ROLE OF JUDICIARY UNDER THE CONSTITUTION OF INDIA

SUBMITTED BY-

DIWAKAR CHIRANIA

3rd YEAR, 5th SEMESTER

(UID No.-SM0116018)

FACULTY IN CHARGE

MR. HIMANSHU RANJAN NATH

(ASSISTANT PROFESSOR OF LAW)

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM

 TABLE OF CONTENTS

List of Statutes……………………………………………………………………………….

Table of abbreviations……………………………………………………………………….

Introduction.............................................................................................................................

Objectives……………………………………………………………………………………

Scope and Limitations……………………………………………………………………….

Literature Review……………………………………………………………………………

Research Questions………………………………………………………………………….

Research Methodology………………………………………………………………………

Mode of Citation…………………………………………………………………………….

Judicial Review………………………………………………………………………………

Independence of the Judiciary………………………………………………………………

Politics in Judiciary…………………………………………………………………………

Judiciary and Corruption……………………………………………………………………

Conclusion…………………………………………………………………………………..

Bibliography………………………………………………………………………………...
 INDEX OF AUTHORITIES

LIST OF STATUTES

1. The Constitution of India, 1950

TABLE OF ABBREVIATIONS

AIR All India Reporter

Art. Article
Anr. Another
J. Justice
Ors. Others
SC Supreme Court
SCC Supreme Court Cases
UOI Union of India
Vol. Volume
v. Versus
 INTRODUCTION

The basic purpose of the law is the quest for justice which should be administered without fear or
favour. As George Gurvitch says, justice is used in two senses - “faithful realization of the existing
law against any arbitrary infraction of if’, and search for “the ideal element in all law,” i.e. “the
‘idea’ which the law tends to subserve.” Law is inescapable and the antagonist, i.e., the anarchist
regards justice as a ‘mask,’ to dominate the weak by the strong. Similarly, the communist regards
the law as a medium of domination of the proletariat by the bourgeoisie. But despite this view,
everybody concurs that the law is “the fulfilment of the legitimate expectations of an individual
and it protects the individual against the violation of his rights.” So it can be submitted that law is
the ultimate authority which brings stability to the country and the society.

Law is both inescapable and indispensable for justice. Hence justice is a comprehensive
terminology and its disbursement should be ensured by the judiciary which is mainly responsible
for the administration of justice in all political systems. As an upholder of justice, protector of
rights and fundamental freedom of citizens, the courts of law hold a unique position in the life of
an individual and consequently, in the society as a whole. “In determining a nation’s rank in
political civilization” says Henry Sidgwick, “no test is more decisive than the degree in which
justice as defined by the law is actually realized in its judicial administration; both as between one
private citizen and another and as between private citizens and members of the government.” 1 So
if the nation as a whole is to bloom and usher in an era of peace and prosperity the judiciary is of
utmost significance because it is the dispute-resolving mechanism. The judiciary keeps eveiybody
under check and control and disburses justice without any discrimination. As Justice C.E. Hughes
says, “The Nation lives under the Constitution, but the Constitution is what the Judges say it is.”
The judiciary as K.S. Hegde says, “functions as the balancing wheel”2 of the Constitution and in
this act it favours the individual and curtails his rights only when there is a definite and ultimate
crisis. So, the judiciary establishes the rule of law. In establishing the rule of law it consciously
and purposefully protects the weak, the helpless, the indigent and the oppressed. So it has been
realised that a strong, independent and potent judiciary was necessary for the growth and
development in a young democracy like India which intends to establish the rule of law. Justice is

1
Henry Sidgwick, Elements of Politics, 1919
2
K.S. Hegde, Crisis in Indian Judiciary, 1973
also disbursed by the legislature and in case of conflict between the two wings, that is the
legislature and the court, both should follow the harmonious path. Justice F. Frankfurter has said
that the role of the court is not to supplement the legislature. But it can also be submitted that the
legislature is also the guardian of the rights and liberties of the people just like the courts. So, to
disburse justice in an unbiased manner is also the onus of the legislature. But legislative justice
suffers from certain deficiencies and according to Roscoe Pound legislative justice is unequal,
uncertain and capricious; it involves personal solicitation, lobbying and even corruption to a degree
of which no court has been charged; it is highly susceptible to passion and prejudice; and its
grounds are largely partisan and political. Hence, as the legislature is uncertain so the judiciary
remains the only weapon to enforce and disburse justice in a free and equal society.

OBJECTIVES
• To understand the role of judiciary under the Constitution of India.
• To study about judicial review.
• To study the effect of the independence of judiciary.

SCOPE AND LIMITATIONS

The scope is limited to the role of judiciary under the constitution of india.

LITERATURE REVIEW

M P Jain, INDIAN CONSTITUTIONAL LAW, 8th edition. 2018, Lexis Nexis, Nagpur.

This book is an authoritative, evergreen classic on Indian constitutional law. It presently in its
eighth edition is a thematic presentation of the complex and multi-dimensional subject of
Constitutional law in a lucid, comprehensive and systematic manner. The book contains in-depth
insights of the research topic. It entails all the necessary theoretical concepts of the role of Judiciary
in India. It bestows the researcher immense literature dealing with the topic.

Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, 8th ed. 2008,
Lexis Nexis, Nagpur.

This book contains a classic commentary of the Constitution. It provided the researcher with the
background to the various powers and functions of the judiciary under the constitution. However,
the book contains just the introduction to role of judiciary under the constitution and lacks the
elaborative explanation on the topic but still it proves to an essential asset in completing the
research article.

H.M. Seervai, THE CONSTITUTIONAL LAW OF INDIA, 10th ed. 2004, Central Law
Agency, Allahabad.

H.M. Seervai was the foremost authority on constitutional law in India and his treatise is a gift to
the legal world the book was helpful to the researcher since it provides information on the various
powers and functions of the judiciary and explains it in a elaborative manners, with the critical
analysis of the concept of judicial review. It also entails a body of relevant case laws directly
relating to the topic.

RESEARCH QUESTION

1. What is Judicial Review?

2. Can the Judiciary review the actions of the executive?

3. How does politics affect Judiciary?

RESEARCH METHODOLOGY

In this paper, the researcher has adopted Doctrinal type of research. Doctrinal research is
essentially a library-based study, which means that the materials needed by a researcher may be
available in libraries, archives and other data bases. Various types of books were used to get the
adequate data essential for the project. The researcher also used computer laboratory to get
important data related to this topic. Several websites found to be very useful to better understand
this topic.

MODE OF CITATION

The researcher has used the template given in the Research Template given in the National Law
University and Judicial Academy, Assam. The mode of citation is used according the the template
available on the Intranet NLUJAA.
 JUDICIAL REVIEW

Judicial review is the power of the judiciary to oversee and rectify state inactivity. The nature and
purpose of the judicial review is not to review the decisions of the administrative adjudicating
authority but of the decision-making process. The judicial review has two prime functions:

(i) Legitimizing Governmental action.

(ii) To protect the Constitution against any undue encroachment by the Government.

Judicial review originated in the U.S as early as in 1803. In Marbury vs. Madison, the Supreme
Court asserted that it could review the constitutionality of the congressional acts. Chief Justice
John Marshall expanded the theory of judicial review to grant the constitutionality of the Acts of
the Congress. In the words of the court: “Certainly all those who have framed the written
constitutions contemplate them as forming the fundamental and paramount law of the nation, and
consequently, the theory of every such government must be that an act of the legislature, repugnant
to the constitution is void.” And further, “It is emphatically the province and duty of the judicial
department to say what the law is. Those who apply the rule to particular cases must of necessity
expound and interpret that rule. If two laws conflict with each other, the courts must decide on the
operation of each. So if a law be in opposition to the constitution; if both the law and the
constitution apply to a particular case, so that the court must either decide that case conformably
to the law, disregarding the constitution; or conformably to the constitution disregarding the law,
the court must determine which of these conflicting rules governs the case. This is of the very
essence of Judicial duty.”3

Judicial Review in India

In India the doctrine of judicial review has been held in high esteem. The Constituent Assembly
intended to give the judiciary the power of judicial review and thereby to uphold the features of
the Constitution. The first recommendation in the report of the ad-hoc committee of the Supreme
Court held that the Supreme Court should have the power of judicial review. The report said that
“A Supreme Court with jurisdiction to decide upon the constitutional validity of acts and laws can
be regarded as a necessary implication of any federal scheme.” So, the importance of the Supreme

3
M.P.Jain, Indian Constitutional Law of India (2005) p. 1555.
Court was emphasized and realized by our Constitution makers. Munshi argued that the power of
judicial review was necessary to safeguard fundamental rights and to ensure the observance of
‘due processes of law’. He hoped that “Judicial review would have a more direct basis in the
Constitution than simply the due process. And in his draft Constitution he proposed “that the
Supreme Court should have the authority to examine the Constitutionality of legislation.” The
Constitution recognizes the power of the Indian judiciary to review legislation. During the debate
in the Constituent Assembly over the importance of upholding the individual rights and needs of
society and also the primacy given to the fundamental rights, the judiciary and the role of the
judicial review was to make it effective. In India the Constitution undoubtedly provides the power
of judicial review but its powers are not so wide and all-concurring like the U.S. Constitution.
Significant restrictions and limitations have been imposed so that judicial review does not lose its
significance by its excessive use. The realms of equality, freedom, liberty and prosperity should
be reasonable and at the same time necessary and herein lies the importance of the judicial review.
“The limitations imposed on the judicial review have a greater scope and all mostly provided for
in the Constitution itself.”4 It is true that restrictions are there which might at times hamper the
functioning of judicial review. The different constitutional amendments restrict the scope of the
review but it does not mean that the restrictions are far too many and too wide. M.B. Pylee
observed: “The scope of judicial review in India is sufficient to make the Supreme Court a
powerful agency to control the activities of both the legislature and the executive. While the
Constitution expressly provided for the power of regulation of fundamental rights by the
legislature; it also insists that such regulations must be ‘reasonable’. The Supreme Court is the
ultimate authority to decide what is reasonable. Here is, then, a sizable measure of power for the
Court to determine the reasonableness or otherwise of a piece of legislation in the light of the
Constitutional provisions.”

The Supreme Court can prevent the arbitrariness of the government by finding out whether the
law violates the principles contained in Article 14, i.e. “equality before law and equal protection
of all persons.” Moreover, it can scrutinise whether legislation wants to initiate benefits for the
backward classes of people which is necessary to achieve social justice in a country like India with
a socialist pattern. The critics of judicial review might term it as antimajoritarian, undemocratic,

4
S.N.Ray, “ Comparative Judicial systems, Need for interaction in Judicial Experience,”
conservative and antagonistic to the will of the people as the judges have the power to upset the
policy of the legislature. But it must be submitted that the legislature is accountable and responsible
to the will of people and so it would not take any step which would affect the welfare of the
common people because if they do so then they will have to face the people in the election. Hence
it can be submitted that the critics can be made to understand the fact that judicial review is the
creature of the Constitution and this Constitution is that which the people have given themselves
to be governed by. When the judiciary uses the principle of review prudently and consciously
according to the spirit of the Constitution then it can bring about progressive, radical and epoch -
making changes. In Minerva Mills Ltd vs. Union of India Chief Justice Chandrachud, speaking for
the majority announced: “It is the function of the Judges, nay their duty, to pronounce upon the
validity of laws. If Courts are totally deprived of that power the fundamental rights conferred on
the people will become a mere adornment because rights without remedies are as writ in water. A
controlled constitution will then become uncontrolled.”5 In the same case Justice P.N. Bhagawati
also observes “It is for the judiciary to uphold the constitutional values and to enforce the
constitutional limitations. That is, the essence of the rule of law, which inter-alia requires that ‘the
exercise of powers by the government whether it be the legislature or the executive or any other
authority, be conditioned by the Constitution and the law”. So, it can be submitted that the judicial
review is an important 'sword' which can be used by the court to limit the ultra vires of the
executive and the legislature and which would lead to the establishment of egalitarian society in a
democratic country.

Judicial Review of the Legislature

Though the workability of the legislature stems from the Constitution, the legislation is subject to
judicial review as given in S.S.Bola v. B.D.Sardana.6 The judiciary cannot directly intervene in
legislative issues unless the courts are approached. The judiciary will intervene in the legislative
process only when there is violation of laws enshrined in the Constitution by the legislature and
the infringement of the fundamental right.

In a federal Constitution, the question whether the law passed by the legislature is valid with regard
to the distribution of the legislative power and other constitutional limitations has been frequently

5
AIR 1980 SC 1789
6
1997-8 SCC p.522
asked. When such a question arises the courts of the country' must decide it as interpreted in R. v.
Burah.7 So, the courts are guided by the following rules when the principle of judicial review is
being utilised:

a) There is a presumption in favour of constitutionality as stated in VM. Syed Mohammad and Co.
vs. Andhra,8 and a law will not be declared unconstitutional unless the case is so clear as to be free
from doubt. According to American Jurisprudence “To doubt the constitutionality of a law is to
resolve it in favour of its validity.”

b) Where the validity of statute is questioned and there are two interpretations, one of which would
make the law valid and the other void, the former must be prepared and the validity of law upheld.

c) The court will not decide constitutional question if a case is capable of being decided on other
grounds as given in Basheshar Nath vs. Commissioner of Income Tax.9

d) The court will not decide a larger constitutional question than is required by the case before it
is to be found out

e) The court will not hear an objection as to the constitutionality of a law by a person whose rights
are not affected by it. But with the broadening of locus standing now a person not directly affected
can fight on behalf of those whose rights are affected.

f) A statute can be declared unconstitutional because in the opinion of the court it violates one or
more of the principles of liberty or the spirit of the Constitution, unless such principles and that
spirit are found in the terms of the Constitution.

g) In pronouncing the constitutional validity of statute the court is not concerned with the wisdom
or unwisdom, justice or injustice of the law. If that which is passed into law is within the scope of
the power of a legislature and violates no restrictions on that power, the law must be upheld
whatever the court may think of it as given in F.N. Balsara vs. Bombay.10

7
(1878) 5 L.A.178
8
(1954) SCR 1117
9
AIR 1959 SC
10
1951 SCR 682
h) Ordinarily, the court should not pronounce the validity of an Act, or part of the Act, which has
not been brought into force, because till then the question of validity would be nearly academic.
Hence the judicial function to adjudicate the constitutionality of legislation is both delicate and
responsible. To embark upon this decision the courts need to keep in mind the changing needs of
time and also to be guided by the fundamental principles of the Constitution. Sometimes, in
deciding the legislative cases the judiciary’s role might be narrow and the reason assigned is
mainly to avoid conflict and confrontation between these two vital pillars of democracy. But it can
be submitted that if the judiciary follows the narrow principle then it might so happen that the rule
of law might be thwarted and hence proper justice might not be obtained from the judiciaries. So,
the judiciary should follow its own principles within its own boundaries without treading the path
of conflict with the legislature. The Supreme Court has said in A.K.Roy vs. Union o f India: “The
position is now firmly established that the court will decide no more than needs to be decided in a
particular case. Abstract questions present interesting challenges, but it is for scholars and text
book writers to unravel their mystique. It is not for the courts to decide questions which are but of
academic importance.”11

Theory of Separation of Power of Indian Judiciary:

The question might be posed that since India follows the theory of separation of power, under what
authority can the judiciary declare the laws passed by the Parliament and State Legislature invalid?
It can be submitted that the strict enforcement of this principle makes it difficult for a modem state
wishing to bring about social welfare, to work effectively. The rigid separation of powers might
lead to the breakdown of democracy. The three wings might function in an autocratic manner and
if checks and balances are not done by each other then the separation of powers might lead to
autocratic exercise of power. This is harmful in a democratic state. In Indira Nehru Gandhi vs. Raj
Narayan, Chief Justice, A.N.Roy observed that in the Indian Constitution there is a separation of
power in a broad sense only; rigid separation of powers does not apply in India.12 Each and every
wing should work in their own field and generally not trespass or encroach upon the other. If it
does then by applying the principle of checks and balances the encroachment would be rectified.
Then only can we say that the separation of power has worked for the common good and

11
AIR 1982 SC 724.
12
(1975) Supp 1 SCC 260.
endeavour. There is a mutual interdependence and in this aspect the judiciary gives or provides the
curative medicines for the omissions and commissions of the legislature and the executive. The
legislature would follow its own path and would try to make laws according to the needs and
demands of the people. Generally, it would not try to commit a flaw on the provisions of the
Constitution but if it does then the judiciary would step in. This attitude of the judiciary was lacking
immediately after the Constitution came into being when the right to property had to be interpreted.
It can be submitted that this was mainly due to the Anglo-Saxon attitude of the courts but after
Emergency the courts were more liberal and tried to interpret the laws according to the provisions
of the Constitution and the needs of the people.

Fundamental Rights interpreted by Judicial Review-

To ascertain whether the law enacted has affected any of the fundamental rights in part in of the
Constitution is a difficult proposition. Supreme Court will intervene by its various methods and
formulas. But it can be submitted that the courts will adopt that method which is most suitable to
impugn the validity of the legislation. The courts will not question a law under fundamental right
unless the law has directly violated the fundamental right. But if a law attacks the fundamental
rights ‘incidentally or indirectly5, then that law will not come within the scope of judicial review.
This approach was adopted by the court in A.K. Gopalan vs. State of Madras, 13 to epudiate the
effectiveness of preventive detention act under Article 19(1) (a). Chief Justice H J, Kania held that
“Such a question can arise only when the legislation directly attempted to control a citizen’s
freedom of speech and expression, but it was not directly in respect of Article 19(1) (a) and the
right guaranteed in that Article was abridged as a result of operation of other legislation, then the
question of application of Article 19(1) (a) would not arise.”

Supreme Court as early 1951 in Chintaman Rao vs. State of Madhya Pradesh 14 has said that ...
“Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality
of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article
19(l)(g) and the social control permitted by (clause 6) of Article 19.” Similarly in Sivani vs. State
of Maharastra, the Supreme Court has laid down the criteria to evaluate the reasonableness of a
restriction under Article 19(6), and here the court must take into account whether the law has struck

13
AIR 1950 SC 27.
14
AIR 1951 SC 118.
a proper balance between the social control on one hand and the right of the individual on the
other.15 It can be submitted that when a law is declared invalid the court must see the
reasonableness of the law and if the courts find that the legislation has not worked according to
the limits of the reasonableness or it has not given importance either on the social aspects or the
rights of the individuals then such review by the judiciary is undoubtedly the best. So the
reasonable restrictions are imposed for the good of the society. As M.P. Singh states, “At the same
time neither the procedure nor the limitation can be construed to deny or negate the legislative
powers because the Constitution makers cannot be supposed to have granted a power which they
did not intend to be exercised.” Courts may follow different interpretations in the same case
according to changing situations. When a law has been shown to invade the right to freedom of
trade, the state ought to prove that the restrictions imposed upon it are reasonable and in public
interest and within the meaning of Article 304(b).16 Post Maneka Gandhi rulings of the apex court
have clearly authenticated the view that judges of the Indian Supreme Court not merely declare
the law or apply, but also create the Constitution. In this way the Supreme Court has turned itself
into a continuing constitutional convention as quoted by Justice K.K. Mathew. So in assessing the
constitutionality of a statute, the court is not concerned or does not look into the motives of the
legislature, i.e. whether the motives are good or bad or bonafide or malafide. As said in G.C.
Kanungo vs. State of Orissa, “No malafide or motives are attributed to the legislature.”17 It is to
be submitted that as the legislature is the ultimate and direct representative of the people which
intends to bring welfare to the people, it is unlikely they would pass any legislation with malicious
and malafide intentions. Similarly the judiciary and the executive also try to enhance the well-
being of the common masses. The court never wants to declare a law invalid simply because it
thinks it to be unwise or unjust and the court will use it only as a last resort. The opening words of
Article 245 states: “Subject to the provisions of this Constitution” qualifies the legislative power
of Parliament and state legislature. This provision implies the legislatures would do everything
according to the mandate of the Constitution and not beyond or under it.

Eminent jurist and senior lawyer Fali Nariman has stated that “there is no area in the Constitution
which is beyond judicial review. The Constitution reposes final authority on the Supreme Court.

15
AIR 1995 SC 1770 at 1774
16
AIR 1964 SC 925.
17
AIR 1995 SC 1655.
Judicial review on all matters concerning the Constitution can be gone into by the Supreme Court
not because it is supreme but the function is entrusted to it by the Constitution. I don’t see any
friction between the judiciary and the executive or parliament. Even if there is friction, it shows a
healthy democracy.”18

The role of the judiciary with regard to the exercise of judicial review cannot be underrated.
Through its various important pronouncements the judieiaiy brought about the concept of
socialistic society into the realm of practicability leading to the establishment of egalitarian society
with social justice.

Judicial Review of Administrative/Executive Action:

Debate surges forth on the efficacy of judicial review of administrative action. It depends on the
different constitutional variables. It is difficult to spell out whether judicial review is a saint or a
sinner. It is a sinner for those who are undemocratic and pessimistic regarding the philosophies of
constitutional democracy, morality and culture. It is a saint for those who believe that, in the words
of Chief Justice Earl Warren, “the maintenance of the judicial power is essential and indispensable
to the very being (the) government. The Constitution without it would be no Constitution; and the
government no government.” So judicial review can be said to have assumed an important position
among the people by harmonising the different conflicting areas of democracy. It can be regarded
as omnipresent and omnipotent to cure the ills of the legislature and the executive. The idea of
curing the ills of the executive through judicial review has been begotten from the common law.
Now question can be posed as to what the review of administrative action stands for. It is the same
thing as the review of the legislature. The review of legislature and the executive is different
because the courts follow different procedures in these two methods. But it can be submitted that
both the procedures of judicial scrutiny should be fair, just and reasonable and also within the
tenets of the Constitution. Just for the purpose of reviewing, the judiciary should not tread upon
unknown and unconquered territories.

The review of administrative actions means that the judiciary is not concerned with the decisions
but with the decision-making process. The courts might be criticized on specific issues but
ultimately it is the most trustworthy, dispassionate institution for enabling the people of the country

18
“Parliament Actions Subject to Judicial review, “The Hindu, Jan 11 (2007).
to realise their rights and dreams. This has been largely made possible by and through the policy
of judicial review and in Keshavananda Bharati vs. the State of Kerala19 the court held that the
basic features of the Constitution cannot be amended by the Parliament and the judicial review is
one of basic features. The Supreme Court under Article 32 can enforce the judicial review by
issuing writs in the nature of Habeas Corpus, Co-warranto, Mandamus, Certiorari and Prohibition
and also issue directions, orders etc.

Article 136 is a mechanism for the judicial review of administrative actions. It lays down that the
Supreme Court may in its discretions grant special leave to appeal from any judgment, decree,
determination of any sentence or order in any cause or matter passed or made by any court or
tribunal except the court or tribunal for armed forces.

INDEPENDENCE OF THE JUDICIARY

The concept of independence of the judiciary was of English origin. Sri Edward Coke the judge
who refused to comply with King James’ command said that “obedience to his majesty’s command
to stay proceeding would have been delay in justice and contrary to the law and contrary to the
oath of the Judges.”

In the Constituent Assembly the members felt that the judiciary should be free from coercion and
political pressure. So they should be a free, independent judiciary which will preserve the federal
structure as well as protect the rights of the individuals. Ambedkar said that “It was the intentions
of the framers to create a judiciary and to give it ample freedom so that it could act without fear or
favour."

Principles of independence of judiciary in India:

The independence of the judiciary has been provided for in the Constitution of India by the
different provisions, i.e.

Security of tenure: The judges cannot be removed from office except by order of the President on
grounds of proven misbehavior or incapacity and by a resolution adopted by a majority of total
members of each house.

19
AIR 1973 SC 1461.
Removal proceeding: The judges are not independent and above the Constitution because a judge
can be removed by the process of removal.

The salary and allowances of the judges are fixed by the Constitution and charged on the
Consolidated Fund of India and not subject to vote. As given in the Article 138, Parliament can
increase and not curtail the jurisdiction of Supreme Court. No discussion in the legislature or
Parliament can take place with regard to the discharge of their duties (Article 121). The Supreme
Court and the High Court can punish any persons for its Contempt (Article 129 and 215) which
was thought to be necessary for the judiciary to be important and impartial.

POLITICS AND JUDICIARY

It cannot be said with firm conviction that the politics has not influenced the judges or its
jurisdiction. It is also true that every judge pursues a definite political philosophy and it is alleged
by certain critics that some judges even follow the agenda of a particular political party. If the said
party comes to power and the judges tilt towards the party in power or any other party in their
jurisdictional dictum, then it could be a sorry day for Indian judiciary and democracy. Hence
judges should be above politics but this ideology has been negated in the post-Nehru era. The first
instance was when the sitting Chief Justice of India K. Subba Rao became the Opposition’s
Presidential candidate against Dr. Zakir Hussain in May 1967. Until today no sitting judge has
committed such a “grave impropriety” as M.C.Setalvad has stated. Again we find that the retired
judges are offered membership to the Parliament, chairmanship of the different commissions etc.
As they are not angels, they would be bound to tilt towards the government when they are in office
in the hope of getting such post-retirement benefits. The politicians have also realized this
weakness of the judges and have used the judiciary to influence cases with political overtones to
their utmost advantage. The original Constitution makers did not allow the judiciary to decide
political cases but through judicial activism the judiciary has entertained cases with political
ramifications or with some politics attached to it.
 JUDICIARY AND CORRUPTION

Judicial independence and accountability are complementary to each other. When judges are made
accountable for the judicial actions it does not apply and imply that their independence has been
forsaken and at the same time independence does not imply that the activities of the judges are not
accountable or the judges are immune from their misdeeds. The issue of judicial corruption has
been of prime concern and at the same time the issue needs to be fairly investigated and illuminated
so that the independence of the judiciary is not eroded away. Giving power to the executive and
the legislature to investigate the issue would harm the independence of the judiciary. Such power
will provide a way out to these two branches to harass judges whose judicial opinions were not
consistent with the wishes of the political leaders. Moreover, to maintain judicial independence
the people must accept the judiciary as a fair, just and honest body. They will accept this only
when the judiciary assures the public that it is free from different kinds of malice. Judicial
independence can be preserved only when judges exert the moral leadership and strength of
character to ensure judicial accountability.

So to tackle judicial corruption the appropriate method would be to apply Right to Information Act
2005 to the judiciary. The Chief Justice of India Mr. K. Balakrishnan stated that as the Chief
Justice’s post is a constitutional one, it cannot be brought under the Right to Information Act. The
Right to Information Act was simply created to give information to the citizens of the country
about any public authority. Section 2(h) of the Right to Information Act defines the public authority
as “any authority or body or institution of self-government established or constituted by or under
the Constitution.”20 The Chief Justice says that his office is a constitutional authority and not a
public servant. But it has been stated that all constitutional authorities are also public servants as
defined in the Act. The Supreme Court has sought a blanket ban from the purview of the Right to
Information Act. If judiciary wants to keep itself immune from this act then as a democratic
institution how can it think of implementing the Act and be a success in the cases of other
governmental functionaries? So, the need of the hour is transparency and it would be provided by
the RTI Act.

20
Arana Roy “ Judiciary should go for Transparency, not Secrecy,”
 CONCLUSION

To safeguard the liberty and rights of individuals, the judicial review is recognized as necessary
and a basic requirement for construction up of a novel civilization, which is constructed on the
perception of community and wellbeing morals.

Judiciary’s role is no doubt important and vital in establishing law and order in the society and
also protecting the lives and liberties of the people. But judicial process alone cannot provide for
effective implementation of all rights and liberties. However dedicated the Supreme Court is in its
cause of social justice it must be supplemented by the executive and the legislature. The achieving
of social justice and protection of rights and liberties of the people are ends and the executive,
legislature and the judiciary are the means to achieve these ends. So they should work in unison
and harmony to attain welfare to ‘We the People.’
BIBLIOGRAPHY

List of Books:

M.P Jain, INDIAN CONSTITUTIONAL LAW 8th ed. Lexisnexis 2018.

H.M Seervai, CONSTITUTIONAL LAW OF INDIA 4th ed. Vol 2, Universal Law Publishing Co.
2014

Dr. J.N. Pandey, CONSTITUTIONAL LAW OF INDIA (53rd ed. Central Law Agency 2016