Unit 2 – Separation of Power: Stress and Strain

Judicial Activism and Judicial Restraint

Introduction
The constitution of India is the Grund norm of the state and governs its proper
functioning through the three major pillars i.e. Legislature, Executive and
Judiciary. The judiciary plays an important role in upholding and promoting the
rights of citizens in a country. In the realm of constitutional law and judicial
decision-making, the terms judicial activism and judicial restraint are often used
to describe two contrasting approaches that judges may take when interpreting the
law. These two philosophies have sparked significant debate about the role of the
judiciary in a democratic society. Both concepts influence how courts exercise their
power and impact legal and political systems, especially when deciding on issues
involving the Constitution, civil rights, and government policy.
Judicial Activism
Judicial activism signifies the proactive role of the Judiciary in protecting the
rights of citizens. Judicial activism refers to a judicial philosophy in which
judges interpret the Constitution and laws in a flexible and expansive way, often
striking down legislative or executive actions that they believe conflict with
fundamental rights or principles of justice. Activist judges are often willing to
shape public policy through their rulings, even if the issues at hand were not
clearly addressed by legislators or previous legal precedents.
The practice of Judicial Activism first originated and developed in the USA. The
term judicial activism was coined by historian Arthur Schlesinger, Jr. in 1947.
The foundation of Judicial Activism in India was laid down by Justice V.R Krishna
Iyer, Justice P.N Bhagwati, Justice O.Chinnappa Reddy, and Justice D.A Desai.
The Indian Constitution does not mention the words judicial activism anywhere.
However, it has become an integral part of judicial interpretation. The concept of
judicial activism has expanded with the incoming and liberalization of locus
standi, judicial review, amendments and the advent of Public Interest Litigation
(PIL), also known as Social Action Litigation (SAL).
In India, the Supreme Court and the High courts are vested with the power to
examine the constitutionality of any law, and if such a law is found to be
inconsistent with the provisions of the constitution, the court can declare the law as
unconstitutional.
Judicial activism can be seen as a tool to correct societal wrongs and promote
justice, especially when the legislature is perceived as failing to act in the face of
injustice. In this regard, the judiciary becomes an engine of social change.
Prominent examples of judicial activism include landmark Supreme Court cases
such as :
1. Kesavananda Bharati vs State of Kerala, the Apex Court held that the
amendments nvolving the basic features of the Constitution such as
democracy, rule of law, the federal system, secularism and independence of
the judiciary shall be held unconstitutional. This gave rise to the doctrine of
the basic structure. Here, it is important to note that the doctrine of basic
structure is not mentioned in the text of the Constitution but is established by
 the court. This is the best example of judicial activism in the Indian scenario
as the court evaluated the misuse of policies promulgated by the organs of
the government. Justice Bhagwati has also stated that judicial activism is
the central feature of every political system which empowers the free and
independent judiciary with adjudicatory powers.
2. Brown v. Board of Education (1954), which ruled that racial segregation in
public schools was unconstitutional, and
3. Roe v. Wade (1973), which legalized abortion nationwide by interpreting the
right to privacy as being implied by the Constitution.
4. Similarly, Vishaka vs State of Rajasthan (1997) is an important case that
reminds the need of Judicial activism. Here, the SC laid down guidelines
that ought to be followed in all workplaces to ensure proper treatment of
women. It further stated that these guidelines should be treated as a law until
Parliament makes a legislation for enforcement of gender equality.
5. Sheela Barse v. State of Maharashtra (1983): A letter by Journalist,
addressed to the Supreme Court addressing the custodial violence of women
prisoners in Jail. The court treated that letter as a writ petition and took
cognizance of that matter.
6. Hussainara Khatoon (I) v. State of Bihar (1979): The inhuman and
barbaric conditions of the undertrial prisoners reflected through the articles
published in the newspaper. Under article 21 of the Indian Constitution, the
apex court accepted it and held that the right to speedy trial is a fundamental
right.
7. A.K. Gopalan v. State of Madras (1950): The Indian Supreme Court
rejected the argument that to deprive a person of his life or liberty not only
the procedure prescribed by law for doing so must be followed but also that
such procedure must be fair, reasonable and just.
Proponents of judicial activism argue that the Constitution is a living document
that must evolve with the changing needs and values of society. Activist judges are
seen as defenders of individual rights and liberties, especially when the legislature
may be reluctant or slow to act on behalf of vulnerable groups.
However, critics argue that judicial activism undermines the democratic process
by allowing unelected judges to make decisions that should be left to elected
officials. This, they argue, can lead to overreach, where judges effectively create
laws instead of interpreting them, thereby bypassing the democratic process of
lawmaking.
Judicial Restraint: A Conservative Approach
Judicial Restraint is the antithesis of Judicial Activism. In contrast, judicial
restraint advocates for a more conservative, cautious role for the judiciary. Judges
who adhere to judicial restraint believe that their primary duty is to interpret the
law as it is written, rather than make new law. They argue that courts should
avoid stepping into the domain of the legislature, as lawmakers are directly
accountable to the public and are better suited to make policy decisions.
Judicial restraint is rooted in the principle of stare decisis, or respect for precedent,
which calls for courts to uphold previous rulings unless there is a compelling
reason to overturn them. The belief is that the judiciary should refrain from
overturning legislation unless it is clearly unconstitutional. The idea is to maintain
stability in the law and avoid unnecessary judicial interference in the political
process.
Judicial restraint helps in preserving a balance among the three branches of
government, judiciary, executive, and legislative.
Thus Judges should always try to decide cases on the basis of:
1. The original intent of those who wrote the constitution.
2. Precedent – past decisions in earlier cases.
3. Also, the court should leave policy making to others.

Trends in Judicial Restraint:

1. S.R. Bommai v Union of India (1994) is a famous example often

stated to show restraint practiced by Judiciary. The judgement stated
that in certain cases the judicial review is not possible as the matter is
political. According to the court, the power of article 356 was a
political question, thus refusing judicial review. The court stated that if
norms of judiciary are applied on matters of politics, then it would be
entering the political domain and the court shall avoid it.

2. Similarly, in Almitra H. Patel Vs. Union of India (1998) the Supreme

court refused to direct the Municipal Corporation on the issue of
assigning responsibility for cleanliness of Delhi and stated that it can
only assign authorities to carry out duty that is assigned as per law.

Supporters of judicial restraint contend that it preserves the separation of powers,

ensuring that the judiciary does not usurp the legislative function. They argue that
the role of judges is not to create policy or reform social structures but to apply the
law in a neutral and impartial manner. This approach is seen as protecting the
democratic principle that elected representatives should make the laws, not the
courts.
However, critics of judicial restraint argue that it can allow injustices to persist,
especially when lawmakers are unwilling to address pressing issues. In this view,
judges should not be passive in the face of inequality or violation of fundamental
rights but should take an active role in shaping the law to meet contemporary
needs.
The Balance Between Judicial Activism and Judicial Restraint
In reality, the debate between judicial activism and judicial restraint is not always
clear-cut. Many judges incorporate elements of both philosophies depending on the
case before them. Some might be more activist when dealing with cases involving
civil rights or liberties, but more restrained when interpreting statutory laws. The
lines between activism and restraint are often blurred, and what is seen as activism
by some may be seen as restraint by others, particularly when considering the
social and political context in which decisions are made.
The tension between these two approaches is a central feature of judicial decision-
making. Courts must balance their duty to interpret the law in a way that is
consistent with the Constitution while also respecting the democratic processes that
produce laws. This balance is particularly important in constitutional cases where
the stakes are high, and the consequences of a decision can affect millions of
people.
Conclusion
Both judicial activism and judicial restraint reflect fundamental values and
priorities in the interpretation of law. Judicial activism emphasizes the protection
and expansion of individual rights, while judicial restraint focuses on preserving
the legislative process and limiting judicial power. In practice, judges often find
themselves navigating between these two approaches, sometimes embracing one
over the other, depending on the circumstances and the issues at hand.
The ongoing debate surrounding judicial activism and restraint underscores the
complex role of the judiciary in shaping society. It raises important questions about
the balance between democratic governance and the protection of individual rights,
a balance that judges, lawmakers, and citizens alike must continually strive to
maintain. Ultimately, the tension between activism and restraint helps define the
evolving nature of the rule of law in modern society
 Unit 2 – Separation of Power: Stress and Strain
Public Interest Litigation (PIL) Implementation
Introduction
Public Interest Litigation (PIL) is a powerful legal tool that has been instrumental
in broadening the scope of justice in many countries, particularly in India. It
enables individuals or groups, including NGOs, to file a petition in court on behalf
of the public interest or to address matters that affect a large number of people,
especially vulnerable or marginalized communities. PIL has transformed the
traditional legal system by allowing courts to intervene in areas that were
traditionally outside their scope, such as environmental protection, human rights,
and government accountability.
The Origin and Purpose of PIL
PIL originated as a means to make justice accessible to people who might
otherwise be unable to approach the courts due to financial constraints, illiteracy,
or lack of legal awareness. It allows the judiciary to intervene in cases that concern
the public at large, even if the petitioner is not directly affected by the issue at
hand.
The expression ‘Public Interest Litigation’ has been borrowed from American
jurisprudence, where it was designed to provide legal representation to previously
unrepresented groups like the poor, racial minorities, unorganized consumers,
citizens who were passionate about environmental issues, etc.
PIL is not defined in any statute or in any act. It has been interpreted by judges to
consider the intent of the public at large. It is the power given to the public by
courts through judicial activism.
Some of the matters which are entertained under Public Interest Litigation are
Neglected Children, Bonded Labour matters, Atrocities on Women, Non-payment
of minimum wages to workers, exploitation of casual workers, food
adulteration, Environmental pollution, and disturbance of ecological balance,
Maintenance of heritage and culture, etc.
In India, PIL was formally introduced in the 1980s, largely through the efforts
of the Supreme Court.
Hussainara Khatoon vs. State of Bihar case(1979): It was the first reported
instance of PIL, which brought attention to the inhuman conditions of prisoners
and under-trial prisoners. This case established the right to speedy justice as a basic
fundamental right.
The landmark case of Bandhua Mukti Morcha v. Union of India (1984) marked a
turning point in the evolution of PIL, wherein the court allowed a petition filed by
an NGO on behalf of bonded laborers, even though the petitioners had no direct
connection to the laborers. This decision demonstrated that PIL could serve as an
effective tool for protecting human rights and addressing systemic injustices.
The core purpose of PIL is to provide access to justice to the disadvantaged and
marginalized sections of society. By allowing social activists, organizations, and
even public-spirited citizens to approach the court on behalf of those whose rights
are being violated, PIL aims to promote social justice and remedy grievances that
might otherwise remain unaddressed.
Key Areas of PIL Implementation
PIL has been instrumental in addressing a wide range of issues that impact public
welfare and the fundamental rights of citizens. Some notable areas where PIL has
been successfully implemented include:
1. Environmental Protection
PIL has played a critical role in shaping environmental law and policy in
many countries. In India, for example, the Supreme Court has taken a
proactive role in addressing environmental degradation, pollution, and the
conservation of natural resources. Key PIL cases, such as M.C. Mehta v.
Union of India (1987), have resulted in landmark judgments on issues like
air and water pollution, industrial hazards, and deforestation.
2. Human Rights and Social Justice

PIL has proven effective in safeguarding the rights of vulnerable

populations, including women, children, scheduled castes, and indigenous
communities. For instance, PILs have been filed to address issues such as
child labor, bonded labor, sexual harassment, and the rights of the homeless.
One such case, Vishakha v. State of Rajasthan (1997), resulted in the
establishment of guidelines for the prevention of sexual harassment in the
workplace.
3. Government Accountability and Transparency

PIL serves as a mechanism for holding public authorities accountable. Cases

related to corruption, misuse of public office, and the violation of public
trust have been brought before the courts through PIL. For instance, PIL
petitions have been filed to challenge illegal mining, the mismanagement of
government funds, and inefficient public administration.
4. Access to Basic Services

PIL has also been used to ensure that basic services like education,
healthcare, and sanitation are provided to all citizens, particularly the
marginalized. The Supreme Court of India has passed several orders through
PIL to improve public health standards and ensure the right to education.
Parmanand Katara vs. Union of India: This case was filed to facilitate
hospitals to handle emergency accident cases without concern for pending
police investigations. The judgment made it obligatory for a hospital or
 doctor, public and private, to provide immediate medical aid to a road
accident victim.
5. Rights of Prisoners

PILs have been used to address the conditions in prisons, highlighting issues
like overcrowding, lack of healthcare, and human rights violations. For
example, the Hussainara Khatoon v. State of Bihar (1979) case led to the
release of prisoners who had been held in jail for long periods without trial.
Impact of PIL on Access to Justice
1. Expanding Judicial Reach

One of the most significant impacts of PIL is its ability to bring issues before
the judiciary that may have otherwise gone unnoticed. It helps shift the focus
of legal attention to areas that have widespread social relevance, promoting
an inclusive justice system.
2. Judicial Activism

PIL has empowered courts to play an active role in shaping public policy.
Through PIL, the judiciary has often stepped in to address issues that require
urgent attention or that fall outside the typical purview of legislative action.
While this has led to important reforms, it has also prompted debates about
judicial overreach.
3. Raising Public Awareness

PIL has led to greater public awareness of legal rights, particularly among
marginalized communities. It has encouraged people to approach the
judiciary for the enforcement of their rights, rather than relying solely on
executive or legislative bodies.
4. Catalyst for Legislative Change

PIL can act as a catalyst for legislative reform. Judicial pronouncements in

PIL cases often lead to new laws or amendments to existing laws aimed at
addressing the root causes of social problems. For example, PILs related to
child labor contributed to the enactment of the Child Labour (Prohibition
and Regulation) Act, 1986 in India.
Challenges in PIL Implementation
Despite its positive impact, PIL faces several challenges in implementation:
1. Abuse of PIL

One of the major concerns surrounding PIL is its misuse by individuals or

organizations with vested interests. Some petitioners file PILs to further
personal or political agendas, which can undermine the credibility of the
 system. Courts have occasionally dismissed PILs for being frivolous or
lacking a genuine public interest.
2. Overburdening the Judiciary

The growing number of PIL cases can overburden the judicial system,
leading to delays in hearing cases and passing judgments. Many PIL
petitions are filed without adequate preparation, contributing to an
inefficient judicial process.
3. Lack of Accountability for Petitioners

There is often no clear mechanism to hold petitioners accountable for filing

unsubstantiated or misleading PILs. This can waste valuable judicial time
and resources, especially if the case is eventually dismissed.
4. Limited Enforcement of Orders

While PILs may lead to landmark rulings, the implementation and

enforcement of these orders can sometimes be slow or inadequate. Without
effective monitoring mechanisms, many rulings may not translate into actual
changes on the ground.
Procedure to File PIL in India
Any Indian citizen or organisation can move the court for a public interest/cause by
filing a petition:
1. In the SC under Article 32
2. In the High Courts under Article 226
The court can treat a letter as a writ petition and take action on it. The court has to
be satisfied that the writ petition complies with the following: the letter is
addressed by the aggrieved person or a public-spirited individual or a social action
group for the enforcement of legal or constitutional rights to any person who, upon
poverty or disability, are not able to approach the court for redress. The court can
also take action based on newspaper reports if it is satisfied with the case.
Conclusion
Public Interest Litigation has proven to be a transformative tool in ensuring justice
for those who might otherwise be excluded from the legal system. By enabling the
judiciary to address matters of social importance, PIL has contributed to significant
advances in areas such as human rights, environmental protection, and government
accountability.
However, to realize the full potential of PIL, reforms are needed to address
concerns such as misuse, judicial overburden, and effective enforcement. With the
right safeguards in place, PIL can continue to serve as a vital instrument in
promoting justice and social equity for all.
 Unit 2 – Separation of Power: Stress and Strain
Judicial Independence
Introduction
Independence of judiciary doesn't mean always delivering verdicts against
govt: CJI Chandrachud
India works under a democratic setup and functions in accord to the principals laid
down in the constitution of India. Judicial independence is one of the cornerstone
principles of a democracy, ensuring that the judiciary remains free from undue
influence and interference by the executive and legislature. The separation of
powers among the branches ensures that each operates independently within its
sphere of authority.
In India, judicial independence is vital for the protection of constitutional rights,
the safeguarding of democracy, and the proper functioning of the rule of law. Over
the years, India’s judiciary has evolved to become one of the most respected and
independent judicial systems in the world, but challenges to its autonomy remain a
persistent issue.
The Concept of Judicial Independence
Judicial independence means that judges must be able to make decisions based
on the law, facts, and their conscience, without external pressures or political
influence. This independence allows the judiciary to act as a check on the other
branches of government, ensuring that laws passed by the legislature or executive
actions do not violate constitutional principles or citizens’ rights.
In India, judicial independence is seen as crucial for upholding the Constitution,
protecting the rights of citizens, and maintaining public trust in the legal system.
The judiciary in India, especially the Supreme Court, has played a significant role
in shaping the country’s laws, policies, and social fabric. Whether it is interpreting
fundamental rights, directing policies, or ensuring accountability of the executive,
the independence of the judiciary is fundamental to its ability to carry out these
roles effectively.
Constitutional Provisions for Judicial Independence
The Indian Constitution lays down several provisions to safeguard the
independence of the judiciary, ensuring that judges can function without external
pressure:
 1. Appointment of Judges
Articles 124-147 of the Indian Constitution outline the process for
appointing judges to the higher judiciary, including the Supreme Court and
High Courts. Judges are appointed by the President of India, but the process
includes recommendations from a collegium of senior judges, which helps
prevent political interference. This process, while not without controversy,
aims to maintain the integrity of judicial appointments and ensure that
judges are selected based on merit and experience.
2. Security of Tenure
One of the key pillars of judicial independence is the security of tenure for
judges. According to Article 124(4) of the Indian Constitution, judges of the
Supreme Court can only be removed from office by a special procedure that
requires a two-thirds majority in both Houses of Parliament. This provision
makes it difficult for the executive or legislature to remove judges arbitrarily,
thereby ensuring that judges are free to pass judgments without fear of
political repercussions.
3. Fixed Salaries and Perquisites
The Constitution guarantees that judges' salaries and allowances will not be
reduced during their tenure (Article 125). This provision helps prevent the
executive from using financial incentives or punishments to influence
judicial decisions. Judges are entitled to pensions after retirement, which
further protects their financial independence and secures their post-office
life.
4. Power to Regulate Its Own Affairs
The judiciary in India has the power to regulate its own functioning,
including the power to frame rules, decide on the transfer of judges, and take
disciplinary actions against erring judges. This internal autonomy ensures
that the judiciary is self-governed, maintaining its independence from the
executive and legislature.
5. Judicial Review
The judiciary in India has the power of judicial review, which allows courts
to examine and invalidate laws and actions that are inconsistent with the
Constitution. This power, exercised by the Supreme Court, has been
essential in upholding the rights of citizens and checking the excesses of the
legislature and executive.
The Role of the Supreme Court in Upholding Judicial Independence
The Supreme Court of India has been a key player in preserving and enhancing
judicial independence. Over the years, it has taken several steps to ensure its
autonomy and to assert its role as the ultimate interpreter of the Constitution. Some
significant milestones include:
1. The Kesavananda Bharati Case (1973)
In the landmark case of Kesavananda Bharati v. State of Kerala, the
Supreme Court held that the basic structure of the Constitution, which
includes judicial independence, cannot be altered by Parliament. This
judgment reaffirmed that the judiciary’s independence is an integral part of
India’s constitutional framework.
 2. S P Gupta v Union of India (Judges Transfer Case 1)
It was unanimously agreed with the meaning of the word 'consultation' as
determined in the Union of India vSankal chand Himatlal Sheth. It further
held that the only ground on which the decision of the government can be
challenged is that it is based on mala fide and irrelevant considerations. In
doing so, it substantially reduced its own power in appointing the judges and
gave control to the executive.
3. SC Advocates on Record Association v Union of India16 (Judges
Transfer Case 2).
In this case, the SC overruled the decision given in S.P. Gupta v Union of
India and held that in the matter of appointment of judges of High Courts
and Supreme Court, the Chief Justice should have the primacy and the
appointment of the CJ should be based on seniority. It further held that the
Chief Justice must consult his two senior most judges and the
recommendation must be made only if there is a consensus among them.
4. The Judges' Transfer Case (1998)
 The Judges' Transfer Case (also known as the Third Judges Case) clarified
that the power to appoint judges to the Supreme Court and High Courts
rests with the collegium of senior judges, not the executive. This decision
strengthened the judiciary’s independence in the appointment process,
although it remains a subject of debate and criticism. The decision of the
Second Judges Case and the Third Judges Case is a praiseworthy step by the
Court in this regard. The Third Judges case also resulted in forming
the Memorandum of Procedure (MoP) of Appointment of the Supreme
Court Judge.
What is the Memorandum of Procedure (MoP)?
 Memorandum of Procedure (MoP) is an agreement between the Government
and the judiciary that has a set of guidelines for the appointment of judges of
supreme court/
 The MoP was formulated after the Third Judges Case in order to govern the
process of how the Collegium System would make recommendations to the
executive
5. The Public Interest Litigation (PIL) Revolution
The expansion of PIL in India has also been a testament to the judicial
independence of the Supreme Court. Through PIL, the Court has been able
to address societal issues, enforce rights, and question the government’s
policies on a range of topics, from environmental protection to the rights of
the marginalized. This approach reflects the Court’s role as an active player
in shaping the nation’s development, free from external influences.
6. National Judicial Appointments Commission (NJAC)
It was an attempt to replace the Collegium System. It prescribed the
procedure to be followed by the Commission to appoint judges. NJAC was
established by the 99th Constitutional Amendment Act, 2014. But the
NJAC Act was termed unconstitutional and was struck down, citing it
as having affected the independence of the judiciary
The Current system of appointment of Hon’ble Supreme Court judges
In judicial appointments, it is obligatory for the President to take into account the
opinion of the CJI. The opinion of the CJI is binding on the Government. The
opinion of the CJI must be formed after due consultation with a collegium of at
least four senior-most judges of the Hon’ble Supreme Court. Even if two judges
give an adverse opinion, then he should not send the recommendation to the
Government
Challenges to Judicial Independence
Despite the strong constitutional safeguards, judicial independence in India faces
several challenges, including:
1. Political Pressure and Executive Interference
One of the most common criticisms of judicial independence in India is the
perception of political influence, particularly in the appointment of judges.
The executive's role in the appointment process, despite the collegium
system, has led to accusations of favoritism and partisanship. There have
been instances where the executive has withheld the appointment of judges
recommended by the collegium, raising concerns about potential political
interference.
2. Judicial Overreach and Public Perception
Another challenge to judicial independence is the debate around judicial
overreach. Some critics argue that the judiciary, especially the Supreme
Court, has occasionally exceeded its mandate by intervening in matters
traditionally under the purview of the executive or legislature. While the
judiciary’s active role in public affairs is generally seen as a safeguard for
justice, there are instances when its decisions have been seen as
overstepping its boundaries, leading to tensions with the other branches of
government.
3. Underfunding and Infrastructure Issues
The judiciary’s ability to function independently is also affected by resource
constraints. Courts in India are overburdened with cases, leading to delays in
delivering justice. The lack of adequate infrastructure, insufficient staff, and
underfunding of the judicial system hinder the judiciary’s capacity to uphold
the rule of law effectively. This undermines the efficiency and independence
of the judicial system.
4. Accountability and Transparency
The absence of a formal mechanism for holding judges accountable for
misconduct, coupled with a lack of transparency in the judicial process,
raises concerns about accountability. Calls for judicial reforms, such as the
establishment of a Judicial Accountability Commission, have been made to
ensure that judges remain accountable while preserving their independence.
Conclusion
Judicial independence in India is a fundamental principle that supports the
country’s democracy, protects individual rights, and ensures the rule of law. The
Constitution provides robust provisions to safeguard judicial autonomy, and the
Supreme Court has played a pivotal role in strengthening this independence.
However, challenges such as political interference, delays in justice, and lack of
accountability mechanisms must be addressed to ensure that the judiciary
continues to function without undue pressure.
For the judiciary to effectively discharge its duties and uphold its independence,
reforms are necessary. These include improving the appointment process,
enhancing transparency, strengthening accountability, and ensuring sufficient
funding and infrastructure for the courts. Ultimately, judicial independence is vital
not only for safeguarding the Constitution but for maintaining the integrity and
trust of the Indian legal system.

Unit 2 – Separation of Power: Stress and Strain

Appointment, Transfer, and Removal of Judges in India
Judiciary has been referred to as ‘watching tower above all the big structures of the
other limbs of the state from which it keeps a watch like sentinel on the functions
of other limbs’. Being the cornerstone of the democracy, the presence of strong,
independent, accountable and efficient judiciary is of utmost importance in
achieving the Preambular objectives and constitutional goals.
India works on three tiers of the Judicial system: The Supreme Court, the High
Court and Subordinate Courts. In India, the process for the appointment, transfer,
and removal of judges, especially in the higher judiciary (Supreme Court and High
Courts), is governed by constitutional provisions, laws, and judicial precedents.
The Constitution of India has laid down a well-defined framework for the selection
and removal of judges, aimed at ensuring an independent judiciary and maintaining
the integrity of the judicial process.
1. Appointment of Judges
Supreme Court Judges:
 Constitutional Provisions: Article 124 of the Constitution of India deals
with the appointment of judges to the Supreme Court. The President of India
appoints judges, but this process is done in consultation with a collegium of
senior judges.
 Collegium System: Initially, under Article 124, the President is required to
consult the Chief Justice of India (CJI) and such other judges of the Supreme
Court and High Courts as the President deems necessary. However, in
practice, the appointment process has evolved into the "Collegium System,"
where the CJI and a group of senior Supreme Court judges (usually four or
five) recommend appointments to the President. This system came into
being through judicial interpretations, starting from the landmark cases of
S.P. Gupta v. Union of India (1981), Supreme Court Advocates-on-Record
Association v. Union of India (1993), and Fourth Judges Case (2015).
 Eligibility and Qualifications: As per Article 124, the person to be
appointed as a judge of the Supreme Court must have been a judge of a High
Court for at least five years or have been an advocate in a High Court for at
least ten years. Alternatively, they can be a distinguished jurist in the opinion
of the President.
High Court Judges:
 Constitutional Provisions: Article 217 of the Constitution deals with the
appointment of judges to the High Courts. Similar to the Supreme Court, the
President of India appoints High Court judges in consultation with the CJI,
the Governor of the state, and the Chief Justice of the respective High Court.
 Collegium System: The same collegium system applies at the level of the
High Courts. The recommendation for appointments is made by a collegium
of senior judges, including the CJI, the CJI of the respective High Court, and
other senior judges. The collegium's recommendations are forwarded to the
President for final approval. If the government disagrees with a
recommendation, the process can become complex and sometimes
contentious, leading to prolonged delays in judicial appointments.
2. Transfer of Judges
 Transfer of Supreme Court Judges: Under Article 222 of the Constitution,
judges of the High Court can be transferred to any other High Court in the
country. This transfer is carried out by the President in consultation with the
CJI. While the transfer of High Court judges has been more common,
transfers of Supreme Court judges are rare.
 Transfer of High Court Judges: The transfer of High Court judges is more
frequent and is similarly done by the President following the
recommendation of the collegium. The transfer process is seen as essential
to ensure judicial efficiency and to reduce the impact of local biases in the
administration of justice.
3. Removal of Judges
 Procedure for Removal: The removal of judges, both at the Supreme Court
and High Court levels, is a very serious and rare process. As per Articles
124(4) and 217(1) of the Constitution, a judge can only be removed through
impeachment. The impeachment process involves two stages:
1. Initiation: The process can be initiated by either House of Parliament
(Lok Sabha or Rajya Sabha) through a motion. The motion must be
supported by a minimum of 100 members in Lok Sabha or 50
members in Rajya Sabha.
2. Investigation: After the motion is introduced, it is referred to a
committee (usually a three-member committee consisting of the CJI
and two senior judges) to investigate the charges against the judge. If
the committee finds the charges substantiated, the motion is brought
before Parliament.
For impeachment to succeed, the motion must be passed by a two-thirds majority
in both Houses of Parliament. It is important to note that impeachment is a highly
difficult and rare process, as it requires political consensus and sufficient evidence
of misconduct, incapacity, or corruption.
 Grounds for Removal: A judge can be removed for "proved misbehavior"
or "incapacity." However, the Constitution does not explicitly define these
terms, and much of the interpretation comes from judicial precedents. For
 example, financial corruption, lack of judicial competence, or serious
misconduct may be grounds for impeachment.
Challenges and Criticisms
 Collegium System: While the collegium system has been widely recognized
for safeguarding judicial independence, it has faced criticism for lack of
transparency and accountability. Critics argue that it is a system of "insiders"
choosing insiders without adequate public scrutiny. There have been calls for
reforms to introduce a more transparent, participatory, and accountable
system.
 Judicial Delays in Appointments: Despite the Collegium's role in
recommending appointments, there are frequent delays in the appointment of
judges, especially to the High Courts, which can create a backlog in the
judicial system. The prolonged vacancies in judicial positions often lead to
delayed justice.
 Impeachment Process: The impeachment process for removing judges is
often criticized for being politically motivated or ineffective. The high
threshold for impeachment (two-thirds majority) makes it extremely difficult
to remove judges, even when serious charges are involved.
Recent Developments
In recent years, there have been several notable developments concerning the
appointment, transfer, and removal of judges. For instance:
 National Judicial Appointments Commission (NJAC): The government
attempted to reform the judicial appointment system by creating the NJAC
through the 99th Constitutional Amendment Act in 2014, which would have
provided a broader representation in the selection process, including
members from the executive. However, the Supreme Court struck down the
NJAC in the Fourth Judges Case (2015), asserting that it violated the basic
structure of the Constitution and undermined judicial independence.
 Reforms in Judicial Accountability: There have been calls for judicial
reforms to improve transparency in the appointment of judges and to address
the issue of judicial accountability. Proposals have been made for an
independent body to oversee the appointment process, to make it more
transparent, and to reduce the influence of the executive.
Conclusion
The appointment, transfer, and removal of judges in India are central to
maintaining the independence and integrity of the judiciary. While the system in
place ensures judicial independence, it also presents challenges that require
ongoing reforms. The judicial process must balance efficiency with fairness,
ensuring that judges are both competent and held accountable for their actions. The
future of judicial appointments in India will likely depend on reforms that improve
transparency and strengthen the independence of the judiciary while addressing the
concerns of the public and the legal community.
 Unit 2 – Separation of Power: Stress and Strain
Accountability of the Executive and Judiciary in India
Introduction
There are three wings of the Indian government – Legislature, Executive and
Judiciary. They perform three vital functions of making rules, application of rules
and adjudication of rules respectively. The main principle behind such division of
functions is “Separation of Powers” which brings accountability and keeps the
government restrained and thus our rights and liberties are safeguarded. The main
theme behind this is ‘Power corrupts man and absolute power corrupts
absolutely’.
Accountability is one of the cornerstones of any democracy, ensuring that the
government and its institutions function in a transparent, responsible, and effective
manner. In India, accountability of the executive and the judiciary is crucial for
maintaining the rule of law, ensuring justice, and upholding democratic values.
While both branches are meant to be independent, they must also be answerable
for their actions, decisions, and policies, which directly affect the lives of citizens.
Accountability of the Executive in India
The executive in India refers to the President, the Prime Minister, the Council of
Ministers, and the civil services. Their role is to implement and enforce laws,
formulate policies, and ensure the functioning of the government. While the
executive is accountable to the legislature (Parliament) and ultimately the people,
several mechanisms exist to ensure that executive power is exercised responsibly.
1. Accountability through Parliament
 Parliamentary Oversight: One of the primary mechanisms for holding the
executive accountable is through parliamentary oversight. The executive is
answerable to Parliament for its policies and decisions. The Lok Sabha
(House of the People) and Rajya Sabha (Council of States) have various
tools to ensure accountability, such as:
o Question Hour: A session where ministers must answer questions
posed by Members of Parliament (MPs) regarding their departments'
activities.
o Debates and Discussions: MPs can debate policies, ask for
clarifications, and hold ministers accountable for their actions.
 o Committees: Parliamentary committees, such as the Public Accounts
Committee (PAC), can scrutinize government actions, particularly
financial spending, and recommend reforms or corrective actions.
 No-Confidence Motion: If the Lok Sabha loses confidence in the
government, it can pass a no-confidence motion, compelling the executive to
resign. This ensures that the executive remains accountable to the
legislature.
2. Accountability to the Judiciary
 Judicial Review: The judiciary acts as a check on executive power by
exercising judicial review. It has the authority to examine the
constitutionality of executive actions, executive orders, and laws passed by
Parliament. If the judiciary finds any executive action to be unconstitutional
or infringing upon fundamental rights, it can strike it down.
 Public Interest Litigation (PIL): This tool allows citizens or groups to
approach the judiciary directly to challenge actions or policies of the
executive that affect public interest, ensuring that the government remains
accountable to the people.
3. Accountability through the Media and Civil Society
 Media Scrutiny: A free press plays a critical role in holding the executive
accountable by exposing corruption, inefficiency, and abuse of power.
Investigative journalism and media reports help the public stay informed
about the actions of government officials, policies, and practices.
 Civil Society and NGOs: Civil society organizations and non-governmental
organizations (NGOs) play a vital role in advocating for transparency,
monitoring the government’s performance, and raising public awareness.
They often bring issues of public concern to light and pressure the
government to act responsibly.
4. Accountability through Elections
 Elections and Voting: In a democracy, the ultimate check on the executive’s
power is the electoral process. The executive, especially the political
leadership, is held accountable to the electorate during elections. If the
electorate is dissatisfied with the government's performance, they can vote it
out of office.
Challenges in Executive Accountability
 Lack of Transparency: While mechanisms such as parliamentary debates
and committees exist, the executive sometimes withholds crucial
information from the public, especially in matters related to national security
or corruption investigations. This lack of transparency can weaken the
accountability process.
 Politicization of Institutions: The executive often exerts significant
influence over other institutions like the police, bureaucracy, and regulatory
bodies. This can undermine their ability to independently scrutinize the
executive’s actions.
  Delay in Action: Bureaucratic inefficiency and delay in decision-making
can sometimes prevent swift accountability in the executive branch.
Accountability of the Judiciary in India
The judiciary in India, comprising the Supreme Court and the High Courts, is
tasked with interpreting the Constitution, safeguarding fundamental rights, and
ensuring that justice is served. While the judiciary is designed to be independent
and free from political influence, it too must be held accountable for its actions to
maintain public trust and confidence in the legal system.
1. Judicial Accountability through Judicial Review
 Constitutional Review: The judiciary holds the power to review and strike
down laws or executive actions that are deemed unconstitutional. This power
ensures that both the executive and the legislature are held accountable for
their actions and that they do not infringe upon the rights of citizens.
 Judicial Precedents: Courts rely on established legal principles and
precedents, ensuring consistency in legal reasoning and holding the judiciary
accountable to past decisions and established law.
2. Accountability to Parliament
 Impeachment: Judges, including the Chief Justice of India, can only be
removed from office through impeachment by Parliament for proven
misbehavior or incapacity. However, this is a difficult and rare process due
to the high threshold required for impeachment (a two-thirds majority in
both Houses of Parliament). Although this mechanism exists, it has been
criticized for being difficult to implement.
 Contempt of Court: While courts have the power to punish for contempt of
court, they can also be held accountable for potential abuse of this power.
However, judicial accountability mechanisms for ensuring that judges do not
overstep their bounds are limited.
3. Judicial Accountability through Internal Mechanisms
 Judicial Councils: The judiciary has internal mechanisms for
accountability, including the establishment of bodies such as the National
Judicial Oversight Committee, which oversees judicial conduct and ensures
that judges adhere to ethical standards.
 Code of Conduct: Judges are bound by a code of conduct that sets standards
for their behavior both inside and outside the courtroom. Violations of this
code can be grounds for disciplinary action.
4. Accountability through Public Opinion and Civil Society
 Public Opinion: Public trust in the judiciary is vital to its legitimacy. When
the judiciary is seen to be corrupt, biased, or inefficient, it faces a loss of
credibility, which, in turn, reduces its capacity to hold the executive
accountable effectively.
 Civil Society and Transparency: NGOs and civil society groups that
monitor the judiciary’s decisions and processes help ensure that the judiciary
 remains transparent and fair. Media also plays an important role in reporting
judicial decisions and publicizing cases of judicial misconduct.
Challenges in Judicial Accountability
 Lack of Transparency: The judicial appointment process, which currently
operates through the collegium system, has often been criticized for its lack
of transparency. The opaque nature of judicial appointments can lead to
concerns over favoritism, nepotism, and bias in the judiciary.
 Judicial Independence vs. Accountability: A delicate balance must be
struck between judicial independence and accountability. Too much
interference in the judiciary can undermine its independence, while too little
scrutiny can lead to misconduct and a loss of public trust.
 Delayed Justice: The judiciary in India faces a severe backlog of cases,
leading to delays in justice. While this is a challenge to the effectiveness of
judicial accountability, it also raises concerns about judicial inefficiency.
Conclusion
Both the executive and judiciary in India play essential roles in the functioning of
the state. The executive, being the implementer of policies, must be held
accountable to the legislature, the judiciary, and the public. Similarly, the judiciary,
tasked with interpreting the Constitution and ensuring justice, must be accountable
for its decisions and actions. While there are robust systems in place for
accountability, challenges like transparency, politicization, delays, and lack of
reforms persist.
Ultimately, to maintain the integrity of India's democracy, both the executive and
judiciary must continue to evolve their accountability mechanisms to ensure that
they serve the public effectively, responsibly, and transparently. Strengthening
institutions, improving transparency, and reducing delays will go a long way in
ensuring a functional, accountable government and judiciary that the people can
trust.
 Unit 2 – Separation of Power: Stress and Strain
Tribunals
In India, tribunals are quasi-judicial bodies that are established to resolve specific
types of disputes and provide specialized adjudication in matters that require expert
knowledge and quick decisions. These bodies help decongest the judiciary by
offering an alternative forum for resolving certain disputes, often relating to
administrative, tax, environmental, and industrial matters. The concept of tribunals
is enshrined in the Indian legal framework to provide speedy, efficient, and expert
resolution of disputes that would otherwise overload the regular courts.
The term ‘Tribunal’ is derived from the word ‘Tribunes’, which
means ‘Magistrates of the Classical Roman Republic’. Tribunal is referred to as
the office of the ‘Tribunes’ i.e., a Roman official under the monarchy and the
republic with the function of protecting the citizen from arbitrary action by the
aristocrat magistrates.
1. The Legal Basis for Tribunals in India
The constitutional basis for tribunals in India is found in Article 323A and Article
323B of the Constitution which was added up through 42 nd Amendment in 1976.
These provisions give Parliament and state legislatures the authority to establish
tribunals for the adjudication of disputes in specific areas.
 Article 323A: This article empowers Parliament to create administrative
tribunals to resolve disputes related to the recruitment, service conditions,
and other matters of public service officials.
 Article 323B: This article allows Parliament and state legislatures to set up
tribunals for a wide range of matters, including taxes, industrial disputes,
and consumer disputes.
Additionally, the Tribunals Reforms (Rationalization) Act, 2021 brought several
key changes to the functioning and structure of tribunals, consolidating multiple
tribunals and ensuring their independence.
2. Structure of Tribunals
Tribunals in India are structured differently based on their specific mandates, but
they share certain common characteristics. Most tribunals consist of:
 Chairperson: Typically a retired judge of the Supreme Court or a High
Court or a person with expertise in the field concerned. The chairperson is
the head of the tribunal and is responsible for overseeing its functioning and
making decisions on critical issues.
 Members: Tribunals also have other members, often experts in the relevant
field. For example, members of the Income Tax Appellate Tribunal are tax
experts, while members of the National Green Tribunal are environmental
specialists.
 Secretariat: The administrative body that handles the paperwork, filing, and
coordination of cases within the tribunal.
3. Types of Tribunals in India
India has several tribunals catering to specific sectors and types of disputes. Some
of the key tribunals include:
 Administrative Tribunals: Established under Article 323A, these tribunals
deal with service matters of government employees. The Central
Administrative Tribunal (CAT) is one of the most prominent in this
category, addressing issues related to recruitment, promotions, and
disciplinary actions of government employees.
 Tax Tribunals: These include:
o Income Tax Appellate Tribunal (ITAT): Hears disputes related to
income tax and assesses appeals against orders of tax authorities.
o Customs, Excise, and Service Tax Appellate Tribunal (CESTAT):
Adjudicates disputes concerning customs, excise, and service tax
laws.
 Industrial Tribunals: These tribunals resolve disputes between employers
and employees concerning labor laws. The Industrial Disputes Tribunal
(IDT) is one of the key bodies in this area.
 Environmental Tribunals: The National Green Tribunal (NGT) is a
specialized tribunal that deals with environmental issues, especially those
involving environmental protection, conservation of forests, and the
management of natural resources.
 Consumer Dispute Redressal Tribunals: These include the National
Consumer Disputes Redressal Commission (NCDRC), which handles
cases related to consumer complaints against goods and services.
 Securities Tribunals: The Securities Appellate Tribunal (SAT) resolves
disputes related to securities law, including cases related to stock market
regulations.
 Company Law Tribunals: The National Company Law Tribunal (NCLT)
and the National Company Law Appellate Tribunal (NCLAT) deal with
matters related to company law, such as company insolvency and corporate
governance.
4. Functions of Tribunals
Tribunals in India serve several important functions, including:
 Specialized Adjudication: Tribunals offer a platform for resolving disputes
that require specialized knowledge or expertise. For example, the NGT deals
exclusively with environmental matters, while the ITAT focuses on income
tax-related disputes.
 Fast-Track Resolution: Tribunals are designed to provide quicker and more
efficient adjudication compared to regular courts. This is particularly
important in areas like labor disputes, tax issues, and consumer grievances,
where delays can cause economic and social harm.
 Appeals and Review: Many tribunals function as appellate bodies,
reviewing decisions made by regulatory authorities or lower courts. For
instance, the SAT reviews orders passed by the Securities and Exchange
Board of India (SEBI), while CESTAT deals with appeals against orders
from customs or excise authorities.
 Regulation and Enforcement: Some tribunals, such as the NGT and the
NCLT, also have a regulatory and enforcement role, ensuring that decisions
are implemented and legal compliance is maintained.
5. Advantages of Tribunals
 Expertise: Tribunals are often headed by experts in specific fields, which
allows them to make informed decisions based on technical knowledge and
practical experience. This is especially important in areas such as tax,
environmental law, and industrial disputes.
 Speed and Efficiency: Due to their specialized nature and streamlined
procedures, tribunals are typically able to resolve disputes much faster than
regular courts. This helps in reducing case backlogs in the judicial system.
 Cost-Effectiveness: Litigating in tribunals is often less expensive than going
through regular courts, making it more accessible to a wider range of people
and organizations.
 Flexibility: Tribunals generally have more flexible procedural rules than
regular courts, which allows them to adapt to the specific needs of the
disputes they handle.
6. Challenges Facing Tribunals in India
Despite their advantages, tribunals in India face several challenges:
 Lack of Adequate Infrastructure: Many tribunals suffer from a shortage of
infrastructure, staff, and resources, which can hinder their ability to function
efficiently. Some tribunals also face issues such as understaffing and a lack
of proper office space.
 Judicial Independence Concerns: While tribunals are meant to be
independent, there are concerns about their autonomy, particularly with
regard to executive influence. In some cases, appointments to tribunals may
be influenced by political considerations, leading to questions about
impartiality.
  Delay in Justice: Despite their goal of providing fast-track justice, many
tribunals still face significant delays in disposing of cases due to heavy
caseloads. This can lead to frustrations among litigants who seek timely
relief.
 Overlapping Jurisdictions: In some cases, there is overlap between the
jurisdictions of tribunals and regular courts, leading to confusion and
inefficiencies in resolving disputes.
 Inconsistent Decisions: Due to the complex nature of cases and the varied
expertise of tribunal members, there can be inconsistencies in decisions,
which can affect the credibility of tribunals.
7. Recent Developments and Reforms
To address these issues, the Indian government has initiated several reforms to
improve the functioning of tribunals:
 Tribunal Reforms Act, 2021: This Act aims to streamline and rationalize
the functioning of tribunals by ensuring that their composition is more
standardized and that they operate with greater efficiency. The Act also seeks
to ensure the independence of tribunals and reduce the scope for political
interference in their decisions.
 Digitalization and Online Hearings: In the wake of the COVID-19
pandemic, many tribunals have adopted digital platforms for hearings,
helping to expedite proceedings and reduce delays.
 Reducing Vacancies: The government has taken steps to fill vacancies in
tribunals more quickly, ensuring that there are enough members to handle
the growing caseload.

Conclusion
Tribunals play a crucial role in India’s legal system by providing specialized,
speedy, and efficient dispute resolution in areas such as taxation, labor, consumer
rights, environmental issues, and corporate governance. They help reduce the
burden on regular courts and offer accessible forums for resolving specific types of
disputes. However, to fully realize their potential, tribunals need to overcome
challenges such as resource constraints, judicial independence concerns, and case
backlogs. Reform efforts, including the rationalization of tribunals, are vital to
ensuring that these bodies continue to function effectively and fairly in India’s
evolving legal landscape.