UNIVERSITY INSTITUTE OF LEGAL STUDIES PANJAB

UNIVERSITY, CHANDIGARH

TOPIC:

COURTS ACTS AS THE SUPREME INTERPRETER, PROTECTOR AND

GUARDIAN OF THE SUPREMACY OF THE CONSTITUTION.
COMMENT WITH SPECIFIC REFERENCE TO THE DESCISION OF THE
SUPREME COURT CASE SHATRUGHAN SINHA VS. UOI

SUBMITTED BY- SUBMITTED TO-

FIZA CHOUDHARY DR. RATTAN SINGH

SECTION A- BA.LLB (HONS)
ROLL NO- 57
 ACKNOWLEDGEMENT

First of all, I am thankful to God who blessed me with patience and strength to complete the
Project Report on the topic “Courts acts as the supreme interpreter, protector and
guardian of the supremacy of the constitution. Comment with specific reference to the
descision of the supreme court case Shatrughan Sinha vs. UOI” with hopefully good
results. I express my sincere regards to Dr. Rajinder Kaur, Director, University Institute of
Legal Studies, Panjab University, Chandigarh. I also express a deep sense of gratitude
towards Dr. Rattan Singh of University Institute of Legal Studies, Panjab University,
Chandigarh for encouraging and providing me an opportunity to prepare this project. I am
immensely grateful to my friends and batchmates for their guidance and unfailing support in
the completion of my project. I also acknowledge our indebtedness and gratitude to my
parents for being a constant source of support and inspiration to me.

TABLE OF CONTENTS

TITLE PAGE NO.

PROVISIONS OF THE CONSTITUTUION 1-6

THAT REINSTATE THAT JUDICIARY IS
THE SUPREME INTERPRETER,
PROTECTOR AND GUARDIAN OF THE
SUPREMACY OF THE CONSTITUTION
SHATRUGHAN CHAUHAN & ANR. VS. 6
UNION OF INDIA
FACTUAL BACKGROUND 6-7
ISSUES INVOLVED 7
JUDGEMENT 7-8
CRITICAL ANALYSIS IN TERMS OF 8-14
JUDICIARY AS A SUPREME
INTERPRETER, PROTECTOR AND
GUARDIAN OF CONSTITUTION

CONCLUSION 15
REFERENCES 16
 PROVISIONS OF THE CONSTITUTUION THAT REINSTATE THAT
JUDICIARY IS THE SUPREME INTERPRETER, PROTECTOR AND
GUARDIAN OF THE SUPREMACY OF THE CONSTITUTION

Article 13 of the Indian constitution aids the court and citizens to keep the powers of the
legislature under preview and describes the means for judicial review.
It enjoins a duty on the Indian State to respect and implement the fundamental right. And at
the same time, it confers a power on the courts to declare a law or an act void if it infringes
the fundamental rights.
Article 13 declares that all laws that are inconsistent with or in derogation of the Fundamental
Rights shall be null and void.

The judiciary plays a very important role as a protector of the constitutional rights:
• The primary responsibility for implementation of the rule of law lies with the
judiciary. It is the responsibility of judicial review, to ensure that democracy is
inclusive and there is accountability of everyone who wields or exercises public
power.
• The principle of judicial review becomes an essential feature of Indian constitution.
The power of judicial review is incorporated in article 226 and 227 of the Constitution
as the high courts are concerned and in regard to Supreme Court article 32 and 136 of
the Constitution.
• Judicial review is the power of go to pronounce upon the constitutionality of
legislative acts which fall within their normal jurisdiction to enforce and the power to
refuse to enforce such as they find to be unconstitutional and hence void.

The concept of Judicial Review was propounded in the United States of America in Marbury
v. Madison case of 1803 whose judgement was delivered by the then Chief Justice of the
Supreme Court of America, John Marshal. However, when we talk about it in India, the power
of Constitutional Review has been within the Supreme Court and High Court through the
Constitution itself. Also, the Supreme Court of India has declared the Judicial Review power
as a basic structure of the Constitution which cannot be taken away even by way of
Constitutional Amendment. If during the Judicial Review, any legislative enactment or

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executive order of either State Government or Central Government is found to be in violation
of the Constitution it will be declared as invalid.

The function of judicial review is a part of the constitutional interpretation itself. It

adjusts the Constitution to meet new conditions and needs of the time.

Types of Judicial Review in India

• Judicial Review of constitutional amendments.

• Judicial Review of legislation of the Parliament and state legislatures and subordinate
legislation.
• Judicial Review of administrative action of the Union and the State and authorities
under the State.

Importance of Judicial Review in India

• Judicial Review helps in maintaining the supremacy of the Constitution.

• Federal Equilibrium that is the distribution of power between the Centre and the States
is maintained.
• Fundamental Rights of the Citizens are protected.

Judgements in various cases propounding the essence of Judicial Review:

1. A.K. Gopalan v. State of Madras1

“In India, it is the Constitution that is supreme and that a statute law to be valid, must be in
conformity with the constitutional requirements and it is for the judiciary to decide whether
any enactment is constitutional or not.”

2. State of Madras v. V.G. Row2

1
AIR 1950 SC 27.
2
AIR 1952 SC 196.

2
“Our constitution contains express provisions for judicial review of legislation as to its
conformity with the constitution. This is especially true as regards the Fundamental Rights, to
which the court has been assigned the role of the sentinel on the qui vive.”

3. Kesavananda Bharati v. State of Kerala3

“As long as some fundamental rights exist and are a part of the Constitution, the power of
judicial review has also to be exercised with a view to see that the guarantees afforded by these
rights are not contravened.”

4. Minerva Mills v. Union of India4

“It is the function of the judges, to pronounce upon the validity of laws. If courts are totally
deprived of that power, the fundamental rights conferred on the people will become a mere
adornment because rights without remedies are as writ in water. A controlled constitution will
then become uncontrolled.”

5. L. Chandra Kumar v. Union of India5

“The judges of the Supreme Court have been 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 their functions, transgress constitutional
limitations.

6. S.S. Bola v. B.D. Sardana6

“The founding fathers very wisely, therefore, incorporated in the constitution itself the
provisions of judicial review so as to maintain the balance of federalism, to protect the
fundamental rights and fundamental freedoms guaranteed to the citizens and to afford a useful
weapon for availability and enjoyment of equality, liberty and fundamental freedoms and to
help to create a healthy nationalism. The function of judicial review is a part of the

3
AIR 1973 SC 1461.
4
AIR 1980 SC 1789.
5
1997 (2) SCR 1186.
6
AIR 1997 SC 3127.

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constitutional interpretation itself. It adjusts the Constitution to meet new conditions and needs
of the time.”

Article 32 of the Indian Constitution gives the right to individuals to move to the
Supreme Court to seek justice when they feel that their right has been ‘unduly
deprived’. The apex court is given the authority to issue directions or orders for the
execution of any of the rights bestowed by the constitution as it is considered ‘the
protector and guarantor of Fundamental Rights’.

Under Article 32, the parliament can also entrust any other court to exercise the power of the
Supreme Court, provided that it is within its Jurisdiction. And unless there is some
Constitutional amendment, the rights guaranteed by this Article cannot be suspended.
Therefore, we can say that an assured right is guaranteed to individuals for enforcement of
fundamental rights by this article as the law provides the right to an individual to directly
approach the Supreme Court without following a lengthier process of moving to the lower
courts first as the main purpose of Writ Jurisdiction under Article 32 is the enforcement of
Fundamental Rights.

Article 137 of the constitution of India empower the Supreme Court to review its own
order or judgment. This power of correction makes the judiciary correct its own mistakes.
As per the change in circumstances and conditions and coming into existence of new facts
and laws the Supreme Court and High Court overrule and set aside their own judgments and
orders. Supreme Court has done this many times, for example in Kesavananda Bharati case.
This case upheld the changes in 24th amendment in Article 368 and Article 13 of Indian
Constitution by overruling Golaknath Judgment of 1967.

Art. 142 provides that the SC in exercise of its jurisdiction, may pass such decree or orders as
is necessary for doing complete justice in the matter pending before it. The decree of the
court shall be enforceable until provision is made by the parliament that it shall be in the
manner prescribed by the president.

Art. 144 provides that, all the authorities civil and judicial, in the territory of India shall act in
the aid of that Supreme Court. The power under Art 142 is inherent power and can be used
for doing complete justice. And under Art. 144, the power is very wide and the court can

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formulate legal doctrines to meet the ends of justice. The object of this article is to enable the
court to declare law to give such directions or pass such orders as are necessary to do
complete justice.

Enshrined under Part V of the Constitution of India, Article 226 provides the High
Courts with the power to issue writs, including writs in the form of habeas corpus,
mandamus, prohibition, quo warranto, certiorari, or any of them, to any person or
authority, including the government. Article 226 of the Indian Constitution gives High
Courts the power and ability to enforce any of the basic fundamental rights guaranteed
by Part III of the Constitution of India, 1949, or for any other reason.

• According to Article 226(1), each High Court within India’s territorial jurisdiction has
the ability and power to issue orders, instructions, and writs, to any individual or
authority, including the government, for the enforcement of Part III of the Indian
Constitution or basic fundamental rights and other legal rights within its own
jurisdiction.
• Article 226(2) empowers the High Courts with the authority to issue orders,
instructions, and writs to any government authority or any individual, outside their own
local jurisdiction in circumstances when the cause of action is completely or partially
within their local jurisdiction despite the fact that such government or authority’s seat
or the individual’s domicile is not within the territory.
• According to Article 226(3), when an interim order is issued against the respondent
under Article 226 in the form of an injunction or a stay without:

a) providing the respondent with a copy of the petition and any relevant evidence; and
b) providing the respondent with an opportunity to be heard.

The High Court shall decide on the application within two weeks of receiving the application
or within two weeks of the date on which the other party received the application, whichever
is later. If the application is not so disposed of, the interim order shall be vacated on the expiry
of that period, or, if the High Court is closed on the last day of that period, before the expiry of
the next day on which the High Court is open, the interim order shall be vacated.

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 • According to Article 226(4), the jurisdiction granted to the High Courts under Article
226 does not preclude the Supreme Court from using its powers under Article 32(2).

Keswananda Bharati v. State of Kerala 1973

The Supreme Court of India propounded the basic structure doctrine according to which it
said the legislation can amend the constitution but it cannot violate the basic structure. It
makes judicial review as the basic structure of the constitution which cannot be taken away
by any amendments legislated by the parliament. This gives SC power to review any
legislations & strike it down if it intends to make judiciary subservient in even subtlest of
manner

In L. Chandra Kumar v. union of India

It was held that the power of judicial review over legislative action vested in High Court
under article 226 and in the Supreme Court under article 32 of the Constitution and it is the
integral and essential feature of Constitution constituting basic structure.

SHATRUGHAN CHAUHAN & ANR. VS. UNION OF INDIA

In The Supreme Court of India, Criminal Appellate Jurisdiction

Case No: Writ Petition (Criminal) no. 55 of 2013
Appellants: Shatrughan Chauhan & anr.
Respondent: Union of India & ors.
Date of Judgement: Decided on 21 Jan, 2014
Bench: Hon'ble Justice P. Sathasivam , Justice Ranjan Gogoi and Justice Shiva Kirti Singh

FACTUAL BACKGROUND

1. The present case, which revolves around the question of delay caused in deciding
the mercy petition, was filed by the family members of death convicts- Suresh and
Ramji, who along with 13 other convicts, were awarded with death sentence in
1997.

6
 2. In 2001, their criminal appeal was dismissed by the Supreme Court and in the
same year the petitioners then filed for a mercy petition addressed to the
President/Governor of India.
3. Although, the mercy petition was rejected by the Governor however, the
petitioners and their family members never received any information about the
same.
4. It took about 12 long years in gathering all the required papers, judgments of the
trial courts, information regarding status of petitioners’ mercy petition etc.
5. On 08.02.2013 the President, too, rejected their mercy petition but it was only
after two months that the petitioners got to know about the same via news reports
as there was no written confirmation sent on part of the concerned authorities.
6. The present case was filed keeping in view the undue and inordinate delay caused
in deciding the mercy petition along with praying for commuting the death
sentence of all death convicts into life imprisonment.

ISSUE INVOLVED

1. Whether the delay caused in disposing off the mercy petition amounts as a
violation of Article 21 of the death convicts?
2. Whether the failure/delay on part of the Executive to dispose of the mercy petition
filed under Article72/161 of the Constitution within a reasonable time can act as a
sufficient ground for commuting death sentence into life imprisonment?

JUDGMENT

On 21st January 2014, the judgment in Shatrughan Chauhan & Anr v. Union of India was
delivered by a three-judge bench. The Supreme Court while commuting the death sentence of
all 15 convicts into life imprisonment held that undue, inordinate and unreasonable delay in
disposing off the mercy petition is in itself a sufficient ground to entitle the convict to pray
for commutation. The delay in rejecting the mercy plea by the President amounts to torture
and is a clear violation of Article 21 of the convicts’ rights. The Supreme Court, at the same
time, however, refused to fix up a certain number of years above which undue delay would

7
amount as torture and laid out that the execution of sentence must only be done in
consonance with the constitutional mandate.

CRITICAL ANALYSIS IN TERMS OF JUDICIARY AS A SUPREME

INTERPRETER, PROTECTOR AND GUARDIAN OF CONSTITUTION

In the case of Shatrughan Chauhan & Anr v. Union of India, a three-judge bench of Supreme
Court delivered a landmark judgment dated 21st January 2014 on death penalty holding that
an excessive delay in carrying out the death sentence was an essential mitigating factor in a
plea for commutation. The Court held that, in the absence of proper, plausible and acceptable
reasons for the delay, the delay of twelve years in considering the mercy petition is a relevant
ground for the commutation of death sentence into life imprisonment.

The Court was of cogent view that undue, inordinate and unreasonable delay in execution of
death sentence does certainly attribute to torture which indeed is violation of Article 21 and
thereby entails as the ground for commutation of sentence.

• Article 21 can be rightly described as the “heart and soul of fundamental rights”
which entails that no one should be deprived of his/her life or personal liberty except
according to a procedure established by law. To any civilized society, there can be no
attributes more important than the life and personal liberty of its members.

• As quoted by P. Sathasivam, CJI, “Our Constitution is highly valued for its

articulation. One such astute drafting is Article 21 of the Constitution which
postulates that every human being has inherent right to life and mandates that no
person shall be deprived of his life or personal liberty except according to the
procedure established by law.”

The twin attributes of right to life and personal liberty enjoy a fundamental ascendancy over
all other attributes of the political and social order. Article 21 of the Constitution does not end
with the pronouncement of sentence but extends to the stage of execution of that sentence, as
already asserted, prolonged delay in execution of sentence of death has a dehumanizing effect
on the accused.

8
Delay caused by circumstances beyond the prisoners’ control mandates commutation of death
sentence as done by the court in this case. The court rightly commuted death sentence to
life imprisonment because delay causes physical and psychological agony to the convict
which leads to torture; thus, it is a clear violation of Article 21.

• In furtherance to that, it would be rightful to highlight that the Supreme Court,

which is the sole protector of the values enshrined in the Indian Constitution, not
only did it widen the scope of Article 21 with respect to the convicts’ rights but
also helped respect the international norms as set by International Covenant on
Civil and Political Rights to which India is a signatory. Since our domestic law is
almost on the same footing as that of international law, the Court took into account
“insanity” as a supervening circumstance and clearly remarked that to execute an insane
person who is not in a position to understand the nature of his deeds and who cannot
defend himself would be a sheer violation of his rights.

It is indeed worthy to consider the fact that the basic tenet of our country’s criminal
justice system is to even preserve certain rights of a person who has been convicted of an
offence, Article 21 being the most important:

Executing a person who has lost his sanity is not only against the notion of humanity but is in
contradiction to the law of the land as well. By commuting the death sentence of two death
convicts into life imprisonment, taking into consideration their chronic psychotic illness the
Court, not only did conform with the international and domestic legal standards but also set up
a good example for all other countries that the execution of the sentence shall also be in
consonance with the constitutional mandate.

It may also be noted that in the present case, the Supreme Court, by exercising limited
judicial review acted as a touchstone for understanding the federal structure of our
Constitution.

• Commuting the death sentence into life imprisonment by holding undue and
unreasonable delay as an essential mitigating factor, this Court in a way sets out
a system of checks and balance, thereby indicating that the Executive, too, shall
be held accountable for their actions.

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The fact that Shatrughan Chauhan case has laid down guidelines to protect the right to life and
personal liberty of death-row prisoners, as enshrined under Article 21 of the Constitution is
also commendable. These guidelines have put an end to the disparities in implementing the
already existing laws for safeguarding the interest of the death row convicts.

1. Solitary confinement: In the case of Sunil Batra vs. Delhi Administration7 solitary
confinement was held unconstitutional prior to rejection of mercy petition by the
President. The rules of Prison manuals of different states should not be interpreted to
run counter to the above ruling and violate Article 21 of the Constitution.

2. Legal Aid: The convict is entitled to legal aid under Article 21 at all stages until his
last breath irrespective of the fact that his plea is rejected by the president.

3. Procedure in placing the mercy petition before the President: The Court has framed
guidelines and prescribed a procedure for disposal of mercy petitions filed by the death
convicts after disposal of their appeal by the Supreme Court.

4. Communication of Rejection of Mercy Petition by the Governor: The convict is

entitled to be informed in writing of the decision on his mercy petition. The rejection
of the mercy petition by the Governor should forthwith be communicated to the convict
and his family in writing or through some other mode of communication available.

5. Communication of Rejection of the Mercy Petition by the President: Same as the

case for Governor, the rejection of the mercy petition by the President should forthwith
be communicated to the convict and his family in writing.

6. Death convicts are entitled as a right to receive a copy of the rejection of the mercy
petition by the President and the Governor.

7. Minimum 14 days’ notice for execution: This duration allows the convict to prepare
himself mentally for execution, to make his peace with god, prepare his will and settle

7
AIR 1989 SC 653

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 other earthly affairs. It allows the convict to have a last and final meeting with his family
members.

8. Mental Health Evaluation: Some death-row prisoners lose their mental balance on
account of prolonged anxiety and suffering experienced on death row and for this
purpose there should, be regular mental health evaluation of all death row convicts and
appropriate medical care should be given to those in need.

9. Physical and Mental Health Reports: All prison manuals give the Prison
Superintendent the discretion to stop an execution on account of the convict’s physical
or mental ill health. For this reason, when the mercy petition is rejected and the
execution warrant is issued, the Prison Superintendent should satisfy himself on the
basis of medical reports by Government doctors and psychiatrists that the prisoner is in
a fit physical and mental condition to be executed.

10. Furnishing documents to the convict: Most of the death row prisoners are quite poor
and do not have copies of their court papers or judgments. These documents are must
for preparation of appeals, mercy petitions and accessing post-mercy judicial remedies
which are available to the prisoner under Article 21 of the Constitution.

11. Final Meeting between Prisoner and his Family: It is necessary that the prison
authorities allow a meeting of Prisoner with his family or friends before execution for
the sake of humanity and justice.

12. Post Mortem Reports: These guidelines make it obligatory for post mortem to be
conducted on convicts after execution.

Besides outlining some important guidelines, tremendous judicial skill by clarifying

judgements in Bhullar Case and Triveniben Case is showcased in the present Shatrughan Case.

• The Supreme court acting as a court of record has rightly overruled its own verdict
in Devender Pal Singh Bhullar v. State (NCT) of Delhi8 case in which it had held
that delay in deciding mercy plea cannot be a ground for commutation of death

8
(2013) 6 SCC 195

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 sentence. The Supreme Court in this case concluded that those sentenced to death for
terrorist offences could not invoke the argument for inordinate delay in disposing of
mercy petitions due to the nature of the crimes. Thus, the Court had effectively held
that the nature of the capital crime determined the due process treatment that the
convict was entitled to.
• While clarifying and relying on Triveniben v. State of Gujarat9 the Court led to a
conclusion in Chauhan case that inordinate delay in disposing of mercy petitions
amounts to torture and nature of the crime must have no relevance in that
determination. While relying on Triveniben case to come to the conclusion that the
classification of terrorist and non-terrorist offences in the context of inordinate delay in
disposing of mercy petitions is constitutionally invalid.

The judges in this case have thus concluded that they have not created new jurisprudence
and have only clarified the content and application of earlier judgment10.

Though the commutation of death sentence of the petitioners is an appropriate decision since
there was an unprecedented delay of 12 long years, this judgment can set out a bad precedent
for times to come. The commutation of sentence only based on delay will make a
complicated legal situation.

• As Supreme Court acts as a court of record, for the subsequent cases it would mean
that whenever there is an executive delay it would result in commutation of the death
sentence into a life imprisonment or a milder punishment. However, it is pertinent to
note that there may be situations when the executive delay in reasonable and justified
due to some unavoidable or unforeseen circumstances. In such a case the
commutation of sentence would amount to denial of justice to the aggrieved party
ultimately destroying the very essence of justice.
• As a suggestive measure, it would be recommended that since the guidelines are silent
on the limitation period of filing of a review and a curative petition by the petitioner, a
time limit of maximum 7-10 days should be imposed so that the justice is not further

9
(1988) 4 SCC 574
10
https://shodhganga.inflibnet.ac.in/bitstream/10603/208018/11/9_%20chapter%206.pdf (Aug. 04, 2020, 08:30
PM)

12
 delayed to the victim. It would cause psychological agony for the victim’s family
who, in the name of justice, would wait for the execution of the convicts.

At the heart of the argument is the idea that keeping a death row convict under the shadow of
death for years is a form of cruel, inhuman and degrading punishment that no civilized
society (whether or not it allows capital punishment) should inflict upon human beings
(this short story by Jean-Paule Sartre and this poem by Oscar Wilde perhaps drive home the
point most forcefully). The inevitable mental agony that accompanies waiting for an
inevitable death, demeans individual dignity.

Insofar as the Court has interpreted Article 21’s guarantee of the right to life to include
treating all individuals with dignity, the judgment reaffirms the humanism that is the
foundation the Constitution, and that whatever the crime might have been, human
beings continue to have a legitimate claim to be treated with dignity under the
Constitution.

• The Court further held, referring to a copious body of foreign law and international
law, that insanity was a ground for commutation (paras 71 – 78); this is justified by
our basic, intuitive notion that persons in a democracy ought to suffer penalties and
burdens only to the extent that they are responsible for the actions that they undertake
– and that punishment must respond not just to the nature of the crime, but to the
ability of the actor to understand or comprehend the nature of his actions.
• It is rightly quoted by Brent Weeks, “Delayed justice is as bad as injustice”. A victim,
whether himself or his family, too shall be treated with equal fairness, dignity and
respect and their rights should be equally respected. Lastly as it is rightly quoted by
Eleanor Roosevelt “Justice cannot be for one side alone, but must be for both”, so the
need is for the judiciary to be able to strike a balance between both accused’s rights as
well as the victim’s rights which can be done by following the path of guidelines
which are enshrined in this case to deal with subsequent cases relating to executive
delay and the commutation of death sentence in order to be able to render justice in
real sense.

The Shatrughan judgment is a progressive step in Indian death penalty jurisprudence.

Perhaps it is best to leave the last word to the Court, in its penultimate paragraph, suggesting

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not just that the death penalty should be administered humanely, but that the very idea – say it
softly – of State-sanctioned killing of human beings has no place in a civilized democracy:

“Remember, retribution has no Constitutional value in our largest democratic

country.” (para 263)

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 CONCLUSION

Judiciary has been playing a remarkable role by the way of judicial review for maintaining
the supremacy of the constitution. The judiciary is the main aspect which safeguard the
democracy and ensures peace, justice and good order. The constitution has provided judiciary
with independence a and enough powers to keep executive in check making Supreme Court
as the final judge of the constitution.
Supreme Court acts as an interpreter, guardian and protector of the Constitution of India. It is
the highest authority to interpret the Constitution. Supreme Court’s decision will be binding
on all lower courts. The constitutional makers only made the constitution but did not interpret
it. The job of interpreting the constitution was left on the judiciary. Constitution which is a
sacred document of India, the task of interpreting it is on the judiciary. Judiciary by analysing
statutory laws and provisions interprets the Constitution. Interpretation of the Constitution
which in itself is a herculean task, the judiciary has, again and again, has set precedents for
the interpretation of the Constitution.

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