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Judiciary and the Government in the Making of Modern India*
by H.S. Mattewal

Cite as : (2002) 1 SCC (Jour) 19

One of the essential features of the democratic republic established by the Indian Constitution is division of power between the three important wings of the State. The three wings are expected to operate in their respective fields so that democratic governments, both at the Centre and the States can function to fulfil the noble objectives enshrined in the preamble to the Constitution. As early as in 1951, in In re Delhi Laws case1 the Supreme Court noted that though there are no specific provisions in the Constitution vesting legislative powers exclusively in the legislature and the judicial power in the judiciary, the essence of the doctrine of separation of powers was implicit in the constitutional scheme. Later in Indira Gandhi case2 in 1975 "separation of powers" was treated as a part of the basic structure of the Constitution.

In distributing the powers, detailed provisions were made to insulate the judiciary from the executive and to secure the independence of the judiciary. Some critics have commented that the framers of the Constitution were unduly and disproportionately concerned with what they perceived as unnecessary details of the judicial system with its administrative aspects, the tenure, allowances and salaries and retirement age of the Judges, the mechanism of choosing Judges and so on. However, the concern of the framers for these finer details must be viewed against their larger concern that the people be provided with a "a judiciary of vestal unapproachability which shall always tend the sacred flame of justice"3

In the opinion of the framers, a single integrated judiciary, along with a uniform system of laws was essential to maintain the unity of the country. Apart from being the conscience-keeper of the Constitution and the protector of fundamental rights of the people, the framers wished to equip the judiciary with powers which would enable it to "keep the charter of Government current with the times and not allow it to become archaic or out of tune with the needs of the day". While the provisions relating to the judiciary were being drafted, there was general agreement on the issue that if independent India were to achieve a social revolution, the judiciary would have a vital role to perform and would therefore have to be well equipped for the purpose. However some of the Members of the Assembly felt that in some areas of the social revolution, the legislature should have the final say. They expressed the view that in those areas, Judges should have a limited role restricted to interpreting the written law. Shri Alladi Krishnaswamy Ayyar, who along with Shri K.M. Munshi, B.N. Rau and B.R. Ambedkar played a prominent role in drafting the provisions relating to the judiciary, had this to say on the matter:

"While there can be no two opinions on the need for the maintenance of judicial independence, both for safeguarding of individual liberty and the proper working of the Constitution, it is also necessary to keep in view one important principle. The doctrine of independence is not raised to the level of a dogma so as to enable the judiciary to function as a kind of super-legislature or super-executive. The judiciary is there to interpret the Constitution or adjudicate upon the rights between parties concerned.... The judiciary as much as the Congress and the executive, is depending for its proper functioning upon the cooperation of the other two."4

Be that as it may, provisions such as Article 226, Article 32, Article 136, Article 142, Article 144 etc. giving powers of far-reaching consequences were enacted in the Constitution. Through innovative use of its powers the higher judiciary in India has made significant contribution in upholding constitutionalism, rule of law, personal liberty, human rights, secularism, gender justice, democratic values, rights of minorities and industrial peace. Though having inherited the British legal system, the Indian judiciary has over the years evolved an indigenous jurisprudence to suit the needs of the people of the country.

Starting with six Judges in 1950 the Supreme Court of India presently has a strength of 26. During the period from January 1950 till August 1999, the Supreme Court has decided almost 20,491 cases covering nearly 97,240 printed pages of Indian Law Reports.5 It has determinedly endeavoured to ensure that men are ruled by law and not by caprice and that "rule of law" becomes the imposing and effective inhibition upon arbitrary power, thereby ensuring to the "citizen the enjoyment of his guaranteed rights consistently with the rights of society and the State".

Perceptive researches have noticed distinct phases of judicial activity over the last five decades which are linked with the prevalent political, economic and social conditions. A study of this development helps in understanding dynamics of the interrelationship between the judiciary and the Government better.

The First Period, 1950-1960

During this period the political landscape was dominated by the stalwarts of the freedom movement who commanded trust and confidence of the people. The nation was savouring the glow of freedom and the national mood was one of the hope of optimism. During this period the Supreme Court was led by four very erudite Chief Justices, namely, Chief Justice Patanjali Shastri, M.C. Mahajan, Mukherjee and S.R. Das who functioned with commendable prescience and laid the foundation for the future role of the Court. The conflict between the judiciary and Parliament that arose in this period concerned the primacy between the goals as embodied in the directive principles of the State policy and the fundamental rights, the provisions for special consideration of the minorities and disadvantaged sections of society, the zamindari abolition and taking over of private property.

In response to citizens' petitions, several High Courts and the Supreme Court interpreted the word "compensation" in Article 31 in the classical manner to mean a fair equivalent value for the property taken. They read Articles 19(1)(a) and 19(g) as protecting free expression (including freedom of the press) and the right to carry on trade or business. When the Government intruded on these rights, the Courts prevented them. The Court also ruled the Madras Communal Order unconstitutional because it denied equality under the law.

To level these situations, the Government brought in the First Amendment. While defending the independence of judiciary, Nehru told the Lok Sabha that the judiciary had no role where great schemes and big social changes are involved. We should see if the Constitution was rightly framed and whether "it is desirable to change it ... to give effect to what really was intended or should be intended"6. The challenge to the First Amendment was repelled in the case of Shankari Prasad7. The Court unanimously held that an amendment of the Constitution was not law within the meaning of Article 13 of the Constitution and as such was not prohibited by Article 13(2). It was also during this early period of trust in the executive that the validity of preventive detention laws were upheld, the Court rejecting the argument that Article 21 of the Constitution incorporated the American doctrine of due process8.

The Second Period, 1960-70

During this period the national political scene was characterized by uncertainty. The old stalwarts of the freedom struggle had one by one departed from the scene. The Congress partly lost its once primal position. Corruption and venality stared the people in the face. The court had to work in this challenging environment and it decided to take up cudgels on behalf of the citizenry to establish just political, economic and moral order in the country.

While in 1951 the Supreme Court had unanimously repelled the challenge to the First Amendment to the Constitution, on October 30, 1964 a few months after the death of Mr Nehru there was a dissenting opinion in Sajjan Singh case9 by Justices Hidayatullah and Mudholkar who otherwise agreed with the majority in upholding the Seventeenth Amendment to the Constitution. Their observations laid the foundation of the basic structure doctrine which was enunciated by the Supreme Court later.

Faced with a situation where judgment after judgment rendered by it mainly in the area of land reforms was nullified by Parliament by amending the Constitution, the Court in the case of Golak Nath10 by a thin majority of 6:5 held that Article 368 of the Constitution only provided the procedure to amend the Constitution and was not to be construed as any independent source of power. It held that Article 368 could not override the specific provisions of Article 13(2) and that Parliament was not competent to amend the chapter on fundamental rights in the Constitution to take away or abridge those rights. However in order to avoid upsetting anything that had been done heretofore, because of the Court's earlier decision upholding the power to amend, the Court in this case held that the decision would have only prospective operation.

Shri M.C. Setalvad, India's first Attorney-General commenting on Golak Nath11 wrote:

"The majority decision clearly appears to be a political decision not based on the true interpretation of the Constitution, but on the apprehension that Parliament, left free to exercise its powers, would, in course of time, take away the citizen's fundamental rights, including his freedom."11

It was during this period that Bank Nationalization case12 was decided in which the Supreme Court struck down the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969. Also, the Presidential Order withdrawing constitutional recognition of the erstwhile rulers of the princely States was declared illegal and unconstitutional in the famous Privy Purses case.13

The Third Period, 1971-76

In the elections held in 1971, the Congress party secured a two-third majority. Buoyed with its success the Government got the Constitution (twenty fourth Amendment) Act passed, amending Articles 13 and 368 to neutralize the effect of Golak Nath case11. Even the marginal note to Article 368 was amended. As expected, the validity of the Constitution (twenty fourth Amendment) Act was challenged. Since it entailed a review of Golak Nath case11, a Bench of thirteen Judges was constituted. The Court heard the arguments for sixty-nine days spread over five months. The canvass of debate before the Court was wide including fundamental issues relating to the basic framework of the republic, the relationship between the fundamental rights and the directive principles, the concept of sovereignty and whether it lay with Parliament or the people, the scope of judicial review etc. In a 7:6 split verdict the Court in Kesavananda Bharati case14 held that the power to amend does not extend to destroying or abrogating the basic structure of the Constitution. The "basic structure" theory propounded by the Court was revolutionary and perhaps without a parallel anywhere in the world. And what was the "basic structure" was left for determination in the hands of the Court itself.

Barely two days after the delivery of the judgment on 24-4-1973, on the retirement of Chief Justice Sikri, the Government reacted by superseding three senior Judges, Justices Shelat, Hegde and Grover, who were part of the "basic structure" majority and appointed Justice A.N. Ray as the Chief Justice of India. As expected, the three superseded Judges resigned. An unambiguous defence of the supersession, based on the social philosophy of the Judges, was offered by Mohan Kumaramangalam, a Cabinet Minister and close adviser of Smt Indira Gandhi, the then Prime Minister.

Subsequently, Mrs Indira Gandhi's election to the Lok Sabha was set aside by the Allahabad High Court on 12-6-1975. This decision led to a series of cataclysmic events which culminated in the proclamation of internal emergency on 25-6-1975. To sustain Indira Gandhi's election, the election laws were amended, pending appeal. The Constitution (thirty ninth Amendment) Act was enacted making special provision to deal with election disputes of Prime Minister and the Speaker and this resulted in abating of the election petition itself. The Court struck down the amendment as unconstitutional.

As a sequel to the declaration of emergency, Articles 14, 19 and 21 were suspended. A large number of persons in various States were detained and the detenus challenged their arrests in various habeas corpus petitions. Some of the High Courts held the petitions to be maintainable. On the matter coming before it, the Supreme Court by a 4:1 decision15 held that Article 21 is the sole repository of the right to life and liberty and so the right to life and liberty was no more available to a person detained by the State during the emergency and that no petition was maintainable under its writ jurisdiction even against the mala fide acts of preventive detention by the State. Justice Khanna in a brave and conscientious dissent took the view that even in the absence of Article 21 of the Constitution the State has no power to deprive a person of his life or liberty without the authority of law. This he held is the essential postulate and basic assumption of the rule of law. According to law in India before the Constitution came into force, no one could be deprived of his life and personal liberty without authority of law and in view of Article 372, this continued to be the law even after the Constitution was adopted.

The majority judgment evoked disappointment both in the legal profession and the public.

Justice Khanna paid the price for his dissent. When Justice A.N. Ray retired on 29-1-1977, Justice Khanna, the next seniormost Judge was superseded and Justice M.H. Beg was appointed Chief Justice instead.

During this period the Constitution (forty second Amendment) Act was passed, which contained some obnoxious provisions aimed at curtailing the powers of the judiciary.

The Post-Emergency Period

The 1977 elections saw the overwhelming defeat of the Congress party. The Janata party came to power. It immediately dismantled most of the amendments inserted during the emergency and also put in place some constitutional safeguards aimed at ensuring that the emergency provisions in the Constitution are not misused.

During this period the Supreme Court set about the task of reviving the pre-eminent position it had lost during the emergency. In his R.B. Datar Memorial Lecture given in April 1999, Mr Fali S. Nariman has described the years since 1977 as "the best years of the Court" during which he said, "the Court has built around itself (step by step and case by case) an almost impregnable fortress of judicial inviolability"16

In Gopalan case9 in 1951 the Supreme Court had adopted a positivistic approach of interpretation and propounded the theory of exclusivity of Article 21 from Article 19 of the Constitution. However this theory was overturned in Bank Nationalization case13. Finally in Maneka Gandhi case17 the Supreme Court decisively introduced the due process in Indian jurisprudence. The Court pronounced that the procedure contemplated by Article 21 of the Constitution must be right, just and fair and not arbitrary and must pass the test of reasonableness. Thus not only had a law, depriving person of life and liberty, to be fair and reasonable but it also had to meet a possible challenge from the other provisions of the Constitution such as Articles 14 and 19.

In Sunil Batra v. Delhi Admn.18 Justice Krishna Iyer stated as under: (SCC p. 518, para 52)

"True, our Constitution has no 'due process' clause or the VIII Amendment; but, in this branch of law, after Cooper13 and Maneka Gandhi18, the consequence is the same."

In Bachan Singh v. State of Punjab19 a Constitution Bench, speaking through Sarkaria, J. stated that after Maneka Gandhi case18 Article 21 must read as: (SCC p. 730, para 136)

"No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law."

The Court has begun to apply the fair and reasonable requirements of law not only to deprivation of life but also to the well-ordered concept of human dignity and life.

The Court held that a person was entitled to a speedy trial and therefore his/her long detention as an undertrial prisoner was violative of the procedure established by law. The State was obliged to provide free legal aid as an essential prerequisite of the procedure established by law. Handcuffing of prisoners was held to be violative of procedure established by law. The constitutionality of death penalty in India was considered in the context of the larger concept of a fair procedure for deprivation of life, even though the Constitution does not embody the American Constitution's Eighth Amendment — prohibition of cruel and unusual punishment.

At the same time, the Court enlarged the concept of life in Article 21 to include the dignity of the individual and the worth of human person20 The Court has said that life does not mean merely animal existence or continued drudgery through life but the finer graces of human civilization which makes life worth living21 The right to life has been held to include right to privacy22, to development of urban areas23, to fresh water or air24, to protection against environmental degradation25, to food and clothing and shelter26, to health27, to education28, and even a right to roads in hilly regions — because access to roads are said to have access to life itself29, right to the conservation of the physical environment30 and protection against import of injurious insecticides31

Indeed, there is no end to aspects of the protection or advancement of human life which cannot be brought into the ambit of life in Article 21. That article has become the most widely invoked provision for the Court's intervention in matters affecting the lives of persons. Truly, Article 21 has been metamorphosed from its original form and content beyond recognition. A large part of the Indian judiciary's present-day activism is a result of this wider interpretation. In Vishaka v. State of Rajasthan32 which was a PIL concerning sexual harassment of women at the work place, the Court declared that till the legislature enacted a law consistent with Convention on elimination of all form of discrimination against women, (CEDAW) the guidelines set out by the Court adopting the Convention would be enforceable.

Alongside Article 21, a new dimension was imparted to Article 14 of the Constitution, as mandating general requirement of non-arbitrariness or reasonableness of every action of the State and public authorities, whether legislative or executive, the absence of which would invalidate the action. In Ajay Hasia v. Khalid Mujib33 it has been authoritatively held thus: (SCC p. 741, para 16)

"Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an 'authority' under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution."

Realising that the traditional concept of "standing" had been coming in the way of access of justice on behalf of the socially and economically disadvantaged sections of society, the Court liberalized the concept of locus standi and ruled that where judicial redress is sought in respect of a legal injury or legal wrong suffered by persons, who by reason of their poverty, or other disability are unable to approach the court for enforcement of their fundamental rights any member of the public or any organization acting bona fide, can maintain an action for judicial redress. The court would not insist on formal petitions and in some cases even letters addressed to the Court were taken up as petitions.

Over the years an enforceable right to compensation in cases of torture or other injuries inflicted by the State or its agencies has also been crystallized. Starting with decisions like Rudul Sah34, Bhim Singh35 etc. it was finally authoritatively laid down in the case of Nilabati Behera36 The Court held that contravention of fundamental right gave rise to a public law remedy of payment of compensation and the defence of sovereign immunity did not apply even though it might be available as a defence in private law in an action based on tort.

The Court showed special concern towards civil liberties and freedom of the person. In Joginder Kumar v. State of U.P.37 the Court held that it is was inherent in Articles 21 and 22 that the police must, if they arrest a person, inform a relative or friend of the fact of his arrest and also inform them of the place where he was being detained. That this has been done must be recorded in the station diary. The right to bail was liberalized. In Common Cause v. Union of India38 the Court gave directions to ensure that criminal proceedings did not operate as engines of oppression.

The last decade of the twentieth century in particular is notable for the way in which issues regarding corruption in high places were highlighted. The charges of corruption involving the Prime Minister, Chief Ministers, Members of Parliament, private sector Managers and operators causing loss of thousands of crores of rupees convulsed the country and eventually reached the courts. Impeachment proceedings were launched against a sitting Judge of the Supreme Court. The credibility of the political establishment was at a low ebb. While supervising the investigation in some cases involving the high and the mighty the Court also in 199739 directed a nodal agency with necessary powers, comprising high-level independent members, to be set up and be assisted by the investigating agencies to investigate matters such as those referred to in the Vohra Committee Report regarding the nexus between politicians and criminals. The Court issued detailed instructions concerning the Constitution and control of the investigating agencies.40 The Court issued directions under which the Central Vigilance Commission (CVC) would be given statutory status and would be responsible for the proper functioning of CBI. The thrust of the Court was on good governance and accountability of public officials.

Chastened by the existence of black sheep in its own ranks the Court in 1995 introspected and called for the setting up of an in-house mechanism to enquire into allegations against the Judges.41

Environmental protection remained an active consideration in the agenda of the Court. There were cases of pollution of water due to discharge of toxic effluents by industries on the banks of rivers. To stop this the Court issued various directions42 To halt denudation of forests, activities associated with wood products like sawmills were directed to be closed down43, hazardous industries from Delhi were sought to be shifted outside the municipal limits44 Directions were issued for the installation of pollution control systems to minimize air pollution by industries45 The Court also issued directions to prevent vehicular pollution in Delhi46

These decisions led to the feeling in come circles that the judiciary is overstepping its limits and it is high time it should put a stop to this judicial activism. However, as Soli Sorabjee has pointed out:

"that it is the executive's failure to perform its duty and the notorious tardiness of legislatures that impels judicial activism and provides its motivation and legitimacy. When gross violations of human rights are brought to its notice, the judiciary cannot procrastinate".47

However, this is not to say that all is well with the judicial wing. There is the high cost of litigation and awesome delays involved in getting justice through the courts. We are still saddled with archaic laws, cumbersome procedures, Judges drawn from affluent backgrounds with their status quoist attitude, who do not understand and are not sometimes sympathetic to the problems of the teeming millions, understaffed courts etc. etc. We are still nowhere near fulfilling Gandhiji's dream of wiping the tears from the eyes of every Indian. A lot needs to be done. The judiciary and the Government have to work hand in hand to redeem the preambular promise of justice — social, economic and political. There is no time for pious platitudes but concerted action by all wings of the Government to remove the scourges of poverty, illiteracy, casteism in a spirit of cooperation and humility, occasioned by the magnitude of the task at hand.

*   Speech delivered by Mr H.S. Mattewal, Advocate-General for Govt. of Punjab and Chairman, Bar Council of Punjab and Haryana at the Bar Council of Malaysia, Kuala Lumpur on 18-7-2001. Return to Text

  1. AIR 1951 SC 332 Return to Text
  2. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC (1) Return to Text
  3. Learned Hand's characterization of the independent judiciary in his essay "The Contribution of an Independent Judiciary to Civilization" in Irving Dilliard (Ed.) The Spirit of Liberty - Papers and Addresses of Learned Hand, Vintage Book, Alfred A. Knopf Inc. 1952. Return to Text
  4. Quoted in the speech delivered by Justice A.H. Ahmadi, the Chief Justice of India on the occasion of Law Day, November 1996 at premises of the Supreme Court of India. Return to Text
  5. Gobind Das: The Supreme Court : An Overview in B.N. Kirpal et. al. (Ed.) Supreme but not Infallible-Essays in Honour of the Supreme Court of India, Oxford University Press, New Delhi, 2000 at p. 17. Return to Text
  6. Granville Austin : The Supreme Court and the struggle for custody of the Constitution in B.N. Kirpal et. al. (Ed.) Supreme but not Infallible - Essays in Honour of the Supreme Court of India, Oxford University Press, New Delhi 2000 at p. 2 Return to Text
  7. Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458 Return to Text
  8. A.K. Gopalan v. State of Madras, AIR 1950 SC 27 Return to Text
  9. Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 Return to Text
  10. I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643 Return to Text
  11. Quoted in Raju Ramchandaran "Supreme Court and the Basic Structure Doctrine" in B.N. Kirpal et. al. (Ed.) Supreme but not Infallible - Essays in Honour of the Supreme Court of India, Oxford University Press, New Delhi, 2000 at p. 108. Return to Text
  12. R.C. Cooper v. Union of India, (1970) 1 SCC 248 Return to Text
  13. Madhav Rao v. Union of India, (1971) 1 SCC 85 Return to Text
  14. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 Return to Text
  15. A.D.M., Jabalpur v. S. Shukla, (1976) 2 SCC 521 Return to Text
  16. Quoted in Hon'ble Lord Bingham of Cornhill, Lord Chief Justice of England and Wales, Law Day Lecture on the occasion of the golden jubilee celebrations of the Supreme Court of India on 26-11-1999. Return to Text
  17. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 Return to Text
  18. (1978) 4 SCC 494 Return to Text
  19. (1980) 2 SCC 684 Return to Text
  20. Francis Coralie Mullin v. Administrator, U.T. of Delhi, (1981) 1 SCC 608 Return to Text
  21. Board of Trustees of the Port of Bombay v. D.R. Nadkarni, (1983) 1 SCC 124 Return to Text
  22. Kharak Singh v. State of U.P., (1964) 1 SCR 332 Return to Text
  23. Municipal Council, Ratlam v. Vardichand, (1980) 4 SCC 162 Return to Text
  24. M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213 Return to Text
  25. A.R.C. Cement Ltd. v. State of U.P., 1993 Supp (1) SCC 426 Return to Text
  26. Shantistar Builders v. N.K. Totame, (1990) 1 SCC 520 Return to Text
  27. Vincent v. Union of India, (1987) 2 SCC 165 Return to Text
  28. Mohini Jain v. State of Karnataka, (1992) 3 SCC 666 Return to Text
  29. State of H.P. v. Umed Ram Sharma, (1986) 2 SCC 68 Return to Text
  30. M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388 Return to Text
  31. Ashok (Dr) v. Union of India, (1997) 5 SCC 10 Return to Text
  32. (1997) 6 SCC 241 Return to Text
  33. (1981) 1 SCC 722 Return to Text
  34. Rudul Sah v. State of Bihar, (1983) 4 SCC 141 Return to Text
  35. Bhim Singh v. State of J&K, 1984 Supp SCC 504 Return to Text
  36. Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 Return to Text
  37. (1994) 4 SCC 260 Return to Text
  38. (1996) 4 SCC 33 Return to Text
  39. Dinesh Trivedi v. Union of India, (1997) 4 SCC 306 Return to Text
  40. Vineet Narain v. Union of India, (1998) 1 SCC 226 Return to Text
  41. C. Ravichandern Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457 Return to Text
  42. Vineet Kumar Mathur v. Union of India, (1996) 1 SCC 119 Return to Text
  43. B.S. Ashram v. State of U.P., (1993) 2 SCC 612 Return to Text
  44. M.C. Mehta v. Union of India, (1996) 4 SCC 351 Return to Text
  45. S. Jagannath v. Union of India, (1997) 2 SCC 87 Return to Text
  46. M.C. Mehta v. Union of India, (1999) 1 SCC 413 Return to Text
  47. Quoted in Michael Kirby AC CMG, Bar Council of India Lecture, 1997 on Judicial Activism, New Delhi, 6-1-1997. Return to Text
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