Harnessing the Lordships: Constitutional Independency vs. Judicial Accountability?

Aakash Laad[1]

“Power corrupts the mind but absolute power corrupts the mind, soul, and conscience absolutely”

A bare look at the constitution of our country clearly suggests that the basic pillar of Judiciary is not only independent but is empowered to ensure compliance of the Law of the land. However, despite being the ‘Custodian of the Constitution’ the Judiciary itself has fallen prey to the dirty of corruption and nepotism, owing to the great powers it has been entrusted with, by the law itself and there being no apparent check over these powers. Judiciary has faced systematic attacks, time and again, from the legislature, being an ‘extra-constitutional’ law-making body and that the ‘Hon’ble Lordships’ confuse the thin line of difference between ‘judicial activism’ and ‘judicial overreach’. The Judiciary tends to cross their limit while interpreting the laws and often end up making them, thereby, breaching the legislative authority and while doing this, the judiciary justifies its actions by alluding to the argument that the legislative and executive are driven by political motives rather than public welfare. Below are two instances out of many, wherein, the judiciary went a step forward, however, regressively and instead of clarifying things, made it difficult for the hoi polloi to exercise compliance.

First Instance

Shyam Narayan Chouksey v. Union of India[2]

In this case, the Apex Court placed obligations over the theatres to play National Anthem before any film starts. However, in its complete judgment, the court did not mention a previous authority in this regard i.e., Bijoe Emmanuel v. State of Kerala, wherein, the bench held that no one can be compelled to sing the National Anthem and there is no legal provision forcing a person to sing the national anthem. Now, the problem of Judiciary made law is that you cannot figure out what is right and what is wrong. The ruling laid down in Bijoe could be said to be right by the liberalists and the ruling in Shyam can be rightly justified by the patriots. The dual interpretation by the same authority makes it tough for the people to comply. Such acts by judiciary also defeat one of the primary features of Indian Constitution i.e., ‘Separation of Power’. Rulings like these also go beyond the legislations themselves or even worse, make the legislations confusing and difficult to be interpreted. 

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Second Instance

In this case, the Supreme Court, while quoting the importance of its partiality and independence, struck down the 99th Constitutional Amendment Act, that mandates a commission called National Judicial Appointments Commission (NJAC) to appoint the judges of the Supreme Court. This was criticised even by the pro-judicial independence group of people. The chief reason provided by the majority to uphold the NJAC as unconstitutional was that it breaches the doctrine of basic structure propounded in Keshavananda Bharti v. State of Kerala and that it attacks the independence of the judiciary by adding the influence of executive in the appointment of Supreme Court judges. This judgment may be celebrated as an instance of judicial independence but does it really have something to be celebrated? The judiciary again upheld its absolute independence and went on to espouse its unfettered discretion over the interpretation of laws. The basis on which the Court declared the NJAC unconstitutional was that it violates the doctrine of the basic structure. However, isn’t the legitimacy of the basic structure is questionable itself? The doctrine works on a rickety ground, where, the abstract idea of the basic structure becomes the best ground for the Court to uphold a particular policy, law, or rule as unconstitutional. 

Let us take the above example itself, wherein, there were two different verdicts by a single authority and either of them was justified on constitutional grounds. Now, what would be the pro-basic and anti-basic structure? This now becomes a question that could be clarified only by a clear-cut black and white letter law and not a judgment based on an abstract interpretation of constitutional morality. The dissenting opinion by Justice Chelameswar in SCAORA v. Union of India rules as, “Abrogation from a basic feature will not be an ab initio invalid act like the violation of the basic structure of the Constitution”, as he believed that there is a difference between the basic structure and basic feature of the Constitution and that amending the latter, would not mean abrogating the former. This reasoning, however, remains the minority and there are bleak chances of it becoming a majority in any later case. In fact, if it becomes a majority, then again, the confusion would arise and inconsistencies in law would take place.

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It is the high time for the judiciary to understand a basic difference between Judicial Activism and Judicial Overreach. Some examples of Judicial Activism exercised by the Apex Court are- 377 Judgment[3], Sabarimala Judgment[4], and Adultery Judgment[5]. The Court in these judgments correctly interpreted the law in the lines of constitutional principles rather than overreaching its authority.

The main difference between Judicial Activism and Judicial Overreach is that the former is active use of the permissible authority to dispense social justice, whereas the latter is a breach of constitutional morality and the doctrine of separation of power.

[1] Student at R.M.L.N.L.U.

[2] Shyam Narayan Chouksey v. Union of India, (2017) 1 S.C.C. 422.

[3] Navtej Singh Johar v. Union of India, (2018)1 S.C.C. 791

[4] Indian Young Lawyers Asso. v. State of Kerala, W.P. (C) 373/2006.

[5] Joseph Shine v. Union of India, (2009) 3 S.C.C 39.