Role of the Judiciary under the Constitution

Ever since the birth of the Indian Republic, we have been celebrating the Republic day, i. e., 26th of January, every year. While a great majority of the provisions of the Constitution came into force on that date, it is very often forgotten that the 26th of November 1949 was the day when the people of India adopted, enacted and gave to themselves the Constitution by which they are now governed. From one point of view therefore this day is as important, if not more, as the day when the Constitution was brought into force. It is in the fitness of things that this day which marks the end of ten years after we enacted the Constitution should be celebrated by a meeting of the three branches or limbs of the Constitution in this State. Sri Suryanarayanaswamy deserves to be congratulated for entertaining the idea of celebrating this great day in the history of the Constitution of this country in this manner. It was extremely kind of him to have requested me to speak a few words on the role of the judiciary under this Constitution on this important occasion.
In all systems of jurisprudence which recognised the rule of law, the existence of a body called the judiciary to dispense justice according to law between individuals, and between the individual and the State and in the federal constitutions like ours between State and State is considered almost axiomatic and it is unnecessary to expatiate upon its necessity at length before such an august body of gentlemen assembled today. As Sir William Holdsworth points out “The Judges hold an office to which is annexed the function of guarding the ‘Supremacy of the law’. It is because they are the holders of an office to which the guardianship of this fundamental principle is entrusted that the judiciary forms one of the three great divisions into which the power of the State is divided.” Inasmuch as it is the duty of the judiciary not only to decide disputes between individuals but between an individual and the State it follows that the judiciary must be independent of the executive, or the legislature whose action or enactment it has to judge in deciding the dispute before it. The requirement of an independent judiciary so essential to a democracy governed by the rule of law is greater in the case of a federal constitution where the Courts are called upon not only to decide disputes between the individual and the State but between two States or between a State and the Union Government. In a federal constitution, therefore, where both the Union Government and the State Government may be parties to a dispute, or where the Courts have to consider the question whether the State or the Union Legislature as the. case may be has outstepped the limits of its legislative power and has encroached on the domain which legitimately belongs to the other, it is essential that the judiciary or at any rate the Judges of the Supreme Court and the various High Courts should be absolutely independent of both the State and Union Government and the State and Union Legislatures. That is why without merely being content with providing for an independent judiciary, federal constitutions like the United States have provided for a complete separation of the three powers or limbs of the State viz., the executive, legislature and judiciary. Our Constitution while following the British model in regulating the relations between the legislature and the executive by adopting the Cabinet system with the result that the legislature and the executive are not independent of each other has provided for the separation of the judiciary. While there are already provisions in the Constitution relating to the Supreme Court and the High Court based upon the doctrine of the separation of the judicial power from the other two branches of Government, provision is also made for the separation of judiciary generally being effected by providing in Article 50 that “The State shall take steps to separate the judiciary from the executive in the public, services of the State”. In accordance with the above principles, in progressive stages complete separation of the judiciary from the executive has been effected in all the Districts in this State.
Now that the Constitution has been in force for nearly 10 years, it is time to look back and find out whether the provisions of the Constitution aimed at securing an independent judiciary have achieved that purpose or not. It is a matter of pride to say that the judiciary has justified the confidence reposed in it by the people and the Constitution and has throughout all these years in accordance with best traditions administered justice without fear or favour in this country. But, at the same time, there are some provisions in the Constitution which in my opinion have not proved adequate to safeguard the independence of the judiciary which is so essential to the proper working of a democracy.
The Constitution vests the power of appointment of a High Court Judge in the President in consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the State. In this respect, there is a marked improvement on the Constitutions of other countries. For instance, in the United States, the power of appointment of Judges to the Federal Court and the Supreme Court vests in the President only and the history of the United States where the President made the appointments out of political considerations afforded a sufficient warning to our Constitution makers who therefore provided that the Chief Justice of India, Chief Justice of the State and the Governor should also be consulted. It is a matter for consideration whether it is desirable or necessary to consult the Governor of the State. It is now well known that the State is the largest single litigant in the Courts. It is a party to a substantial number of causes. Every day the High Court is called upon to consider the validity of its actions, and its alleged encroachments on the rights of citizens in the exercise of wide powers conferred upon it by the Constitution. It is a moot point whether in the circumstances the Governor (which means the State Government) is to have a hand in the appointment of the Judges. The difficulty of the President making a proper choice as he will not be in a position to have a knowledge of the local conditions is obviated by the condition that the Chief Justice of the State has to be consulted.
In this connection, another matter that calls for attention is the advisability of having additional Judges. The Constitution makers after deep consideration felt that the system of having additional judges is not conducive to the existence of an independent judiciary and made provision only for ad hoc Judges. Unfortunately however by a recent amendment, this was altered and provision was made for the appointment of additional Judges. It is extremely embarrassing and unfair to the additional Judge who has to look to his confirmation to the Government and the Chief Justice to entrust him with the task of dispensing justice without fear or favour in causes to several of which the State is a party. The recent amendment is consequently a retrograde step which impairs and interferes with the independence of the Additional Judge.
To achieve real independence of the judiciary, it is not sufficient merely to provide safeguards in the appointment or the conditions of service during their tenure. In England, where the Judges are appointed by the Prime Minister and Lord Chancellor, who is himself a partyman, independence of judiciary has been secured, firstly by a long course of tradition, and secondly by the appointment of able persons from the legal profession. The quality of justice depends upon the quality of men who administer the law, and unless those appointed to the Bench are competent, independent and upright, the judicial system, however sound its structure may be on paper is bound to fail in practice. It is therefore absolutely necessary that in the selection of Judges, bold and independent (not fawning and spineless) advocates with talent and character should be appointed. The Judges should also maintain, as a rule, a tradition of isolation and aloofness declining to mix freely with members of the public and the executive at Clubs and other social functions. That was the British tradition of the Judges living, in the words of Sir Winston Churchill, “their whole lives ...................... within strict and rigid limits”. The eminent statesman observed:
“A form of life and conduct far more severe and restricted than that of ordinary people is required from Judges and, though, unwritten, has been most strictly observed. They are at once privileged and restricted. They have to present a continuous aspect of dignity and conduct.”
Moreover, each member of a Division Bench or a Full Bench has to apply his mind and independent thought and promote the growth of law. There is nothing objectionable in expressing a different opinion or writing a dissenting judgment. Frankfurter J., referring to the Supreme Court has observed on this subject as follows:
“Laymen are constantly troubled ............. about the divisions on the Court. But why should anyone expect nine men, presumably there because of their special capabilities, all to have the same thoughts and views? One would suppose that nine men are put there because you want variety of thought.”
While it is true that independence of judiciary is a sine qua non of a democracy, especially a federal or quasi-federal democracy, independence should not be confused with supremacy. There has been of late a tendency in various countries for the three branches of the State to develop a sense of antagonism or antipathy towards each other. If only those at the head of these branches realised that they are parts of a composite whole, viz., of the State, that the three branches function separately in their own sphere for the sake of greater efficiency in administration and the ultimate well-being of the people, that the three branches are coequal, much of this antagonism will disappear. If we take, for instance, the judiciary, it has of necessity to determine the validity of the action of the executive or the vires of an act of legislature. In doing so, it is performing only a duty, very often unpleasant and not exercising any right. If the legislature or the executive branches of the Government look at the functions of the judiciary from this perspective, they will certainly realise that they have no cause for any antagonism against the judiciary. On the other hand, it is really in the interests of the executive or the legislature that their acts are reviewed dispassionately by an impartial and independent judiciary. It is always an advantage to have one’s action scrutinised by a person in a calm and serene atmosphere, free from the stress and strain of politics. The Judge, on the other hand, should, in interpreting a Statute, also take into account that the legislation “has an aim, that it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of Government, and it is that aim in the Statute that the Judge must seek and effectuate as far as possible consistent with the language employed therein”. They must remember, as Holmes J., observed, that “the legislatures are ultimate guardians of the liberties of the people quite as great a degree as Courts”. Here again, the history of our Constitution during these 10 years has shown that the Judges have, by a process of self-restraint, exercised the wide powers conferred upon them with great care and caution. The principles applied in considering the validity of a statute or the legality of the governmental action such as (1) due deference must be paid to legislature judgment and (2) a statute must be presumed to be constitutional until it is proved otherwise, are instances of self-imposed limitations by the judiciary in the interests of the ultimate well-being of the State. As pointed out by Mr. Wheare on his treatise On Federal Government,
“Although it may be wise for a Court to give the legislature the benefit of the doubt, where there is a doubt, it is no part of a court’s duty to do for a legislature or for a majority of the electors what a Constitution has not done for them.......... ........... They have a discretion ............. Courts may modify, they cannot replace. They can revise earlier interpretations as new arguments, new points of view are presented. They can shift the dividing lines in marginal cases; but there are barriers they cannot pass, definite assignments of power they cannot re-allocate. They can give a broadening construction of existing powers, but they cannot assign to one authority powers explicitly granted to another.”
The Constitution makers have conferred very wide powers on the Supreme Court under Art. 32 and on the State High Courts under Art. 226 of the Constitution. As pointed out by the Supreme Court, it is constituted as the protector and guarantor of fundamental rights, and it cannot consistently with the responsibilities so laid down upon it, refuse to entertain applications seeking protection against the infringements of such rights. Patanjali Sastri C. J., in dealing with the constitutionality of a statute observed as follows:
“If, then, the Courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the ‘fundamental rights’ as to which this Court has been assigned the role of a sentinel on the qui vive.”
In a recent case, the Supreme Court pointed out that they do not countenance the proposition that, on an application under Art. 32, the Court may decline to entertain the same on the simple ground that it involves the determination of disputed questions of fact or on any other ground. They observed that if they were to accede to the aforesaid contention of learned counsel, they would be failing in their duty as the custodian and protector of fundamental rights. The same construction has to be placed on Art. 226 which entitles the State High Courts to issue any order or direction. As pointed out by Martin B. in Mayor of Rochester v. The Queen, (1858) El and Bl 1024 (1033), “Instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment, we think it our duty to be vigilant to apply it in every case to which, by any reasonable construction, it can be made applicable.” Again, the special powers conferred by the Constitution on the Supreme Court and the State High Courts ought not to be refused on the sole ground that by interfering with the vagaries of the administrative tribunals, the Courts will be flooded with innumerable writs. Viscount Simonds observed in Edwards (Inspector of Taxes) v. Bairstow, (1956 AC 14 at 32) as follows:
“We are warned by the learned counsel for the respondents that to allow this appeal would open the floodgates to appeals against the decisions of the General Commissioners up and down the country. That would cause me no alarm, if decisions such as that we have spent some time in reviewing were common up and down the country.”
A perusal of the several decisions rendered under these articles will clearly show that the Courts have not displayed any undue anxiety in exercising the wide and almost limitless powers conferred upon them. On the other hand, by their own judgments, they have circumscribed those powers so that in the words of Holmes J., “Play is allowed to the joints of the legislative and executive machine”. I am no doubt aware of the sense of disappointment felt when the Supreme Court struck down certain enactments, but if only they had realised that the Supreme Court was compelled to do so as they were bound to declare those that violated the Constitution as unconstitutional, much of the resentment and criticism would have been avoided. The legislature and the executive on their part also are under a duty not to interfere with the independence of the judiciary. Happily, these two great branches of Government have always regarded the judiciary with respect and have endeavoured not to interfere with the independence of the judiciary. In this connection however I would like to draw attention to the recent practice of the executive in their anxiety in clearing up arrears to urge upon the judiciary for a speedy disposal of cases and to interfere with their days and hours of work. Perhaps it is not realised that such interference has the effect of disturbing the calm and serene judicial atmosphere and is resulting in haste in disposing of cases which not infrequently results in miscarriage of justice. There is no doubt that justice delayed is justice denied and that there are arrears pending in the several courts. The arrears can only be solved by simplifying the procedural laws and by appointing sufficient number of capable and independent judges to the several courts. The Judges, under the oath of office administered to them, are bound to decide cases after hearing both the parties calmly and patiently and not to dispose of cases by the clock.
But for a few rare exceptions, it is gratifying to note that during all these years, the relations between the judiciary on the one hand and the legislature and the executive on the other, have been extremely cordial, and there has been no undue friction in the wheels of the governmental machinery. I have no doubt that these relations will continue to be cordial and the various branches will work in harmony with the sole aim of securing to its citizens “Justice, social, economic and political, liberty of thought, expression, belief, faith and worship, equality of status and opportunity” and promoting among them all fraternity assuring the dignity of the individual and the unity of the Nation.

Author Name: Hon'ble Shri Justice K UmamaheswaramÂ