The Judiciary: Supreme Court (Part -2)
Government allocated an amount of Rs. 1,470 crore for the Eleventh Five Year Plan period for development and modernisation of judicial infrastructure and improving access to justice.The amount will be used for setting up of Gram Nyayalayas, computerization of District and Subordinate Courts in the country and for upgradation of ICT infrastructure of the Supreme Court and the High Courts.
Government accepted the recommendations of the Thirteenth Finance Commission( 2010-2015) to provide a grant of Rs. 5,000 crore to the States for improving the justice delivery system in the country- to organise more Lok Adalats and strengthen mediation with a view to reduce court pendencies.
Video-conferencing should be allowed in the judicial process. lt is common for the criminal cases getting adjourned on account-of inability of the police or jail authorities to produce the accused in court. Sometimes the witnesses are residing at far off places or even abroad. It is not convenient for them to attend the court. Video conferencing is a convenient, secure and less expensive option and can speed up the trial, among other advantages.
National Judicial Infrastructure Plan prepared by the National Judicial Academy, Bhopal for upgrading judicial infrastructure to enable access to justice for common man is under consideration. The plan proposes new initiatives such as fast track courts, second shift in existing courts, etc for speedy disposal of cases
Second Administrative Reforms Commission (ARC) headed by Veerappa Moily made the following recommendations
Many reforms have already been initiated and are in progress. Some have already taken effect as shown below:
CPC Amendments 2002
In a move to speed up justice delivery, the Centre amended the Civil Procedure Code which provide for time-bound disposal of civil cases. The following amendments make for speedier disposal of cases
It is was introduced in India by amendment of the Code of Criminal Procedure.Under plea bargain, criminal defendant and prosecutor reach an agreement subject to court approval. The accused admits guilt without a trail, and in return is given a lighter punishment. This is allowed for cases in which the maximum punishment is imprisonment for seven years. However, offences in socio-economic area like sati are not covered and offences committed against a woman or a child below the age of fourteen are also excluded. The rules say the court would examine the accused in-camera to determine if he has willingly opted for plea bargaining . Critics of the system point out that it puts strong pressure on defendants to plead guilty to crimes that they know that they did not commit. Furthermore, the system encourages lawyers to overcharge.
Gram Nyayalayas Act 2008
Gram Nyayalaya Act 2008 aims at providing inexpensive justice to people in rural areas on their doorstep. It provides for first class judicial magistrates dispensing justice-Nyaya Adhikaris are appointed by the states in consultation with the high courts. Gram Nyayalayas try criminal cases, civil suits, claims or disputes concerning all the offences not punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Theft, receiving or retaining stolen property, assisting in the concealment or disposal of stolen property —-where the value of property does not exceed Rs 20,000 —, dispute relating to purchase of property, cultivation of land, right to draw water from a tubewell or well are some of the offences which could be tried in the Nyayalayas. An appeal from the judgment of the Gram Nyaylaya lies with the sessions court which will be heard and disposed of within six months from the date of filing of the appeal.
For the Gram Nyayalayas, the Centre bears the full cost on capital account. These courts sit at the district headquarters and in taluks. They go in a bus or jeep to the village, work there and dispose of the cases- thus they are mobile courts. The cost of litigation would be borne by the state and not by the litigant.
Tribal areas are not covered .
Gram Nyayalayas Act, 2008 had come into force from 2.10.2009.Six State Governments have notified 159 Gram Nyayalayas. Out of these, 151 are operational.
Fast Track Courts
Fast track courts were set up , on the recommendation of the 11th Finance Commission to deal with criminal cases involving undertrials — those in jail facing trial for the alleged offences and have spent long periods , sometimes well ahead of the punishment that the alleged crime may get; and other cases pending for more than two years. The aim is to set up five fast track courts in each district. FTCs across the country disposed of lakhs of cases so far. They were ended in 2011. Though the central government stopped giving financial assistance to the states for establishing FTCs, the state governments could establish FTCs from their own funds. The decision of the central government not to finance the FTCs beyond 2011 was challenged in the Supreme Court. In 2012, the Court upheld the decision of the central government. Y 2013, some states such as Arunachal Pradesh, Assam, Maharashtra, Tamil Nadu and Kerala decided to continue with the FTC scheme. However, some states _such as Haryana and Chhattisgarh decided to discontinue it. Other states such as Delhi and Karnataka have decided to continue the FTC scheme only till 2013. FTCs gave a boost to faster disposal of cases. 39 lakh cases transferred to these courts, verdict was given to 32 lakh cases.
After the recent gang-rape of a 23 year old girl, the Delhi High Court directed the state government to establish five Fast Track Courts (FTCs) for the expeditious adjudication of cases relating to sexual assault. Other states such as Maharashtra and Tamil Nadu have also begun the process of establishing FTCs for rape cases. The reason for the fast track courts to produce decisions quickly is that they hold proceedings continuously.
73 such courts are set up since January 2013 to try cases of sexual harassment and other heinous crimes. As part of its comprehensive agenda for legal and judicial reforms, the government and the top judiciary have resolved to set up at least 1,800 fast-track courts and run it for three years with majority central funding. These fast-track courts will be established both for trial of heinous crimes as well as for offences against elderly, women and children.
Alternative Dispute Resolution
Alternative dispute resolution encompasses a range of means to resolve conflicts short of formal litigation. The modern ADR movement seeks to reduce cost and delay and avoid adversarial nature of litigation. The interest in ADR essentially centres around Lok Adalats.
ADR today falls into two broad categories
Court-driven ADR includes mediation/conciliation—the classic method where a neutral third party assists disputants in reaching a mutually acceptable solution. Supporters argue that such methods decrease the cost and time of litigation, improving access to justice and reducing pressure on courts, while at the same time preserving important social relationships for disputants. Community-based ADR is often designed to be independent of a formal court system that may be expensive and inaccessible. India set up lok adalats in the 1980s.
Arbitration, conciliation and negotiation:
Conciliation is an informal process designed to create an environment where negotiations can take place. If the parties fail to reach and agreement, the case is referred to mediation.
Mediation is a voluntary and confidential process where a neutral third party assists negotiation. The parties are responsible for reaching an agreement and the mediator cannot impose a settlement. The mediator's role is to facilitate communication, promote understanding, and use problems solving techniques with the goal of assisting the parties to reach their own agreement. If the mediation fails to reach agreement, the case is referred to arbitration.
Arbitration Arbitration is a form of private adjudication where a mutually acceptable third party hears arguments from either side in a dispute, and renders a judgment. The judgment, known as an award, is confidential and binding.
Lok Adalat literally means "peoples" court". It is an alternative dispute settlement mechanism which settles disputes through conciliation and mediation. It helps in quick disposal of cases and the process is simple and carries no fees. Lok Adalats are statutory forums since the enactment of Legal Services Authorities Act, 1987. (Connect with the Chapter on DPSPs) All legal disputes pending in civil, criminal, revenue courts or a tribunal can betaken to Lok Adalat for amicable settlement except criminal cases which are non-compoundable ( that is, serious offences where charges cannot be dropped without the consent of the judge). Legal disputes can be taken up and settled by Lok adalats at pre-litigative stage also i.e. before the parties have entered into litigation by filling a case in a regular court.
Lok Adalats, generally, consist of a judicial member, a legal practitioner and a social worker (generally, a woman). They follow their own procedure. They have the power of a Civil Court, in respect of summoning of evidence and, examination of Witnesses, requisitioning of public records, etc. However, they are not 'courts’(read ahead). No lawyers are involved in the process. The procedure, followed in the Lok Adalats for the settlement of cases, is simple, informal and flexible.
Supreme Court ruled that the Lok Adalats set up under the Legal Services Authority Act have no adjudicatory or judicial functions since they do not 'hear’ arguments. They suggest a solution subject to the litigants accepting the same. If it is accepted, it is binding. If it is not accepted and one/both the parties reject it, the recourse is to the courts. Thus, Lok Adalats are not courts, in this sense. They are conciliatory bodies, suggesting remedies.
If the case is settled in the Lok Adalat, that is, if the litigants agree to a settlement in the Lok
Adalat, it will have to be complied with. It is enforceable like the decrees of a civil court once the compromise is accepted.
Lok Adalats are monitored by the State Legal Aid and Advisory Boards. Parliament in 2002 made the Legal Services Authorities (Amendment) Act 2002, which provides for the constitution of permanent Lok Adalats with maximum monetary jurisdiction of Rs. 10 lakhs for conciliation and settlement of cases relating to public utility services like electricity boards, transport corporations etc.
In their conciliatory role, the Lok Adalats are guided by the principles of justice, equity and fair play. The Lok Adalats have delivered inexpensive and expeditious justice and need to be extended further.
Parivarik Mahila Lok Adalat
The concept of Parivarik Mahila Lok Adalat (PMLA) has been evolved by the National Commission for Women (NCW) to supplement the efforts of the District Legal Service Authority for redressal and speedy disposal of matters pending in various courts related to marriage and family affairs. Other advantages of the PMLA are that it is cheaper, it helps encourage the public to settle their disputes outside the formal set-up, it empowers the public (especially women) to participate in the justice delivery mechanism, and ideally, cases are amicably settled by the parties in a harmonious atmosphere.
Judicial Impact Assessment
JIS means assessing the extra load that the passing of a Bill or making of a certain rule basd on an Act will create for the courts.
The Task Force constituted by Government to study the feasibility of Judicial Impact Assessment in India under chairmanship of Shri Justice M. Jagannadaha Rao submitted its report in 2008. Mandatory judicial impact assessment of every bill will have a fair estimate of extra . caseload, judges/staff, infrastructure and financial needs a new law is likely to generate.
The committee recommended that Judicial Impact Assessments must be made on a scientific basis for the purpose of estimating the extra case-load which any new Bill or Legislation may add to the burden of the Courts and the expenditure required for adjudication of such cases must be estimated by the Government and adequate budgetary provision must be made therefore.
Such impact assessments must be made in respect of Bills that are introduced in Parliament as well as Bills introduced in the State legislatures. If implemented, it will be for the first time that India follows a system that is in vogue in the USA.
The expenditure op fresh cases likely to be added-to the Supreme Court and high courts by new laws must be reflected in the Financial Memoranda attached to the Central/ State Bills. The panel proposed setting up of a judicial impact office in Delhi and similar offices in states to carry out the assessment by involving social scientists, legal experts and NGOs. Indian courts are disposing of 1.5 crore cases annually and there were 2.5 crore cases still pending in lower courts. ,
Protection of Children from Sexual Offences Act, 2012, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Ac 2013 and Criminal Law (Amendment) Act, 2013 were passed recently and they are likely to impose huge burden on the courts unless proactively judiciary is strengthened.
Malimath Committee and Criminal Justice System
Criminal justice system involves the police, prosecution, judiciary and the jails along with the witnesses. If it functions well- efficiently, crime rate will decline and conviction rate increases. Otherwise, the country faces the risk of erosion of people’s faith with the increase in the crime rate. The Malimath Committee, constituted in 2000 to recommend revamping of the criminal justice system in the country gave its report in 2003.The two volume report makes 158 recommendations with regard to the police, prosecution, the judiciary and criminal jurisprudence. It has, to a large extent, incorporated the recommendations made by in various reports of the Law Commission and the National Police Commission.
It recommended the following:
Empower the court to summon and examine as witness any person it considers appropriate. The right of the accused to silence (the right not to be compelled to be a witness against oneself) must also be amended with the court given the right to draw adverse inferences if he refuses to answer the questions put to him by the court.
The committee also concluded that the current standard of proof — "beyond reasonable doubt" — put a "very unreasonable burden" on the prosecution. It has suggested that the standard of proof be set midway between the current standard in India and the much lower standard current in continental Europe, namely "preponderance of probabilities", at "clear and convincing" proof. It recommended amendments to Section 125 of the Criminal Procedure Code (CrPC) so that “a woman living with a man like his wife for a reasonably long period is also entitled to the benefit of maintenance”.
It further suggested life sentence for the rapist and it should not be commuted ; lenient law for women and child convicts.
Special courts may be set up under various acts to expedite justice like Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989; Immoral Traffic Prevention Act 1956 provides for special courts. The National Investigation Agency set up in 2008 after the Bombay terror attacks in November 2008 allows special courts to be set up and function continuously. Evening courts in Gujarat and Fast Track courts are also special courts. In Bihar Special Courts Act, 2009 against-corruption by public servants. Special courts essentially speed up justice.
Advocates on Record
Only these Advocates are entitled to file any matter or document before the Supreme Court. They can also file an appearance or act for a party in the Supreme Court.
Governance in Judiciary
The e-Judiciary initiative is taken up-computerization and connectivity-to help in meeting the needs of the citizens in a transparent manner and enable quicker disposal of cases.
The Supreme Court took up the “e-courts” project under the National e-Governance Plan- (NeGEP) for linking courts in the country. From the time the case is filed till it is disposed of with judgment, the entire processing must take place electronically. This will enable easy search, retrieval, grouping, information processing, judicial record processing and disposal of the cases. COURTIS project undertaken by N 1C has streamlined registries at various courts. With the implementation of the system the number of pending cases in the Supreme Court has come down. COURTNIC is an information system designed to provide the information on the status of cases in the Apex Court to a wide variety of users, from anywhere in the country.
Computerisation of all 24 High Courts on the lines of Apex Court’s Computerisation has been done. All High Courts’ Cause List are also available on Intemet.NIC took up the computerisation of all 430 District Courts in the country on the lines of High Courts Computerisation Project.
NIC brought out Judgment Information System (JLJD1S) on CD-Rom consisting of complete text of all reported judgment of Supreme Court of India from 1950. The Judgments of 2001 onwards are available on Internet. Causelists contain information on the scheduling of cases to be heard by the courts on the following day. The daily orders of Supreme Court, Delhi High Court are available on the web, immediately after they are signed by the Judges.
National Mission for Justice Delivery and Legal Reforms 2011
The Union Government in 2011 approved an ambitious programme that would usher in radical legal reforms aimed at, among other goals, disposal of pending cases in three years, from the current average of 15 years, and establishment of an All India Judicial Service.
Known as the “National Mission for Justice Delivery and Legal Reforms,” it seeks to operationalise a number of plans to ensure expeditious and quality justice. The Centre is committed to spending Rs. 5,510 crore in the next five years for the Mission. The broad areas under it are: policy and legislative changes, re-engineering of procedures, human resource development, leveraging information technology and improvement of physical infrastructure of subordinate courts.
The Mission would comprise an Advisory Council, a Governing Council, a National Mission Leader and a Mission Directorate. The Advisory Council will advise on the goals, objectives and strategies and an action plan. The Governing Council will facilitate implementation, give policy directions and oversee the work of the Mission. The Mission Directorate will monitor the Mission's various initiatives.
Action plan worked out by the Ministry of Law and Justice focuses on initiatives such as an All India Judicial Service, a Litigation Policy, Judicial Impact Assessment, reforms in Arbitration & Conciliation Act and Legal Education Reforms. It seeks re-engineering of the procedures and alternative methods of dispute resolution such as identification of bottlenecks, procedural changes in court processes, statutory changes to reduce and disincentivise delays, fast tracking of procedures, appointment of court managers and Alternative Dispute Resolution.
In a Constitutional democracy, every institution is subject to accountability, including the judiciary. There are three dimensions to judiciary and its accountability-judicial, administrative and ethical standards.
Accountability of the judiciary in respect of its judicial functions and orders is provided for by an appeal and review of orders up the judicial hierarchy from subordinate courts upwards. The mechanism for accountability for serious judicial misconduct, for disciplining errant judges is removal, in the Indian Constitution (Art.124). It is so difficult that it is not practical and so does not function as a deterrent. Therefore, Judicial Standards and Accountability Bill 2010 that is being considered by Parliament(2013) provides for remedies for minor cases of misdemeanor as well.
The National Commission to Review the Working of the Constitution (NCRWC) made similar recommendations in the matter in its report in 2002.
Administrative accountability is via the RT1.
The judicial accountability question has the following dimensions: Judicial accountability under which the lower court verdicts are open to challenge and nullification by the higher court. Within the High Court and Supreme Court, there is an appeal to a larger bench. After review petition has been disposed off, if there is any natural justice issue involved, there is curative petition. Finally, in matters of mercy, the President and Governor are the arbiters( Art.72 and 161 respectively), after which there is judicial review once again.
Thus, there is a multilayered judicial accountability in the country.
Where the judicial members suffer from misbehavior or incapacity, Art. 124 prescribes removal by Parliamentary address and Presidential order.
The Judicial Standards and Accountability Bill, 2010
The Judicial Standards and Accountability Bill lays down enforceable standards of conduct for judges. It also requires judges to declare details of their and their family members' assets and liabilities. Importantly, it creates mechanisms to allow any person to complain against judges on grounds of misbehavior or incapacity.
The Judicial Standards and Accountability Bill, 2010 requires judges to declare their assets, lays down judicial standards, and establishes processes for removal of judges of the Supreme Court and High Courts. Judges will be required to declare their assets and liabilities, and also that of their spouse and children. The Bill establishes' the National Judicial Oversight Committee, the Complaints Scrutiny Panel and an investigation committee. Any person can make a complaint against a judge to the Oversight Committee on grounds of misbehavior’ .A motion for removal of a judge on grounds of misbehavior can also be moved in Parliament.* Such a motion will be referred for further inquiry to the Oversight Committee. Complaints and inquiries against judges will be confidential and frivolous complaints will be penalised. The Oversight Committee may issue advisories or warnings to judges, and also recommend their removal to the President.
Judicial review, activism and overreach
Judicial review is the power of the judiciary to review the laws made and executed by the legislature and executive respectively, to make sure that they are in line with the Constitution and statute. If they are not, judiciary strikes them down partly or wholly. The power of judicial review is given to the judiciary by various provisions of the Constitution and law. For example, Art. 13 says that no law is valid if violates Fundamental Rights. Art. 131 says that if there is a federal dispute between states and centre or between states, Supreme Court has excusive power to settle it. Art.32 and 226 give power to the Supreme Court and-High Courts , respectively , to restore Fundamental Rights(Supreme Court) and all rights(High Courts) in case they are violated. Art. 142 etc.
Thus, the review jurisdiction comes from FRs and federalism. In the sphere of administrative actions, ordering it to act or not to act is within the power. Invalidations of illegal acts is also a part of it.
While above said review power is the conventional form, in the last more than 30 years, in India, there is a trend of judiciary enabling the masses to access the courts by unconventional means.lt is often referred to as judicial activism. Public interest litigation(PIL) was innovated by the apex court in late seventies to enable any one - those unrelated to the case- to challenge government action or inaction in the higher judiciary .
The key to the historic game changing innovation was to not to insist on locus standi in matters of public interest- social justice issues like child labour, pollution etc. Unlike in private litigation, the person moving the petition need not be related to the case. It can be a member of civil society- an NGO, media, individual with social conscience etc. Thus, the courts had come to the rescue of the illiterate and the resourceless by rendering the rules flexible. It finds its support in Art.21 and Art39.
Judicial activism is understood as the judicial stance which activates the public and the government in support of the common man and good governance. It is the outcome of the PIL movement.
The PIL movement is a case of the judiciary being actively interested in taking justice to the door step of the marginalized.
The Supreme Court since late seventies has been expanding the scope of FRs - particularly Art.21 (right to life and personal liberty).
Judicial overreach , on the other hand, is a case of judiciary encroaching into the territory of the other two organs- legislature and executive. Judicial collegiums appointing judges since 1993 is said to be an example of overreach. Continuing mandamus under which the apex court keeps the executive constantly accountable is another example.
Another case cited in the overreach debate is the following: The Supreme Court directed the pro tern Speaker of the Jharkhand Legislative Assembly to conduct a composite floor test in the Assembly in 2005 to ascertain who enjoyed the majority — the Chief Minister, Shibu Soren, appointed by the Governor or the former Chief Minister, Arjun Munda.
It was seen as an interference in the legislative domain.
One more case relates to the Supreme Court admitting the petition challenging the expulsion of MPs from LS in the cash for query scam in 2005 and sending to the Speaker summons which was vigorously opposed by Somnath Chatterjee, Fali Narifnan and other legal luminaries. Two recent cases represent encroachment in the domain of the Executive- CVC case and the black money case.
In the CVC case(2011), the appointment of the CVC by the collegium headed by the PM was set aside in a P1L by a three judge bench headed by the CJ1 as it did not comply with the due process.
In the black money order given in 201 I, the two judge bench set up a two retired judge Special Investigation Team to oversee the investigation into black money- which was criticized as the • function of the Executive.
While activism is welcome as it helps the weak, keeps the Executive on its toes and makes it efficient and, by and large, sustains the faith of the people in the government, it is criticized for the following reasons
Overreach is justified as a response to the underreach of the other two organs where it exists- as in black money case.
Public Interest Litigation * . „
Justice Krishna Iyer, in Mumbai Kamgar Sabha v Abdulbhai Faizullabhai ( 1976) used the expression PIL for the first time. Justice Bhagavathi added momentum to PIL in the late seventies.
PIL must be differentiated from private litigation. In private litigation, courts.are approached for the redressal of wrong or injustice of a private person ( or a company which is. a legal person). He has to show that he has locus standi- that he is connected to the case and has. the right to act or be heard.- No one can approach the court without locus standi.
But in PIL, the victims of violation, bf constitution and law may be weak, vulnerable and illiterate. There are many cases where public interest is violated- for example, child labour, bonder labour; criminals in election process; environmental damage, pollution, children not being able to go to school, people in high places being corrupt and so on. In such a case involving public interest. Supreme Court since late 1970s, allowed the principle of locus standi to be set aside. Any socially spirited individual is allowed to bring it to the notice of the court. Procedural rigidities have not been insisted on. The reason is that the victims are weak and illiterate and cannot approach the courts themselves. The aim is to bring justice to the doorstep of the weak. It is called public interest litigation or social interest litigation.
PIL means a legal action initiated in a court of law for the enforcement of public interest in which the public as against private individuals have interest in the form of protection/restoration of their rights.
It is meant to catalyse progressive socio-economic change; make administration responsive; lead to better environmental practices ; make civil society active; and so on.
In the famous Asiad Labour case 1982, the apex court accepted a letter written by an NGO as writ petition and ruled in favor of workers. Newspaper reports can also be the basis for initiation of action. Affidavits have not been asked for.
There are many cases in which the SC and the HCs ruled for popular welfare tightening norms for the blood banks ; coming to the rescue of the under-trials who were imprisoned without trial for unduly long periods, setting guidelines for introduction of CNG based buses etc in Delhi; cleaning Yamuna etc; directing Delhi industrial units to take care of the child labourers; release of bonded labourers; CVC case and black money case along with the Salwa judum case where the under paid, under trained and under equipped Special Police Officers were declared unconstitutional by the apex court (2011)
Public Interest Litigation is the power given to the public by courts through judicial activism. It is a case of judicial activism as the judiciary activates the public to approach the courts in social interest.
PIL can be moved against the government for its Inaction or wrong action or any company for flouting norms like environmental rules etc.
While the PIL instrument has great potential to help the ordinary people, there is concern about misuse of P1L
CJ1 Kapadia in 2010 observed: “PIL petitioners have been moving the courts straightaway without even bringing the problem to the notice of the authorities. And the courts have been entertaining these PILs, virtually taking over the function of the authorities. We will not allow such bypassing of the authorities to take place any more.” -
The Supreme Court ruled that PIL was not a fundamental right implying that the courts had the right to reject appeals on the basis of public interest.
A two judge Bench of the apex court(2008) observed that frivolous PIL cases should be imposed a penalty of Rs.l lakh. There is a wing in the apex court that screens out frivolous PILs. Some frivolous PILs are: India should be renamed Hindustan; the Arabian Sea should be called Sindhu Sagar; the national anthem Jana Gana Mana should be replaced by the one offered by the petitioner (and partly sung before the Chief Justice); scrap the Indo-US nuclear deal etc.
In April 2013, the High Court of Jharkhand at Ranchi ordered the State Respondents to submit a report and account for the high number of maternal deaths in the Public Interest Litigation (PIL) Jharkhand reports a state-wide maternal mortality rate (MMR) of278 maternal deaths per 100,000 live births, while Godda District has a MMR of 823.5.
A plea has been filed in the Supreme Court seeking cancellation of generic drugmaker Ranbaxy’s manufacturing license on the grounds that it manipulated data and sold adulterated products in the US, On spot-fixing in IPL, PIL was filed in Supreme Court in June 2013.
Supreme Court in the PILs on FD1 in MBR and nuclear power plantin Koodankulam in TN gave verdicts earlier in 2013.
Judicial legislation and Policy making
Judiciary: judicial legislation "...there is no liberty, if the judicial power be not separated from the legislative and executive."(Montesquieu in his book- Spirit of Laws)
According to French political philosopher Montesquieu , to safeguard democracy it is necessary that there is a separation of power between the three different organs of the State. The doctrine of separation of powers envisages that the legislature should make law, the executive should execute it, and the judiciary should settle disputes in accordance with the pre-existing law .
Under the Indian Constitution , as in the case of all parliamentary democracies unlike the Presidential systems, the doctrine of separation of powers has not been rigidly stated as in the constitution of the United States or Australia .
India has followed a liberal approach, resorting to the doctrine of checks and balances. According to the Supreme Court in Asif Hameed v. State of Jammu & Kashmir:
"Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity but the constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein."
The doctrine came under pressure in recent years when the apex court is said to have encroached into the domain of the legislature. Supreme Court in the case of Vishakha y. State of Rajasthan ruled that in the absence of legislative and executive action, the judiciary may step in to fill the gap. The court gave certain directives in the said case for guarding women employees in all organizations against sexual harassment.. It was clarified that the Court was acting under Article 32 of the Constitution and the directions "would be treated as the law; declared by the Court under Article 141 of the Constitution."
Supreme Court gave the ADR case verdict in continuation of the same basis: since there is legislative vacuum, the apex court ordered the contestants in the MLA and NP elections to furnish details about their education, assets and liabilities and criminal antecedents, if any( 2003).
Article 142 confers the court with the power to do complete justice and under this power, the court makes law.
Recently in 2009 a division bench of the Supreme Court in University of Kerala v. Council, Principals', Colleges, Kerala and Ors referred the following questions regarding judicial legislation to a constitution bench:
While Justice Katju voices his reservations against judicia legislation Justice Ganguly voices his praise for judicial intervention. But both the judges agree that confusion exists and there is a need to resolve it.
In 2009, the two-member bench of Justices Markandey Katju and Asok Kumar Ganguly raised a basic Constitutional issue of the judiciary’s competence to make executive orders or frame laws while hearing a petition of some Jawaharlal Nehru University students. The petitioners questioned a September 2006 apex court order for implementation of the J M Lyngdoh Committee recommendations on reforming students’ union polls in colleges and universities. Honorable judges observed:“Today there are high prices and large-scale unemployment. These are pressing social needs. But can we pass orders on these to the government because we do not have the expertise though we are also affected by the price rise.”
Earlier in 2012, Supreme Court directed the Centre to constitute a ‘special committee' for interlinking of rivers. A Bench headed by Chief Justice S.J. Kapadia directed the committee to take firm steps and fix a definite time frame for laying down the guidelines for completion of feasibility or other reports arid to ensure completion of projects so that the benefits could be obtained in a reasonable time and cost.The court directed the Central and State governments to participate in the programme and render all financial, administrative and executive help for completing these projects effectively.
It is a fact that the intervention of the judiciary in policy making has evoked mixed response. It role in food policy, education policy, land acquisition policy and various aspects of environmental regulation has been praised. In electoral reforms, too(ADR case) 2003). Its empowerment of the civil society(PIL) is a paradigm shifting instance of enabling a dynamic policy milieu. At the same time, its order in the inter linking of rivers etc have been criticized.
Judiciary is very much conscious of its duty under the Constitution to enable good governance and establishment o welfare society(DPSPs).
Judiciary and the Executive
The conflict arises on the basis of
Parliament and the Judiciary
Indian Constitution provides for a parliamentary democracy and the essehtial-features of federalism. Separation of powers among the three organs of the government is a basic feature. There is a clear and-delicate balance of power between the three organs. In their respective jurisdiction, the three organs are independent and the Constitution bars any interference.
Articles 121 and21l bar the legislature from discussing the conduct of any judge in discharge of his duties except when impeachment proceedings are being take up, Articles 122 and 212 on the other hand preclude the courts from interfering in the internal proceedings of the legislature. Article 105 (2) and 194 (2) privileges protect the legislators from interference of the Courts with regards to freedom of speech and freedom to vote.
However, in recent years, the phenomenon of 'judicial encroachment* was seen to disturb the delicate balance and the judiciary was seen to have overstepped into the domain of the legislature.
For example, in 1998, when there was contention for the Chief Ministerslyp of Uttar Pradesh - Jagadambika Pal and Kalyan Singh - , the apex court directed the Speaker to conduct the • Composite Floor Test in the State Assembly. A similar situation in 2005 in the case of the Jharkhand Assembly, the apex court directed the Protem Speaker to conduct a Composite Floor Test to ascertain the majority in the House. The 2005 case of expulsion pf MPs from Parliament is another such instance
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