The doctrine of Separation of powers is a part of the basic structure of the Indian Constitution. The three organs of the Government- Legislature, Executive and Judiciary impose checks and balances on each other. They work in a manner in which no organ of the state becomes too powerful. We elect the Legislature and in turn, Executive is elected. But we play no part in the election of the Supreme Court, High Court and the Other Lower Courts judges.

As they are unelected, they are exposed to extreme criticism by the elected, media and the people. We may not like one or two actions of the Judiciary but we cannot declare it as a tyranny of the unelected and ignore the fact that they are the body who keeps an eye on the elected representatives and their ill acts or legislations. This article will prove that judiciary as the unelected does not influence the other elected bodies and it only carries it work. It will briefly discuss how judicial independence is affected throughout the years and will highlight its role in contemporary India.

Executive- Judicial Conflict (1975 – 2019)

Three important era’s which affected the functions and the independence of the judiciary in an exorbitant way:

The Gandhi Era (1966-77 And 1980-81)

During the emergency period, the Judiciary has suffered enormous agony, it yielded in substance to the autocratic rule of Mrs Gandhi and in the process lost its institutional prestige and cohesiveness. After the Keshavananda judgement, the government passed several amendments limiting the basic structure of the constitution but it was later removed by the court. The power of judicial review exercised by the judiciary for an emergency was restricted by the government and made laws beyond the pale of judicial review.

The appointment of judges was controlled by the Government. For instance, Justice Beg was appointed as the Chief Justice of India in preference to Justice Khanna as he had refused to toe the Government line in the Habeas Corpus case. The return of the Gandhi in 1980 revived the anti-judiciary hysteria. The courts were involved in internal feuds rather than preserving judicial integrity.

Post Gandhi Era (1985- 2014)

In these years the Judiciary developed in three main categories:

1. Evolution of Human rights Jurisprudence
2. Public Interest Litigation
3. Rule of Law

Article 14, 19 and 21 were broadly interpreted by the Judiciary. Right to life was interpreted by the courts to include a wide range of rights such as clean air, speedy trial and free legal aid. PIL is one the pioneers of the Supreme Court by throwing upon the portals of the courts to the common man. Major decisions through this time which revealed the illegal acts of the elected were Dissolutions of Bihar Assembly unwarranted, the Jain Hawala case which exposed some politicians, the Right to Reject candidates formalised, 2G licences cancellation cases and coal scam cases. This led the Supreme Court to play an unprecedented role in the governance of the nation, restored the judicial independence and judicial activism.

Modi Years (2014-19)

During the last two decades since 1990, Supreme Court earned the epithet of “most powerful court in the world”. The Judiciary in these years started to lose its independence and to some extent became vulnerable to the Executive, which grew mighty in strength.

The Government to affect the primacy of the Judicial Appointments by the Judiciary brought the National Judicial Appointments Commission by amending the Constitution. The court struck the amendment. This brought rage in the Government, they delayed the appointment of judges and transfers which led to the vacancies in the High Court. Major judges were also transferred which had worsened the situation.

The two controversial cases with high political stakes- Sahara-Birla papers case and Loya case were questionable as the court questioned the admissibility of the documents and dismiss the petition seeking independent probe respectively. In Rafael case, instead of using judicial review to order a probe into the corruption, they declared the papers to be proper. Supreme court declared the Aadhar Judgement as not illegal in introducing Aadhar bill as a very shocking money bill.

These proved the executive interference in administrative powers of the Judiciary in the appointment and constitution of benches. They impacted upon the independence of the Judiciary and also the controversies of impeachment of Justice Dipak Mishra, Master of roster issue degraded the value of Judiciary in the eyes of the public.
But apart from the constitutional cases where there is political influence, Judiciary did great when it came to preserving the Human Rights of the people like Sabrimala case, article 370, Homosexuality case.

Criticism Faced By The Judiciary

As many cases came down the line which was the result of the tyranny of the elected, Judiciary was criticised by the people in the large number.

Tyranny Of The Unelected

As Judiciary already faced the political influence during the Gandhi period, Supreme Court struck down the 99th Amendment Act which brought NJAC into place to maintain the independence of the judiciary and to save it from the political influence. But it was being criticized by the Government and Arun Jaitley in one of his articles mentioned Judiciary as “Tyranny of the Unelected” and said unelected people cannot rule upon democracy. In real it only saved Judiciary from the hands of elected.

Media Trials

Media trial is one of the draconian activities undertaken by the media. They pre-decide the case and publish the final results which affect the mindset of the judges in some or the other way. But while entering the court, they manage to sideline the conclusions made by the media. After the ruling is out, if it is in favour of the media trial it is appreciated but if it is against it, it is criticised widely.

Criticism comes under the Freedom of the Speech and it is right to give your contrasting opinions on the judgment but during recent years, the integrity of the judges is also being questioned which is destroying the image of judges and the Judiciary in the minds of the common people. Lack of trust by the people on Judiciary is increasing.

Judiciary is not only facing criticism from the media, elected representatives and people but also from retired judges who are shaking the very roots of it. It is not that they are ruling over, it is because they are performing its functions to the full and is becoming subservient to the government. On one side where criticism is increasing lack of trust by the people, the other side can be looked in a positive way where Judges can learn from it and try to restore its powers and independence.

Judiciary Playing An Important Role In Corona Time Frame

Many petitions under PIL regarding the functioning of the Government were taken up by the Court. Supreme Court played the most important role in the Migrant Crisis.

• It questioned the centre and the states on the plight of stranded migrant workers and asked for the accountability.
• It asked the Government to send all the migrant workers as soon as it is possible and gave 15 days.
• The exorbitant rates charged by the hospitals was also questioned by the court. As a result, the prices were made low in some of the states.
• It also ordered the Government to remove the charges filed against the migrant workers.
• Supreme Court insisted the CBSE and ICSE boards cancel their exams for the safety of the students.

Harish Salve in one of his articles praised the court in entertaining the PIL in this time frame of the corona. This implies that judiciary is not over-exercising its powers rather preserving the rights of the people and limiting the over-arching power exercised by the Government.

Conclusion
In the name of Judicial Independence, Activism and Review, the Judiciary did not cross its limits rather throughout the years, it went through many ups and downs where the powers of the judiciary were limited by the executive and tried to take away the judicial independence which they formed to protect the Doctrine of Separation of Powers. In most of its functioning years, Judiciary has become the prey to the tyranny of the elected rather being the tyranny of the unelected.

It protected the human rights of the people, limited the powers by legislature and executive and expanded the view of PIL to listen to the common people. People have to understand that Judiciary is only the body which will control the wrongs of other organs of the state. Rather than ruling and destroying democracy, Judiciary itself is in the danger and is running under the mighty.

Written By: Ms.Sanchita Namdev

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