The doctrine of Separation of powers is a part of the basic structure of the
Indian Constitution. The three organs of the Government- Legislature, Executive
and Judiciary impose checks and balances on each other. They work in a manner in
which no organ of the state becomes too powerful. We elect the Legislature and
in turn, Executive is elected. But we play no part in the election of the
Supreme Court, High Court and the Other Lower Courts judges.
As they are
unelected, they are exposed to extreme criticism by the elected, media and the
people. We may not like one or two actions of the Judiciary but we cannot
declare it as a tyranny of the unelected and ignore the fact that they are the
body who keeps an eye on the elected representatives and their ill acts or
legislations. This article will prove that judiciary as the unelected does not
influence the other elected bodies and it only carries it work. It will briefly
discuss how judicial independence is affected throughout the years and will
highlight its role in contemporary India.
Executive- Judicial Conflict (1975 – 2019)
Three important era’s which affected the functions and the independence of the
judiciary in an exorbitant way:
The Gandhi Era (1966-77 And 1980-81)
During the emergency period, the Judiciary has suffered enormous agony, it
yielded in substance to the autocratic rule of Mrs Gandhi and in the process
lost its institutional prestige and cohesiveness. After the Keshavananda
judgement, the government passed several amendments limiting the basic structure
of the constitution but it was later removed by the court. The power of judicial
review exercised by the judiciary for an emergency was restricted by the
government and made laws beyond the pale of judicial review.
The appointment of
judges was controlled by the Government. For instance, Justice Beg was appointed
as the Chief Justice of India in preference to Justice Khanna as he had refused
to toe the Government line in the Habeas Corpus case. The return of the Gandhi
in 1980 revived the anti-judiciary hysteria. The courts were involved in
internal feuds rather than preserving judicial integrity.
Post Gandhi Era (1985- 2014)
In these years the Judiciary developed in three main categories:
- Evolution of Human rights Jurisprudence
- Public Interest Litigation
- Rule of Law
Article 14, 19 and 21 were broadly interpreted by the Judiciary. Right to life
was interpreted by the courts to include a wide range of rights such as clean
air, speedy trial and free legal aid. PIL is one the pioneers of the Supreme
Court by throwing upon the portals of the courts to the common man. Major
decisions through this time which revealed the illegal acts of the elected were
Dissolutions of Bihar Assembly unwarranted, the Jain Hawala case which exposed
some politicians, the Right to Reject candidates formalised, 2G licences
cancellation cases and coal scam cases. This led the Supreme Court to play an
unprecedented role in the governance of the nation, restored the judicial
independence and judicial activism.
Modi Years (2014-19)
During the last two decades since 1990, Supreme Court earned the epithet of
“most powerful court in the world”
. The Judiciary in these years started to lose
its independence and to some extent became vulnerable to the Executive, which
grew mighty in strength.
The Government to affect the primacy of the Judicial
Appointments by the Judiciary brought the National Judicial Appointments
Commission by amending the Constitution. The court struck the amendment. This
brought rage in the Government, they delayed the appointment of judges and
transfers which led to the vacancies in the High Court. Major judges were also
transferred which had worsened the situation.
The two controversial cases with
high political stakes- Sahara-Birla papers case and Loya case were questionable
as the court questioned the admissibility of the documents and dismiss the
petition seeking independent probe respectively. In Rafael case, instead of
using judicial review to order a probe into the corruption, they declared the
papers to be proper. Supreme court declared the Aadhar Judgement as not illegal
in introducing Aadhar bill as a very shocking money bill.
These proved the
executive interference in administrative powers of the Judiciary in the
appointment and constitution of benches. They impacted upon the independence of
the Judiciary and also the controversies of impeachment of Justice Dipak Mishra,
Master of roster issue degraded the value of Judiciary in the eyes of the
But apart from the constitutional cases where there is political influence,
Judiciary did great when it came to preserving the Human Rights of the people
like Sabrimala case, article 370, Homosexuality case.
Criticism Faced By The Judiciary
As many cases came down the line which was the result of the tyranny of the
elected, Judiciary was criticised by the people in the large number.
Tyranny Of The Unelected
As Judiciary already faced the political influence during the Gandhi period,
Supreme Court struck down the 99th Amendment Act which brought NJAC into place
to maintain the independence of the judiciary and to save it from the political
influence. But it was being criticized by the Government and Arun Jaitley in one
of his articles mentioned Judiciary as “Tyranny of the Unelected” and said
unelected people cannot rule upon democracy. In real it only saved Judiciary
from the hands of elected.
Media trial is one of the draconian activities undertaken by the media. They
pre-decide the case and publish the final results which affect the mindset of
the judges in some or the other way. But while entering the court, they manage
to sideline the conclusions made by the media. After the ruling is out, if it is
in favour of the media trial it is appreciated but if it is against it, it is
Criticism comes under the Freedom of the Speech and it is
right to give your contrasting opinions on the judgment but during recent years,
the integrity of the judges is also being questioned which is destroying the
image of judges and the Judiciary in the minds of the common people. Lack of
trust by the people on Judiciary is increasing.
Judiciary is not only facing criticism from the media, elected representatives
and people but also from retired judges who are shaking the very roots of it.
It is not that they are ruling over, it is because they are performing its
functions to the full and is becoming subservient to the government. On one side
where criticism is increasing lack of trust by the people, the other side can be
looked in a positive way where Judges can learn from it and try to restore its
powers and independence.
Judiciary Playing An Important Role In Corona Time Frame
Many petitions under PIL regarding the functioning of the Government were taken
up by the Court. Supreme Court played the most important role in the Migrant
- It questioned the centre and the states on the plight of stranded
migrant workers and asked for the accountability.
- It asked the Government to send all the migrant workers as soon as it is
possible and gave 15 days.
- The exorbitant rates charged by the hospitals was also questioned by the
court. As a result, the prices were made low in some of the states.
- It also ordered the Government to remove the charges filed against the
- Supreme Court insisted the CBSE and ICSE boards cancel their exams for
the safety of the students.
Harish Salve in one of his articles praised the court in entertaining the PIL in
this time frame of the corona. This implies that judiciary is not
over-exercising its powers rather preserving the rights of the people and
limiting the over-arching power exercised by the Government.
In the name of Judicial Independence, Activism and Review, the Judiciary did not
cross its limits rather throughout the years, it went through many ups and downs
where the powers of the judiciary were limited by the executive and tried to
take away the judicial independence which they formed to protect the Doctrine of
Separation of Powers. In most of its functioning years, Judiciary has become the
prey to the tyranny of the elected rather being the tyranny of the unelected.
protected the human rights of the people, limited the powers by legislature and
executive and expanded the view of PIL to listen to the common people. People
have to understand that Judiciary is only the body which will control the wrongs
of other organs of the state. Rather than ruling and destroying democracy,
Judiciary itself is in the danger and is running under the mighty.Written By: Ms.Sanchita Namdev
Authentication No: AG023536899055-22-820