Lecture I

INDEPENDENCE OF JUDICIARY

Synopsis
1. Introduction
2. Judicial Review
3. Judicial Activism
4. Judicial Restraint 1
1. INTRODUCTION:
Montesquie'sdoctrine of Separation of Powers states th
there are three branches of the state machinery viz, legislative
executive andjudiciary, are to be separated, strictly limited to thei
own field and they should not trespass upon the sphere of the domai
of the other branches. This separation is necessary to see that th
power is not vested into any one person or a body, which resul
in abuse of power. The doctrine of separation of powers preven
the intrusionof one branch into the scope of other. From the abov
doctrine evolved the concept of independence of the judiciary.
The main intention behind the doctrine is that the legislatur
and the executive should not influence the judiciary in any way.
judges of the courts of law should be able to deal with disput
without any influence from other factors. The principle of
of powers and the independence of the judiciary separati
are two of the mo
fundamentalconstitutional values embodied in the
Constitutionof India. Without these two structure of tk
values, impartiality cann
In Indiajudiciaryis
independent in exercising
interpretthe constitution. its power
Constitutionandfor ajust To ensure smooth functioning
and free society, of
this judicial independ en

1
 Interpretation of Statutes
Lecturcs on [Lec.l
provide for the independence
constitution has to of
It must ensure that indepepdentjydicial powerthe
prirnarily. Constitution is
diö the judiciary. The should provide for the
composition of the Courts and, also for the
and
tenure of the judges to ensure the independence
o'fofflceand the
}[Link] of these aspects must be out of the hands of •
f th twobranches, i.e. executive and legislature to reduce théir
e other The judges should be predetermined,
uenceover the judiciary. deciding the
fairand reasonable in cases. The judges to be
impartial, and also, it Eto be seen that they are not
nblased, legislature or the executive.
embersof either And not only from
e ånfluence of the other two branches must the judges also be free
ers states tha from fellow judges.
om anyinfluence
legislative. of independence of the judiciary has been held
imited to their I Theconcept of the Constitution of
of the domain a basic
feature India, and hence any
directly or indirectly takes this away has
to see that the i ndmentwhich either
invalidated.2 Article 50 of the Indian Constitution talks about
which results
wers prevents separationof judiciary from the executive. It states that "The
rom the above e shalltake steps to separate the judiciary from the executive
hepublicservices of the State." Once a case has moved to
Courts,only the court and its officers should have control over
he legislature t, otthe
other branches, and only they can decide what has to be
any way. "Ihe o e regarding
it.
withdisputes
ofseparation he Wheneverany tribunals constituted through an enactment by
ofthemost legislatureand the same vested with judicial powers or when
ti
ICtureof the Iii s soughtto transfer the judicial powers which are vested ip the
ghCourtto the tribunals
alitycannot
officialswith then such tribunals must be manned with
judicial training and experience. 3
M [Link],
power to Securing the Independence of the Judiciary - The Indian
Experience,245
ng of the SeeL. Chandra
(2000).
1125;see also
pendence [Link] Kumar v. Union Of India, AIR 1997 SC
sp. Gupta on Record Ass 'n v. Union of India, AIR 1994 SC 268;
v. Union oflndia,
AIR 1982 SC 149.
halisgaonEducation Officer/
ecretary Vasantrao Society through Public Information
Maharashtra
throughstate Sonu Chandratre v. State of
Information Commissioner, 2015 (4) Bom.C.R. 645.
 Independcncc or Judiciary 3
In S. J. Pathak, Ex. Addl. SessionsJudge
and Anotherl the court stated v. State of Gujarat
'
that 'Judicial pronouncement in the
absence of clear-cut evidenceoffavouritism, lack of integrity,
corrupt practices, extraneous considerationetc. cannot be the
foundation of disciplinary proceedingsor else it will affect the
judicial freedom and [Link] officers have to be
saved to uphold the rule of law and the independenceof the
judiciary. "
In Mamnoon and others v State of Uttar Pradesh and
others2 it has been stated that if an attempt is made to scandalise
a judicial¯oTficer, it not only damages the reputation of that particular
officer, but also it causes damage to the entire judicial system.
Judicial officers have the responsibilityto impartjustice in an impartial
manner, and our entire system is based on their independence and
impartiality. The very independence of tbejudiciary will be affected
if their reputation, confidence and impartiality are shaken.
In Pareena Swarup v. Union of India3 the Apex court held
that the Government has a duty to see that the scheme of separation
of powers and independence of the judiciary has not been breached
while creating a new avenue of judicial forums.
2. JUDICIAL REVIEW:
Supremacy of law determinesthe basic quality of judicial
review. It is a power in the hands of the judiciary to review the
legisrature, executive and judicial actions. It is the power which
scrutinises to check the validity of the •lawor any action. Judicial
support
review is a Concept of the rule of law. It is a mechanism to
constitutional
separation of powers and functions. In Judicial Review,
will misbehaves
sanity is upheld over the popular will whelVthe popular
ptovides certain
with the limits of the constitution. The Constitution
these limitations
limits on various organs of the State and to enforce
are the guardians
judicial review cojnes into existence where courts
of the Constitution.
153. 3. (2008) 14scc 107.
1.
2. 2014 Indiaw ALL 2831.
4 Lectures on Interpretation of Statutes [Lec.l
Judicial Review was first recognised in Dr Thomas Bonham
v. College of Physician, l where it has been held, that the Acts of
Parliament are controlled by the common laM{. This concept truly
came into effect when it is laid down in Marbury v. Madison2
whet€it has been said that, it is the duty of thejudiciary to say what
law actually is.
In India, the scope of judicial review is made in legislative
action,executive or administrative action and judicial action. The
laws which are made under Article 13of the Constitution should not
be inconsistent with Part Ill of the Constitution, and the laws which
are inconsistent with Part Ill of the Constitutionare held to be void.
The doctrine of Judicial review is explicitlyestablishedin various
Articles such as 13, 32, 131-136, 143, 226, 227, 245, 246, 372. In
our Indian Constitution, judicial review is providedir•-constitutional
amendments, parliament and state legislation,and administrative
actions of executives.
In A. K. Gopalan v. State of Madras3 the court held that it
should be noted that, whether the omission of a challenged portion
of an Act changes the basic structure or objector nature of the
legislation.
In Bhikaji Narain Dhakras and •others v. The State of
Madhya Pradesh And Anotheza , the provisions of Civil Procedure
Code and Berar Motor Vehicles Act, 1948 authorisedthe
State Govt.
to take up entire motor transport in the [Link] law
become inconsistent with Article 19(1) (g) of the constitution,
has
if and
become ultravires. After the amendment to the constitution
India,Article J9(6) was inserted, which made the of
provisions consistent.
The Court held that the amendment removed
the eclipse. So, the
moribundprovisions came into force again
after the atnendment
againstcitizens as well as non-citizens.
In I. [Link] Nat/l v. State of
Ovenuling doctrine PunjabSthe Prospective
was laid down by the Supjvme Coutt and
opinioned
8 co. Rep. 107; 77 Eng.
Rep. 638. 4. AIR 1955SC 781.
2 (1803) | cr. 137.
3. AIR 1950 SC 27. 5. AIR 1967SC 1643.
[Link] Independence of •Judiciary
the power of amendment
thatthe parliamentis not having
fundamentalrights. The Hon' ble judge view is that the Article36é
[Link] doesn't
providesthe procedure to amend the Constitution, Leg
amendment which can be captured only in the residuary
thepower-of I tv
legislaturepower of parliament under Article 248. The Hon'ble
10
St
Judgeis-alsoof the view that the word law under Article 13(2)
includesan ordinary law as well as an amendment, so, they held that to tkt
the Parliament is not authorised to amend the fundamental rights. or t
Therefore,it was held that the principle has no retrospective operation.
r
rt
It is operativeonly in future, nothing but prospective overruling. ms there
decisionmade the amendments till date as valid, and the amendment t
of fundamentalrights which come affeFthis decision would be ess t
[Link] parliament would have no authority to amend the ered t
fundamentalrights of the Constitution. ave
{lat
StåtutesRendering Judicial DecisionsIneffective ut
A judicial decision turning out to be ineffectivedue to a statute eratl
is held to be valid practice in various judicial pronouncements. A
legislaturecannot straightaway overrule a judicial decision unless In
2
thereexistsan enactment of valid within the legislative field. In
WelfareAssociation. A.R.P., Maharashtra and Anr. v. Ranjit P. t,
Gohiland Ors.,l it was held that, in exercisinglegislative power,
"the legislatureby mere declaration, without anything more, ex
cannotdirectlyoverrule, revise or override a judicial decision.
It can renderjudicial decision ineffectiveby enacting valid law fid it
on the topic within its legislative field fundamentally altering or dgr
changingits character [Link] changed or altered atul
conditionsare such that the previous [Link] not •have egu
been renderedby the court, if those conditions had existed at not t
the timeof declaring the law as invalid It is competent for syst
the legislatureto enact the law with retrospective effect; ava
the to
consistentthread that runs through all the decisions
Courtis that the legislature cannot directly of this so
or makea direction as not binding overrule the decisio n
on it but has power to make
the decision ineffective by
removing the base on which the
1. (2003)9SCC358.
1
 [Lec.l [Link]
Interpretation of Statutes
on
the law of the Constitution common
consistentwith
Wered, clause me
was rel musthave compe of legislat
Sugars Ltd.,l the law
e legislature
cisloll
ofTami1 [Link] ineffective, the court by
decisions
judicial decisions matter held that, "It is judicial fi
rendering decisions on this powers, t
existing out by the
oncellliog
. to remove the defect pointed in check
eviewlllälegislaturedefinition or any other provision of the Oust
amend the process it cannot be said
or to retrospectively. In this however
the
question
an encroachment by the legislature over of execr
has been A court's directive must always bind Ouster
Ofthejudician. on which it is based are so fundamentally
theconditionsaltered circumstances such decisions could 1.
under
edthat
given. This will include removal of the defect in 2.
lot havebeen
pointed out in the judgment in question, as well as
statute of provisions of the enactment on
or substitution " comple
It ration is based, with retrospective effect.
ch such judgment Ouster
Industries Limited &
InUnionof India & Ors. v. Exide
4 2theconstitutional validityof section 43B of the Income Tax after
1961isquestionedas being arbitrary and violative of Article
1 Clause (f)mandatesactualpayment of liability to the employees intenti
fo extending the benefitof deduction under the 1961 Act. It was For an
h; dthattheprovisionhas been formulated duly by the legislature follo»
additshouldn'tbe misconceived that such enactment defeats the conta
udgment of [Link] Amendment has neither reversed the
n tureoftheliabilitynor it has taken away the deduction but it excep
r gulates irnplü
thedeductionthrough a special provision. Clause (D has
t takenawaythe autonomy of the assessee to follow the mercantile to try
s stemwhereasit merely exclu
defers the benefit of deduction to be cann«
}vailed
bytheassessee
thedateof actual to compute his taxable income and links it cour
0,the payment thereof to the employee concerned.
provisionwas held
to be constitutionally valid. the J
Clauses ExcludingJudicial Review/ Finality Clause prov
'P The'FinalityClause' upor
rivateClause' is also known as 'Ouster Clause' or
1.
(1997)1
These clauses were being in forge countries with be e
scc 326.
2 (2020)5SCC274. 1.
[Link] Indcpcndcnccof Judiciary 7
common law legal [Link] clause or ouster clause or private
clause means a section or proviso to a particular section in a piece
of legislation by a legislatureto cxcludc judicial rcvicw of actsand
decisions of executive by taking away the COUNSof their supervisory
judicial functions. In accordancewith the doctrine of separationof
powers, the vital functionof the Judiciary is to keep the executive
in check by guaranteeingthat the acts are in accordance withlaw.
The Ouster clauses preventsJudiciary from carrying out this function,
however may be justified on the ground that they protect the powers
of executive and [Link] of its acts and [Link]
Ouster Clause mainlydividedinto two type they are namely
1. Total Ouster Clause and
2. Partial Ousterclauses.
ne Total Ouster Clauseis also known as finality clause,whiéh
completely excludes the supervisory Jurisdiction of the [Link]
Ouster Clause unlike a finalityclause which precludes judicialreview
entirely, a partial ouster clause specifies a restricted period of time
after which no remedy will be available.
In India-there are many statutes exhibiting the legislature's
intention to take way the judicial review by way of finality clause.
For an illustration Section 9 of Code of Civil Procedure as read as
follows: "The Courts shall (subject to the provisions herein
contained) have jurisdictionto try Il suits of a civilnature
excepting suits of whichtheir co'. i' zance is either expresslyor
impliedly barred." It clearly state Inat the civil court has jurisdiction
to try all suits unless they are barred, this is partial clause it can only
exclude the superiorcourt from interfering in matter, howeverit
cannot bar the supervisoryjurisdiction of the High Court and Supreme
Court under articles 226 and 32. In the case of Dhulabhai [Link]
of Madhya Pradesh l the Hon' ble Supreme Court laid down that
the jurisdiction of the civil court can be excluded if the statute
provides substantial remedies that a civil court would do. Therefore,
upon establishment of proper forum the jurisdiction of civil court can
be excluded.
1. AIR 1969SC78.
8 Lccturcs on Interpretation of Statutes [Lec.l
The Indian Constitution embraces the basic structure doctrine
and the parliament cannot amend which can defeat the basic structure
of Cöfistitution.l In the case [Link] Mills v Union of India2
[Link]' ble Supreme Court expressed its view as the power judicial
review is an integral part of our Constitution without it, there will
be no •rule of law. If there is one feature of our Constitution which,
more than any other is basic and essential to the maintenance of
rule of law and democracy, it is the power of the judicial review and
without any doubt or any questionit is a part of basic structure of
the constitution.
The JudiciaLReview may notbe abrogated by the ordinary
process of legislation or through constitutional amendments.
Henceforth, one of argument is raised against the ouster clause is
that the decision of executive authorities and other decision makers
will be final and such orders were unchallengeable before the court
is void and ineffective as they deprive the aggrieved party's right
to seek judicial review. However, the Hon' ble Supreme Court clarified
this point in
A. B. C. Laminart Pvt. Ltd. VA.P. Agencies, Salem, 3 provides
that, if in case where there are two are more courts having jurisdiction
over a matter, and an ouster clause merely limits the jurisdiction to
one particular court, then suchouster clause is valid because the
aggrieved party still left with an opportunity to proceed with his or
her claim. Where such an ousterclauseis presented, it is important'
to see whether mere is ousterof jurisdiction of other authorities
which will have remedy or not. When the clause is clear, unambiguous
and specific accepted the notions of contract would bind the parties
unless contrary is being provedthat the ouster clause is void, the
other courts should avoid exercisingthe jurisdiction. The ouster
clause shall have construed when it consists of words like 'alone',
'only', 'exclusive' and the like have been used there may be no
difficulty. In such circumstance mentioning of one particular thing
implied exclusion of another.
1. Kesavananaa Bharati v. state ofKera1a, AIR 1973 SC 1461.
AIR 1980 SC 1789.
3. AIR. 1989 SC 1239.
 [Link] Independenceof Judiciary
ec.l Iuectu
However the Hon'ble Supreme Court in case of
rine Kuntarv. Union of Indial permitted the 'partial exclusion ofjud.c to
ture right
2 review' by upholding the decision of administrative tribunalc
cial
made immune from judicial review by the high court only
administrativetribunal constitute as 'judicial element'. ToOUtSettic1e •e
Supre
32 of 21
the
vill judicial review in totally there has to be an appeal procedure.T»[Link]
ch, Ouster clause is not esteemed in the existed Indian context; Supre
of
followed that judicial review cannot be excluded completely eveéialleave to 'd
there were alternative remedies available. Ideternunatl
of a
The Judiciary being activeand conscious about the proble provides go
tice and of
faced by the citizen and also that the courts have a social reasonabili
•age
ts. to ensure that the administrationof functions in accordance withru;carrl in w
of law. The court shall not let the adjudicatory authorities to excee stence
is Cour
or misuse of their powers under the blanket of finality clause.T? me legi
udicial
authorities shall not cause any injustice believing that their powe
are above challenge in a court of law. As of now there is no Access t
effective control meshanismexist over administration and therefor cases.
ed the
a great responsibility lies on the courts that the power is exercisede the Juc
in accordance with law. In Peol
les
on 3. JUDICIAL ACTIVISM: been
to Judicial Activismmeansjudicial philosophy which ic Inter
he judges to depart from strictadherence to judicial motivated econon
or precedent in favo their rig
of progressive and new socialpolicies which are not
Int• with the restraint expectedof appellate judges. always consistenrpart of p
ies marked by decisions calling for social engineering,
It is commonly
these decisions representintrusions into and occasionallv In S.
legislative and executive'lis appro
les matters. static
he
ter Judicial Activism is said to happen
the State's action. Article 13 when the courts can revieq stic e
read be
Indian Constitution provides with Article 32 and 226 of
the judicial review the
judiciary, if any administrative power to the higher'
contravening the Constitutional or executive and Rup
legislative action is
power to declare it provisions, then the courts lynti
as void. Arti have the
1. AIR 1987 SC 386.
Cle32 of the Indian Constitution
344
 on Interpretation of Statutes
(Lec.l
individual to move
[Link] to even' Supreme Court
light is violated or for enforcement of India
offundamcntal
o ourset
'Bhts,32of (he Indian Constitution for enforcing Fundamental
226 gives Power to High COUrts to issue any
)ntext. ghtÅ Stjprenme COUtt under Article 136 has the power writoé•
to
tely ev .a} to appeal from any decree, judgment, sentence grant
en orordcr
any matter passed by courts or tribunals.
(Williinationin
Article
a discretionary power to decide the case on equity,
Proble 6
asonabili andgood conscience. 1 To prevent abuse of process and
ofjustice, a mechanism called curative petition carrEinto
'e with •scam•age
to ex istencein which the bench should consist of three top judges of
lause. Th Coutt.2Article 142 of the Indian Constitution givespower
in India.
eir Power judi•ciallegislation
s no othe Accesstojustice is a Fundamental Right which is held in many
3
therefor [Link] shift to public interest litigation from locusstandi
exercis ade theJudicialProcess as participatory and democratic.
InPeople's Union for Democratic Rights v. Union of India,4
h9Sbeenheld that the Public Interest Litigation intends to promote
ic Interestand it has been invented to provide justice to poor
motivate economicallyor socially disadvantages sections of the society,
in favo theirlightsshould not go unnoticed- The public interestlitigation
consistent art of participative 5
justice.
)mmonl)
asionally InS.P. Gupta v. Union of India,6 it has been held that"Now
Kecutive approachto the judicial function may be all right for a stable
staticsocietybut not for a society pulsating with urges of gender
ustice,workerjustice,
revieW ustice minorities' justice, Dalitjustice andequal
betweenchronic un-equals. Where the contest is between
of the
higher v. C. Dantani and co., AIR 1980 SC 1149.
nion is 3. v, Ashok llurra, (2002) 4 SCC 388,
ve the 4, stale ofUttar Pradesh, AIR 2012 SC 642.
tution 5 (1982)
3scc 235.
eriiliserCorporation Union of India, AIR 1981SC
344. Kamgar Union v.
AIR1982
sc 149.
[Link] Indcpcndcncc or Judiciary 11
thöse who are socially or econc»nically unequal, the judicial process
may prove disastrous Crornthe point of view of social justice, if the
Judge adopts a meæly passive or negative role and does not adopt
a positive and creative approach. judiciary cannot rcmain a mere
bystander or spectator, but it must become an activc participant in
the judicial process ready to use law in the service of social justice
through a pro-active goal-oriented approach. What is necessary is
to have Judges who are prepared to fashion new tools, forge new
methods, innovate new strategies and evolve a new jurisprudence,
who are judicial statesmen with a social vision and a creative faculty
and who have, above all, a deep sense of commitment to the
Constitution with an activist approach and obligation for accountability,
not to any party in power nor to the opposition nor to the classes
which are vociferous but to the half hungry millions of India who
are continually denied their basic human rights. We need Judges who
are alive to the socio-economicrealities of Indian life, who are
anxious to wipe every tear from every eye, who have faith in the
constitutional values and who are ready to use the law as an instrument
for achieving the constitutional objectives."
4. JUDICIAL RESTRAINT:
Judicial Restraint is a judicial interpretation which limits judges
from their own power. Judicial restraint is a procedural
or substantive approach for the exercise ofjudicial review. Judicial
restraint limits, the power ofjudges. It abstainsjudges from deciding
constitutional issues unless there exists a concrete dispute between
adverse parties. The courts should interpret the law but not to
interfere witli the [Link] judges should decide the eases based
on the original intent of the drafters of the Constitution, precedents,
and courts should leave policy making to others. The judiciary need
not be a super-legislature or as a substitute, if other two organs fail
but to lay down its own limitations. l
In State of Rajasthanv. Union of India,2 the court rejected
the petition because it consists of a political question in which it
1. Aravali Golf Coursev,Chander Tlass and Anr., (2008) I SCC 683.
2. AIR 1977 SC 1361.
 Statutes [Lec.l
12 Igectureson Interpretation of
the political element dominates in a certain
cannot go into it, When
In Almitra H. Patel v.
situation, then there is no judicial review, jSupreme Court cannot.
YUnion of India2 it has bccn held that the functions and the only
ditvct thetll to how to carry their most basic
to do their duties with
thing COUttcan do is to direct the authorities
the law.
respect to what has been assigned to then under
Aruna
In Aruna Rantchandra Shanbaug v. Union of India, 3
assaulted
Shanbaug is a nurse in a Hospital in Mumbai and she was
sexually, and due to this, she is in the permanent vegetative state.
She has been in the permanent vegetative state for 37 years till 2011.
So, a social activist claiming to be a friend of 'Aruna Shan Baug'
filed a petition for the plea of euthanasia. But the court dismissed
the petition.
In [Link] v. State of Tamil Nadu 4 it has -oeen held that
a citizen has a right to safeguard the privacy of his own, his family,
procreation, marriage, childbearing, motherhood, and education. The
right to privacy also includes right to livelihood.
In Asif Hameed & Ors. v. State of Jammu and Kashmir &
Ors- 5, it has been held that "Judicial Review is a powerful weapon
to restrain unconstitutionalexercise of power by the legislatureand
executive. The expanding horizon of Judicial Review has taken in
its fold the concept of social and economic justice. While the exercise
of powers by the legislature and executive is subject
to judicial restraint, the only check on our own exercise of powers
is the self-imposed discipline of judicial restraint."
In State of U.P. & Ors v. Jeet S. Bisht & An/' , it has been
held that "Judicial Restraint not only recognises the equality of the
other two branches with the judiciary, but it also fosters that equality
by minimising inter-branch interference by the judiciary, In this
1. [Link] v. Union oflndia, AIR 1994 SC 1918.
2. (1998)2SCC216,
3. AIR 2011 SC 1290,
4. ( 6 sec 632.
5. AIR 1989 SC 1899.
6. (2007) 6 scc 586.
[Link] Independence of Judiciary
13
analysis, judicial restraint may also be called judicial respeq that.
respect by. the judiciary for the other coequal [Link]
contrast, Judicial Activism's unpredictable results make
a moving target and thus decrease the ability to maintainequality
with the co-branches. Restraint stabilises the judiciary so thatit may
better function in a system of inter-branch equality. JudicialRestraint
tends to protect the independence of the judiciary. Whencourts
encroach into the legislative or administrative fields almost inevitably
voters, legislators, and other elected officials will concludethatthe
activities of judges should be closely monitored. Ifjudges actlike.
legislators or administrators, it follows that judges should be elected
as legislators or selected and trained as administrators. This would
be counterproductive. An essential feature of an independentjudiciary
is its removal from the political or administrative process. Even if
this removal has sometimes been less than complete, it is an ideal
worthy of supportand one that has had valuable effects."