INTERVENTION OF POLITICAL SYSTEM IN INDIAN JUDICIARY

“It is perfectly possible to pervert the Constitution, without changing its form, by merely

changing the form of the administration and to make it inconsistent [with] and oppose to

the spirit of the Constitution” said the father of the Indian Constitution B.R. Ambedkar.

Precisely what Dr Ambedkar might have meant by the above phrase would have been set on

the premise of a fear of the intermingling of the judiciary with the political system or vice-

versa affecting the very institution of Judiciary in this country and the principles of

independence, fairness and rationality on which it stands.

The principle of the Separation of Powers among the three organs of the government i.e.

Legislature, Executive and Judiciary is enshrined in the Indian Constitution. Article 501 of

the Constitution talks about separation of the judiciary from the executive. The framers of the

Constitution provide security of tenure to the judges as they can be removed only by the

process of impeachment in the parliament and not by any other means. The salary of judges is

also fixed and is not subject to the vote of legislature. All these principles were laid down in

the Constitution to ensure the independence of the judiciary. An independent judiciary is a

sine qua non to democracy.

Although these principles exist since the document of the Constitution came into force, the

judiciary, in the biggest democracy of the world is still not independent and is obfuscated by

the daily affairs of the politics of the country. The makers of the Constitution felt that the

Independence of Judiciary is a basic requisite for ensuring a free and fair justice delivery

1
INDIA CONST. art. 50.

PRIYANKA SINGH, DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

system. In order to establish an egalitarian society, a just mechanism of delivering Justice is

an essential requisite.

Independence!!! Thwarted?

Independence of the judiciary is being curtailed in the existing times as well as in historically

past circumstances. The independence of judiciary is thwarted by the political system in

various forms. The Legislature and Executive has always wanted the judiciary to be

subservient to them, as an independent judiciary will truncate the negative prospects of the

political forces existing in the country whose ill motive, powered with ideas of corruption and

no fair play, will lead to exploitation of masses.

Prima facie it appears that the judiciary is independent and is armed with full powers, but

when we go into the depths of the administrative functioning of the institution, we understand

that judiciary is fully dependent on the other two organs for its functioning. It is mainly

intervened by the political system as the politicians want an unimpeded power in their own

hands in order to fill their pockets and thereby destroying the very spirit of the Constitution

and the essence of democracy.

The Political intervention in judiciary can be segregated into different forms such as:

1. Legislative Intervention

Appointment of Judges

The process of appointment of judges in the High Courts and Supreme Court is not

transparent. The judges of the High Court and Supreme Court are elected by a

collegium of judges. In the High court it is Chief Justice of the High Court and two

senior most judges who are given the duty to nominate judges. The list of nominated

candidates is then sent to the governor and the Union Minister of Law and Justice

who choose a few candidates from the list. Here is where favouritism follows. After

PRIYANKA SINGH, DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

 their assent, it is forwarded to the Chief Justice of India and to the president for their

assent. The president and governors are De Jure heads and work under the influence

of the cabinet. Through the president and governors, the cabinet influences the

process of the appointment of judges and thus political affiliations and nepotism wins

the race to the seat of a judge. The Union Minister of Law and Justice also has a

chance to impact the process. This leads to the selection of incompetent persons,

making the judiciary weak and docile to political system.

The UPA government tried to establish their full supremacy in the appointment of

judges by abolishing the collegium system and introducing National Judicial

Appointments Commission (NJAC) in 2014. NJAC consisted of Chief Justice of

Supreme Court, two other senior most judges, Union minister of Law and Justice and

two eminent persons elected by the Prime Minister, CJI and Leader of Opposition in

consultation. Through this, politicians were given an equal power in appointing

judges. This was an epic case of Political intervention by the then government. In

2015, a Supreme Court bench struck down the NJAC as unconstitutional and upheld

the Collegium system. Due to NJAC issue, judicial appointments were frozen in 2015

and led to a number of vacancies in Constitutional courts. There are above 400

vacancies in the High Court’s even today which are over flooded with cases2.

Infrastructural Development

The infrastructural development is also in the hands of the government. And there is

no infrastructural development done by the present political dispensation, leading to

an inefficient judicial system. There are only 24 High Courts in India. There is a need

for more and more courts which could solve the problem of huge pendency of cases.

There is also a need for technological advancement in judiciary such as

2
Jatin Gandhi, Nearly 400 vacancies for judges in High Courts, HINDUSTAN TIMES (Feb.11, 2018, 5:29 PM),
https://www.hindustantimes.com.

PRIYANKA SINGH, DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

 computerisation of courts, etc. All these developments are in the hands of the

government and due to this political intervention, the judiciary is lacking in fulfilling

its duties.

2. Social Intervention

The political leaders and political parties affect the judicial decisions by mobilising

the masses against the judiciary in certain cases where their interests and vote bank is

at full play. In matters of public policy even if the judges give an honest decision they

fear that they will receive a strong criticism from the public due to manipulation by

political parties who condition the mind of their voters thereby changing the Vox

Populi.

The amendment in the SC/ST (Prevention of Atrocities) Act is a recent example of the

same. The amendment was made to safeguard innocents against the false complaints

and misuse of the act. It did not dilute the act in anyway. But still a huge fuss was

made about it, public and private property was destroyed by the mob and 9 innocent

individuals lost their lives3. All this happened because the matter was politicised and

the government saw it as an opportunity to expand their SC/ST vote bank. The

government filed a review petition and the judiciary was forced to change its decision

but the judiciary stood firm on its judgement. The government was playing

appeasement politics at the cost of the lives of the innocent people thereby decreasing

the trust of the people in the Judiciary.

Another such example is ‘Ram Mandir-Babri Masjid’ case wherein the Babri Majid

was demolished by the Hindu activists in 1992 due to exacerbation by the political

leaders such as L.K. Advani, Uma Bharti etc. The matter has been pending before the

judiciary for more than 25 years but no decision has been reached as it has become a
3
Special Correspondent, 9 dead as Dalit protests over SC/ST Act rock north India, THE HINDU (Apr. 3, 2018,
1:18 AM), http://www.thehindu.com/news/national/many-dead-as-dalit-protests-over-sc-st-act-rock-north-
india/article23418008.ece.

PRIYANKA SINGH, DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

 very sensitive matter and many people lost their lives in Hindu-Muslim riots taking

place at different point of times countrywide. The judiciary is apprehensive about how

the people will take this matter and to what consequences can it lead to? The judiciary

is not independent in its decision making, due to politics of race, religion, caste,

region etc.

3. Government Intervention

The government, many a times intervenes with the judicial process in order to protect

its interests, vote bank or at times its leaders. In the process, the judges are the ones

who are in a predicament.

The recent example is the Uttarakhand Emergency Case4 of 2016 in which Justice

KM Joseph struck down the hastily imposed President’s rule in Uttarakhand which

ultimately led to the restoration of Harish Rawat led Congress government. The

Central government was trying to enter the state through this unconstitutional means.

Justice KM Joseph gave a path-breaking judgement, failing the government in its

intent and protecting the spirit of democracy. He wrote that, “The court was ‘pained’

by the Centre's actions in the matter where it felt it was acting like a ‘private

party’.”Justice Joseph paid the price for his courage in the form of political vengeance

and is now being objected by the government to be elevated to the Supreme Court

even after the collegium recommended his name for the same.

Another such case is Priya Pillai Case5 (2015) in which the environment activist

Priya Pillai was offloaded from the flight in order to prevent her from testifying

internationally against the joint venture of a UK-registered firm with Hindalco, to

4
Harish Chandra Singh Rawat v. Union of India, WP (M/S) 795 2016 (Uttarakhand).
5
PriyaParmeshwaram Pillai v. Union of India, WP (C) 744/2015 (Delhi).

PRIYANKA SINGH, DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

 mine coal in Madhya Pradesh. The judgement delivered by Justice Rajiv Shakdher of

Delhi High court was that, Ms Pillai’s right to travel abroad cannot be curtailed by a

government whose views are diagonally opposite to hers. The judgement was on the

lines of the Supreme Court’s decision in Maneka Gandhi6 (1978). In this case the

judge was transferred to the Madras High Court for giving an unbiased and

independent judgement. How ironical! Isn’t it?

History is a testimony to the fact that there are many similar cases where the dream of

an independent judiciary has been incarcerated. One such case is Indira Gandhi v.

Raj Narain7 in which Raj Narain filed a case against the then Prime Minister Indira

Gandhi for misusing state machinery to win the election. The Allahabad High Court

set aside her election as Prime Minister. In order to continue her rule she declared

emergency in the country which led to widespread disturbances and huge crisis in

Indian democracy.

Another case is the Habeas Corpus Case8 which was decided during the emergency

in which a bench of five Supreme Court Judges with 4:1 majority decided that the

fundamental Right to Life and Liberty is also suspended during emergency. The only

dissenting voice was of Justice HR Khanna who stood alone against the then

autocratic government and paid the price as he was in line to become next Chief

Justice of India but was deprived of this opportunity due to his dissenting opinion.

Justice HR Khanna was the only saviour of democratic principles. The day of the

judgement is considered to be the “Black Day” of Indian Judiciary wherein the 4

senior most judges of Supreme Court complied to the tyranny of the then government

and gave a judgement which was against the basic Constitutional fundamental rights

6
Maneka Gandhi v. Union of India, 1978 AIR 597.
7
Indira Gandhi v. Raj Narain, 1975 AIR 865.
8
Additional District Magistrate v. Shivkant Shukla, 1976 AIR 1207.

PRIYANKA SINGH, DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

 of life and liberty. This is an epic example of submission of an independent judiciary

to absolutist government.

One more such case is Kesavananda Bharti v. State of Kerela9which is one of the

greatest cases in the history of modern India. The basic structure doctrine laid down

by the judges in this case is considered to be an extraordinary contribution of judiciary

towards Indian Constitution. The case was decided by a narrow majority of 7:6 and

the decision was against the position of the government. Three of the seven judges

who delivered the majority judgement against the government position were

superseded for the position of Chief Justice of India. And Justice A N Ray was made

the next Chief Justice, breaking convention of seniority, as he ruled in the favour of

the government.

There are many more such examples which shows the arbitrariness and misconduct in

judiciary due to the interference by the government. These are a few examples which

shows the widespread Political intervention in judiciary.

4. Intervention by the media which is biased politically

“The press was to serve the governed, not the governors” said Hugo Black, the

Justice of the Supreme Court of United States. But what’s happening is that, media

houses are biased towards different political parties for reasons which are both

political as well as monetary. The political parties in India use their clout to force the

press to manipulate the news in their favour thereby earning political scores. The

media is also called as the fourth pillar of democracy. It moulds and changes the

opinion of the people. In such a situation, when the media is biased towards a

particular ideology, it forces its opinion on the judiciary when a matter is sub-judice

9
Kesavananda Bharti v. State of Kerela (1973), 4 SCC 225.

PRIYANKA SINGH, DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

 before the court for consideration by conducting media trials and forcing their opinion

to be the vox populi.

Media Trials which has become a fashion today tend to hinder the fair trial and try to

mould the judgement in a particular direction. They sensationalise the most serious of

the cases and pressurise the judges by manipulating masses and the judges who give

judgement contrary to media are referred to as biased and corrupt. The Sunanda

Pushkar case is an epitome of Political intervention powered by biased media houses

in the functioning of the judiciary. The former Union Minister Shashi Tharoor’s wife

was found dead in non-natural conditions. The high profile case was probed and the

conspiracy theories were developed by media which pointed towards Mr Tharoor. The

opposite parties saw this as an opportunity to tarnish his image and gave verdicts

against him. The politically biased media declared him as an accused during the

investigation only. He was made a victim of media trial and he said, “Media is a

mirror that exists not to flatter, but to reveal what is lacking in our society, which is

flawed and must be corrected.”

5. Professional Intervention

It is on a lighter note that, not every politician is a lawyer, but every lawyer is surely a

politician. In a country where the union cabinet is filled with 1/3rd10 members who

have practised law or have law degrees, where 7%11 members of the parliament have

a law degree, where the finance minister has been a highly influential lawyer in the

past, where the president and vice-president have been a lawyer, it is only inevitable

to say that the involvement of the lawyers in the political circles as well as the

corridors of the court simultaneously, is a mere honest interpretation. When lawyers

10
Press Trust of India, Lawyers dominate NarendraModi’s Cabinet, THE INDIAN EXPRESS (June 8, 2014,
10:47 am), http://indianexpress.com/article/india/india-others/lawyers-dominate-narendra-modis-cabinet-2-
doctors/.
11
Shreya, Profile of the 16thLokSaha, PRS LEGISLATIVE RESEARCH, http://www.prsindia.org/media/media-
updates/profile-of-the-16th-lok-sabha-3276/.

PRIYANKA SINGH, DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

 who are legislators involve in the activities concerning the politics of the country, it

becomes a clear case of conflict of interest. These politicians when in their black

coats, try to manipulate the judiciary to give judgements based on the political winds

of the country by using their clout. This is a clear case of Political intervention in a

different form but in the same style. Lawyers like Kapil Sibal, P. Chidambaram, Ram

Jethmalani etc. who are equally big names in the political circles in Delhi try to set the

political agenda by clear intervention in the affairs of the judiciary.

Conclusion

Indian Judiciary today has become a political ground in which everyone is fuelled by some

political motives for their own benefit. The mechanism of justice dispensation has been

corrupted and the people are losing faith in the judicial system. Those who are in power can

affect the judicial affairs to a great extent in their favour. The political system is intruding

into the judicial mechanism. The foremost requirement for a democracy is that the judiciary

should be impartial and free from all external pressures. But the affairs of Indian Judiciary

tend to do the opposite wherein it sets the political turbulence of the country in motion. The

position of Indian Judiciary has become docile to the corrupt and deceptive political system

of our country. The need is to introduce reforms in administration in order to make judiciary

independent and to protect the spirit of the Indian Constitution.

PRIYANKA SINGH, DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY