To run a successful democratic government, the presence of the three systems
should be there:
India is counted amongst the biggest democracies in the world. The above three
tiers working independently help India achieve a democratic status. Though all
the systems are accountable to each other but constitutionally no system
supersedes the other. But there are some wide criticisms that the legislature
empowers and influences the other two systems. So here we are to explore whether
really legislature has that power to influence the judiciary or it merely based
Taking the accounts from independence the judiciary has been
partly influenced under several circumstances but there are also instances where
even the highest authority in power in the country couldn’t influence the
judiciary. Independence of the judiciary is a constitutional vision that has
been incorporated into the Constitution of India. However, the political and
judicial history of our country provides us with a tale of a constant struggle
between the executive and judiciary wherein the political influences and
prejudices seek to corrupt the process of imparting justice.
In this regard,
this article provides an account for these struggles and also emphasizes that
independence of the judiciary may not imply the complete endowment of powers on
the judiciary, rather it implies a creative and appropriate balance between the
executive and judiciary to collectively strive to reduce such influences.
Political Influence And Judiciary
To dig deep into this topic let me start by explaining how judges are appointed.
Starting with INDIAN HIGH COURTS ACT the judges are appointed by the chief
justice of that high court with the consultation of the governor (which is a
political post)and then the names go to the supreme court where the CJI approves
them with the consultation of the president of India( which is again a political
And in the case of supreme court judges they are elevated either from
chief justices of high court or directly appointed from supreme court through
the supreme court collegiums with the consultation of the president of
India. Therefore, the power of appointment of judges was handed to the
President, provided he consulted the Chief Justice with regard to the
appointment, but there was no requirement of the concurrence of the Chief
Justice with regards to the final appointments.
By this you can draw a faint
conclusion how is judiciary influenced. Dating back to independence just nine
after the commencement of the constitution there was great dissatisfaction
asserted by the law commission of India report with respect to the appointment
of high court as well as the Supreme Court judges. However in 1973 this issue
became significant when President V V Giri and the government broke the
traditional way of appointment and appointed Justice A.N Ray as the CJI
breaking the seniority way and superseding the seniority of the two other
This was the time when the influence of political system was clearly
visible to the people. Subsequently, again, the retiring Chief Justice was
replaced by the second most senior judge, in protest of which the senior-most
judge resigned from his duties. On both occasions apparently, it has been
observed that the superseded judges had given unconducive judgments for the
executive, while the superseding judges had given palatable judgments to the
On the first occasion, the superseded judges have laid down that the
basic structure of the Constitution was unamendable in the case of Kesavananda
Bharati v. The State of Kerala
, and on the second occasion, the court had held
that the suspension of Fundamental Rights during emergencies did not prevent the
courts from examining the legality of detention in the A.D.M. Jabalpur v.
This, perhaps, adequately represented the relationship between
the appointment of judges and the independent judiciary. Consequently, after the
turn of the government in power, the Law Commission of India was approached for
the issue of appointment of judges, and it suggested that the convention of
appointing the senior-most puisne judges must be followed, and the same was
While the Commission found the constitutional provision for appointment of
judges ‘sound’, it acknowledged the flaws in its operation and made several
recommendations for the elimination of political influence. The Commission
suggested a decisive role to the judiciary in the matter of appointments and
transfers through a collegial decision-making process.
Second case of judicial intervention is seen when in1975-77 during the period of
emergency there was a mass number of transfer of high court judges who earlier
gave some judgements which were not favoured towards the government. On of the
judges were Just. S.H. Seth who was transferred from Gujarat high court to
Andhra Pradesh high court.
But later on he filed a plea in supreme court wherein
he mentioned that his transfer was done without the consent of chief justice and
the president but later the plea was dismissed on the assurance of the
withdrawal of the orders. However these transfers of judges did not only took
place in the Congress govt. With the passage of time also nothing has changed
between the relationship of judiciary and legislature.
Even after the formation
of the National Judicial Appointments Commission there has been no difference.
After the long stretched rule of the UPA government ended the NDA government
came to power in 2014. Seven years have been passed since then but still there
has been no change with the situation. The instances have been repeated many
times, though not with the same intensity but still they also enjoy a great
influence over the judiciary.
Yet we haven’t discussed the role of government in
lower levels of judiciary as they are such small instances so they don’t get
enough limelight to catch the attention of the activist and protestors. One such
case of a high court judge is of, Justice Rajiv Shakdher who allowed the
Amsterdam headquartered NGO Greenpeace access its funds which were under the
scan of the Home Ministry.
He had also permitted activist Priya Pillai to travel
abroad, by quashing the ‘lookout circular’ issued against her due to which she
had been offloaded from a London bound flight. He had observed that her right to
travel cannot be impeded only because it is not in sync with policy perspective
of the executive…you cannot muzzle dissent in a democracy. There are also
various instances where the judges have been rewarded for their favourism.
Recently in news was the appointment of Justice S K Yadav, who gave the verdict
on the Babri mosque demolition case has been appointed Deputy Lokayukta of Uttar
Questionable verdicts in cases involving political stakes
The pre-2014 apex court was not hesitant in going against the Central executive
in matters involving high political stakes. This was evident in the 2G licenses
cancellation cases and coal scam cases. Though the coal-gate case verdict was
delivered in September 2014 after the coming of NDA government, its hearings
took place in the last leg of UPA-II, during which the court passed several oral
remarks (including the now famous CBI is caged parrot
remark), badly stinging
the government. The interventions of the court drew a lot of cheers from the
media and public, which hailed judiciary as a crusader against corruption and misgoverance.
But post-2014, the SC presented a meeker version when it came to dealing with
cases which could prick the political interests of the ruling party. The
verdicts in politically charged cases such as Sahara-Birla, Loya, Bhima-Koregaon,
Rafale, Aadhaar etc have invited a lot of criticism that when it comes to taking
on the system, the Court acts hesitant.
Sahara-Birla papers case
The first one of such challenges was posed by the Sahara-Birla papers case. It
was a PIL filed by the NGO Common Cause seeking a court monitored probe in
respect of documents retrieved by the Income Tax department while raiding
offices of the Sahara and Birla group of companies, which allegedly had entries
suggesting giving crores of rupees as bribe to Narendra Modi and other BJP
The writ petitioner sought registration of FIR and court monitored probe, based
on the dictum in Lalithakumari’s case that registration of FIR is mandatory when
a complaint revealing cognizable offence is lodged.
The bench of Justices Arun Mishra and Amitava Roy dismissed the petition. But it
was not a simple dismissal. The court aborted the issue once and for all, by
declaring that the materials in question are not good enough to constitute
offences to direct registration of FIR. The court could have simply dismissed
the case, asking the petitioner to avail other statutory remedies. Instead, the
court went on to adjudicate the merits of the matter, and held that the diary
entries are not admissible in evidence as per Section 34 of the Evidence Act.
The admissibility of the documents is not an issue which is to be looked into at
the stage of investigation.
That issue arises only during the trial of the case. Only a full-fledged
investigation can unearth other materials which can substantiate entries in the
documents. Therefore, to abort investigation on the ground that documents are
not admissible in evidence is like putting the cart before the horse. To decide
whether to order investigation, the Supreme Court applied the yardstick of a
trial court with regard to admissibility of evidence. The judgment appeared to
be against the well established legal principle that for registration of FIR,
allegation of cognizable offence is sufficient.
The Court’s approach was in stark distinction with its earlier approach adopted
in the 2G case, where a court monitored probe was ordered on the basis of
materials produced by the petitioner-NGO.
Similar thing happened in the Loya case too, which was equally controversial
with high political stakes. The case pertained to suspicions raised about the
death of CBI judge B.H. Loya, who was hearing the Sohrabuddin encounter case in
which BJP chief Amit Shah faced conspiracy allegations.
Not only did the Court dismiss the petitions seeking independent probe into
judge Loya’s death, but the court conclusively held that he died of natural
causes. Constitutional lawyer Gautam Bhatia has commented that the judgment
reads like a trial court judgment that has been delivered without a trial. The
judgement authored by Justice D.Y. Chandrachud (for the bench of himself, CJI
Dipak Misra and Justice Khanwilkar) placed unverified trust on the statements of
judicial officers, who had said that Loya had died of natural causes.
The court refused to allow the cross-examination of those judicial officers. The
court ought to have seen that the petitioners’ were praying for an independent
investigation, and for ordering an investigation, it was enough to raise
reasonable suspicion of commission of offence. There is no need to establish the
offence with all materials for seeking an investigation. But all the questions
were shut down with the discreet enquiry report produced by the state
government, which was opposing the investigation tooth and nail.
The judgement, with its constant invocation of the theory that judicial officers
will not make false statements, fails to satisfy an inquisitive and discerning
mind. The conclusive findings are arrived at without following any fair process.
The court ought to have borne in mind that it was closing the issue forever by
its conclusive findings. Therefore, it was ethically incumbent on the court to
hear the views of all stake-holders, like the family members of Judge Loya,
reporters of the Caravan magazine who brought out the issue, etc before putting
a permanent quietus to the issue. But such considerations of fairness and
transparency were totally ignored by the SC.
The Bhima Koregaon case related to a PIL filed by Romila Thapar and four other
eminent persons seeking SIT investigation over the UAPA charges against five
activists Sudha Bhardwaj, Gautam Navlakha, Vernon Gonsalves, Varavara Rao and
Arun Ferreira on the ground that investigation by Maharashtra police was biased.
The case was dismissed by 2:1 majority, with the dissent of Justice Chandrachud.
While the majority opinion of the then CJI Dipak Misra and Justice Khanwilkar
endorsed the probe by Maharashtra police, Justice Chandrachud disagreed saying
that it was a case of arrest targeting political dissent. The majority opinion
omitted from consideration certain facts which acted as heavy influencers in the
dissent of Justice D.Y. Chandrachud.
While the majority opinion is on set of facts ‘A’, the dissenting opinion is on
set of facts ‘A+B’. The majority opinion does not care to state why the
additional facts ‘B’, which caused the dissent, are not applicable or totally
irrelevant for consideration. The majority was blissfully blind to those facts!
The dismissal of the case gave momentum to the ‘urban naxal’ narrative tailored
by anti-constitutional propagandists to label those who question government
In the Rafael case too, the approach of the court was not above criticism. While
declining to order probe into corruption allegations over the deal by citing the
limited scope of judicial review over defence deals, the court declared that
decision making process was proper, accepting the government’s version on
pricing and concluding that government did not interfere in selection of
Reliance as offset partner.
To analyse the issue whether the alleged procedural irregularities in the deal
gave raise to doubts of corruption, which warrant a court-monitored probe, there
was no need to review the merits of the deal.
However, the court went on to do that. When there are conflicting versions of
facts presented by two sides, the proper course would have been to entrust the
job of facts collection to an independent agency. Instead, the court took the
denial of one of the contesting parties at face value and sealed the issues with
a seemingly conclusive force.
However, the court soon landed itself in embarrassment, as the government said
that the judgment contained factual errors and required correction. The
observations in the judgment regarding CAG tabling a report on the pricing
details of the deal, and Parliamentary Accounts Committee verifying the same
were termed as a misunderstanding of the information supplied by the government
to the court in a sealed cover.
Since the court has decided to give a detailed hearing in open court to the
review petitions, it is inappropriate to comment more. The court has decided to
consider the review petition on merits, rejecting the objections of Centre
against use of ‘privileged’ documents produced by petitioners in evidence.
CBI-Alok Verma was a case of justice delayed. And as we say in the Indian
judiciary that Justice delayed is justice denied
. The case presented a
straightforward question: whether divesting Alok Verma of the powers of CBI
director amounted to his removal from the post, which needed sanction of the
High Powered Selection Committee as per the Delhi Special Police Establishment
Act. The CJI-led bench initially sought for the details of the corruption
allegations against Verma in sealed cover. Later, the court chose to restrict
itself to the point of need for sanction from Selection Committee, without
touching on the merits of allegations.
When the court directed his reinstatement on January 10, it was too late, as
Verma had only three weeks left in his term. The reinstatement was made subject
to the sanction of Selection Committee.
Anyhow, the delay in the case ensured that the powers that wanted Verma out of
the director post succeeded in doing so without facing legal consequences.
Aadhaar Act as a Money Bill
Another problematic decision delivered by the SC is the Aadhaar judgment, where
it accepted that there was no illegality in introducing Aaadhaar Act as a money
The majority judgment by Justice A.K. Sikri held that since Section 7 of the Act
said that Aadhaar based identity authentication will be done for delivering of
subsidies, benefits or services charged on the consolidated fund of India, it
could be introduced as a money Bill. This incidental connection with
consolidated fund of India qualified it as a money Bill, as per majority
opinion. This is a highly puzzling logic.
As per Article 110 of the Constitution, a money Bill can have provisions only
relating to the spending and receiving of money by the Union government. The
manner in which identity of a person is authenticated before delivery of
subsidies, services, benefits cannot be a concern of money Bill.
A money bill has provisions only relating to the spending and receiving of money
by the Union government. Nowhere does the majority judgement grapple with the
meaning of this crucial word. Nowhere does it cite case law on the meaning of
the word only
and its implications for a clause such as this. Nowhere does it
make the effort to segregate the provisions of the Aadhaar to see which ones
would fall within the scope of Article 110.
Justice Chandrachud dissented and described the passing of Aadhaar Act as money
Bill a fraud on constitution
This judgment of the Constitution Bench will have far reaching consequences in
legislative process, as it will embolden the government to completely bypass the
Rajya Sabha by introducing any bill as a money bill by citing some remote
connection with the consolidated fund of India.
Instances Showing The Triumph Of Judiciary Over Legislature:
Dating back to the time of independence and just few years after when in 1951
Justice H J Kania died while in office the then, prime minister, Jawaharlal
Nehru wanted to supersede Justice Patanjali Sastri, who was the senior-most
judge of the Supreme Court, when the first CJI, Harilal Kania, died in office on
November 6, 1951.
The bench was told – on the basis of reliable records – that
all the six judges of the Supreme Court threatened to resign if Sastri was
superseded. Sastri only had a few months left until his retirement and the
government acceded to the so-called non-existent convention at the time. This
was their unity and sense of fearlessness which was seen amongst the judges
during that time which is not visible these days.
Second instance of this goes back to few months before the emergency was
implemented. A plea was filed in Allahabad High Court by Raj Narayan, a social
activist against the appointment of Indira Gandhi as the Prime Minister of
India. After much investigation her appointment was found faulty. And she was
ordered by the court to vacate her office and get re elected within six months.
This order was passed by then High Court Judge, Justice J M L Sinha.
proves to be one of the remarkable judgements by the Indian Judiciary. Though
later she got a stay order from Supreme Court and then emergency got imposed so
this order was ever implemented. This type of striking determination towards
justice impartation is still rare to be seen in today’s times.
As we acknowledge the reality of the presence of political influence in the
judiciary which is specifically expected to remain untouched by them, the next
question that arises is whether we can separate these influences from the
judiciary. In this regard, it is also important to note here that a politicized
judicial system has wide-reaching consequences for democracy as it compromises
the independence of the judiciary, facilitates corruption, hinders growth, and
reinforces a vicious cycle of dishonest leaders entering politics. Therefore, in
this sense, it becomes more imperative to reach a reliable solution.
major domain of political influence is in the appointments and transfers of the
judges. Our Constitution, although schematically draws out the distinctions in
powers of the executive, the legislature, and the judiciary, however for
realistic reasons, it also empowers them to keep the check on the other branch.
As an implication, the dynamics of power between these branches become
With respect to the issue of the appointment and transfers of the
judges, thus, it becomes important that a mechanism that involves the collective
and equal representation of both executive and judiciary should be formulated,
such that neither the judiciary and the executive may get overly empowered to
abuse their powers.
Needless to say, the judges must also refrain from imparting any judgment that
might affect the prominent goal of the judiciary, that is to impart justice.
Here, it is important to note that the political influence may not always be a
deviation from the path of justice. Hence, it is important the judges
consciously engage with the suit presented before them.
With regard to the
executive, it is also submitted that their interaction with the judiciary begs
the need for an objective consultation and consideration. Hence, it is also
important that their powers must remain limited in that sense. Another issue
relates to the political influence at the level of adjudication. It is submitted
that firstly, the problem of unaccountability in terms of the incidents of such
impartation of injustice must be publicized more.
Secondly, again, the political
influence acts majorly because of the threats and intimidation in such cases,
which requires a more sophisticated arrangement in which judges may not feel
powerless in front of politicians. Hence, it is submitted that it is extremely
necessary that the present dynamics of power between both get revamped and the
independence of the judiciary be maintained alongside a system of accountability
It is submitted that the independence of the judiciary must
not displace the requirement on the interdependence of the three branches of the
government. Similarly, the steps should be taken to dilute the political
influence present in the judiciary to the greatest extent as firstly, it
adversely impacts the main purpose of the judiciary that is to uphold truth and
justice, secondly, the idea of a competent and independent judiciary is the
constitutional vision that was incorporated for the democratic governance of the
country. Hence, it is imperative that the steps be taken in that regard.