CHAPTER 1-INTRODUCTION

1
 CHAPTER-1
INTRODUCTION

1.1. Overview of the Present Work

A liberal democratic state has four essential pillars of democracy: the
legislature, the executive, the judiciary, and the media. The judiciary is
crucial because no democratic state could exist without checks and
balances. The Judiciary is solely responsible for the Check and Balance
function. Every written Constitution is guarded by the Judiciary.
In today's changing welfare state, the definition of democracy is taking
on a broader connotation. Nowadays, democracy includes not only
majority rules, but also the concepts of liberty, equality, fraternity,
minority rights, human rights, judiciary independence, and so on.

The author has studied various judicial pronouncements where the

judiciary actively laid down guidelines and also struck down laws made
by the legislature that were contrary to democratic principles.

Because the Judiciary is given many responsibilities in a democratic setup,

democratic accountability is critical for the proper functioning of the
democracy. The current work investigates the accountability of the judiciary in
India as well as the current state of the Indian judicial system.

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1.2 LITERATURE REVIEW

1. M.P. Jain, INDIAN CONSTITUTIONAL LAW, 5th Edn., Wadhwa Nagpur,

2006. The author has thoroughly explained the various case laws on the
judiciary's active role in protecting fundamental rights in this book.
2. P. Arvind Datar, COMMENTARY ON THE INDIA CONSTITUTION, 2nd
Edn, 2007, Vol. 1, Wadhwa Nagpur. The author has thoroughly explained the
various case laws on Judicial Review in this book.
3. Mahendra P. Singh, V.N. SHUKLA'S CONSTITUTION OF INDIA, 11th
ed., Eastern Book Co., Lucknow, 2008. The author of this book has thoroughly
explained the independence of the judiciary in relation to various judicial
pronouncements.
4. Introduction to Indian Constitution by Durga Das Basu The author has very
well explained the philosophy in chapters 3 and 4. of the constitution.
5.Eastern Book Company's Political Theory and Organization by L S Rathore
and Sah Haqqi. In this book, the author discusses different forms of
government in detail and provides a brief overview of democratic government
and its importance. Also discussed is Montesquies' theory of power separation.

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1.3 RESEARCH METHODOLOGY

1.3.1 STATEMENT OF PROBLEM

The Role of the Judiciary in Indian Democracy and Accountability

1.3.2 HYPOTHESIS
a. Does the Indian judiciary contribute to the preservation of democracy?
b. Is the Indian judiciary successful in protecting citizens' basic rights in
India?
c. Is the Indian judiciary accountable, and if so, to whom?
1.3.3 OBJECTIVES OF STUDY
a) To examine the need, scope, and significance of the judiciary in
democratic India.
b) Research the role of the judiciary in protecting the fundamental
rights guaranteed by our constitution.
c) Research whether the Indian judiciary is accountable and, if so,
to whom.
1.3.4 NATURE OF RESEARCH
The doctrinal research method will be used. The researcher used a
descriptive and analytical methodology. The work employs the 19th
Bluebook Citation format. Data is gathered from a variety of
sources, including case laws, books, articles, and law lectures.
1.3.5 SOURCE
Both primary and secondary sources were used.

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1.2. Understanding Democracy

1.2.1.Meaning of Democracy

The term democracy is derived from the Greek words demos and kratos,
the former meaning "people" and the latter meaning "rule," i.e., "rule of
the people." Something akin to "people's government." Democracy has
been debated for several thousand years, but no definition of the term
has been agreed upon by everyone on the planet. This is due in part to
the fact that democracy is constantly evolving and changing. However,
there are some things on which most people can agree are related to
democracy, such as the equal dignity and rights of all people, freedom of
opinion, freedom of the press, and freedom of expression, the fact that
all are equal in the eyes of the law, and the freedom to express oneself.

People with the right to vote in a democratic society with general, free
elections can vote for the party and politicians they want to represent
them in political decision-making at the national, regional, and local
levels. Politicians or parties who receive the most votes, i.e. a majority
of votes, are given the most influence in decision-making.

In a democracy, the majority decides, but the minority has rights that the
majority cannot simply ignore. Power is exercised with regard for human
rights, which is a fundamental principle in a democratic society. This
means that those who make decisions must not oppress people or groups

5
 who hold opposing viewpoints. Everyone in society has the right to
express themselves.

Abraham Lincoln (1809-1865), President of the United States, defined

democracy as: “Government of the People, for the people and by the
people”

Churchill's thoughts on democracy

“No one pretends that democracy is perfect or all-wise. Indeed, it has
been said that democracy is the worst form of government except all
those other forms that have been tried from time to time”

1.2.2.Democracy in Different Countries of World

The following are the types of democratic forms of government
prevalent in different countries of world1:-
a. Direct democracy
b. Representative democracy
c. Presidential democracy
d. Parliamentary democracy
e. Authoritarian democracy
Every country has its own interpretation of what it means to be
democratic. With a wide range of different geopolitical environments,
we see a wide range of democratic governments in operation around the
world.

1
www.wikipedia.com
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Direct Democracy
A direct democracy occurs when citizens have the opportunity to vote
on a policy directly, without the need for any intermediary
representatives or houses of parliament. If the government must pass a
law or policy, it must go to the people. They vote on it and decide the
fate of their respective countries. People can even bring up issues
themselves, as long as there is broad agreement on the subject. Even
raising taxes is impossible without public support.
A direct democracy does not appear to be a bad idea when the
population is small, educated, and mostly homogeneous (at least
politically). Switzerland, for example, has a long history of direct
democracy success. This democratic model encourages people to form
political parties to further their own interests. Surprisingly, one of
Switzerland's political parties is known as the Anti-PowerPoint Party,
owing to this system of governance. The sole goal of the party is to
outlaw the use of PowerPoint in office presentations!
However, most countries are too large and complex for direct
democracy to function within their political boundaries. People prefer to
elect representatives on their behalf in these cases rather than vote on
every single issue.
Representative Democracy
When people choose who will represent them in a parliament, this is
known as representative democracy or indirect democracy. This is the
most common type of democracy found worldwide. Its emphasis is on
protecting the rights of minorities as well as the majority of the people in

7
the state. A minority population would be able to express its grievances
more effectively if it elected a more qualified representative.

The majority of the world's representative democracies

consider themselves to be liberal democracies. This is because they
place a higher value on the needs of their individual citizens than
on the needs of the entire state. This is why declaring a state of
emergency is difficult in countries such as India and the United
States.Presidential Democracy

In a presidential democracy, the president of a state wields considerable

power over the government. He or she is directly or indirectly elected by
the citizens of the state. The president and the executive branch of
government are not accountable to the legislature, but they cannot
dismiss it entirely under normal circumstances. Similarly, unless the
situation is extreme, the legislature cannot remove the president from
office. The head of state is also the head of government in a presidential
democracy. This type of democracy is used in countries such as the
United States, Argentina, and Sudan..

Parliamentary Democracy

A parliamentary democracy is one in which the legislature has

more power. Only the legislature, i.e. the parliament, provides the
executive branch with democratic legitimacy. The role of the head

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 of state differs from that of the head of government, and both have
varying degrees of power. In most cases, however, the president is
either a weak monarch (as in the United Kingdom) or a ceremonial
head (e.g. India).Authoritarian Democracy

When only the elites participate in the parliamentary process.

Individuals in the state are allowed to vote for their preferred
candidate, but "regular people" are not allowed to vote. As a result,
only the ruling elite can ultimately decide on the various interests of
the state's population. Vladimir Putin's Russia today is a textbook
example of this type of governance. Hong Kong is generally
classified in the same way.

1.2.3.Components of Democracy

(a) Liberty: Liberty and equality are the core elements of democracy.

(b) Equality: In a democracy, equality is prioritised, and there is no

discrimination based on caste, creed, religion, or position.

(c) Fraternity: Democracy can only thrive in a peaceful environment;

otherwise, democracy will face numerous challenges.

(d). People as the ultimate source of sovereignty: People are the

ultimate source of sovereignty in a democracy, and the government

9
 derives its power from them. Elections are held at regular intervals in
democracies for this purpose.

(e) Fundamental rights for the people: In a democracy, people are

given fundamental rights because development of an individual is
impossible without these rights. People in India, Japan, the United States
of America, France, and Italy have fundamental rights guaranteed by
their constitutions.

(f). Independence of the Judiciary: In a democracy, it is the judiciary's

responsibility to protect the people's fundamental rights.

(g). Democracy is a welfare state in which special attention is paid to the

welfare of the people as a whole rather than to a specific class.

1.2.4.Democracy in India

The Preamble's vision of a "democratic republic" is democratic not only

from a political but also from a social standpoint; in other words, it
envisions not only a democratic form of government but also a
democratic society instilled with the spirit of "justice, equality, and
fraternity."

The democracy envisaged as a form of government is, of course,

representative democracy, and our constitution contains no agencies of
direct control by the people, such as "referendum, or initiative."

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 India is the world's largest democracy. It is based on five democratic
principles: sovereign, socialist, secular, democratic, and republic. After
achieving independence from British colonial rule in 1947, India was
declared a democratic nation. Indian democracy is not only the largest,
but also one of the most successful.

India has a federal form of democracy, with a central government

accountable to the parliament and state governments equally accountable
to their legislative assemblies. Elections are held at regular intervals
throughout the country, and several parties compete for seats in the
centre as well as in the states. People are encouraged to vote in order to
elect the most deserving candidate, though caste is also a major factor in
Indian politics.

Different political parties run campaigns to highlight the work they have
done for people's development as well as their future plans to benefit
people.

In India, democracy entails not only granting the right to vote, but also
ensuring social and economic equality. While the country's democratic
system has received worldwide acclaim, there are many areas that need
to be improved before democracy can be formed in its true sense.
Among other things, the government must work to eliminate illiteracy,
poverty, communalism, casteism, and gender discrimination.

1.5. Three Pillars of Democracy-Media being the fourth pillar

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These four pillars of democracy are:

∑ Legislative :
The legislative pillar is primarily in charge of enacting laws that
govern a state. These laws are created either directly by the people
(direct democracy) or by representatives elected by the people
(Indirect democracy). Bharat adheres to indirect democracy.

Executive: This pillar of democracy is in charge of enforcing the laws

enacted by the Legislative section and issuing orders to do so. The
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 executive section is chosen using an election system, a spoil system, a
merit system, or a combination of the three.
∑ Judiciary : It is a crucial pillar of democracy because it checks laws
(issued by the legislature) and orders (issued by the executive) and
ensures that these laws and orders do not infringe on citizens'
fundamental rights.

Press/Newspaper :

This pillar of democracy ensures that all people living in remote areas of the
country are aware of what is going on in the rest of the country. It ensures the
transparency of all three systems mentioned above.

These are the four pillars of democracy, and if any of them is not functioning
properly, democracy is not fully implied.

The powers assigned to each of these pillars vary by country. No pillar is too
strong in Bharat. The Court is made powerful in the American constitution,
whereas the legislative dominates over the judiciary in the United Kingdom.

1.6. Judiciary

According to the Cambridge dictionary, the judiciary is the part of a country's

government that is responsible for its legal system, which includes all of the
judges in the country's courts. As previously stated, the judiciary is a pillar of
democracy, i.e. it is the foundation of democracy.

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Our country's constitution is guarded by the judiciary. It is the interpreter of
India's constitution.

1.6.1. Functions of Judiciary

In India, the judiciary performs a variety of important roles and

functions that are not limited to the traditional civil and criminal
jurisdictions.

(i) Law enforcement: In the event of a violation of the law, a suit is

filed against the offender. The judge hears both sides and decides
whether or not there was a violation of the law. When the law is broken,
the judiciary restores justice by providing redress and punishing the
offender.

(ii) Creation of new law: Judges create new laws by interpreting

existing laws. The judiciary may follow precedents established in
previous decisions; however, it may also overrule such precedents,
creating new law.

(iii) Makes constitutional decisions: The highest federal court, the

Supreme Court, makes constitutional decisions. If there is a
constitutional conflict or dispute between the Union and the states, or
between different states, the dispute is brought before the federal Court,
which decides and acts as the federal constitution's guardian. There are
hundreds of such constitutional cases decided by the Indian judiciary; for
example, Gopalan vs. the State of Madras and Golak Nath vs. the State
of Punjab.

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(iv). Explains the constitution and laws: The judiciary is responsible
for safeguarding and interpreting the constitution and law, in addition to
adjudication. In the United States, the power of interpretation is absolute,
as Chief Justice Charles Evan Hughes stated: "We are under a
constitution, but the constitution is what the judges say it is." However,
the Indian Court does not wield great power in this regard.

(v)Advisory function: When requeste- the country's highest court

provides advice to the executive and legislature on constitutional issues.
As a result, the Judiciary has advisory functions as well. If a question of
law or fact appears to have arisen, it may be referred to the judiciary for
advice.

(vi) Protection of fundamental rights: The judiciary protects citizens'

rights guaranteed by the law of the land and the constitution. Any law
that violates a fundamental right can be declared unconstitutional by the
court. The judiciary in India has the authority to issue writs such as
habeas corpus, prohibition, mandamus, quo warranto, and certiorari.

(vii) Constitutional guardian: The judiciary is regarded as the

constitutional guardian. In federal states, this function is carried out
through the use of the judicial review power. The Supreme Court of
India has limited judicial review authority in invalidating laws passed by
Parliament or state legislatures.

Importance of the Judiciary: The role of the judiciary in a democratic

society cannot be overstated. The judiciary is an important part of the
democratic process. The judiciary not only administers justice, but it also
15
 protects citizens' rights and serves as the interpreter and guardian of the
constitution. In many states, the judiciary has the power of judicial
review, which allows it to decide the constitutionality of laws enacted or
decrees issued. It has the authority to declare unconstitutional laws and
decrees unconstitutional.

1.6.2.JUDICIAL ACTIVISM

Definition

Judicial activism, according to Black's Law Dictionary, is a

"philosophy of judicial decision-making in which judges allow their
personal views about public policy, among other factors, to guide
their decisions." Judicial activism is expressed and enforced through
judicial rulings that are suspected of being based on personal or
political considerations rather than existing law. Judicial activism
entails going beyond the normal constraints placed on jurists and the
Constitution, which gives jurists the authority to overturn any
legislation or rule against precedent if it violates the Constitution.
Judicial activism is based on the fact that judges act as independent
policymakers or "trustees" on behalf of society, in addition to their
traditional role as interpreters of the Constitution and laws.

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 Origin

The origins of judicial activism through judicial review can be

traced back to the unwritten British Constitution of the Stuart period
(1603-1688). Through the activism of Justice Coke, the power of
judicial review was asserted for the first time in Britain sometime
around 1610. In developing the principles of judicial review, Chief
Justice Coke stated that if a law passed by Parliament violated the
principles of "common law" and "reason," the courts could review
and declare it void. Sir Henry Hobart repeated Coke's theory of
judicial review in 1615, and Sir John Holt repeated it in 1702. The
British chief justices asserted the judiciary's authority to review acts
of the British Parliament based on "reason" and "common law."
"Though Coke's words were repeated," says John Agresto, "aside
from Dr. Bonham's case, instances of actual nullification of
parliamentary laws by British courts cannot be cited." However,
judicial review has not gained a foothold since then, as it has been
overshadowed by the evolution of parliamentary sovereignty in the
United Kingdom.

Judicial Activism in India

Judicial activism in India refers to the power of the Supreme Court and
the high courts, but not the lower courts, to declare laws unconstitutional

17
and void if they violate or are inconsistent with one or more provisions
of the constitution. To the extent that such inconsistency exists, courts do
not propose any alternative measures when declaring a law to be
constitutional and void. According to SP Sathe, "an activist court is one
that gives a new meaning to the provision in order to suit changing social
or economic conditions or expands the horizons of the individual's
rights." A Supreme Court Judge acting suo motu is an example of
judicial activism.

However, today there is a fine line between the terms Judicial Activism
and Judicial Overreach. There are numerous instances where the
judiciary interferes with other branches of government, which is known
as 'Judicial Overreach.' 2

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CHAPTER 2- SEPARATION OF
POWER

19
 CHAPTER-2 SEPARATION OF POWER

2.1. Introduction

"Power corrupts, and absolute power corrupts completely."

The separation of powers is based on the principle of trias politica . The

Doctrine of Separation of Powers is the forerunner to all world constitutions
that have existed since the days of the "Magna Carta." A complete separation
of powers without adequate checks and balances would have rendered any
constitution unconstitutional. Only with this in mind did the founders of
various constitutions accept this theory with modifications to make it relevant
to changing times.

One of the fundamental features of the Indian Constitution is "separation of

powers." The Constitution of India is the source of power. The sovereign
power has been divided into three wings:

-Executive -Judiciary -Legislature

The doctrine of separation of powers envisions a three-tiered government. The

Constitution delegated powers to the three organs and defined their
jurisdiction. In India, the doctrine of separation of powers has not been given
constitutional protection. There was a proposal in the Constituent Assembly to
include this doctrine in the Constitution, but it was knowingly not accepted and
thus dropped. Aside from the directive principles enshrined in Article 50,

20
which enjoins the separation of the judiciary and the executive, the
constitutional scheme lacks any formalistic and dogmatic division of powers.

2.2. Theory of Montesquieu

According to this theory, there are three types of powers: legislative, executive,
and judicial, and each of these powers should be vested in a separate and
distinct organ, because there can be no liberty if all of these powers, or any two
of them, are united in the same organ or individual. When legislative and
executive powers combine, for example, there is concern that the resulting
organ will enact and execute tyrannical laws. Again, there can be no liberty
unless the judicial power is separated from the legislative and executive
powers. Where it joined the legislative, the subject's life and liberty would be
subject to arbitrary control, because the judge would then be the legislator.
When combined with executive power, the judge may act violently and
oppressively.

In 1748, Montesquieu stated:

"There can be no liberty when the legislative and executive powers are united
in the same person or in the same body of magistrates, because apprehensions
may arise, lest the same monarch or senate should exact tyrannical laws and
execute them in a tyrannical manner." Again, there is no liberty unless the
judicial power is separated from the legislative and executive powers. Where it
joined with the legislative, the subject's life and liberty would be subject to
arbitrary control, because the judge would then be a legislator. Where it

21
intersects with executive power, the judge may engage in violence and
oppression.

There would be an end to everything if the same man or the same body,
whether of nobles or of the people, exercised the three powers of enacting
laws, executing public resolutions, and trying individual cases."2

The theory of separation of powers signifies three formulations of structural

classification of governmental powers:

1. The same person should not form part of more than one of the three
organs of the government. For example, ministers should not sit in the
Parliament.

2. One organ of the government should not interfere with any other organ
of the government.

3. One organ of the government should not exercise the functions assigned
to any other organ.

Montesquieu's doctrine of separation of powers had a huge impact on the

development of administrative law and the functioning of governments. It was
well received by English and American jurists, as well as politicians. In his
1765 book 'Commentaries on the Laws of England,' Blackstone observed that
if legislative, executive, and judicial functions were all given to one man,
personal liberty would be lost. "The accumulation of all powers, legislative,
executive, and judicial, in the same hands, whether of one, a few, or many, and

22
 whether hereditary, self-appointed, or elected, may justly be pronounced the
very definition of tyranny," Madison added.

In his book 'Esprit des Lois (The Spirit of the Laws),' published in 1748,
Montesquieu gave it a systematic and scientific formulation for the first time.
The contents of this doctrine were derived by Locke and Montesquieu from
developments in 18th-century British constitutional history. After a long war
between Parliament and the King, Parliament triumphed in 1688, giving
Parliament legislative supremacy culminating in the passage of the Bill of
Rights. This eventually led to the King's recognition of Parliament's legislative
and taxing powers, as well as the courts' judicial powers. The King exercised
executive powers, Parliament exercised legislative powers, and the courts
exercised judicial powers at the time, though England later abandoned this
structural classification of functions and adopted the parliamentary form of
government.

After the war for independence in America ended in 1787, the founding
fathers of the American constitution drafted the American constitution, and in
that document they inserted the Doctrine of separation of powers, making
America the first nation in the world to do so.

2.3. Separation of Power in different countries of world

Australia

Although there is no strict separation of the legislative and executive

branches of government in Australia (government ministers are required

23
to be members of parliament), the federal judiciary strictly guards its
independence from the other two. However, the Australian constitution,
influenced by the American constitution, defines the three branches of
government separately, which has been interpreted by the judiciary to
imply an implicit separation of powers. State governments have a similar
level of separation of powers, but this is based on convention rather than
constitution.

France

The French government is divided into three branches, according to the Fifth
Republic Constitution:

• Executive. This includes the president, as well as the prime minister and
cabinet. The president of France appoints the Prime Minister, but the
government is accountable to the National Assembly, the lower house of the
legislature.

• Legislature. The Senate (upper house) and the National Assembly form a
bicameral legislature (lower house). According to Article 45[23] of the
Constitution, the relationship between the two houses is asymmetric, which
means that in the event of a dispute, the National Assembly has the final word.

• Judiciary. This includes judicial as well as administrative orders. There is also

a constitutional court.

United Kingdom

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• Parliament – legislative

• Parliament is the legislature; the Prime Minister, Cabinet, Government

Departments, and Civil Service are the executive; and the Courts are the
judiciary.

The development of the British constitution, which is not a codified document,

is based on this fusion in the person of the Monarch, who has a formal role to
play in the legislature (Parliament is the Crown-in-Parliament, and is
summoned and dissolved by the Sovereign who must give his or her Royal
Assent to all Bills so that they become Acts), the executive (the Sovereign
appoints all ministers of His/her name).

Despite the fact that the doctrine of separation of powers plays a role in the
United Kingdom's constitutional doctrine, the UK constitution is frequently
described as having "a weak separation of powers" A. V. Dicey, despite the
fact that it is the constitution to which Montesquieu originally referred.

The judiciary lacks the authority to overturn primary legislation and can only
rule on secondary legislation that it is invalid with regard to primary legislation
if necessary.

United States

The expression of the separation of powers was incorporated into the United
States Constitution, and the founding fathers included elements of many new
concepts, including hard-learned historical lessons about the checks and
balances of power and the then-new concept of separation of powers. Similar
ideas were prevalent in state governments across the United States. The
25
 founding fathers believed that as British colonies, the American states had been
abused of the broad powers of parliament and monarchy. As a result, the US
Constitution limits the federal government's powers through various means.
For example, the three branches of the federal government are divided by
performing different functions and are separated in origin by separate elections;
each branch controls the actions of the others.

Article 1 Section I of the United States Constitution grants Congress only

those "legislative powers herein granted," and then goes on to list those
permissible actions in Article I Section 8, while Section 9 lists those prohibited
for Congress. Article II's vesting clause imposes no restrictions on the
Executive branch, simply stating, "The Executive Power shall be vested in a
President of the United States of America." According to Article III, the
Supreme Court has "the judicial Power," and it established the implication of
judicial review in Marbury v. Madison under the Marshall court.

2.4 Separation of Power and Indian Constitution

India practices constitutional democracy, which provides for a clear

separation of powers. The judiciary is relatively independent of the other
two branches that have the authority to interpret the constitution.
Parliament has legislative authority. The President has executive powers
and is advised by the Union Council of Ministers, which is chaired by
the Prime Minister. The President of India is the common head of the
executive, parliament, armed forces, and so on, not only for the union
government but also for the various state governments in a federal
structure, according to the Indian constitution. To maintain the balance
26
of power and avoid exceeding the constitutional limits, all three branches
have "checks and balances" on each other.

• When a law passed by the legislative or an advice given by the Union

Council of Ministers is inconsistent with the Indian constitution, the
President has the authority to overturn it.

• Even if the president accepts a law passed duly by the legislative

branch, the Supreme Court can overturn it after a fair trial if it violates
the basic structure of the constitution. Any Indian citizen may petition
the Supreme Court directly to have unconstitutional laws enacted by the
legislative or executive branches repealed.

• The president can be impeached after the parliament holds a fair trial
for his unconstitutional orders/decisions.

• The judiciary may order the president to resign as a result of his

unconstitutional orders/decisions, citing the president's loss of eligibility
criteria.

• Parliament has the authority to impeach judges of state Supreme Courts

and High Courts for incompetence and mala fide. To uphold the
constitution, a higher court of judges can overturn the incorrect
judgments of a lower court of judges.

• While the Indian constitution, like the American constitution, expressly

states that the executive power of the Union and of a State is vested in
the President and the Governor, respectively, by articles 53(1) and
27
154(1), there is no corresponding provision vesting the legislative and
judicial powers in any particular organ. As a result, it has been
determined that there is no strict separation of powers.

Although it appears that our constitution is based on the doctrine of

separation of powers. The judiciary is independent in its field, and
neither the executive nor the legislature may interfere with its judicial
functions. The discussion of any judge's conduct in Parliament is limited
by the Constitution. The High Courts and the Supreme Court have
judicial review authority and can declare any law passed by parliament
unconstitutional. The Supreme Court judges are appointed by the
President in consultation with the Chief Justice of India and the other
Supreme Court justices.

It is worth noting that Article 50 of the Constitution requires the state to

take steps to separate the judiciary from the executive.

Similarly, certain constitutional provisions provide for MPs' powers,

privileges, and immunity, as well as immunity from judicial scrutiny of
the house's proceedings. Such provisions, in a sense, make the legislature
independent. The President is given executive power under the
Constitution. His powers and functions are outlined in the
constitution.hve head must act in accordance with the

28
In general, the legislature is the repository of legislative power; however,
under certain conditions, the President may also exercise legislative
functions. For example, while issuing an ordinance, drafting rules and
regulations pertaining to public service matters, or drafting legislation
while an emergency proclamation is in effect. These are a few examples
of the executive becoming the repository of legislative function. The
President also has judicial responsibilities.

On the other hand, in certain cases, Parliament performs judicial

functions.

It has the authority to rule on breaches of its privilege, and in the case of
impeaching the President, both houses participate actively in deciding
the charges. In India, the judiciary can be seen performing administrative
functions when it supervises all subordinate courts. It also has legislative
power, which is reflected in the formulation of rules governing their own
procedure for conducting and disposing of cases. So, it is clear from the
constitutional provisions that India, as a parliamentary democracy, does
not follow absolute separation and is instead based on fusion of powers,
where close coordination amongst the principal organs is unavoidable, as
stated in the constitutional scheme. As a result, the doctrine has not been
granted constitutional status. Thus, As a result, every organ of
government is required to carry out all three types of functions.
Moreover, each organ is, in some way, dependent on the other organ that
checks and balances it. The reason for this interdependence can be

29
attributed to our country's parliamentary form of governance. However,
this does not imply that this doctrine is not practised in India.

Except where the constitution vests power in a body, the principle of one
organ not performing functions that essentially belong to others is
followed. The Supreme Court made this observation in the re Delhi
Laws Act case, where it was held by a majority of 5:2 that the theory of
separation of powers is not a part of our Constitution. However, it was
also stated that, with the exception of circumstances such as those in A.
123 and A. 357, it is clear that the constitution intends for legislative
powers to be exercised solely by the Legislature. According to Kania,
C.J., "Although there is no express separation of powers in the Indian
constitution, it is clear that the constitution creates a legislature and
makes detailed provisions for that legislature to pass laws." In essence,
they imported the modern doctrine of power separation.

Separation of Powers and Judicial Pronouncements in India

In India, we practise function separation rather than power separation.

As a result, we do not strictly adhere to the principle. One example is the
exercise of functions by Cabinet ministers, who perform both legislative
and executive functions. A. 74(1) gives them an advantage over the
executive by requiring their assistance and advice for the formal head.
Thus, the executive is derived from and dependent on the legislature for

30
legitimacy. The Hon'ble Supreme Court made this observation in Ram
Jawaya v. Punj.

On the question of where the Parliament's amending power lies and

whether A. 368 grants Parliament an unlimited amending power, the
Supreme Court in Kesavananda Bharati held that the amending power
was now subject to the basic features of the constitution. As a result, any
amendment that modifies these essential features will be ruled
unconstitutional. Separation of powers is part of the basic structure of the
constitution, according to Beg, J. None of the republic's three distinct
organs can assume the functions of the others. Even using Article 368 of
the Constitution, this scheme cannot be changed. There are attempts to
water down the principle to the point of legislative usurpation of judicial
power.

In Indira Gandhi Nehru v. Raj Narain, where the dispute over the Prime
Minister's election was before the Supreme Court, it was determined that
adjudication of a specific dispute is a judicial function that parliament,
even under constitutional amending power, cannot exercise. So, the main
reason the amendment was held ultravires was that when the constituent
body declared that the election of the Prime Minister would not be void,
it discharged a judicial function that it should not have done according to
the principle of separation. The position of this doctrine in the Indian
context became clearer as a result of this decision.
Though strict separation of powers in the American sense is not followed
in India, the principle of 'checks and balances' is. As a result, none of the

31
three organs can usurp the essential functions of the organs, which are
part of the 'basic structure' doctrine, even by amending the constitution,
and if such an amendment is made, the court will rule it unconstitutional.

32
CHAPTER 3- ROLE OF JUDICIARY IN
DEMOCRACY

33
 CHAPTER 3- ROLE OF JUDICIARY IN
DEMOCRACY

3.1. Role of Judiciary in Democracy-Meaning

"Democracy is not just about majoritarianism; it is also about individual

and minority rights, about the limits to what even a large and determined
majority can do," McCormick says. As a result, a strong and independent
judiciary is democratic in some ways – not because the courts are overly
democratic in their organisation, selection, or process (they are not), but
because they are the mechanism that serves this 'other face' of
democracy2.

In modern times, the concept of democracy has evolved from the

concept of simple majority rule. It is not as simple as it appears. Human
rights, minority rights, inclusive justice, and other concepts have made
inroads into it in recent years.

Democracy is a political system in which the people's elected

representatives govern the country. All adult citizens have the right to
vote, regardless of caste, creed, religion, gender, or economic status. To
elect the candidates, people voted under the principle of universal adult
franchise. The candidate with the most votes is declared the winner.

The government is formed by the party that has the majority of members
or has the support of members from other parties to form the majority.

34
As a result, the people effectively have the power to elect the
government. In a democracy, all functions are carried out in accordance
with the provisions of the Constitution, which, among other things,
upholds the values of equality among citizens. Democracy, as Abraham
Lincoln put it, is "government of the people, for the people, and by the
people."

As the Indian democratic system demonstrates, there are three major

wings in a democratic system: the legislature, the executive, and the
judiciary. No democracy can function if any of these are missing or not
functioning properly. The term "legislators" refers to members of the
central or state government machinery who have the authority to make
laws. The term "executives" refers to the group of officials and
administrators who have the authority to carry out the laws passed by the
legislature.

The judiciary is made up of the entire judicial system in the country,

including courts, judges, and justices, and is charged with ensuring
justice, fairness, and the rule of law by deciding cases filed by people
who have been denied some genuine right or privilege.

All three components of the democratic system are important in their

own right. However, the judiciary is regarded as the most important. The
judiciary in the Indian democratic system consists of lower as well as
district level courts—whether civil or criminal, state high courts, and the
Supreme Court of India. The lower courts hear minor cases of theft,

35
 cheating, and so on, while higher courts decide cases involving fraud,
crime, assault, betrayal, and murder within their jurisdiction.

They also have the authority to hear appeals filed against a lower court's
decision. The respective High Courts of the State have the authority to
hear appeals from District or Sessions Court decisions within the State.
The Supreme Court is the country's highest court. Cases that can be filed
in the Supreme Court include: I appeals against decisions of any High
Court in any State; (ii) cases involving an issue of fundamental rights;
(iii) disputes between two or more Indian States; and (iv) disputes in
which the Centre and one or more States are on one side of the dispute
and one or more States are on the other. The Supreme Court of India's
decision is final and binding on all parties involved.

Democracy provides equal rights to all citizens without distinction. But

what if a citizen is denied a right or is subjected to discrimination? He
can immediately seek justice in a court of law. The court will consider
his case and make a decision in accordance with the law. If a person has
been denied a right, he will receive a favourable decision. The equality
of all citizens is essential to democracy. There is no democracy where
there is no equality among citizens. Only the judiciary can ensure this
equality.

3.2. Role of Judiciary in Democracy in India

36
The role of the judiciary in maintaining or protecting democracy in
India is examined by discussing the role of the judiciary with each
essential component of democracy.

3.2.1. Fundamental Rights and Role of Judiciary

The citizens of India have certain fundamental rights, such as the

right to equality, the right to practise any religion, the right to
adopt any profession and live in any part of India, the right to
assemble peacefully and without arms, and so on. There is also
freedom of expression, travel, education, and success in life. Some
new rights have been granted to Indian citizens, such as the Right
to Information, which, while not a fundamental right, has legal
sanction. Under this, a person can request any official information
from the relevant department or office that he needs to carry out a
function or activity.

Fundamental or not, freedoms and liberties are the lifeblood of

democracy. Democracy will lose its meaning if they are not protected. In
India, the judiciary protects these rights and is thus known as the
democracy's watchdog.

It has been further developed by the judiciary in cases such as Olga

Tellis v. Bombay Municipal Corporation, Bandhua Mukti Morcha v.
Union of India, and others.3

In Sunil Batra v. Delhi Administration, the Supreme Court granted the

right against bar fetters and held that treatment that offended human

37
dignity and reduced man to the level of beast would undoubtedly be
arbitrary and could be challenged under Article 21, but the right is not
absolute. The Indian Constitution makes no explicit provision for
granting compensation for violations of a fundamental right to life and
personal liberty. However, in cases of illegal deprivation of personal
liberty, the judiciary has developed a right to compensation.

Rudal Shah v. State of Bihar represents a watershed moment in human

rights law. The Court awarded the Bihar Government Rs.35, 000 in
monetary compensation for illegally detaining a person for 14 years after
his acquittal. The Court deviated from tradition by ignoring
technicalities while awarding compensation. In Bhim Singh v. State of
Jammu and Kashmir, the Court awarded the petitioner Rs.50,000 in
monetary compensation as exemplary costs to compensate him. In the
case of M.C. Mehta v. Union of India,4

The Supreme Court ruled that the Court's authority to grant such redress
may include the authority to award compensation in appropriate cases.

In Francis Coralie Mullin v. Administrator, Union Territory of

Delhi,2 the Supreme Court did an admirable job of elaborating on the
scope of the right guaranteed by Article 21.

It was observed that the right to life cannot be limited to animal

existence. It entails more than just physical survival. The right to life
includes the right to live with human dignity and all that entails.

38
The aforementioned cases are just a few examples of how the Supreme
Court has taken a proactive role in protecting the rights of the weak and
vulnerable segments of society that the legislature and executive have
completely failed to protect. The courts, also known as the judiciary, are
an independent branch of government. Proper justice cannot be served if
they are subject to the whims and fancies of the legislature. This would
always result in minority or individual rights being ignored and relegated
to the bottom of the priority list, and the state becoming a utilitarian
institution, which is not what democracy truly entails.

It has also been observed numerous times that the legislature fails to
legislate in various areas, resulting in severe violations of individual
rights. These are the gaps in the law that a court must fill in order to
ensure the fair and equal treatment of all members of society and the
survival of true democracy. The following are some major examples of
the judiciary filling legislative voids in India. In an unprecedented move,
the Supreme Court issued 11 requirements to be followed in all cases of
arrest or detention until legal provisions are made in that regard in
D.K.Basu v. State of W.B. The requirements were interpreted to stem
from Articles 21 and 22(1) of the Constitution.. This exercise of power
has been described by many as judicial hyper-activism, rather than
commending such an unprecedented step taken by the court to protect
the fundamental human rights that such indiscriminate arrest had made a
mockery of Detractors of this decision criticised it solely on the grounds
that such decisions violate the separation of powers, which is not
mentioned in India's constitution. It has also been argued that the

39
judiciary, in the name of protecting human rights, has trespassed into the
domain of another organ by interpreting constitutional rights. In such
cases, the question is whether the other organs have blatantly failed or
are unwilling to perform their duties. Should the judiciary be merely a
spectator in such a scenario, or should it be the protector of every
individual's rights, taking proactive steps to remind the other organs of
their responsibilities that they have sadly failed to fulfil?

In such cases, judicial filling in legislative blanks appears to be required

for the fair treatment of individual rights, which is the essence of
democracy, and thus judicial law-making does not appear to be an
enemy of the democratic form of government.

Certain rights are temporarily suspended under certain conditions. For

example, if the law and order situation in a particular area deteriorates
due to violence, arson, or other factors, a curfew is imposed, which
means that people are not allowed to leave their homes during certain
hours.

This is not to say that democracy is in danger. In reality, these

precautions are taken to keep citizens safe from subversive activities.
Similarly, during an emergency, some rights are suspended. These are,
however, transitory states with no bearing on the spirit of democracy.
Ordinarily, all citizens have the constitutionally guaranteed rights.

40
If an individual, organisation, body corporate, group of people,
or even the State violates any of these rights, the aggrieved
party may seek justice in a court of law. If his claim is
legitimate, he will be given justice as well as adequate
compensation for any damages or harm caused by the denial of
that right. In India, there are thousands of cases where people
have received fair decisions from the courts.

3.2.2. Separation of Power and Role of Judiciary

The legislature, executive, and judiciary are the three pillars of

democracy, and it is critical for the proper functioning of a democratic
country that all three pillars work in harmony with one another and
within their respective spheres without encroaching on the field of
others. The Judiciary plays a critical role in maintaining the separation of
powers and ensuring the effectiveness of each pillar.

The first pillar of democracy is the legislature. In order to uphold

democratic values, the court has the authority to order the government to
take specific actions. The judiciary can sometimes order the state or
federal government to refrain from taking partisan action. It can request
that a specific department or even the government explain the reasoning
behind an action that, in its opinion, was unnecessary. For instance, after
losing the minister ship The Supreme Court has asked some governors
to explain why they dismissed a government or did not call the majority

41
party to form a government. Such actions can be attributed to the
judiciary's checks and balances on the legislative machinery.

Kania C.J. pointed out in A.K. Gopalan v. State of Madras3 that the
framers of our constitution inserted the specific provisions in Article 13
only out of extreme caution. "In India, the constitution is supreme, and a
statute law to be valid, must be in complete conformity with the
constitutional requirements, and it is for the judiciary to decide whether
any enactment is constitutional or not," he observed.

When it comes to the second pillar of democracy, the executive, the role
of the judiciary is very active. In the case of Delhi Government v.
Lieutenant Governor, the Hon'ble Supreme Court recently upheld the
elected government of the NCT of Delhi's administrative authority over
the Lieutenant-General. The court ruled that the LG is bound by the aid
and advice of the Delhi Council of Ministers and that the LG cannot
interfere with every government decision.2

The judiciary is the third and most important pillar of democracy. The
Judiciary played a critical role in protecting itself and checking its own
function. The Judiciary is charged with the supreme responsibility of
being the Guardian of the Constitution. The judiciary plays an important
role in achieving balance among all three pillars of democracy. The
independence of the judiciary is critical for this purpose. In fact, judicial
independence is a fundamental requirement of democracy. There are
numerous instances where the judiciary has shielded itself from
legislative action. There is always a battle between the legislature and

42
the judiciary, and in order to control the workings of the judiciary, the
legislature has many times enacted laws and policies to do so.

“All the rights secured to the citizens under the Constitution are worth
nothing, and a mere bubble, except guaranteed to them by an
independent and virtuous Judiciary.” ----Andrew Jackson

The following are the few instances where judiciary controlled actions of
legislature:-

i) The constitution contains several provisions that ensure the

independence of the judiciary. Among the provisions are:
ii) I Article 50: The separation of the judiciary and the executive
is a direct provision that guarantees independence and no
interference from the executive.
iii) Articles 211 and 121: No debate in Parliament or state
legislatures on the conduct of any judge from the High
Court/Supreme Court in their discharge of duties or workings.
iv) Tenure: Judges of the High Courts and Supreme Courts can
only be removed from their positions by an order of the
President, and only for proven misbehaviour and incapacity. A
resolution to that effect must also be accepted by a majority of
the total membership of each House of Parliament, as well as a
majority of no less than two-thirds of the members of the house
present and voting. These are some of the provisions that
ensure the independence of the judiciary in the country and the

43
 absence of any other organ, namely the executive and
legislature.
3
In the case of SP Gupta vs. Union of India, (also known as
Judges Transfer Case I), the court specifically held that while
judicial independence did not require the view of the Chief Justice
of India in the matter of appointments and transfers to 3 AIR 1982
SC 149, nonetheless consultation with him would have to be full
and effective and his opinion should not ordinarily be departed
from. The power of the executive in appointing judges was
accordingly circumscribed although it continued to have the last
word on who would be appointed. This decision led to a lot of
discussions from various academicians, lawyers and they argued
that this decision has given priority to the executive in the
appointment of the judges. This led to the filing of another petition
with respect to the same issue which was, Supreme Court
Advocates on record Association vs. Union of India (Judges
Transfer Case II) . This case overruled the first case and
established a judicial collegiums consisting of the Chief Justice of
India accompanied by the senior most judges of the Supreme
Court as the primary body for appointment. This case became the
first to establish a collegiums system with respect to appointment
of judges and hence ensuring its independence and no interference
from the executive could be achieved from making of this body
for the appointment of the judges. Though this case ordered for
the formulation of the collegiums system for the appointment of

44
judges but it was still unclear on many terms and how this system
would work, so there was special reference made by the President
and the case was In Re, Presidential Reference (Judges Transfer
Case III). The court unanimously clarified the previous decision.
According to this ruling, the Chief Justice of India would have to
consult his four senior most colleagues for Supreme Court
appointments and his two senior most colleagues for High Court
appointments. Additionally, the senior most judge of the Supreme
Court acquainted with the High Court from which the potential
candidate hailed (for Supreme Court appointments) and to which
High Court the candidate was proposed (for High Court
appointments) would have to be consulted. Further, the Chief
Justice of the High Court too, in forming his opinion, would have
to consult his two senior most colleagues. The system we
followed for past so many years has been taken from the third
Judges transfer Case. This was a brief history as to how the
appointments of the judges were governed so far. The collegiums
system for the appointment of judges has ensured the significance
of judiciary in the country for so many years by now.

By way of 99th amendment the legislature has inserted Article

124A . The NJAC was signed into an Act by President Pranab
Mukherjee on December 31, 2014. According to the new act, two
eminent persons will be nominated to the NJAC as members by
the committee consisting of the Prime Minister, the Chief Justice
of India

45
 and the Leader of Opposition in Lok Sabha or the leader of single
largest Opposition party. The eminent persons will be nominated
for a period of three years and will not be eligible for re-
nomination. But the Constitution Bench of the Supreme
Court declared National Judicial Commission (NJAC)
Unconstitutional as it violates Basic Structure of Constitution of
India by 4;1 Majority. Justices J S Khehar, MB Lokur, Kurian
Joseph and Adarsh Kumar Goel declared the 99th Amendment
and NJAC Act unconstitutional2 .

Thus Judiciary always played a pro active role in maintaining its

Independence.

In the matter of L. Chandra Kumar v. Union of India3 the Supreme

court has held that the power of Judicial Review of legislative
actions as vested in the High Court under Article 226 and in the
Supreme Court under Article 32 is part of the basic structure of
the constitution and can be ousted or excluded even by the
constitutional amendment.

3.2.4. Equality, liberty, fraternity and role of Judiciary

This are the objectives enshrined in the preamble of our country.

In the matter of S.S. Bola v. B.D. Sardana (1997)8 SCC 522 the
hon’ble Apex Court has held that the three (Equality, liberty,

http://www.livelaw.in/njac-unconstitutional-constitution-bench-41-2/ 1.42 Am
08/07/2018
3 AIR 1973 SC 1461

46
 fraternity ) have to be secured and protected with social justice
and economic empowerment and political justice to all the citizens
under the rule of law4.

In Randhir Singh v. Union of India5, the Supreme Court has held

that principle of ‘Equal Pay for equal work’ though not a
fundamental right but a constitutional goal.

3.2.5. Welfare State and Role of Judiciary

Another important component of Democracy is Welfare State.

Judiciary on many instances has played remarkable role in
achieving this goal. In the matter of D S Nakara v. Union o India6
the hon’ble supreme court has held that the basic framework of
socialism is to provide a decent standard of life to the working
people and esp. provide security from cradle to grave.

Peoples Union for Democratic Rights v. Union of India7, held

that non-payment of minimum wages to the workers
employed in various Asiad Projects in Delhi was a denial to
them of their right to live with basic human dignity and
violative of Article 21 of the Constitution. Bhagwati J. held that,
rights and benefits conferred on workmen employed by a
contractor under various labour laws are clearly intended to

4
DD Basu Introduction to Constitution of India page no. 26
5
AIR 1982 SC 879
6
AIR 1983 SC 130
7
1982 AIR 1473, 1983 SCR (1) 456
47
 ensure basic human dignity to workmen. He held that the
non-implementation by the private contractors engaged for
constructing building for holding Asian Games in Delhi, and non-
enforcement of these laws by the State Authorities of the
provisions of these laws was held to be violative of fundamental
right of workers to live with human dignity contained in Art. 21

3.2.6. Free and Fair Election and role of Judiciary

Democracy as defined by Abrahim Lincon- ‘democracy is government

by the people, of the people and for the people’. It is very important to
have free and fair election.

'Free and fair elections are the very foundation of democratic institutions
and just as it is said that justice must not only be done, but must also
seem to be done; similarly, elections should not only be fairly and
properly held, but also seem to be so conducted as to inspire confidence
in the mind of the electors that everything has been done aboveboard and
has been done to ensure free elections.' This was observed by the
Supreme Court in the case Union of India v. Association for
Democratic Reforms, AIR 2002 SC 21128.

. In the said case, the Supreme Court further held :

"It will be a sad day in the history of our country that the police and the
Government Officers create even an impression that they are interfering

8http://docs.manupatra.in/newsline/articles/Upload/46C4D6D6-4C63-40CE-B10C-
AE353CD9A9F6.pdf 2.00 am 08/08/2018
48
 for the benefit of one or the other candidate. This is particularly so if a
candidate is holding an important position or assignment like respondent
No.1, at the material time was Minister in the State."9

It is also very important in the democratic setup that people should know
about the candidates contesting the election. And in this regard the
Supreme Court has issued guidelines for electoral reforms in India in the
matter of Union of India v. Association for Democratic Reforms, AIR
2002 SC 211210.

9
https://indiankanoon.org/doc/1006842/
10http://docs.manupatra.in/newsline/articles/Upload/46C4D6D6-4C63-40CE-B10C-
AE353CD9A9F6.pdf 2.00 am 08/08/2018
49
 CHAPTER 4- JUDICIAL
ACCOUNTABLITY IN INDIA

50
 Chapter-4 Judicial Accountability in India

4.1 Judicial Accountability –Meaning

According to the Dictionary, the word "accountable" means

"responsible for your own decisions or actions and expected to
explain them when asked." Accountability is a requirement for
democracy. Accountability is facilitated by transparency. No public
institution or public functionary is immune from accountability,
though the manner in which accountability is enforced may differ
depending on the nature of the office and the functions performed by
the office holder. The judiciary, an important branch of the
government, is also held accountable. However, judicial
accountability is not on the same level as accountability of the
executive, legislature, or any other public institution. The Indian
political system is under severe strain. People's trust in the quality,
integrity, and efficiency of government institutions has deteriorated
significantly.

They look to the judiciary as their last hope. But, recently, even
here, things have become increasingly disturbing, and one can no
longer say that all is well with the judiciary. The judiciary's
independence and impartiality is one of the hallmarks of the
democratic government system. Only an impartial and independent
judiciary can protect individual rights and provide equal justice

51
 without fear or favour. The Indian constitution grants many
privileges to ensure the independence of the judiciary. If the
Preamble to our Constitution is regarded as a reflection of the
people's aspirations and spirit, then even a layman will notice that,
among the various goals that the Constitution-makers intended to
secure for the citizens, "JUSTICE- Social, Economic, and Political"
is mentioned first. "No one, no matter how powerful, is above the
law." No institution, including the judiciary, is immune from
accountability. Provisions for appeal, reversion, and review of
orders ensure the judiciary's accountability in relation to its judicial
functions and orders. What is the mechanism for holding serious
judicial misconduct accountable and disciplining errant judges? Our
Constitution allows for the removal of a Supreme Court or High
Court judge for proven misbehavior or incapacity through the
impeachment process, in which less than two-thirds of the members
of each House of Parliament can vote to remove the judge. So far,
only one impeachment proceeding against a Supreme Court justice
has been initiated. It failed because Congress did not vote, and thus a
two-thirds majority was not available.11

4.3. Need For Judicial Accountability

52
"All power is a trust - that we are accountable for its exercise - that
all springs and all must exist from the people and for the people."
Power with accountability of the individual exercising it is essential
in a 'democratic republic' to avert disaster for any democratic
system. Accountability must be broad enough to include not only
politicians, but also bureaucrats, judges, and anyone else in positions
of power. In a democracy, power and position are associated with
responsibility, and every incumbent of a public office must be
constantly accountable to the people, who are the repository of
political sovereignty. The judicial system administers justice
through the courts. Judges are the human beings who preside over
the courts. They are not merely visible symbols of courts; they are
their flesh and blood representatives. The manner in which judges
carry out their duties determines the image of courts and the
credibility of the judicial system itself. Judges have been held in
high regard and revered as superhuman in India since time
immemorial, but recent incidents in Bihar (such as the lynching of a
suspected thief) show that, frustrated by the failure to obtain justice,
people are gradually losing faith in the judiciary and taking the law
into their own hands. There is unquestionably a need to hold the
judiciary accountable, as violations of values in the judiciary is far
more dangerous than in any other branch of government, as the
judiciary serves as the guardian of our constitution. The concept of
judicial accountability and answerability is not new. Several
countries' constitutions already include provisions for judicial

53
 accountability. This is done to avoid the concentration of power in
the hands of a single organ of the state, particularly in countries
where judicial activism interferes with and invades the domain of
other organs. At the same time, judicial independence is a
requirement for any judge whose oath of office requires him to act
without fear or favor, affection or malice, and to uphold the
country's constitution and laws.

4.3 Judicial Accountability and Present Scenario

The framers of the Indian Constitution could not have predicted that
the Indian Judiciary would become the most powerful institution of
the state within 60 years of its adoption. The High Courts and the
Supreme Court were established by the Constitution as watchdog
institutions, independent of the executive and legislature, to not only
dispense justice, but also to ensure that the executive and legislature
did not exceed the authority granted to them by the Constitution. As
a result, the Judiciary was given the authority to interpret laws and
the Constitution, as well as to overturn executive actions that
violated any law or citizens' fundamental rights. It also had the
authority to examine whether laws enacted by Parliament complied
with the Constitution and to declare them void if they did not. The
Supreme Court acquired the power to strike down constitutional
amendments held by the Court to violate the basic structure of the
Constitution in 1973 by a creative interpretation of the provision
authorising Parliament to amend the Constitution. During this time,

54
the courts have overturned numerous laws and constitutional
amendments.

Through it all, India's superior courts have emerged as possibly the

most powerful courts in the world, with virtually Imperial and
unchecked powers. While executive action and even legislation
could frequently be overturned by the courts, court orders,
sometimes issued without even notifying the affected parties, were
unassailable and had to be followed by all executive officers under
penalty of contempt of court. Of course, these powers were
frequently used wisely to correct gross executive inaction. While the
Court was acquiring these powers, it took over the power of
appointment of judges through an even more inventive (called
purposive) interpretation of the provision regarding government
appointment of judges. As a result, judges of the High Court and
Supreme Court are now appointed by collegiums of senior Supreme
Court judges. As a result, the judiciary has devolved into a self-
perpetuating oligarchy. There is no system in place for selecting
judges, and the system is not transparent. Examining the record or
credentials of judges in their ideological adherence to the
constitutional ideals of a secular, socialist democratic republic, or
their understanding of or sensitivity towards the common people of
the country who are poor, marginalised, and unable to fight for their
rights in the courts, is particularly neglected.

55
 As a result, the courts in India have virtually absolute and
unchecked power that no other court in the world can match. In
these circumstances, it is critical that judges of the superior judiciary
be held accountable for their performance and conduct, whether for
corruption or disregard for constitutional values and citizens' rights.
Unfortunately, neither the Constitution nor any other law established
any institution or system to evaluate the performance of judges or to
investigate complaints against them. The Constitution states that
judges of the High Court and Supreme Court can only be removed
through impeachment. For the process to be initiated, 100 MPs from
the House of People or 50 MPs from the Council of States must
sign. If a motion containing serious misconduct charges is submitted
with the required signatures and accepted by the Speaker of the
House of People or the Chairperson of the Council of States, an
Inquiry Committee of three judges is formed to hold a trial of the
judge.

Judicial Standards and Accountability Bill, 2010

∑ The Judicial Standards and Accountability Act attempts to establish

enforceable standards of behaviour for judges. It also requires
judges to declare the assets and liabilities of themselves and their

56
 family members. Importantly, it establishes mechanisms for anyone
to file a complaint against a judge for misconduct or incapacity.
The Bill's Highlights
∑ • The Judicial Standards and Accountability Act of 2010 requires
judges to declare their assets, establishes judicial standards, and
establishes procedures for the removal of Supreme Court and High
Court judges.

∑ Judges must declare their assets and liabilities, as well as those of

their spouse and children.
∑ The National Judicial Oversight Committee, the Complaints
Scrutiny Panel, and an investigation committee are all established by
the Bill. Anyone can file a complaint with the Oversight Committee
against a judge for'misbehavior.'
∑ • A motion in Parliament can also be made to remove a judge for
misbehaviour. Such a motion will be referred to the Oversight
Committee for further investigation.
∑ Complaints and inquiries about judges will be kept private, and
frivolous complaints will be punished.
∑ The Oversight Committee has the authority to issue advisories or
warnings to judges as well as to recommend their removal to the
President.
Key Issues and Analysis

∑ • The key question is whether the proposed mechanism in the Bill

maintains the balance between independence and accountability. The

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 Oversight Committee includes non-judicial members, which may
jeopardise the judiciary's independence.

∑ • The Bill penalises anyone who violates complaint confidentiality.

∑ • A penalty for a frivolous complaint that remains confidential is

debatable.

∑ • The Scrutiny Panel consists of judges from the same High Court. This
differs from the Supreme Court's internal procedure.

• Non-judicial members serve on the Oversight Committee. The

Committee's procedure is not an internal judiciary procedure. It is
unclear whether the Oversight Committee's authority to impose minor
measures is constitutionally valid.

• The Bill does not state whether a judge has the right to appeal to the
Supreme Court against a President's order of removal issued after
Parliament finds him guilty of ‘misbehavior.'

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 CHAPTER-5

CONCLUSIONS AND SUGGESTIONS

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 CHAPTER-5

CONCLUSIONS AND SUGGESTIONS

CONCLUSION:
THE RESULTS OF THE HYPOTHESIS ON THE BASIS OF THE RESEARCH ARE AS
FOLLOWS:-

a. Does the Indian judiciary help to maintain democracy ?

According to the findings of the preceding study, the judiciary plays a critical
role in maintaining India's democracy. The legislature, executive, and judiciary
are the three pillars of democracy. A free judiciary is essential for a successful
democracy. Without an independent judiciary, the system could be considered
dictatorial. The judiciary is the defender of the constitution, which is based on
the rule of law. The judiciary is the one who interprets the constitution.
Parliament and state legislatures are creatures of the constitution, and the
judiciary has a duty to correct their errors when they overstep their
constitutionally defined powers. In Chapter 3 of the Research Paper, a brief
examination of the role of the Judiciary in upholding Democracy is conducted.

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 It is discovered that in every sphere of Democracy, the Judiciary is actively
participating in achieving the objectives of democracy as enshrined in the
preamble to the Indian Constitution. The Judiciary checks the balance of three
democratic organs: the legislature, the executive, and the judiciary. The
judiciary is also preserving its independence by declaring unconstitutional laws
against it.

Is the Indian judiciary successful in protecting citizens' basic rights in

India?
Individuals' rights are being actively protected by the judiciary. In all areas of
Fundamental Rights, whether it is the Right to Equality or the Right to
Freedom. The judiciary has always given a broader interpretation to each
Fundamental Right, thus developing a new era of Welfare State by giving
Right to Education, Right to Safe Environment, Right to Dignified Life, Right
to Compensation, Right to Information, Right to Privacy, and so on.

b. Whether Judiciary is accountable in India and If yes then to whom?

Because the judiciary plays an important role in a democratic system, it must

be held accountable.

India's courts have virtually absolute and unchecked power, unrivalled

by any other court in the world. In these circumstances, it is critical that judges
of the superior judiciary be held accountable for their performance and
conduct, whether for corruption or disregard for constitutional values and

61
citizens' rights. Unfortunately, neither the Constitution nor any other law
established any institution or system to evaluate the performance of judges or
to investigate complaints against them. The Constitution states that judges of
the High Court and Supreme Court can only be removed through impeachment.
For the process to be initiated, 100 MPs from the House of People or 50 MPs
from the Council of States must sign. If a motion containing serious
misconduct charges is submitted with the required signatures and accepted by
the Speaker of the House of People or the Chairperson of the Council of States,
an Inquiry Committee of three judges is formed to hold a trial of the judge.

The second critical aspect, which cannot be separated from the first, is the
critical need for a functional mechanism for regulating judicial behaviour,
taking corrective action, and, if necessary, disciplining errant judges up to and
including removal.

Unless and until a reasonable, internal, fair, expeditious, and effective in-house
regulatory regime is established, allegations against judges will continue to
rise.

The independence of the judiciary is an important concept because it is a

fundamental principle of the constitution, but it must be understood that it is
not an end in itself, but only a means to an end. The goal is to ensure that
justice is delivered in a timely, efficient, and impartial manner. The main goal
of this principle is for people to receive justice regardless of their
socioeconomic status. This principle is required to instil public trust in the
Justice Delivery System Confidence is extremely important. Not because there
is a police force and lawyers to take you to court, but because our society is

62
usually peaceful. People respect the courts and the laws that they apply. People
may disregard the law in general if they lose faith in the courts and believe they
will not receive a fair hearing.

As a result, any new step toward reforming the Judicial System should aim to
strike the best possible balance between judicial independence and judicial
accountability.

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 SUGGESTIONS

1. Fixing the limits of the judiciary:

While it is true that the judiciary is the guardian of the
constitution, Judicial Activism is increasingly turning into
Overreach, necessitating the need to rein in the judiciary's actions.
The judiciary has been tasked with interpreting legislation enacted
by the legislature. The judiciary is entering the legislative domain
and developing policies that should be controlled. For example,
consider the Supreme Court's decision on the prohibition of liquor
stores within 500 metres of a highway.

Court Fees and the Statute of Limitations should be changed:

Democracy also includes the right to equality and justice, but

paying court fees is a significant barrier. The majority of the time,
poor litigants do not receive justice because they do not pay court
fees.

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 The law of limitation prescribes a time limit for approaching court
from the beginning of the cause of action. However, this law has
many gaps, as the provision of Condonation of Delay applies only
to appeals and not to the original Civil Suit. Because lay litigants
are unaware of the statute of limitations, they are unable to obtain
justice. As a result, both of these laws must be revised.

2. Politics and the judiciary must be kept strictly separate.

It is extremely concerning if the general public believes that the
Supreme Court judges are influenced by any political party. This
undermines the public's faith in the judiciary.
3. Politics and the judiciary must be kept strictly separate.
It is extremely concerning if the general public believes that the
Supreme Court judges are influenced by any political party. This
undermines the public's faith in the judiciary.
4. Transparency in Judge Appointment
To protect democracy, the process of appointing judges should be
made crystal clear.
Efforts should be made to make Justice available at ground
level
REGARDLESS OF JUDICIAL ACTIVISM, PUBLIC INTEREST LITIGATION, OR
REMEDIES, UNDER ARTICLES 226 AND 32 OF THE INDIAN
CONSTITUTION, JUSTICE HAS YET TO REACH THE COUNTRY'S MOST

REMOTE AREAS. IN MOST CASES, POOR PEOPLE ARE UNABLE TO

APPROACH HIGH COURTS OR THE SUPREME COURT FOR VIOLATIONS OF

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 FUNDAMENTAL RIGHTS. A FORUM AT GROUND LEVEL SHOULD BE

ESTABLISHED WHERE LITIGANTS CAN APPROACH FREELY WITHOUT THE

ASSISTANCE OF ATTORNEYS. GRAM NYAYLAY IS ONE EXAMPLE, BUT IT

IS NOT VERY EFFECTIVE.

BIBLIOGRAPHY

BOOKS:

1. Political theory and orgaqnisation by L.S. Rathore and S.A.H SAQQI by

EBC.

2. Prof. Jain, M .P. INDIAN CONSTITUTIONAL LAW, 5th Edn. 2006, Wadhwa
Nagpur.
3. Datar, P. Arvind, COMMENTARY ON THE CONSTITUTION OF INDIA, 2nd Edn,
2007, Vol. 1, Wadhwa Nagpur.
4. Mahendra P. Singh, V.N. SHUKLA’S CONSTITUTION OF INDIA, 11th Edn.,
2008, Eastern Book Co. ,Lucknow
5. Bakshi, P.M., THE CONSTITUTION OF INDIA, 5th Edn. 2002, Universal Law
Publishing Co. Pvt. Ltd.
6. Dr. Singhvi, L.M., CONSTITUTION OF INDIA, 2nd Edn. 2006, Vol. 1, Modern
Law Publication.

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7. De, J.D, THE CONSTITUTION OF INDIA, Vol. 1, Asia Law House.

ONLINE DATABASE:

www.legalservicesindia.com
www.indiankanoon.com
www.manupaptra.com
www.scconline.com
www.lawctopus.com
MANUALS:

1. Singh, Jaswant, Arora, Deepak, Dogra, R.S., The Civil Court Manual
(Central Acts). 12thEdn. 2002, Vol. 10, Madras Law Journal Office,
Madras.
2. Manohar, V.R., Chitaley, W.W., The AIR Manual Civil and Criminal,
5thEdn. 1989, All India Reporter Limited, Nagpur.
DICTIONARIES:-

∑ Garner, Bryan A.; Black’s Law Dictionary; 7th Edn.; West Group, St.
Paul Minn. 1999.
∑ Hornby, A.S.; Oxford Advanced Learner’s Dictionary, 6th Edn.
Oxford University Press, 2000.
∑ Bakshi’s THE LAW LEXICON 1ST Volumes 2005 Ashoka Law House
New Delhi (India)

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