In reply, Prime Minister Jawaharlal Nehru said that hereciprocated Rajendra Prasad's sentiments but his predicament was that when they were fighting for independence, "the best of minds," were on the side of the British. They were toadies. The illiterate, "the teeming illions," as Nehru put it, were on our side and had staked everything on freedom. How could they be denied vote in a free India when their sacrifice was the most?

The ever-running debate between parliament and thejudiciary to determine who is supreme reminds me of Nehru's words. The judiciary represents "the best of minds" and parliament the "teeming millions". The first are the appointees. The second are elected.

Even to think that parliament is not supreme is to betray the trust of people who return MPs. It will be a sad day when there is confrontation between the two because both have their spheres demarcated and both are independent in their own way. The Supreme Court is supreme, as Chief Justice of India Y K Sabarwal says. But its supremacy ends where the supremacy of parliament begins.

Lately, the judiciary, primarily the Supreme Court, has been violating the Lakshman rekha and expanding its boundary and going beyond it. Partly, the executive is to blame because it s lethargic and does not do its job properly. Partly, it is the tendency of the judiciary to spread itself all over. In the name of judicial review, the Supreme Court is adjudging such government measures which are purely administrative.

There is no doubt that the judiciary has, by land large, interpreted the constitution to benefit the vulnerable sections of the society. At times, the executive has been rightly taken to task. The aggrieved party has been given relief. In cases like the Babri Masjid, the Supreme Courts directive was just and categorical but the executive failed to comply with it. The unfortunate demolition took place.

However, in the process of reaching its judgment on certain cases, the judiciary has tended to arrogate itself the authority which belongs to the executive. This violates the doctrine of separation of powers enunciated in the constitution. Perhaps, unwittingly, the judiciary has taken upon itself certain tasks which are those of the executive. It is time that the judiciary did some introspection. However superior "the best of minds", the judges are not accountable. The executive is answerable to parliament, "the teeming millions". This is what democracy is all about.

I am not sure whether the executive's response to expand the Ninth Schedule of the constitution is justified. The schedule is a lock room available in the constitution to stash any law that Parliament wants to insulate from judicial review. The provision drafted by the Jawaharlal Nehru government said that none of the laws specified in the Ninth Schedule "shall be deemed to be void, or ever to have become void," on the ground that it was inconsistent with any of the fundamental rights, "notwithstanding any judgment, decree or order of any court or tribunal to the contrary." However faulty the Ninth Schedule, it should stay. The constitution has a grey area which a determined Supreme Court can use to register its primacy. In the absence of the Schedule, the confrontation between the judiciary and Parliament is inevitable.

True, the Ninth Schedule was not in the constitution when it was passed. But when the land reforms were challenged in Courts, Nehru added the Ninth Schedule to the constitution. It was a battle between the 'conservative' judiciary and the 'progressive' executive. Nehru did not want the Courts to get in the way of welfare measures like this land reforms.

The judiciary is there to ensure that the laws framed do not violate the constitution. But the Courts cannot function as a kind of super-legislature or super-executive. At times, the obiter dicta by judges give the impression that they are running down the elected representatives in state assemblies or parliament. This is bad in law and bad in ethics. In one of his lectures, Speaker Somnath Chatterjee rightly said: "In the interest of harmonious functioning, I believe that no one organ of the state should usurp the functions which essentially belong to another, nor should it abdicate its essential functions and thereby upset the well-cherished principles of separation of powers and checks and balances provided by our constitution."

Not long ago, the Supreme Court caused a flutter in demanding the report by a parliamentary standing committee on a bill under consideration. The division bench which made the demand wanted parliament not to proceed with the bill till the court had considered the matter. The situation was saved when the government's own lawyer pointed out to the bench that it could not pass such an order. Even then, the Additional Solicitor General had to give an assurance that "a copy of the standing committee's report shall be placed in a sealed cover before this court." The judges did not realize that even if they were to make a case of judicial review, the examination was to be after the bill had been passed, not at the stage of consideration.

The independence of the judiciary is essential in a democratic country. It strengthens the pillars on which the structure of democratic India stands. But the judiciary should know its limitations. It cannot give any direction to parliament to amend any law. Nor can it intervene in any matter pending before the Speaker or the House. India's first Speaker G.V. Mavalankar always stressed that parliament was the supreme law-making body. For him, no one was above parliament, although he wanted effective judiciary for a meaningful functioning of democracy.

True, people have vested interest in maintaining and sustaining a strong and an independent judiciary. But they have equal vested interest in keeping the role of parliament and assemblies pre-eminent. People are sovereign and their representatives act with the same confidence to articulate their problems and try to find solutions. It is another matter that politicians have degraded the role assigned to MPs and MLAs. Still, the judiciary will be well advised to leave them alone.

Kuldip Nayar is an eminent Indian columnist.