“Judiciary in India will not be a silent spectator rather active participant in India’s ‘social revolution”.Pandit Nehru
Constitution envisaged extremely powerful, fiercely independent, ‘activist judiciary’.
In Art 36. judiciary comes within the definition of state in part IV. If government (executive and legislature) fails to give effect to directives, it becomes the duty of the judiciary to give effect to directives. e.g. It is because of Supreme Court that Right to Education has become a fundamental right. Right to Food has become a statutory right.
Art 141.” The law declared by Supreme Court shall be binding on all courts within the territory of India.” The prime responsibility to make law is with legislature but in a situation where legislature has not made law, Supreme Court can declare the law. e.g. Till parliament brought a law on the Sexual Harassment of Women at Workplaces (2013), Vishakha guidelines issued by Supreme Court (1997) were to be treated as law.
Implication of above provisions.
According to Bhikhu Parekh, India is a classical example of ‘judicial co-governance’. According to Pratap Bhanu Mehta, India is a classical example of ‘Judicial sovereignty’. It denotes supremacy of judiciary even over and above the supremacy of the constitution. It is a well established principle that in a country with written constitution, constitution is supreme. But ‘constitution is what judges say‘. In case of India, Supreme Court show an extreme example of Judicial creativity. e.g. With respect to 1] The doctrine of Basic Structure. 2] System of appointment of judges. Judiciary has gone beyond the constitution itself.
Assessment of Supreme Court in India
Assessment of Supreme Court’s functioning has to be done on the basis of its ‘envisaged role’ and actual performance. Envisaged role of SC is, as a
1] Protector of the constitution.
2] Guardian of FRs./Rule of law.
3] Federal court.
4] Active participant in India’s social revolution.
5] Apex court in two contexts a) Highest court of appeal. b) Internal administration and functioning of judiciary.
Evaluation of the performance.
1] As a protector of constitution – Initially SC was passive, but later on because of executive overreach, Supreme Court became active towards its obligations. The doctrine of basic structure was invented by SC to check emasculation of the constitution by executive which was bent on diluting the essential features of the constitution itself.
2] Guardian of FRs. Initially SC did not appear as a ‘sentinel qui vive’ (Guard with arms) of the FRs, allowed executive to dilute the FRs for the implementation of DPSPs. Emergency was the darkest hour in the history of Supreme Court. When Supreme Court’s action was needed the most, it failed to protect the rights of the people. One of the blot on SC is the judgement in Habeous Corpus case. (ADM Jabalpur Vs Shrikant Shukla case). After emergency, there have been change in the approach, 1st reflected in Maneka Gandhi case 1978. It overruled its judgement in AK Gopalan case, held that the doctrine of due process of law is inherent in the doctrine of procedure established by law. Because of activist judges like P N Bhagawati, Supreme Court instituted PIL (Public Interest Litigations), which strengthened the rights of the weaker section. Since then, working with civil society, judiciary has strengthened human rights in India. Supreme Court has interpreted the meaning of Right to Life liberally to provide various rights.
Though SC has strengthened the rights in India, but it has not been able to bring any concrete change in the situation. e.g. Supreme Court’s judgement in Sabarimala case could not be implemented on the ground because of lack of support from the governments as well as civil society.
3] As a federal court. As per Art 131, Supreme Court has original jurisdiction for the resolution of the disputes between center and state and among states. In this context, Supreme Court has been able to play its constitutional role. Though constitution restricts Supreme Court in case of inter-state water disputes, yet when required Supreme Court did intervene using the powers under Art 136. Whatever progress is observed in resolution of Kaveri water issue, it is because of SC.
After remaining silent on many occasions which include the misuse of Art 356, SC in S R Bommai case declared federalism as a basic structure and restricted the misuse of Art 356.
4] SC as a protector of Rule of Law. SC has mixed record in context of rule of law. The rule of law implies checking the arbitrariness of executives, it also includes checking the corruption and criminalization. SC working with civil society and election commission took initiatives to reduce the influence of money and muscle power in the elections.
Similarly it has tried to uphold the rule of law in the cases of corruption like 2G spectrum.
It is because of SC that some amount of trust has emerged in Indian political system.
Assessment of Judiciary from the perspective of scholars.
One of the major critic of judiciary is Pratap Bhanu Mehta, according to him:
|1| Judiciary is highly politicized institution. He uses the phrase ‘politicization of judiciary’. Judiciary trying to strengthen its own powers. It seems judiciary takes opportunity from the political crisis in India to strengthen its own image. Hence he consider judiciary as a ‘self perpetuating institution’.
|2| He also calls Indian judiciary as ‘promise of uncertainty’. It keeps on changing its judgements within a short period of time. Judiciary has never made an attempt to arrive at the overarching set of values while interpreting the constitution. Hence judgements become ‘artefacts of individual judges’. As a result, instead of rule of court (ideally rule of law) India has rule of judges. e.g. The recent controversy related to the allocation of benches with respect to the case of the death of Justice Loya. In India there is a struggle among the petitioners to get a particular bench. It shows that there is a possibility that the judgement may vary from bench to bench. It becomes a matter of life and death.
|3| Pratap Bhanu Mehta calls judiciary ‘highly paradoxical institution’. 1_Big difference in theory and practice. i.e. Very powerful judgements but very limited change at the ground level. 2_Judiciary intervening in the work of other institutions at the cost of huge backlog in context of its own primary role, disposal of appeals even in cases involving death sentences. 3_Judiciary ensuring accountability of other branches of govt. without its own accountability. According to transparency international, second most corrupt institution in India after police.
|4| According to Pratap Bhanu Mehta, at present the judiciary is facing the worst crisis, the crisis of institutional credibility. The 4 judges of SC took unprecedented step in calling press conference and telling about the internal anarchy which is prevailing in the judicial system. They mentioned that if urgent steps are not taken, the future of democracy is under threat in India.
Doctrine of Basic Structure.
It is a doctrine of judicial review applied by judiciary to examine the validity of constitutional amendment bills.
Philosophy behind the doctrine of basic structure.
There has to be a difference between amendment of the constitution and rewriting of the constitution. Amendment should not go the extend that it becomes difficult to find out the original constitution. Hence Supreme Court held that parliament represents ‘political sovereignty’ whereas constituent assembly represented ‘popular sovereignty/general will’. Hence even with absolute majority in both the houses Amendment bill cannot be passed in case it destroys the basic structure.
Nature of the doctrine.
The act of extreme judicial creativity. Instead of looking at the written provisions, judiciary has gone for understanding the ‘soul’, the invisible part of constitution. Thus the doctrine is of meta-physical nature.
1st School of thought: Example of judicial overreach, extreme creativity. Judiciary usurping the powers of parliament, assuming itself to be the constituent assembly. Instead of giving importance to the written provisions, gave preference to meta-physical elements, judges projecting themselves as philosopher kings. Assumed immense discretionary powers as they have not given the exhaustive list of what constitutes the basic structure, it is like a hanging sword, killing legislative initiative.
Another controversy is that that doctrine came into effect by affirmative vote of the single judges. 6 were against and 7 were in favor.
2nd school of thought: It is true that judiciary has gone beyond the constitution, yet the doctrine of basic structure acted as a blessing in disguise. Executive was bent on emasculating constitution of its vital features. If judiciary had not done this, India would have gone in the direction of other 3rd world countries. (Zia Mody – TEN GREAT JUDGEMENTS THAT CHANGED INDIA). Acc to Zia Modi, uncertain democracy was preferable over certain authoritarianism. There is no need to give the exhaustive list rather it should be as a safety valve.
For detailed understanding of Basic Structure doctrine, its evolution etc. please visit Basic Structure Doctrine.
“Everything has been said already, but as no one listens, we must always begin again.” (Andre Gide)Quoted in Justice Malimath Committee’s report
1] The retirement age for Supreme Court is 65 whereas that for the High Courts is 62. The age difference is exploited like a carrot for High Court judges by executive as well as judges of Supreme Court. It should be made same for both the courts.
2] Post-retirement appointments are a deterrent to an independent judiciary.
The first law commission itself has pointed it out that there should not be any appointments after retirement. If age is a criteria to assume that person is rendered unsuitable to continue as a judge, how can he be given other posts? And if that is not the case due to higher life expectancy, it would be better to increase the retirement age of judges.
3] Appointment of Chief Justice of India – Even today Chief Justices of India are appointed on basis of seniority rather than merit. This is not a very good criteria for the highest post of the nation. Chief Justice should have qualities leadership and administrative. Seniority doesn’t ensure that. This was also one of the recommendation of 1st law commission.
4] The collegium system, which has evolved as a result of Three judges cases, have no constitutional basis. It has failed and led to nepotism and favouritism. Many eminent jurists like Fali S Nariman, Ruma Paul, SS Sodhi have openely expressed their dis-satisfaction with the system. The parliament tried to remedy it in 2014 by 99th CAA, however the amendment was struck down as violative of basic structure (judicial independence).
5] The appointments in State Judicial Services at present are done by Governor in accordance with the rules framed with respective State Public Service Commission and High Court. This has introduced arbitrariness. The establishment of Indian Judicial Services will not only attract better talent, but is also a necessity of time.
For the purpose, Rajya Sabha needs to pass a resolution to the effect under Art 312, and Parliament is then free to legislate.
Apart from these, the other reforms include speedy delivery of justice, the unaffordable cost of litigation, the complex judicial process, the use of English language exclusively in higher judiciary, the pending vacancies in judiciary across country, strengthening and empowering ADR (alternate dispute resolution), using technology for maintaining records, accepting fees etc.
Justice Madan Lokur, former Judge of Supreme Court of India suggests that we need a bottom up approach in judicial reforms. Most of the litigants come in contact with judicial system at district courts. The principal problems lie at this level. Unless these problems are addressed, an average Indian will continue to suffer.
Reforms at Local level
1] The infrastructure and facilities of local courts needs to be improved.
2] Identify pending cases and status of each – many such cases can be disposed off within minutes with some assistance from prosecution
3] Our courts must embed the practices of case and court management. It is management of law suit as it proceeds till resolution to optimise the time.