the actions of the executive, since virtually the party in power controls the executive. However, the Higher Judiciary is amenable to impeachment which is seldom resorted. Unlike executive and legislative actions, the judicial action is not amenable for criticism of such tone and tenor, in view of contempt of court laws.

The basic design of the Constitution is premised on the principle of separation of powers introducing the system of checks and balances. Conceptually, there is no difficulty in demarcating the respective functional areas of three principal organs of the State-the legislature the executive and the judiciary. Functionally, however, in the course of dispensation of justice, At times, situations do arise that require collection of an executive or removing some legislature lacuna. V.R. Krishna Iyer, Hon’ able former judge of the Supreme Court of India, has elegantly expressed his views on this grim and bizarre situation in one of his works thus:

The Indian experience with regard to the Executive, Judicative and Legislative instrumentalities over four decades has been one of exploitation darkening into misgiving, misgiving deepening into despair and despair exploding as adventurist violence. The categorical imperative for stability in democracy is, therefore, to see that every instrumentality is functionally kept on course and any deviance or misconduct, abuse or aberration, corruption or delinquency is duly monitored and disciplinary measures taken promptly to make unprofitable for the delinquents to depart from the code of conduct and to make it possible for people, social activists, professional leaderships and other duly appointed agencies to enforce punitive therapeutics when robed culprits violate moral-legal norms.

It would be relevant here to mention that the Supreme Court has always asserted as the most confidential organ of the state. Ever since the independence the Sanctum Sanctorum of justice has reaffirmed the common man’s faith in the judicial system of the country, let it be any sphere of the welfare scenario from harsh agrarian reforms to expansive innovative interpretation of the Art. 21, scrapping the attempts to overturn the democracy, maintaining the secular character of the constitution, implementing social security charter, sustainable development etc.

The present paper is the modest attempt towards highlighting the various problems which came to fore from the executive and legislature in the form of intrusions and overburdened judiciary and lapses in effective administration of justice.

2 Separation of powers
The Constitution of India envisages separation of power between the three organs of the Constitution so that the working of the constitution may not be hampered or jeopardized. The thin and fine line of distinction should never be ignored and transgressed upon by any of the organ of the Constitution, including the judiciary. The rigid perception and practice can be given a go by in cases of “abdication of duties” by one of the organ of the Constitution. Thus, the judiciary can interfere if there is an abdication of duties by the legislature or the executive. For instance, if the legislature delegates its essential and constitutional functions to the executives, it would amount to “excessive delegation” and hence abdication of the legislative functions by the legislature. In such cases, the theory of separation of powers would not come in the way of judiciary while exercising the power of judicial review.

In India, the doctrine of separation of powers is not adopted in its absolute rigidity, but the ‘essence’ of the doctrine with the doctrine of constitutional limitation and trust implicit in the scheme was duly recognised in the Delhi Laws case, Separation of judiciary from the executive is mandated in Article 50 of the Constitution, with the independence of judiciary as a necessary corollary as observed in Chandra Mohan v. State of U.P., To promote the objectives of Art.50, the doctrine of separation of powers was elevated to the status of a basic feature of the Constitution in Indira Gandhi v. Raj Narain, wherein it was observed, thus:

“… the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances”.

This concept is now a recognised part of the basic structure of the Constitution, and is at the core of the constitutional scheme as was held in State of Bihar v. Bal Mukund.

The status of modern state is a lot more different than what it used to be. It has evolved a great deal from a minimal, non-interventionist state to an welfare state, wherein it has multifarious roles to play, like that of a protector, arbiter, controller, provider. This omnipresence of the state has rendered its functions becoming diverse and problems, interdependent and any serious attempt to define and separate those functions would cause inefficiency in government. Hence, a distinction is made between ‘essential’ and ‘incidental’ powers of an organ. According to this differentiation one organ can’t claim the powers essentially belonging to other organ because that would be a violation of the principle of separation of powers. But, it can claim the exercise of the incidental functions of another organ. This distinction prevents encroachment of an organ into the essential sphere of activity of the other.

It is the exercise of incidental powers only which has made executive grow everywhere in this social welfare state. It has assumed a vital role but, it has not usurped any role from any other wing. It just happened that the other two organs, namely, judiciary and legislature, became unsuitable for undertaking the functions of this welfare state and as a consequence the functions of the executive increased. As controller and provider, the judicial processes were very time consuming and the legislature was overburdened with work. Therefore, it was in natural scheme of things which made the administrators end up performing a variety of roles in the modern state including those of legislature and judiciary too, to an extent.

Though, just like American Constitution, in Indian constitution also, there is express mention in the Indian Constitution that the executive power of the Union and of a State is vested by the constitution in the President and the Governor, respectively, by articles 53(1) and 154(1), but there is no corresponding provision vesting the legislative and judicial powers in any particular organ. It has accordingly been held that there is no rigid separation of powers. Although prima facie it appears that our Constitution has based itself upon doctrine of separation of powers. Judiciary is independent in its field and there can be no interference with its judicial functions either by the executive or the legislature. Constitution restricts the discussion of the conduct of any judge in the Parliament. The Supreme Court and the High Courts has been given the power of judicial review and they can declare any law passed by parliament as unconstitutional. The judges of the S.C. are appointed by the President in consultation with the CJI and judges of the S.C. The S.C. has power to make Rules for efficient conduction of business. It is noteworthy that Article 50 of the constitution puts an obligation over state to take steps to separate the judiciary from the executive. But, since it is a Directive Principle of the State Policy, therefore it’s unenforceable.

In a similar fashion certain constitutional provisions also provide for Powers, Privileges and Immunities to the MPs, Immunity from judicial scrutiny into the proceedings of the house, etc. Such provisions are thereby making legislature independent, in a way. The Constitution provides for conferment of executive power on the President. His powers and functions are enumerated in the constitution itself.

The President and the Governor enjoy immunity from civil and criminal liabilities. But, if studied carefully, it is clear that doctrine of separation of powers has not been accepted in India in its strict sense. The executive is a part of the legislature. It is responsible to the legislature for its actions and also it derives its authority from legislature. In India, since it is a parliamentary form of government therefore, it is based upon intimate contact and close co-ordination among the legislative and executive wings. However, the executive power vests in the President but, in reality he is only a formal head and that, the Real head is the Prime minister along with his Council of Ministers. The reading of Art. 74(1) makes it clear that the executive head has to act in accordance with the aid and advice given by the cabinet.Generally the legislature is the repository of the legislative power but, under some specified circumstances President is also empowered to exercise legislative functions. Like while issuing an ordinance, framing rules and regulations relating to Public service matters, formulating law while proclamation of emergency is in force. These are some instances of the executive head becoming the repository of legislative functioning. President performs judicial functions also.

In certain matters Parliament exercises judicial functions too. It can decide the question of breach of its privilege, and in case of impeaching the President; both the houses take active participation and decide the charges. Judiciary, in India, too can be seen exercising administrative functions when it supervises all the subordinate courts below. It has legislative power also which is reflected in formulation of rules regulating their own procedure for the conduct and disposal of cases.

Therefore, it’s quite evident from the constitutional provisions themselves that India, being a parliamentary democracy, does not follow an absolute separation and is, rather based upon fusion of powers, where a close co-ordination amongst the principal organs is unavoidable. Thus, every organ of the government is required to perform all three types of functions. Each organ is, in some form or the other, dependent on the other organ. The reason for the interdependence can be accorded to the parliamentary form of governance. followed in our country. Except where the Constitution has vested power in a body, the principle that one organ should not perform functions which essentially belong to others is followed. In re Delhi Laws Act case, wherein, it was held by a majority of 5:2, that, the theory of separation of powers is not part and parcel of our Constitution. It was also held that except for exceptional circumstances like in Art.123, Art.357, Art.213, the powers of legislation shall be exercised exclusively by the Legislature.

3. Doctrine of Judicial Review
Under Article 13 of the Constitution of India, the higher judiciary has been equipped with the power of Judicial Review, thereby expressly mandates, the Courts to do, is to consider the validity and legality of each and every executive and legislative action. Hence, every State action has to be tested on the anvil of rule of law and that exercise is performed, when occasion arises by reason of doubt raised, in that behalf in the Courts. This power of Judicial Review as exercised under Article 32 and 226 by Supreme Court and High Courts respectively has been declared to be an integral and essential feature, constituting part of basic structure of the Constitution.

The well established Constitutional principle of existence of power of ‘Judicial Review’ and its need was indicated by Chief Justice Marshall in Marbury v. Madison has pointed out that “It is emphatically the province and duty of the judicial department to say what law is”. The foundation of ‘Basic Structure’ as laid down by Judiciary in Keshwanand Bharti v. State of Kerala, is in one way or other is the actualization of the ‘security wall’ around part III of the Constitution.

What does the principle of Basic Structure of the Constitution mean? Speaking jurisprudentially the Constitution of a country represents the grund norm, the basic norm -Comprising of fundamental principles, laying down the foundation of a civil Society. However when we refer to the basic structure of such a basic document, we seem to mean that we are essentially thinking of some fundamentals of the fundamentals, or some basic features of the basic document.

During the past more than three decades since the inauguration of the principle of basic structure in 1973, the SC has invoked and applied this principle in several cases, but often experiencing the difficulty about the true scope and extent of this principle, necessitating the intervention of the constitutional benches. Mention may be made of the following cases in which the principle of basic structure was closely examined and worked out like Indra Nehru Gandhi v. Raj Narain, Minerva Mills v. Union of India,Waman Rao and Others v Union of India, Bhim Singh v. Union of India. In these cases, and many more thereafter, attempt was made to expound the Basic Structure Principle and provide some measure of concrete basis for its application, but, nevertheless, the position still remained hazy- perhaps the same as was depicted by Mathew J. in Indira Nehru Gandhi’s case the concept of basic structure as brooding omnipresence in the sky, apart from specific provisions of the constitution is too vague an indefinite to provide a yard stick for the validity of the ordinary law. More or less, this situation with varying degree of emphasis, continued to prevail till the judgement of SC in I.R Coelho in which the nine judge constitutional bench have attempted to lay down the concrete criterion for the application of the basic structure principle. The matter dealt with by the Supreme Court by the bench of nine judges can be summarized as: Whether a Constitutional amendment, amending the Ninth Scheduled that damages or destroys the basic structure of the Constitution, can be struck down? Whether an enactment which has been struck down by court as violative of fundamental rights can be included in the Ninth Schedule?

By applying the ‘right test’ if any infraction is found to affect the basic structure then such law would not get the protection of Ninth Schedule. Where any Ninth Schedule law has already upheld by the apex court it would not be open to challenge again. However, if a law held to be violative of part III rights, has subsequently incorporated in the Ninth Schedule after 24 April 1973 then it would be open to challenge on the ground of ‘basic structure’ the relevant extracts of judgment may be mentioned here:

“The power to grant absolute immunity at will is not compatible with the basic structure doctrine and, therefore, after April 24, 1973 the laws included in the Ninth Schedule would not have absolute immunity. The validity of such laws can be challenged on the touchstone of basic structure such as reflected in Article 21 read with Article 14 and Article19, Article 15 and the principles underlying these Articles… Insertion in the Ninth Schedule is not controlled by any defined criteria or standards by which the exercise of power may be evaluated. The consequence of the insertion is that it nullifies entire Part III of the Constitution. There is no constitutional control on such nullification. The supremacy of the Constitution mandates all constitutional bodies to comply with the provisions of the Constitution. It also mandates a mechanism for testing the validity of legislative acts through an independent organ, viz. the judiciary….”

Legislations to oust the Jurisdiction of the Court
A. 39th amendment, insertion of 329(A)(4),329(A)(5) to validate election in all respects, not to be challenged in any court struck down in Raj narain’s case.

B. 42nd amendment, insertion of 368(4), 368(5), no constitutional amendment to be challenged, no limit on the amending, repealing power struck down in Minerva mills.

c.323A(2)(d),323B(2)(d) struck down in L Chandra Kumar’s case as were to ousted the jurisdiction u/Art.32, 226.

Over Ruling the Judicial Decision by a New Legislation
Whether the legislature has the competence to enact a new law or amend an existing law so as to nullify or render ineffective a Judgment of the court. Art. 141 of the Constitution provide that the law declared by the SC shall be binding on all the courts within the territory of India. Art. 141 therefore incorporate the principle of Stare Decises. Further Article 144 of the Constitution declares that all the authorities civil and judicial in the territory of India shall act in aid of the Supreme Court Though Article does not use the words executive and legislature, However, the term “authorities” referred to in Article 144, is enough to point out the intention of the Constitution framers that the other organs of the state have to walk in harmony with the Supreme Court and to abide by decisions.
One of the cases in the series pointed out that legislature can not declare a judgment of the Court to be of no effect. It was held that the court of law can pronounce upon the validity of a law and declare the to be null and void if it was beyond the legislative competence of the legislature or it infringed the rights enshrined in part three of the constitution.

Judiciary’s independence being the basic structure of the Constitution can not be undermined by passing a legislation to render ineffective a judgment or order of the court or asking any body not to obey the orders of the court. Apex Court in Municipal Corporation, Hyderabad v. New shrock Spg and Wvg. Co. ltd observed that no legislature in this country has the power to ask instrumentalities of the state to disobey or disregard the decisions given by the courts.

The question regarding the competence of legislative to set aside the orders of, the court was an assertion of the consideration before the apex court in Indian Aluminum Co. v. state of Kerala, in this case the state legislature had passed the Act validating the collection of tax, declared earlier by the court to be invalid. Court held that the consistent thread that runs through all the decisions of this court is that the legislature can not overrule the decision or make a direction as not binding on it but has the power to make the decision ineffective by removing the base on which the decision was rendered, consistent with the law of the Constitution and the legislature must have competence to do the same.

Relying upon the recommendations of the Mandal Commission and SC’s directions in Indra Sawhney v. Union of India the reservations were introduced for other backward classes in the Central Government jobs, thereby excluding reservations in promotions and put 50% ceiling on the reservations, the Govt. again strike back by the 77th Constitutional amendment to article 16(4A) was introduced and reservation was introduced in promotions also, and 16(4B) was introduced to make the judgment invalid and excluded 50% ceiling and carry forward rule was propounded. To negate SC’s mandate by 85th constitutional amendment promotions in reservations with ‘consequential seniority’ was granted, although these amendments have been upheld in k Naagraj v. Union of India

JUDICIAL ACTIVISM
Since the hoary past, there has been a lively debate on the role of judiciary in the present scenario. ‘Judicial Activism’ has emerged as the pivot around where such debates revolve. But due to one or the other reason the controversy about its definition has not been resolved. There are perhaps two major causes behind it. First, the term ‘judicial activism’ takes on vastly different parlance depending upon who is using it. Some politicians termed it as ‘Judicial Anarchy’, ‘Judicial Overactivism’ and ‘Judicial Despotism’.Albeit, in the eyes of some critics, the Indian Judiciary is also acting as a ‘third chamber’ and a ‘super executive’. Some scholars deny the very existence of the term. They are of the view that the judiciary is doing its plain duty and nothing more. Kuldeep Singh, J., former judge of Supreme Court of India blazed this new trend. Some other ‘legal-eagles’ steered the same course and referred to judicial activism as a ‘myth’ or as a ‘farcical term’.

It has to ensure that any law passed by the legislature is in conformity with the provisions of the Constitution and, it has to assure the citizens the effective implementation of these laws without executive’s move beyond its powers.

Judicial activism, in fact, is not distinctly separate concept from usual judicial activities. The expression ‘activism’, lexically as well as in ordinary parlance, means ‘being active’, ‘doing things with decision’ and the expression ‘activist’ should mean ‘one who favours intensified activities’. In this sense every judge is, or at least, should be an activist, as Justice Krishna Iyer observed, “Every judge is an activist either on the forward gear or the reverse. “

The centre’s legal position in this case, as filed in an affidavit before the Supreme Court was that “the Court is not to inquire – it is not concerned with – whether any advice was tendered by any minister or council of Ministers to the President, and if so, what was that advice. That is a matter between the President and his council of Ministers”. In other words, according to the government’s view, the Council of Ministers could advise the President to pass any order (irrespective of its merits); the President had no option but to accept that advice under the Constitution; and the Court had no right to examine whether the action of the executive was legal or not. After hearing the arguments, in October 2005, the Supreme Court gave a summary verdict declaring the action of the government to dissolve the Bihar assembly as being “unconstitutional” and unreasonable. The Court, however, did not order the revival of the old assembly as fresh elections had already been announced by the Election Commission and were scheduled to take place after a few days. The Court’s verdict caused considerable public embarrassment to the government since the decision to dissolve the Assembly was taken by the President at a very short notice on the advice of the Union Cabinet.

Keeping in view the recent political developments at the Centre and in the states, we are firmly of the view that, on balance, the long term interests of the public and the ordinary citizen are safer if the Supreme Court continues to be the watchdog of India’s democratic conventions and final arbiter of the constitutional validity of any law or action approved by the legislature or the government of the day. It is no accident that the political pressure to limit the powers of the judiciary and declare Parliament as being “supreme” and representative of the will of the “People of India” is the strongest when a coalition government of parties with varying agenda is in power or when the political survival of the undisputed leader of the majority party is threatened. In these circumstances, political survival becomes more important than the legal merits or demerits of a case. The above view is not meant to detract from the great merits of the Parliamentary system of government in unifying India and giving us the freedoms that we, as the people, cherish. Thanks to the resilience and vibrancy of this system, India is now the world’s largest functioning democracy, with a free press, freedom of speech, freedom to join or leave political parties, and free elections in which the largest number of voters in the world cast their votes and choose their government. Without doubt, for all of us, unlike our counterparts in a large part of the developing world, these freedoms constitute a tremendous personal, social and political gain of which we can be justly proud.