Indian Judiciary

Why Judiciary is important?

• Indian Constitution is a Federal Constitution. Federalism has Distribution of
Powers between Centre & States. The disputes between Centre and States and
two States are bound to arise and therefore an independent organ was
required to resolve these disputes.
• Supremacy of Constitution too requires independent and impartial judiciary
which has been given the important function of interpreting Constitution.
• Moreover Constitution guarantees certain Fundamental Rights. Only an
independent organ can protect these rights and therefore judiciary was given
the role of protecting people’s rights.
• As a matter of fact, true federalism as per the Constitution was provided only
in the judicial system as our High Courts are in no way subordinate to the
Chief Justice of India. Supreme Court has no administrative control over the
High Courts.
• In fact CJI is not the boss of Supreme Court judges but just First amongst
equals.
 What is Judicial Review?
• Judicial Review is the power of constitutional courts to examine the
constitutionality of laws and the Executive’s actions.
• Expression Judicial Review has not been used in the Indian Constitution.
• Unlike American Constitution, our Constitution does not even expressly
vest judicial power in the courts but the separation of powers principle
has been incorporated.
• Judicial Power in the sense of Judicial Power of State is clearly vested in
the courts. This was so even prior to independence.
• The courts have power to review the State action. Article 13 read with
Articles 32 and 226 of the Indian Constitution give the power of judicial
review to the Supreme Court and High Courts to declare, any legislative,
executive or administrative action, void if it is in contravention with the
Constitution.
 Is Judicial Review Anti democratic?
• The power of judges to quash laws passed by the Parliament may look like anti-democratic.
But this power has been given so that Parliament does not become majoritarian.
• Even before the birth of the republic statesman of Nehru’s stature explicitly elaborated
government’s view on the judicial review on 10 th September,1949 in the Constituent
Assembly: “Within limits no judge and no Supreme Court can make itself a third chamber.
No Supreme Court and no judiciary can stand in judgment over the sovereign will of
Parliament. If we go wrong here and there, it can point it out, but in the ultimate analysis
where, the future of the community is concerned, no judiciary can come in the way. And if
it comes in the way ultimately the whole constitution is a creature of Parliament.” He went
on to observe on the possibility of picking up pro- government judges: “If courts proved
obstructive, one method of overcoming hurdle is… the executive which is the appointing
authority of judges begin to appoint judges of its own liking for getting decisions in its own
favour.”.
• Indian Constitution does not prescribe any procedure for the appointment of Chief Justice of
India. A healthy convention has been developed to appoint senior most judge as CJI.
 What is Judicial Activism?
• According to Black's Law Dictionary judicial activism is a philosophy of judicial decision-
making whereby judges allow their personal views about public policy, among other factors,
to guide their decisions.
• Giving a new meaning to the provision to suit the changing social or economic conditions or
expanding the horizons of the rights of the individual is termed as Judicial Activism.
• Thus when courts start assuming even the functions of the Executive and Legislature, it is
called Judicial Activism.
• In the name of achieving Justice social, economic & political and other lofty goals mentioned
in the Preamble, judges have been expanding their powers. They have been critical of
inactions or wrong doings of the Executive.
• One of the most important constitutional provisions giving extraordinary power to the
Supreme Court is Article 142 of the Indian Constitution. This provision empowers the
Supreme Court to pass suitable decree or order for doing complete justice.
• Despite the fact that the law-making power in India lies primarily with the Parliament only,
the Supreme Court is able to legislate under Article 142. This provision is responsible not only
for the judicial activism but even judicial legislation in India.
 How Judicial Activism Has worked?
• In Vishaka v. State of Rajasthan(2004) the Supreme Court held
that in the “absence of enacted law to provide for the effective
enforcement of the basic human right of gender equality and
guarantee against sexual harassment and abuse, more particularly
against sexual harassment at work places, we lay down the
guidelines and norms specified hereinafter for due observance at
all workplaces or other institutions, until a legislation is enacted
for the purpose.
• The Law was eventually enacted by the Parliament ie Sexual
Harassment at Workplace(Prevention, Prohibition & Redressal
Act,2013.
• Similarly Supreme Court in 2018 had laid down guidelines in
cases of Honor Killings & mob-lynching.
 How Judicial Activism was used by the
Courts?
• For the first two decades of so of our constitution, our Supreme Court demonstrated
Judicial Restraint and strictly operated within the constitutional limits.
• Accordingly as we had discussed earlier in our lecture on Article 21, it gave a narrow
and textual interpretation to the expression ‘procedure established by law’ in AK
Gopalan(1951) and held if there is procedure established by law, it cannot do much.
• Subsequently in Maneka Gandhi(1978), it said that such a law must be just, fair,
reasonable and non-arbitrary.
• The court therefore started widening the ambit of the Fundamental Rights.It expanded
the definition of State under Article 12.
• In fact several new rights like Right to Fair and Speedy trial, Right to Education, Right to
Livelihood, Right to Health, Right to Environment etc. were made part of Article 21.
• Several Directive Principles were elevated to the status of Fundamental Rights.
• Through interpretation of the Constitution, Supreme Court has virtually given to itself
final say in the appointment of Judges. We would discuss it in some details.
 Why independence of Judiciary is
important?
• Independence of Judiciary is the hallmark of modern, liberal and democratic State.
Independent Judiciary is required to maintain balance between the interests of
individuals and society. Montesquieu in his book Spirit of Laws had said there is no
liberty, if the power of judging be not separated from the legislative and the Executive
powers.
• An Independent Judiciary is the sine qua non of a vibrant democratic system. Only an
impartial and Independent Judiciary can stand as a bulwark for the protection of the
rights of the individuals and meet out even handed justice without fear or favor.
• In S.P. Gupta v. Union of India (1982) Supreme Court held: Judges should be of stern
stuff and tough fiber, unbending before power, economic or political, and they must
uphold the core principle of the rule of law which says Be you ever so high, the law is
above you.
• This is the principle of independence of the judiciary which is vital for the
establishment of real participatory democracy, maintenance of the rule of law as a
dynamic concept and delivery of social justice to the vulnerable sections of the
community. It is this principle of independence of the judiciary which we must keep in
mind while interpreting the relevant provisions of the Constitution.
 How independence of Judiciary has been
ensured?
• The independence and impartiality of the judiciary are not the private
rights of judges; they are the rights of citizens.
• Ultimately, judicial legitimacy (and power) rests on public confidence in
the courts, in the judges themselves, and in their decisions.
• Independence of the judiciary is the most cherished goal of any legal
system, and the process of appointment of judges is rightly seen as a
crucial mechanism to achieve this goal.
• Judges’ salaries cannot be varied or reduced except during financial
emergency.
• Security of their tenure has been guaranteed and their impeachment
process has been made difficult. They can be impeached only on the
grounds of proved misbehavior or incapacity.
How Supreme Court Judges are appointed?
• Indian Supreme Court is the most powerful court in the world. It
has 33+1 judges.
• Originally Article 124 of the constitution had provided 7+1 but
gave the power to the Parliament to prescribe a larger number.
• Accordingly Parliament enacted the Supreme Court(Number of
Judges)Act,1956 which provided for the maximum of 10 judges.
• Article 124 says that judges of the Supreme Court would be
appointed by the President after consultation with such of the
judges of the Supreme Court and of the High Courts as President
may deep necessary. But the Chief Justice of India shall always be
consulted in the appointment of Judges..
 How Collegium system came into being?

• As per Article 124,President has to merely consult

Chief Justice of India and such other judges he
deems necessary. Supreme Court has itself held in
S.P Gupta v. Union of India (1981) held that President
is not bound by the advice of CJI and other judges.
• Accordingly we had the primacy of the executive in
the appointment of judges in the first four decades
of our republic.
• Most of the judges picked up under this system were
independent, upright and fearless.
 How Collegium system has worked?
• Ideally the Collegium system should have ensured timely appointment of more
competent , independent and fearless judges.
• But a closer scrutiny of their decisions reveals that at times their decisions are as
unpredictable as the English weather. There is neither transparency nor any
accountability.
• Thus, the Constitution favors what may be called a “wider consultative process” in
the appointment of judges. There is great merit in this provision. Wisdom is not the
monopoly of a few chosen ones in the apex court.
• A large number of judges were superseded during the last two decades. Several
senior-most Chief Justices of various High Courts were not elevated.
• Some of the finest judges were brought in late to ensure they did not become CJI.
• Accordingly in 2014 National Judicial Appointment Commission Act was passed and
the Constitution was amended.
• But in 2016, Supreme Court struck them down as unconstitutional as primacy of the
opinion of Chief Justice of India was held to be the basic structure of the
Constitution.
 What did we learn today?
• Independence of Judiciary is important for any
democratic country.
• Judicial Review is a mechanism to ensure supremacy
of the Constitution.
• Judicial Activism is not good as it goes against the
Separation of Powers.
• Supreme Court must not cross its limits and take
over the governance of the country.
• Next: We would discuss the Parliament’s power to
amend the constitution.