Indian Judiciary - Judicial activism - A critical review.

(Long Read Alert - 14 mins 38 secs reading time).

Judiciary - A single word that defines the justice delivery system in any country. In an autocracy, the judiciary's function is simple: to safeguard the interests of its master. But in a democracy, the function of the judiciary is more vibrant and complex.

Being said that, the primary function of the Indian judiciary as intended by the Constitution of India is to provide justice for every citizen by interpreting the laws made by the legislature and to safeguard the citizens from the breach of fundamental rights by internal or external forces. In this process of providing a legal framework for the country, the judiciary is intended to work with different interest groups like legislature, executive, media, political, religious, and social groups with specific objectives.

It will be naive to assume that all groups will have the same objectives, intentions, and mottos. So, the judiciary has an interesting job of interpreting the mottos of the interest groups who approach them for justice before delivering the judgments. To do all these activities with the least interference, the judiciary has been designed as independently as possible.

But as we see from a realistic point of view, inevitably, the judges, advocates, lawyers, and judiciary as a whole can and will be influenced by any or all interest groups. As all interest groups cannot define or spell out their interests in many aspects of social, political, and religious matters, many of them choose the path of activism as a means to influence the judiciary.

Before discussing the influence of the judiciary on various interest groups and vice versa, let me take you through the emergence of the collegium system, broad categories of cases when viewed from the social spectrum POV.

The function of every court is not the same, not only in terms of the cases they deal with but also in terms of the jurisdiction and overriding authority of the executive. District-level courts are bound to implement the existing laws and cannot override any law. On the other hand, courts, and tribunals operating at the state level can deliberate on the constitutionality of the acts passed by the legislative assembly of that state and can suggest corrective measures when required. (This can be done on a Suo-moto basis or when someone solicits the court for justice.)

Supreme Court on the other hand has jurisdiction not only on the legal matters put forward by different parties but also for constitutional review of the laws passed by the legislature if some aggrieved party approaches the court. It has jurisdiction over the entire Indian territory except for the office of the President and the communication between the President and the council of ministers.

The Constituent Assembly assumed the executive power of the PM should be balanced by an independent institution and thus provided the Supreme Court with some powers to act independently from the executive. At the same time, the constituent assembly also deliberated about the selection of CJI and other judges. These deliberations are extensive and interesting, especially the one put forward by Prof. Shibban Lal Saksena.

Article 103 of the draft constitution dealt with the matters related to the appointment of CJI and other high court judges. During one of those deliberations on May 24th, 1949, Prof. Shibban Lal Saksena brought forward amendment no 1818. Below are the exact words:

 “That for clause (2) of article 103, the following clauses be substituted:

'(2) The Chief Justice of Bharat, who shall be the Chief Justice of the Supreme Court, shall be appointed by the President subject to confirmation by a two-thirds majority of the total number of members of Parliament assembled in a joint session of both the Houses of Parliament.' '(3) Every judge of the Supreme Court, shall be appointed on the advice of the Chief Justice of Bharat by the President under his hand and seal and shall hold office until he attains the age of sixty-five years.'"

Provided that:

"(a) a judge may, by writing under his hand addressed to the President, resign his office;

(b) a judge may be removed from his office in the manner provided in clause (5)."

Sir, in this amendment I have provided that the Chief Justice of the Supreme Court shall be appointed by the President, but it shall be confirmed by at least a two-thirds majority of both Houses. At present, clause (2) provides that the president shall appoint the Chief Justice of the Supreme Court, which means that the Prime Minister or the Executive shall appoint him. The Chief Justice of the Supreme Court should be completely independent of the Executive and it is this principle that I want to introduce in this section. At present, he shall be a creature merely of the executive and the President shall appoint him on the advice of the Prime Minister. This will take away some independence of the Supreme Court. We are here to provide for the highest tribunal of justice in our country. This tribunal should be above suspicion and no executive should be able to have any influence upon him. If the Chief Justice is appointed by the President or the Prime Minister then his independence is compromised. I, therefore, want, Sir, that the Chief Justice shall be appointed by the President of course, but at least two-thirds of members of the Parliament shall approve his name. This means that the President shall and will be the prime mover in the appointment but if the name he chooses is not one which can be approved by the members of Parliament by at least a two-thirds majority, then that name shall be changed and another name shall be changed and another name shall be proposed which shall be acceptable to a two-thirds majority of both Houses. In this manner, there is some initiative to the President also. He will be the man who will give the names, but the name will only be accepted if a two-thirds majority of both the Hoses support him, so that the President shall have the initiative, but the man chosen will be such who shall enjoy the confidence of both the Houses of Legislature. This method has two advantages; it gives the executive the right to choose the person who they think will be proper, but it will not exercise that right in a party spirit but shall decide it in a manner that all the members of both the Houses or at least a two-thirds majority of them, shall approve that name. Therefore, Sir, I think that the provision which I am suggesting will be a far better provision than the one contained in the draft already. At present, Sir, the judges also have not to be appointed on the advice merely of the Chief Justice of the Supreme Court, but they are appointed in consultation with the Supreme Chief Justice, which means even in their appointments the Executive has got the major hand. I think, Sir, that this should not be. Every judge of the Supreme Court should be appointed on the advice merely of the Supreme Judge of the Supreme Court, so that they may advise merely of the Supreme Judge of the Supreme Court, so that they may derive their authority from the Chief Justice and not from the Executive. This, I think, Sir, is a very important thing and should be incorporated into our Constitution. We have all along said that we want an independent judiciary; that is the pride of many peoples and that is the pride of the United States of America. I think we too want that our Chief Justice and the Supreme Court should be above suspicion. These should be completely independent so that a man can feel that they shall be absolutely independent of the Executive. To my mind, my amendment is very important and I therefore, hope that the Members here will see that they make some changes so that the Chief Justice of the Supreme Court does not become a creature merely of the Executive, and the President appoints him on his recommendation.”

This amendment was not moved by the Constituent Assembly. I am not sure about the reasons as I was not able to find the source.

Article 124(2) was adopted into the constitution as below:

(2) Every Judge of the Supreme Court shall be appointed by the President 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 as the President may deem necessary for that purpose and shall hold office until he attains the age of sixty-five years:

Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:

Provided further that—

 (a) a Judge may, by writing under his hand addressed to the President, resign his office;

 (b) a Judge may be removed from his office in the manner provided in clause (4).

 (2A) The age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide.

 Until 1973, the executive and judiciary had a consensus and the appointment of the senior judge after the incumbent CJI used to take the position of CJI once the incumbent CJI retires.

This was broken in 1973 when A.N. Ray was appointed as CJI superseding three other senior judges. This again repeated in 1977 when Mirza Hameedullah Beig became CJI superseding two other senior judges.

The judiciary started feeling discomfort when the superiority of the judges is being undermined repeatedly.

This resulted in the First Judges Case or S.P Gupta Case in 1982.

 Why is this case so important? It is important because this laid the foundation for the present system of collegium being followed for the selection of judges.

So, what was this case about?

The first Judges case was about the word “Consultation” in Article 124(2) of the Indian Constitution. After a lot of arguments, during the judgment, the supreme court clearly specified that the word “Consultation” in Article 124(2) doesn’t mean “concurrence” with the suggestion of the supreme court. It highlighted the authority of the President not to be bound by the suggestion of the Supreme Court.

Up until 1993, this was accepted and the appointment of judges was done as per the existing laws by the President of India.

In 1993, in the judgment on the Writ Petition filed by the Supreme Court Advocates on Record Association (SCARA) in 1987 (Referred to as the Second Judges Case), Supreme Court ruled as below:

(1) Primacy of the opinion of the Chief Justice of India regarding the appointments of Judges to the Supreme Court and the High Court, and regarding the transfers of High Court Judges/Chief Justices; and (2) Justiciability of these matters, including the matter of fixation of the Judge-strength in the High Courts.

This gave more power to the CJI.

Further to this, in the 1998 judgment of the Third Judges Case, the supreme court made their stand concrete saying that the CJI should take consultation from 4 senior-most judges of the Supreme Court in matters related to the appointment of the judges to the SC, chief justices of the High Courts, and transfer of chief justices from one high court to another.

This is the emergence of the collegium system which is prevalent to date.

 Now, we will see how a judge can be removed from their office.

 A judge can resign on their own or retire at the age of 65 or can be impeached as per the procedure laid down in Article 124(4) of the Indian Constitution as stated below:

 A Judge of the Supreme Court shall not be removed from his office except by order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two – thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

 If we observe carefully, there is no exception for the appointment of the Chief Justice other than a process of collegium or the removal of the Chief Justice through impeachment. But the limitation on the authority of the executive is brought by confining the recommendations to the President’s office by the collegium.

This is a mere exercise of power given by the Constitution. But like any other process involving human bias, the collegium is also having a tendency of bias to favour the most senior judge for the position of CJI as they do not want to break the line of command.

 Why does the executive not use the power to impeach a CJI or any judge from the supreme court?

 The probable reasons are:

 1. It requires more than 2/3rds majority in both houses which is not possible in many scenarios.

2. Even if the existing CJI or any SC judge is impeached, the jurisdiction of constitutional review lies again with the same supreme court only. This can lead to the revocation of impeachment.

3. Such impeachment leads to tensions between the Supreme Court and the Parliament which is not good in the long run and can create many legal and political disturbances.

 Further, if we observe the sequence of events from 1973, the appointment of CJIs superseding the superiority of SC judges and the thought of implementing the Mandal Commission Report (in the 1980s and 90s) has thrown a lot of weight on the judiciary to safeguard their independence from the influence of the executive and led to the emergence of the collegium.

This should give a comprehensive idea about the political and procedural events that preceded the collegium structure. Now, let's look at the types of cases.

I am not going to categorize the cases based on the applicable laws or sections. I am going to categorize based on the perspectives and influences the cases to exert on the judiciary.

1. Personal Cases: These are the cases between individuals, like robberies, burglaries, murders & kidnappings due to personal enmity, land issues between neighbours, divorce cases, or homicide cases. These are generally settled in district courts or some may go to high courts and very few go to the supreme court. Some of them are even settled even in lok Adalat and through arbitration. There is a strong mechanism within the judiciary and executive to share feedback and make necessary laws as and when required.

2. Professional Cases: These are generally between corporates or between regulatory bodies and corporates involving non-compliance with laws, or corporate frauds. These are settled through the ombudsman, regional tribunals, or state and central tribunals. Even these have a formal mechanism to share the feedback with the legislature and make necessary amendments to corporate laws as and when required.

3. Interstate and Union cases: These are the cases between different states and between states and the centre about natural or financial resources. These are settled by tribunals operated under the jurisdiction of the Supreme Court or through arbitration between the states reviewed by the Supreme Court.

4. Political cases: These are the cases involving the political interests of different regional, communal, international, and political groups indulging in political & communal riots or assassinations. These cases move around the display of power, changing popular perceptions, motivating the masses to engage in a continuous political debate, and manipulating the emotions of the vote banks.

In the above 4 categories, the top 3 categories are fought by the parties of interest directly. So, the mottos of the petitioners and respondents will be clear to take decisive action.

But if we observe the fourth category - political cases, many interest groups cannot indulge in the cases directly. So, they indulge through several other indirect ways like NGOs, acting through bureaucrats who favour a specific ideology, communal groups, and other fringe groups.

To propagate certain ideologies, interest groups choose judicial activism as a path. Superficially, they look as if they are working for some progressive element in society. But the actual underlying motto will be to promote some other cultural aspect that is being treated as a taboo in the society or to promote some business ideology that cannot be promoted with the existing rules in the society.

Before going further into the analysis of how activism creeps into the judiciary, let’s look at the powers given by the Constitution to the Judiciary over the executive and legislature.

Article 32 provides the Supreme Court with the authority to issue writs across Indian territory.

Article 226 allows the High Court of States to issue writs within its jurisdiction.

These two articles provide superseding power to the judiciary over the executive. But these powers cannot be used as they wish. Article 226 should be used strictly by the existing laws and concerning the Constitution only. So, a high court of a state cannot cancel any law passed by the state legislature citing the requirement of constitutional review.

Also, SC can use Article 32 only if any individual/organization or interest groups cite a breach of fundamental rights due to the matter in question.

These limitations seem trivial superficially. But these two articles, on the one hand, provide the judiciary with the tools to intervene when any act or law violates fundamental rights and on the other hand act as barricades between the judiciary and executive.

So, when the Constitution is this clear about the appointment & impeachment of judges and about the authorities/responsibilities of the courts, from where does judicial activism creep into the system?

Judicial activism starts along the political & ideological fault lines. It starts with an assumption that the incumbent government is incapable of ruling without bias (which is partially true). The interest groups use NGOs and media to start a discussion about one aspect of their interest (this can be ideological, business, or communal). Once the aspect comes into the mainstream, the interest groups will start taking sides with one party to propagate and strengthen the idea of activism.

This often goes into the courts when it blows out of proportion to become a law and order issue, a communal riot, or a political riot. (This is a part of the plan in activism).

Once the matter reaches the court, society starts observing it with fascination. This is where matters are getting worst.

In the era of social media, everything happening in the courtroom is being reported live. This is good to a larger extent when people understand what goes into the record and what stays out of the record. But as we know, many people will be quick in interpreting things rather than waiting for the final judgment.

Not every comment made by the judge goes into the record and sometimes the judge commenting on it may change the opinion by the time they pass the official judgment.

Is it important for the judges to make comments as if they are also a part of the activism? The answer is yes and no.

Yes, if the judge is wise enough to make such comments off the record and present the judgment based on the actual facts presented to them.

No, if the judge himself or herself side with one party and indulge in activism instead of providing justice as laid down in the Constitution.

And we had/have/will have judges who make absurd comments on certain sensitive matters. But we have to understand that the opinion of a single judge doesn’t matter as each bench in the SC consists of 3,5,7 or 9 judges.

Yet times we may feel that the judiciary overreach is undermining the power of the executive. However, there are instances in the Indian judiciary where it actually worked as a counterweight for the executive which tried to undermine civil rights and created a basic structure of the Constitution that helped the country to sustain democratic values.

Yet times we may feel that the judiciary is going off track and taking the route of activism to counter the executive. But we have to understand that people in the executive are also smart enough to counter that overreach either by passing new amendments and laws or by countering the judgments when the person in the position change. (Refer to the judgment of the second judge’s case above. It overturned the judgment given in the first judge's case.).

Rest assured, India’s democracy and judiciary are strong enough to sustain the adversaries of judicial activism or breach of fundamental rights by the executive due to one person or one group’s interest.

Note: The article may not be in line with your expectation. I tried to be as neutral as possible given the sensitivity and scope of the topic. I quoted the articles from Constitution based on their relevance in establishing a connection between Judiciary and Executive powers. I recommend “The Courtroom Genius” by Nani Palkhivala for people who are interested to learn more about the Indian judiciary.

 That's it from my side. Please share your ideas in the comments.

Thanks for reading.