16 October 2024 : Daily Answer Writing

Q1) The tenets of independent judiciary, life-breath of constitutional democracy, stand perpetually undermined by the executive encroachment into the judicial domain. Discuss.

(250 Words/15 Marks)

ANS

Judiciary is the vital pillar of democracy which has a crucial mandate of interpreting the constitution, the fundamental law of the country. The need for independent judiciary has been envisaged under various provisions of the constitution viz., Art 50; Art 124 etc.

The significance of an independent judiciary, life-breath of constitutional democracy, is as follows:

1. Systems of checks and balances: Judiciary acts as a guardian of constitutional values preventing executive’s excesses and legislative overstepping. E.g., judicial review.
2. Judiciary through various interventions have ensured progressive realisation of rights. It propagates constitutional morality expanding the canvas of rights. E.g., Navtej Singh Johar case, Sabarimala case, etc.
3. Judicial activism fills policy vacuum created by legislative or executive inaction. It ensures complete justice (article 142). E.g., judgement on appointment of CEC, judicial innovation of PIL.
4. Resolution of Disputes: The judiciary serves as a forum for resolving disputes between individuals, organizations, and the government organs, thereby ensuring smooth functioning of democracy. E.g., article 131 for adjudication of federal disputes.
5. Writ jurisdiction: Through article 32 and 226, Supreme Court and High courts can enforce various writs like mandamus, habeas corpus to protect against the violations of rights.

Despite its democratic pre-eminence, judicial system is criticized for its opaque nature, nepotism, and pendency of cases, which calls for judicial reforms. However, executive encroachment can undermine the tenets of independent judiciary in the following ways:

1. Committed judiciary: Perception of judiciary pandering to executive view harms public trust in independence of judiciary. E.g., perception of favourable judgement for post-retirement benefits.
2. Delay in appointments by executive over collegium’s recommendation amounts to executive coercion. It affects the performance of judiciary already reeling from high vacancies, especially in high courts.
3. Public criticism of judiciary creates undue public pressure on the course of justice, impacting the outcome. E.g., uneven judgments in bail cases.
4. Legislative encroachment to overturn judicial pronouncements. E.g., ED chief’s tenure case, Shah Bano case.
5. Tribunalization of justice dilutes the tenants of separation of power by making executive part of adjudication over its own cases.

Following measures can help safeguard judicial independence:

1. Respecting Court Decisions: The executive should comply with court decisions, even if they disagree with them to uphold the rule of law.
2. Judicial transparency: Judiciary should undertake voluntary disclosure of collegium decisions. It can be brought under the ambit of RTI.
3. Both executive and judiciary should work in tandem for modernisation of judiciary to address issues such as judicial pendency. E.g., Inter-operable Criminal Justice System, All India Judicial Services.
4. There should be a mandatory cooling off period in place for post-retirement appointments for judges.

Independence of judiciary is the cornerstone of democracy as justice should not only be done but be seen to be done. Judiciary and executive as the two important pillars of democracy should respect separation of powers and must settle key differences through constructive dialogue and deliberations