SUPREME COURT

“Judiciary in India will not be a silent spectator rather active participant in India’s ‘social
revolution”. (Pandit Nehru)

Constitutional Provisions
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.

India is a federal State having a single and unified judicial system with three-tier structure,
i.e., Supreme Court, High Courts and Subordinate Courts.
The Indian Constitution under Article 124(1) states that there shall be a Supreme Court of
India consisting of a Chief justice of India (CJI) and 34 judges, including the CJI. The
Jurisdiction of the Supreme Court of India can broadly be categorised into original
jurisdiction, appellate jurisdiction and advisory jurisdiction.

Supreme Court at the apex of the Indian Judiciary is the highest authority to uphold the
Constitution of India, to protect the rights and liberties of the citizens, and to uphold the
values of rule of law. Hence, it is known as the Guardian of our Constitution.

The Indian Constitution provides for a provision of the Supreme Court under Part V (The
Union) and Chapter 6 titled 'The Union Judiciary'. The Constitution of India has provided an
independent judiciary with a hierarchical setup containing High Courts and Subordinate
Courts under it.

Composition of the Supreme Court

Article 124(1) and Amendment act of 2008 states that there shall be a Supreme Court of
India consisting of a Chief justice of India (CJI) and 34 judges including the CJI. Article
124(2) states that every judge of the Supreme Court shall be appointed by the President of
India by warrant under his hand and seal after consultation with such of the judges of the
Supreme Court and of the High Courts in the states.
Here, the collegium system(appointment of judges to the courts) was followed which is also
known as the three judges cases, which comprises of the Chief Justice of India (CJI) and four
senior-most judges of the SC, one Chief Justice of the High Court and two of its senior-most
judges. This system demanded a consensus decision of all the senior-most judges in
conformity with the Chief Justice of India.

However, due to lack of transparency and delay in the appointment, a new article 124 A was
incorporated in the constitution, under which the National Judiciary Appointments
Commission (NJAC) replaced the collegium system for the appointment of judges as
mandated in the existing pre-amended constitution by a new system.

Collegium System
• The appointment of the Supreme Court judges is made by a
Collegium system comprised of the Chief justice of India and four other judges,
on whose recommendation the President appoints the Supreme Court Judge.
• The Constitution merely states that the President will appoint Supreme Court
judges in consultation with the Chief Justice of India and such other judges of the
Supreme Court, as he may deem necessary.
• However, the Constitution does not talk about whose opinion will prevail if
there’s a difference of opinion or even what is the exact criteria for the selection
of judges.
The National Judicial Appointments Commission (NJAC)
• The collegium system, however, was challenged and replaced by the NJAC Bill
2014. It was the Constitution (one hundred one Amendment) Act that brought
about a change to the appointment of the judiciary.
• Judges appointing judges was a violation of the principle of natural justice and
due to which there was no transparency nor accountability nor any criteria for
appointment.
• With the NJAC more participation was ensured from the government making
it a more transparent process.
• The composition included the Chief Justice of India, with two senior-most
judges, the law minister and two eminent persons chosen by the Prime Minister,
Chief Justice of India and the leader of the opposition.
• NJAC was struck down as unconstitutional.
• The NJAC was a way to ensure transparency and accountability in the judiciary,
but with striking down of this system the judiciary has added yet another
controversy to their state of affairs where judiciary once again is looked upon and
questioned if it does justice as a foremost Right to People.

Jurisdiction (Articles 141, 137)

Articles 137 to 141 of the Constitution of India lay down the composition and jurisdiction of
the Supreme Court of India. Article 141 states that Law declared by Supreme Court is
binding on all the courts in India and Article 137 empowers Supreme Court to review its own
judgment. The Jurisdiction of the Supreme Court of India can broadly be categorised into
three parts:
Original Jurisdiction- (Art 131)
This jurisdiction extends to cases originating in the Supreme Court only and states that the
Supreme Court of India has original and exclusive jurisdiction in cases between:

• The government on one hand and one or more states on the other
• Government and one or more states on one side and other states on the other
• Two or more states
Appellate Jurisdiction- (Art 132,133,134)
The appeal lies with the Supreme Court against the High court in the following 4 categories:

1. Constitutional matters- If High court certifies that the case involves a substantial question
of law that needs interpretation of the constitution.

2. Civil matters- If the case involves a substantial question of law of general importance.

3. The criminal matters- If High court has on appeal reversed the order of acquittal of an
accused and sentenced him to death or has withdrawn for trial before itself any case from
subordinate court.

4. Special leave to appeal is granted by SC if it is satisfied that the case does not involve any
question of law. However, it cannot be passed in case of the judgment passed by a court or
tribunal of armed forces.

However, under this jurisdiction, the Supreme Court can transfer to itself cases from one or
more high courts if it involves the question of law in the interest of justice.

Advisory Jurisdiction (Art 143)

Article 143 authorises the President of India to seek an advisory opinion from the Supreme
Court in the two categories of matters:

(a) matters of public importance

(b) of any question arising out of pre-constitution, treaty, agreement, engagement, Sanad or
other similar instruments.

Also, Article 144 states that all authorities civil and judicial in the territory of India shall act
in aid of the Supreme Court.

Other Powers of the Supreme Court

1. Power to punish for contempt (civil or criminal) of court with simple imprisonment for 6
months or fine up to Rs. 2000. Civil contempt means wilful disobedience to any judgment.
Criminal contempt means doing any act which lowers the authority of the court or causing
interference in judicial proceedings.
2. Judicial review to examine the constitutionality of legislative enactments and executive
orders. The grounds of review is limited by Parliamentary legislation or rules made by the
Supreme Court.
3. Deciding authority regarding the election of President and Vice President.
4. Enquiring authority in the conduct and behaviour of UPSC members.
5. Withdraw cases pending before High Courts and dispose of them itself.
6. Appointment of ad hoc judges- Article 127 states that if at any time there is lack of
quorum of Judges of Supreme Court, the CJI may with the previous consent of the President
and Chief Justice of High Court, concerning request in writing the attendance of Judge of
High Court duly qualified to be appointed as Judge of the Supreme Court.
7. Appointment of retired judges of the Supreme Court or High Court - Article 128 states
that the CJI at any time with the previous consent of the President and the person to be so
appointed can appoint any person who had previously held the office of a Judge of SC.
8. Appointment of acting Chief Justice- Article 126 states that when the office of CJI is
vacant or when the Chief Justice is by reason of absence or otherwise unable to perform
duties of the office, the President in such case can appoint Judge of the court to discharge
the duties of the office.
9. Revisory Jurisdiction- The Supreme Court under Article 137 is empowered to review any
judgment or order made by it with a view to removing any mistake or error that might have
crept in the judgement or order.
10. Supreme Court as a Court of Record- The Supreme Court is a court of record as its
decisions are of evidentiary value and cannot be questioned in any court.
Removal of Supreme Court Judge:
A judge of Supreme Court can be removed only from the office by the President of India on
the basis of a resolution passed by both the Houses of Parliament (Lok Sabha and Rajya
Sabha) with a majority of the total membership and a majority of not less than two-thirds of
the members present and voting in each House, on the grounds of proved misbehaviour or
incapacity of the judge in question.

Hence, a democratic country like India needs a judiciary because democratic values tend to
lose their prominence without proper checks and balances.

The Supreme Court has been assigned a very significant role in the Indian political system
and is the final interpreter of the constitution. Under the constitution of India, the Supreme
Court is provided with the scope of judicial review. The judicial review allows the Supreme
Court to safeguard fundamental rights and struck down legislations which are violative of
Constitutional provisions. Under Article 13, 32, 131-136, 143, 226 and 246 Supreme Court
can review any law.

What is mean by Judicial Independence?

• It is a term that has two distinct meanings as it applies to matters of the
judiciary.
• It refers to the idea of separation of powers, called institutional
independence in one context, where the judiciary is kept separate from other
branches of government.
• The major reason for establishing judicial independence is to avoid improper
and unwanted influence on the court from the other branches of government.
• The other context which is commonly used is called Decisional independence
• Decisional independence refers to a situation whereby judicial decision-
making is able to exist free of undue influence from outside agents who are acting
 from partisan or special-interest motivations, rather than being motivated by the
demands and ideals of justice.

Independence of the Judiciary

The Constitution of India, unlike the USA, does not follow the doctrine of Separation of
Powers, but it has been reiterated in many cases that the independence of the judiciary is a
basic part of the constitution. For the judiciary to be independent and impartial to serve the
constitutional goals, the Judges need to act fairly, reasonably, free of any fear and favour.
The judiciary stands between the citizen and the State as a rampart against misuse or abuse
of power by the executive. Therefore, it is absolutely essential for the judiciary to be free
from executive pressure or influence that has been provided in various provisions of the
Constitution.

The independence is not limited only from executive pressure or influence, but also from
any other pressure and prejudices. It has many dimensions, fearlessness of other power
centres, economic or political. Impartiality, independence, fairness and reasonableness in
decision-making are the hallmarks of the judiciary.

If “impartiality” is the soul of the judiciary, “independence” is its lifeblood. Without

independence, impartiality cannot thrive. It is the independence of judicial thought. It is the
freedom from interference and pressures which provides the judicial atmosphere where a
judge can work with absolute commitment to the cause of justice and constitutional values.
Its existence depends, however, not only on philosophical, ethical or moral aspects but also
upon several mundane things namely security in tenure, freedom from ordinary monetary
worries, freedom from influences and pressures within (from others in the judiciary) and
without (from the executive). Independence of the judiciary is a part of its basic structure.

The constitutional ethos of an independent judiciary cannot be permitted to be diluted by

acts of implied intervention or undue interference by the executive in the impartial
administration of justice, directly or indirectly.

Independence of Judiciary
The Constitution has many provisions to ensure the judiciary’s independence. They are
discussed below:

1. Security of tenure: The judges of the SC are given security of tenure. Once appointed,
they will retain their office until the age of 65 years. They can be removed only by a
presidential order on grounds of proven misbehaviour and/or incapacity. This requires
a Special Majority according to Article 368.
2. Salaries and allowances: The judges of the SC enjoy good salaries and allowances and
these cannot be decreased except in the case of a financial emergency. The expenses
of the High Court are charged on the Consolidated Fund of the State, which is not
subject to vote in the state legislature.
 3. Powers and Jurisdiction: The SC’s powers and jurisdiction can only be added by the
Parliament and not be curtailed.
4. The conduct of any judge of the Supreme Court in the discharge of his/her duties
cannot be discussed in the legislature.
5. The SC has the power to punish any person for its contempt, as per Article 129.
6. Separation of the Judiciary from the Executive: A Directive Principle of State Policy
says that the state shall take steps to separate the judiciary from the executive in the
public services of the state. According to Article 50, there shall be a separate judicial
service free from executive control.

What is Judicial Accountability?

• It describes the view that judges should be held accountable in some way for
their work. This could be public accountability like getting approval from voters
in elections or accountability to another political body like a governor or
legislature
• A clear example of the judiciary being unaccountable is itself being exempted
from the Right to Information Act,2002 till the recent judgement of the
Supreme Court by which it brought the office of CJI Under RTI. This was fogging
way the transparency till then.
• The judiciary when setting down standards of morality and behaviour for
others should also make sure that they follow it on their own.
• One of the greatest threats that the independence of the judiciary is the
erosion of the credibility of the judiciary from the minds of right-minded
people. And like Lord Lanning stated, it’s a sad day when the right-minded
people walk away thinking that the judge is biased.
Conflict between Judicial Accountability and Judicial Independence
• As per the description given on the blog Ratio Juris, “judicial independence and
judicial accountability seem to pull in opposite directions.“
• There is a lack of accountability if a judge is completely independent.
• On the other side, a completely accountable judge may feel pressured to rule
in ways that please those to whom the judge is accountable.
• For example, some are of the view that the judicial elections are a good tool
for keeping judges accountable while others argue that forcing judges to
campaign puts undue pressure on them to bend to the will of voters and
campaign contributors.
• To strike the correct balance between independence and accountability, many
opinions have emerged on the way.

Role of the Supreme court

Supreme Court- as the final interpreter of the Indian Constitution:

1. Constitutional values: Supreme Court under judicial review can examine the
constitutionality of legislation and executive orders of both the Central and
state governments. On examination, if they are found to be violative of the
Constitutional values, they can be declared as unconstitutional and invalid by
 the Supreme Court. In K.Gopalan v/s State of Madras the court upheld that it
is the constitution that is supreme and a statute law to be valid, must in all
cases be in conformity with the constitutional requirements.
2. Protection of fundamental rights: Article 13 declares that all laws that are
inconsistent with or in derogation of the Fundamental Rights shall be null and
void. Article 32 guarantees the right to move the Supreme Court for the
enforcement of the Fundamental Rights and empowers the Supreme Court to
issue directions or orders or writs for that purpose. For example, in Navtej
singh Johar case, Supreme Court has upheld that section 377 of IPC is
unconstitutional.
3. Check on executive action: Every state action is to be tested on the ground of
rule of law. Indian Constitution is federal in nature and it is the constitutional
duty of the Supreme Court to interpret the constitution. Under its original
jurisdiction, the Supreme Court keeps the government within their limits by
judicial interpretations.
4. Check on tyrannical tendencies: Supreme Court protects citizens against
legislative excesses and executive arbitrariness. It protects our country from
tyranny of executive and legislature through judicial review. In absence of
judicial review and judicial activism, various legislation or executive actions
might undermine the very spirit of democracy.
5. Reviewing own decisions: Article 137 of the constitution of India empower the
Supreme Court to review its own order or judgment. This power of correction
makes the judiciary correct its own mistakes. As per the change in
circumstances and conditions and coming into existence of new facts and laws
the Supreme Court and High Court overrule and set aside their own judgments
and orders. Supreme Court has done this many times, for example in
Kesavananda Bharati case. This case upheld the changes in 24th amendment
in Article 368 and Article 13 of Indian Constitution by overruling Golaknath
Judgment of 1967.

Judiciary has been playing a remarkable role by the way of judicial review for maintaining
the supremacy of the constitution. The judiciary is the main aspect which safeguard the
democracy and ensures peace, justice and good order. The constitution has provided
judiciary with independence a and enough powers to keep executive in check making
Supreme Court as the final judge of the constitution.

Judicial Activism

Assertion of judiciary and its power is referred to as judicial activism. It is also defined as an
over active judiciary.

Judicial Activism Methods

There are various methods of judicial activism which are followed in India. They are:
 1. Judicial review (power of the judiciary to interpret the constitution and to declare any
such law or order of the legislature and executive void, if it finds them in conflict with
the Constitution)
2. PIL (The person filing the petition must not have any personal interest in the litigation,
this petition is accepted by the court only if there is an interest of large public involved;
the aggrieved party does not file the petition).
3. Constitutional interpretation
4. Access of international statute for ensuring constitutional rights
5. Supervisory power of the higher courts on the lower courts

Few landmark cases that highlight judicial activism are Keshvanand Bharati Vs. Kesala,
Minerva Mills Vs. Union of India, India of Gaudlis Vs. Raj Naraian & SP Vs. Union of India etc.
The active role of the Indian judiciary, particularly that of the Supreme Court, has been
appreciated both within and outside India. The independence ensured through the
constitutional provisions in favour of the judiciary and subsequently strengthened by the
judicial interpretation has definitely contributed to the present status of the Indian judiciary.
Yet, in this sphere of judicial activism, there are also a few coexisting misconceptions that
need to be understood in order to appreciate the activist role of the judiciary in India better.

Public Interest Litigation (PIL) made judicial activism possible in India. Before the court
accepts a matter for adjudication, it must be satisfied that the person who approaches it has
sufficient interest in the matter. The test is whether the petitioner has locus standi to
maintain the action? This is intended to avoid unnecessary litigation. The legal doctrine that
no one except the affected person can approach a court for a legal remedy was holding the
field both in respect of private and public law adjudications until it was overthrown by the
PIL wave.

PIL, which is a manifestation of judicial activism, has introduced a new dimension to

judiciary's involvement in public administration. The issue of locus standi and the procedural
complexities have taken a back seat in the causes brought before the courts through PIL.
In the beginning, the PIL was confined only to improving the lot of the disadvantaged
sections of the society, who by reason of their poverty and ignorance was unable to seek
justice and, therefore, any member of the society was permitted to file a case for
appropriate directions.
Consequently, the expectations of public went high and the demands on the courts to
improve the administration by giving appropriate directions for ensuring compliance with
statutory and constitutional prescriptions increased. Beginning with the Ratlam Municipality
case the sweep of PIL had encompassed a variety of causes.
Golak Nath case is also an example of judicial activism in that the Supreme Court. For the
first time by a majority of 6 against 5, despite the earlier holding that Parliament in exercise
of its constituent power can amend any provision of the Constitution, declared that the
fundamental rights as enshrined in Part III of the Constitution are immutable and so beyond
the reach of the amendatory process.
The declaration of law by the Supreme Court that Indian Parliament has no power to amend
any of the provisions of Part III of the Constitution became the subject matter of very
animated discussion.
Kesavananda Bharati had given a burial to the controversy of amendment of any of the
provisions of the Constitution. By a majority of seven against six, the court held that under
Article 368, Parliament has undoubted power to amend any provision in the Constitution
but the amendatory power does not extend to alter the basic structure of the Constitution.

Pros & Cons Of Judicial Activism

Judicial Activism in simple words means when judges interrupt their own personal feelings
into a conviction or sentence, instead of upholding the existing laws. For some reason, every
judicial case has a base of activism within it, so it is imperative to weigh the pros and cons to
determine the aptness of the course of action being carried out.
Pros associated with Judicial Activism India

• Judicial Activism sets out a system of balances and controls to the other branches of
the government. It accentuates required innovation by way of a solution.
• In cases where the law fails to establish a balance, Judicial Activism allows judges to
use their personal judgment.
• It places trust in judges and provides insights into the issues. The oath of bringing
justice to the country by the Judges does not change with judicial activism. It only
allows judges to do what they see fit within rationalised limits. Thus showing the
instilled trust placed in the justice system and its judgments.
• Judicial Activism helps the judiciary to keep a check on the misuse of power by the
state government when it interferes and harms the residents.
• In the issue of majority, It helps address problems hastily where the legislature gets
stuck in taking decisions.
Cons Associated with Judicial Activism

• Firstly, when it surpasses its power to stop and misuse or abuse of power by the
government. In a way, it limits the functioning of the government.
• It clearly violates the limit of power set to be exercised by the constitution when it
overrides any existing law.
• The judicial opinions of the judges once taken for any case becomes the standard for
ruling other cases.
• Judicial activism can harm the public at large as the judgment may be influenced by
personal or selfish motives.
• Repeated interventions of courts can diminish the faith of the people in the integrity,
quality, and efficiency of the government.
Judicial Activism Criticism
Judicial activism has also faced criticism several times. In the name of judicial activism, the
judiciary often mixes personal bias and opinions with the law. Another criticism is that the
theory of separation of powers between the three arms of the State goes for a toss with
judicial activism. Many times, the judiciary, in the name of activism, interferes in an
administrative domain, and ventures into judicial adventurism/overreach. In many cases, no
fundamental rights of any group are involved. In this context, judicial restraint is talked about.

Judicial Activism VS Judicial Restraint

Judicial Activism is the role played by the judiciary to uphold the legal and constitutional
rights of the citizens. Judiciary exercises its own power to implement or strike down the
laws and rules that infringes the right of the citizens or is for the good of the society at large,
whatever the case may be.
While, on the other hand, Judicial Restraint is the second face of the coin. It is the polar
opposite of the activism which puts obligations on it to follow constitutional laws while
implementing its duties. It encourages the judiciary to respect the laws or rules set out in
the constitution.
Judiciary has gained power with judicial activism as the judges can take up issue suo-motu
wherever they think that constitutional laws are being violated, however, with judicial
restraint, the same judiciary has to abide by the executive who is given the sole power to
legislate for the public.

A criticism that we often hear about judicial activism is in the name of interpreting the
provisions of the Constitution. The allegations are that judiciary very often rewrites them
without explicitly stating so. In the process, some of the personal opinions of the judges
metamorphose into legal principles and constitutional values.
Another criticism is that in the name of judicial activism, the theory of separation of powers
is overthrown and the judiciary is undermining the authority of the legislature and the
executive by encroaching upon the spheres reserved for them.

Way forward in Judicial Activism

Judicial activism is a product fabricated solely by the judiciaries and not backed by the
Constitution. When the judiciary surpasses the line of the powers set for it in the name of
judicial activism, it could be rightly said that the judiciary then begins to invalidate the
concept of separation of powers set out in the Constitution.
If judges can freely decide and make laws of their choices, it would not only go against the
principle of separation of powers but will result in chaos and uncertainty in the law as every
judge will start writing his own laws according to his fads and quirks.
Judicial exercise has to be respected to maintain a clear balance.
Making laws is the function and duty of the legislature, to fill the gap of laws and to
implement them in a proper manner. So that the only work remaining for the judiciary is
interpretations. Only a fine equilibrium between these government bodies can sustain the
constitutional values.
Assessment of Supreme Court in India
There is no better test of the excellence of a government than the efficiency of its judicial
system . - Lord Bryce

An impartial and independent judiciary is needed for the sustenance of constitutionalism

and hence democracy. Democracy itself is integrally connected to the rule of law wherein
fundamental rights of people can be protected if the judiciary is able to uphold the
constitution in letter and spirit.

The Indian judiciary has a colonial history like other institutions and it had a conservative
outlook in the immediate post-1947 years but it got transformed during the period of 1970s.
The Keshavanand Bharti judgment (1973) and the excesses of the Internal
Emergency imposed in June 1975 were watershed moments in the evolution of Indian
judiciary. The Keshavanand Bharti judgment was criticised as a case of judicial over-reach
but the excesses of the Executive during the period of Emergency gave legitimacy to the
Keshavanand Bharti judgment in which the Honourable Supreme Court of India came up
with the doctrine of basic structure of the constitution. Over the years scholars like Arvind P.
Datar even went to the extent of saying that it was the case which saved Indian democracy.

The revolution of the Public Interest Litigation (PIL) in the 1980s gave wide sanctity and
legitimacy to the Indian judiciary in the eyes of the public. The era of judicial activism saw
judiciary demanding transparency and probity from other institutions. But an area of
concern has been the deafening silence maintained by the judiciary on the issue of
corruption within its ranks. Also the judiciary is resistant towards calls of judicial reforms in
multiple dimensions.

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’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.
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.
As a Guardian of Fundamental Rights

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 re ected 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.
As a federal court.

As per Art 131, Supreme Court has original jurisdiction for the resolution of the disputes
between centre 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 of the Indian constitution.
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 in uence 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’.
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.
Pratap Bhanu Mehta calls judiciary ‘highly paradoxical institution’ for following reasons.
• Big difference in theory and practice. i.e. Very powerful judgements but very limited
change at the ground level.
• Judiciary intervention- 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.
• Judiciary ensuring accountability of other branches of govt without its own
accountability. According to transparency international, second most corrupt
institution in India after police.
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.

Judicial Reforms
Issue of Transparency in Judicial Appointments
One of the most widespread criticisms has been against the opaque system of judicial
appointments. Nowhere in the world exists a system in which judges almost appoint
themselves through the collegium system . In India the judiciary has an almost absolute
monopoly with respect to the appointment of judges. It is one of the most non-transparent
process in the world. The government favoured appointments through the National Judicial
Appointments Commission (NJAC) but the Supreme Court declared the NJAC as
unconstitutional saying that the NJAC violated the basic structure of the Constitution by
compromising judicial independence. Critics allege that the judiciary is trying to convert
judicial independence into exemption from accountability as well transparency.
Issue of Corruption
The complex issue of corruption exists as a cancer in our country. The judicial system is also
afflicted with this cancer of corruption which was earlier thought to be immune from it.
There have been allegations of corruption viz. issue of amassing disproportionate assets
against some High Court and Supreme Court judges. The judiciary is a very vital organ for
the healthy functioning of democracy and hence the issue of corruption must be addressed
lest it creates a crisis of legitimacy for the judicial system. Corruption leads to an irreparable
damage in the public esteem of the judiciary whereby the courts can potentially lose their
moral right to question the issues of corruption in other organs of the government. Earlier
the courts also showed reluctance in declaring the assets of judges under the landmark
Right to Information (RTI) Act.

The recent allegation of bench-fixing in the Supreme Court in order to give favourable
judgments is a grim reminder of the fact that the process of judicial appointments need to
be made transparent.

Tackling Pendency of Cases

There are a large number of pending cases in the courts. This aggravates the sufferings of
millions of people as in the complex Indian situation it is also a matter of human rights
exemplified by the unenviable situation of poor undertrials languishing in jails. The situation
is such that if a person files a case in Indian Court it is not necessary that his grandsons will
get the reward. It is said: the justice delayed is justice denied . Judicial delays are a blot on
the judiciary. Such delays tend to favour dominant sections at the cost of marginal sections
which reflects its inegalitarian and anti-democratic outcomes. The Supreme Court in
its Kartar Singh vs State of Punjab (1994) judgment had remarked: Speedy trial is a
component of personal liberty under Article 21. Thus, speedy justice is a right of every
litigant.

There is a dearth of adequate data on pending cases and there is no scientific management
of such data. Hence, it becomes doubly difficult to analyse the complex nuances of the
problem of pendency of cases and come up with innovative and practical solutions. There
are glaring inconsistencies in the data. Hence, it is said that the inordinate delay in disposal
of cases due to inept handling of cases and existing vacancies on the bench are major
problems before the judiciary.

Suggestions

• The number of judges should be increased in courts. But at the same time efficiency
factor should be taken into account.
• It is an imperative to decentralize the working of the Supreme Court by carving out
regional benches and improving related infrastructure. Article 130 of the Indian
Constitution permits sitting of the Supreme Court at other places outside Delhi. The
Law Commission has also recommended that the regional benches of the Supreme
Court should be created. The creation of more benches will benefit the litigants who
have to travel for long distances.
• The number of working hours in courts should be increased and judges should
devote full time to judicial work.
• It has also been suggested that Gujarat and Delhi model of evening courts should be
adopted.
• The number of fast track courts should be increased.
• A large number of petty cases can be taken out of normal court channel and can be
dealt by Lok Adalats. The most important factor to be considered while deciding the
cases at the Lok Adalats is the willing consent of both the parties so that they
consent to the finality of judgement delivered by them.
• It is also suggested that judgment should be delivered within a reasonable time
frame. The judges should deliver crystal clear, decisive and unequivocal verdicts
leaving little scope for further litigation.
• In cases of criminal offences, the option of plea bargaining suggested by Malimath
Committee should be utilized. (Plea Bargaining: If the accused admits his crime then
in return he is given less punishment which will result into speedy delivery of justice.
• The Government should also change its approach. Now the government is a very
active litigant. It is responsible for about 50 percent of the cases in Indian judiciary
which leads to judicial backlog and loss of public money. The National Litigation
Policy (2010) sought to change this approach by converting the government from
a proactive litigant into an efficient and responsive litigant . It seeks to reduce
trivial litigations from the side of the government. The Policy has failed so far
because of the inherent ambiguity in it. Further revision of the NLP needs to take
into account the previous loopholes.
• There is also a need to curb misuse of the Public Interest Litigation (PILs). At times
there are politically motivated PILs which are used for political purposes and for
delaying and misguiding the course of justice. Critics have pointed out that the PILs
degenerate into private interest litigation devoid of public purpose exemplified by
propensity of certain public figures to file PILs on controversial historical issues. Such
a phenomenon leads to loss of the precious time of the courts contributing to
judicial backlog.
• Implementation of E-courts Project: There is an urgent need for robust funding
meant for computerization of courts.
• Promote and popularize legal aid.
• It is high time the Government implemented the scheme of All India Judicial
Services (AIJS) as highlighted by Justice A.P. Shah, former Chief Justice of the Delhi
High Court. It will enhance the efficiency and efficacy of judiciary by following
transparent methods of recruitment. It will help in resolving the pendency of cases
as well as the issue of inordinate delay of cases. It will help in addressing issues of
corruption and nepotism. It will help in attracting the bright legal talent from across
the country. Because of these all-round positive changes, public faith in the judiciary
would be restored.
• Some Procedural innovations should be employed. Cases belonging to similar
category can be clubbed together and accordingly prioritized by the court.
 • The Law Commission had also highlighted the fact that Parliament should introduce
procedural reforms in criminal and civil cases procedure as well as the Evidence Act
in an incremental manner.
• The recommendations of the Malimath Committee especially regarding selection of
prosecutors and the Judicial Impact Assessment Committee should be implemented.
• The Second Administrative Reforms Commission (ARC) had recommended: A
National Judicial Council should be constituted, in line with universally accepted
principles where the appointment of members of the judiciary should be by a
collegium having representation of the executive, legislature and judiciary . This
should be implemented to make the judicial appointments transparent. The report
further added: The National Judicial Council should be authorized to lay down the
code of conduct for judges, including the subordinate judiciary .
• The 18th Law Commission had highlighted the fact that the strength of the Judges in
the Supreme Court should also be increased and more benches of the apex court can
be sanctioned.
• There is also a need to increase the number of working days in courts.
• Alternate Dispute Resolution (ADR) mechanism should also be promoted to ease
the huge burden on regular court channels. The 18th Law Commission had said that
the advantages of ADR are many - it is less expensive, less time-consuming, free from
technicalities vis- -vis conducting of cases in law courts, parties involved are free to
discuss their differences of opinion without any fear of disclosure before any law
courts .
• Matrimonial Cases are also pending in huge numbers before the regular courts.
So, regular Family Courts should be established to ease the burden on courts. This
can also diminish judicial backlog while providing speedy justice to the people. A
humane approach should be employed by the courts in deciding matrimonial cases
free from crude technicalities.
• There is a dearth of adequate budgetary allocation for the judiciary. This issue must
be looked into in the best interest of justice delivery by promoting multi-dimensional
judicial efficiency.
• There is a need to have a nodal ministry for judicial planning as well as a national
judicial policy.

Conclusion

It is the solemn duty of the judiciary to deliver prompt and inexpensive justice marked by
fairness and impartiality. However, for justice to be delivered in a meaningful way, it must
be delivered within a reasonable time frame. Denial of timely justice is actually denial of
justice itself. Timely disposal of cases is vital for the sustenance of rule of law and providing
access to justice which is also a fundamental right. Thus, judicial reforms are needed for the
very health of democracy and constitutionalism in India.