Judicial Review, Activism & Overreach

Role of Judiciary in Upholding Rights

Right to Equality

  • KS Puttaswamy: Equality and Liberty can’t be separated and equality encompasses the innclusion of dignity and freedoms.
  • Navtej Johar Case:- Transgender as third Gender. 
  • Joseph shine Case:- Decriminalising adultery 

Understanding of Habeas Corpus: Government can curtail the rights of people in the interest of State but devised Principle of Proportionality ie: States need to demonstrate that such curtailment should be based on rational ground. 

Litmus Test for Freedom of Press: In Brandenburg vs Ohio, SC has invented Imminent Lawless Action Test. The Constitution guarantees Right of free speech and free press don’t permit the state to forbid advocacy of the use of force, except when such advocacy is producing imminent lawless action (likely to happen very soon). SC in India in the “Arup Bhuyan case” (2011) followed the test. 

Maneka Gandhi Case: Adopted Due Process of law to look into the laws from the angle of fairness and just. 

Upholding Liberty: D.Y. Chandrachud gave a thoughtful speech, titled “The Hues of India: From Plurality to Pluralism”, about protecting India’s pluralism by protecting individual rights and liberty. 

  • The 1976 ADM Jabalpur case, when it held that personal liberties were not guaranteed in a state of Emergency, is invoked and mourned as its lowest point. In 2017, the Supreme Court In Puttaswamy case reversed itself on ADM Jabalpur. 
  • Two-judge Supreme Court Bench in Arnab case:- If state govts target individuals, they must realise that there is apex court to protect the liberty of citizens. The Bombay HC was wrong in denying bail 

Changing Role of Judiciary from Passive to Active Phase:

  • The recent trend in the Supreme Court is to rely more on the sociological school of jurisprudence (Active Phase) and less on the positivist school (Passive Phase). In other words, the court is resorting more to judicial activism rather than judicial restraint.
  • Its role has been changed from Passive to Active Phase i.e., From mere protector of the Constitution to Correcting the past mistakes through Judicial review and also sometimes encroaching unnecessarily through Judicial Overreach.
  • This is seen in its recent judgement on ordering time limits to burst firecrackers on Diwali, which is a function of the legislature; its judgement on linking rivers, for which there is no parliamentary legislation; and in its unpredictable decisions in cases relating to freedom of speech and expression, such as the one in which a BJP Yuva Morcha leader was asked in the bail order to apologise for sharing a meme, despite the guarantee in Article 19(1)(a) of the Constitution.

Passive Phase:

  • In positivist jurisprudence, the centre of gravity of the legal system is statutory law, i.e., law made by the legislature. It holds that law making is not the job of the judges, but of the legislature. Hence, judges should be restrained and not activist in their approach. 

Judicial Restraint

  • It is a procedural or substantive approach to the exercise of judicial review. 
  • As a procedural doctrine, the principle of restraint urges judges to refrain from deciding legal issues, and especially constitutional ones, unless the decision is necessary to the resolution of a concrete dispute between adverse parties. 
  • Objective
    • It urges judges considering constitutional questions to grant substantial deference to the views of the elected branches and invalidate their actions only when constitutional limits have clearly been violated.


  • The case of State of Rajasthan vs Union of India (1977) is a landmark judgement where the Court decided not to indulge into this matter as it involved political inquiry, thereby adhering to the principle of judicial restraint. 

State of Rajasthan vs Union of India (1977)

About the case: In 1977 elections, after the lifting of the emergency of 1975, the Congress party lost elections in 6 states including Rajasthan. The union Home Minister of Janata Party, Mr. Charan Singh, wrote letter to each of the chief ministers of these states suggesting that they should seek dissolution of State legislature from the governor and obtain fresh mandate from the electorate. The State of Rajasthan along with other states filed an original suit in the Supreme Court against the Union of India under Article 131 holding that the directive is illegal and inherently unconstitutional.

Issue: Whether imposition of President Rule in states is reviewable by the judiciary

Judgement: The Supreme Court dismissed the suit and held that the apprehended proclamation would be valid. The position adopted by the Court was that it could not interfere with the Centre s exercise of power under Article 356 merely on the ground that it embraced political and executive policy and expediency unless some constitutional provision, was being infringed.

Active Phase:

  • If judicial review means anything, it is that judicial restraint does not allow everything. – Don Willett
  • The genesis of Public Interest Litigation in listening to the voice of the voiceless and giving access to the poor, the marginalised, and the weak is a unique experiment to be lauded. – Kapil Sibal

Judicial Review:

  • This doctrine of judicial review originated and developed in the USA.
  • It comes into play in order to preserve the supreme law’s integrity and freedom from the tyranny of powers. 
  • In India, on the other hand, the Constitution itself confers the power of judicial review on the judiciary (both the Supreme Court as well as High Courts).
  • Further, the Supreme Court has declared the power of judicial review as a basic feature of the Constitution or an element of the basic structure of the Constitution.
  • It is the power of the judiciary to examine the constitutionality of legislative enactments and executive orders of both the Central and State governments.
  • In general terms, it refers to the power and ability of High Courts and Supreme Court to review laws or judgments to ensure that they do not violate constitutional or legal provisions.
  • It is of three types-
    • reviews of legislative actions,
    • review of judicial decisions, and
    • review of administrative action
  • Judicial review of legislative actions means the power to ensure that the law passed by legislature is in accordance with provisions contained in the constitution and in particular part 3 of constitution (principle of reading down).
  • In case of judicial review of decisions, for instance, when a statute is challenged on the ground that it has been passed by legislature without authority or rights, it is for the courts to decide whether the law passed by legislature is valid or not.
  • Judicial review of administrative action is a mechanism of enforcing constitutional discipline over administrative agencies while exercising their powers. 
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Importance of Judicial Review

  • To uphold the Principle of Supremacy of Constitution
  • To maintain Federal Equilibrium
  • To protect Fundamental Rights of Citizens


  • The striking down of the Section 66A of the IT Act as it was against the Fundamental Rights guaranteed by the constitution.

Judicial Activism

  • This concept originated in the USA.
  • Judicial activism is an extension of judicial review and a judicial ideology that encourages judges to depart from conventional and established precedents and adopt new progressive policies.
  • It enjoins judges to use their powers to correct injustices, especially when the other branches of government do not act to do so.
  • In short, It is the overactive role played by the judiciary in upholding the constitutional and legal rights of the citizens.
  • Judicial activism is also known as “judicial dynamism”. It is the antithesis of “judicial restraint”, which means the self-control exercised by the judiciary.
Provides a system of checks and balances to the other government branchesJudges can override any existing law, thereby violating the line drawn by the constitution
Provides judges to use their personal wisdom in cases where the law failed to provide a balanceJudicial opinions of the judges become standards for ruling other cases
It shows the instilled trust placed in the justice system and its judgmentsJudgment may be influenced by personal or selfish motives. Which can further harm the public at large.
Provides speedy solutions where the legislature gets stuck in the issue of majorityRepeated interference of courts can erode the faith of the people in the quality, integrity and efficiency of governmental institutions.


  • Kharak Singh Case 1962: It was the first case of judicial activism on the right to liberty. SC held that ‘personal liberty’ was not only limited to bodily restraint or confinement to person only but something more than mere animal existence. It extends to all those limits and faculties by which life is enjoyed.
  • Banning smoking in public places based on PIL
  • Ordering time limits to burst firecrackers on Diwali, which is a function of the legislature
  • Decisions in cases relating to freedom of speech and expression, such as the recent one in which a BJP Yuva Morcha leader was asked in the bail order to apologize for sharing a meme, despite the guarantee in Article 19(1)(a) of the Constitution.

SC Cases

  • In the case of Vishakha v/s State of Rajasthan, the court laid down guidelines for protection of women from sexual harassment at workplace.
  • In Sheela Barse v. State of Maharashtra, a letter written by a Journalist was addressed to the Supreme Court addressing the custodial violence of women prisoners in Jail. The court treated that letter as a writ petition and took cognizance of that matter and issued the opposite guidelines to the concerned authorities of the state.
  • Homosexuality decriminalised: SC rules that gay sex among consenting adults is not a criminal offence, striking down as “unconstitutional” a part of Section 377 of the 158-year-old IPC that criminalised homosexuality.. 
  • The Hadiya case: Restores the marriage of Hadiya with Shafin Jahan, setting aside a Kerala High Court order that had annulled the validity of the marriage last year. Hadiya, a Hindu girl, had converted to Islam to marry Shafin.
  • Parliament asked to make law against mob lynching: SC condemns the growing incidents of mob lynching and asks Parliament to consider enacting a new law to effectively deal with such incidents. “Horrendous acts of mobocracy” can’t be allowed to become a new norm.
  • Adultery decriminalized: SC strikes down Section 497 of the IPC, calling it unconstitutional and arbitrary and decriminalized adultery, which remains a “civil offense” and can serve as a ground for divorce. 
  • Sabarimala Temple: SC allows women of all age groups to enter the temple of Lord Ayyappa at Sabarimala in Kerala and offer worship, contrary to the practice that did not allow women of menstruating age (10 to 59 years) to enter the shrine.

Public Interest Litigation (PIL)

  • Public Interest Litigation (PIL) is the use of the law to advance human rights and equality, or raise issues of broad public concern. It is the power given to the public by courts through Judicial activism.
  • The concept of “PIL” has been borrowed from the American Jurisprudence.
  • It has not been defined in any Indian statute.
  • It can be filed only in the Supreme Court or the High Court.
  • It is different from Writ Petition, which is filed by individuals or institutions for their own benefit, whereas PIL is filed for the benefit of the general public.
  • The concept of PIL is suited to the principles enshrined in Article 39A of the Constitution of India to protect and deliver prompt Social Justice with the help of Law.
  • The seeds of the concept of public interest litigation were initially sown in India by Justice Krishna Iyer, in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai.
  • Areas where PIL can be filed: Pollution, Terrorism, Road safety, Constructional hazards etc.

History of Public Interest Litigation (PIL) in India

  • In 1979, Kapila Hingorani filed a petition and secured the release of almost 40000 undertrials from Patna’s jails in the famous ‘Hussainara Khatoon’ case.. This case was filed in the SC before a Bench led by Justice P N Bhagwati. Hingorani is called the ‘Mother of PILs’ as a result of this successful case. The court permitted Hingorani to pursue a case in which she had no personal locus standi making PILs a permanent fixture in Indian jurisprudence.
  • Justice Bhagwati did a lot to ensure that the concept of PILs was clearly enunciated. He did not insist on the observance of procedural technicalities and even treated ordinary letters from public-minded individuals as writ petitions. Justice Bhagwati and Justice V R Krishna Iyer were among the first judges in the country to admit PILs.

Important PILs

  • In Hussainara Khatoon (I) v. State of Bihar, the inhuman and barbaric conditions of the undertrial prisoners reflected through the articles published in the newspaper. Many prisoners who were under trial had already served the maximum persecution without being charged for the offense. A writ petition was filed by an advocate under article 21 of the Indian Constitution. The apex court accepted it and held that the right to speedy trial is a fundamental right and directed the state authorities to provide free legal facilities to the under-trial inmates so that they could get justice, bail, or final release.
  • M.C Mehta vs. Union of India: In a Public Interest Litigation brought against Ganga water pollution so as to prevent any further pollution of Ganga water. The Supreme Court held that petitioner, although not a riparian owner, is entitled to move the court for the enforcement of statutory provisions, as he is the person interested in protecting the lives of the people who make use of Ganga water.
  • Vishaka v. State of Rajasthan: The judgement of the case recognized sexual harassment as a violation of the fundamental constitutional rights of Article 14, Article 15 and Article 21. The guidelines also directed for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
  • Javed v. State of Haryana: The Javed litigants challenged the constitutionality of a coercive population control provision, which governed the election of panchayat. The Haryana Provision disqualified “a person having more than two living children” from holding specified offices in panchayats. The objective of this two child norm was to popularize family planning, under the assumption that other citizens would follow the example of restrained reproductive behavior set by their elected leaders. Upholding the Haryana
    • Provision as “salutary and in the public interest,” the Court’s main emphasis was on “the problem of population explosion as a national and global issue” at the expense of protecting human rights. The Javed decision neglected to evaluate critically whether the contested provision was actually having its intended effect on family planning. The Court described the provision as “well-defined,” “founded on intelligible differentia,” and based on a clear objective to popularize family planning.
  • Passive Euthanasia: In the year 2005, Common Cause a registered society for the common welfare of people filed a writ petition under Art.32 of the Indian Constitution to legalize Passive Euthanasia and to legally validate living wills. In this regard, the Supreme Court of India held that the right to die with dignity is a fundamental right and a part of Art.21. SC recognises ‘living will’ made by terminally ill patients for passive euthanasia and lays down guidelines on procedures to be adopted for it.


  • PIL is an important instrument of social change and for maintaining the Rule of law and accelerating the balance between law and justice.
  • The original purpose of PILs have been to make justice accessible to the poor and the marginalized. It democratizes the access of justice to all.
  • It helps in judicial monitoring of state institutions like prisons, asylums, protective homes, etc.
  • It is an important tool for implementing the concept of judicial review.


  • PILs have been abused for private gain while ostensibly serving the public interest. Many worthwhile projects have been halted as a result of secret PILs filed in the name of public interest.
  • This has been used to implement a competing rights framework. When a court orders the closure of a polluting factory, for example, the court may not take into account the interests of the workers and their families who are deprived of their livelihood.
  • The practice of public interest litigation (PIL) has a tendency to lead to judicial overreach. The balance of power has shifted in favour of the judiciary as a result of this.
  • The courts have done little to prevent non-genuine PILs from being filed. This adds to the already overburdened judicial system. The number of non-genuine PILs pending before the courts contributes to the judicial pending of socioeconomically important PILs.
  • Another key issue with PIL cases is that they simply provide symbolic justice. There are two ways to interpret the symbology. First, as the Vishakha recommendations showed, the actual lawmaking took far too long, rendering court directions ineffectual. Second, when the state is unable to enforce DPSPs, they are converted to FRs. The concept of fundamental rights is devalued when rights are created that cannot be enforced.

Judicial Overreach

  • The line between judicial activism and Judicial Overreach is very narrow.
  • It occurs when a court acts beyond its jurisdiction and interferes in areas which fall within the executive and/or the legislature’s mandate.
  • It means the Court has violated the doctrine of separation of powers by taking on the functions such as law enforcement, policy making or framing of laws or interfering in day to day activities of the executive.
  • This is a situation where the court goes beyond its jurisdiction as stated in the constitution and other legal documents.
  • The courts also encroach upon the role of the executive by taking executive decisions.


  • Striking down of NJAC bill and the 99th constitutional amendment
  • The order passed by the Allahabad High Court making it compulsory for all Bureaucrats to send their children to government school
  • The Allahabad High Court asked the Uttar Pradesh government to fix a “minimum” ex gratia of Rs1 crore for every official who succumbed to the pandemic because of panchayat election duty; the Rs30 lakh the state government had announced was too little. 
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Judicial ReviewJudicial ActivismJudicial RestraintJudicial Overreach
Judiciary examines the constitutionality of legislative enactments & executive orders of both the Central & State governments Proactive role played by the judiciary in the protection of the rights of the citizens and in the promotion of justice in the societySelf-control exercised by judiciary and limiting itself only to interpretation of original intent of constitution makers When the judiciary oversteps the powers given to it, it may interfere with the proper functioning of the legislative or executive organs of government
Enabling in natureEnabling in natureRestrictive, limiting natureEncroaching and appreciable in nature
Not mentioned in ConstitutionNot mentioned in ConstitutionNot mentioned in ConstitutionNot mentioned in Constitution
Origin- Article 13, 32, 226, etc.Origin- Judicially innovatedOrigin- Judicially innovatedOrigin- Judicially innovated
Desirable in any democracy to protect the rights of citizensDesirable in any democracy to protect the rights of citizens and provide justiceDesirable in any democracy to protect and respect separation of power and independence of other organsUndesirable in any democracy. It destroys the spirit of separation of powers
Eg- Striking down of Sec 66A of the IT Act as it was against the Fundamental Rights guaranteed by the ConstitutionEg- National Green Tribunal (NGT) banning diesel trucks older than 10 years in DelhiEg- In S.R. Bommai case the judges said that there are certain situations where the political element dominates and no judicial review is possibleEg- Misuse the power to punish for contempt of court

Role of Judiciary during COVID-19

  • Virtual Courts
    • The Supreme Court passed directions for all courts across the country to extensively use video-conferencing for judicial proceedings saying congregations of lawyers and litigants must be suspended to maintain social distancing amid the coronavirus pandemic. 
  • Responsible Behaviour Towards Medical Teams
    • The SC has called Covid-19 a ‘National Calamity’ and termed doctors and health workers as ‘Corona Warriors’.
    • Medical teams will be provided protection while visiting the screening sites or places where new positive people are found or quarantined.
  • For Migrant Workers
    • Dry ration be provided to migrants who want to return to their homes. The court said that identity proof should not be insisted upon by the governments since the labourers might not be able to furnish it. 
    • The court called upon the State governments to arrange transportation for workers who need to return to their homes. These guidelines by the court are crucial to ensure the safety of workers.
    • Apart from dry ration, the top court also directed the State governments to run community kitchens for migrant workers. However, there arise administrative problems in implementing these measures.
      • First, migrant workers keep moving in search of employment and it is difficult to cover them all under the scheme. 
      • Second, many States do not have the necessary infrastructure to run and maintain community kitchens on such a large scale.
  • Judicial Governance
    • The Allahabad High Court ordered to fix a “minimum” ex gratia of Rs1 crore for every official who succumbed to the pandemic because of panchayat election duty. Although, the state government had fixed an amount of 30 lakhs.
    • The Delhi High Court has been almost micromanaging pandemic management, fixing oxygen quota and distribution. It even issued a contempt notice to the Centre on the oxygen issue, which the Supreme Court dismissed. 
  • Mismatched response
    • In an order, the Supreme Court also directed the states to implement the provisions of the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979; the Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996; and the Unorganized Workers’ Social Security Act, 2008 — all of which have been subsumed in the labour codes and repealed.

Issues within Judiciary/Challenges of Judiciary

Screenshot 15
  • Pendency of cases
    • India’s legal system has the largest backlog of pending cases in the world – as many as 30 million pending cases. Of them, over four million are High Court cases, 65,000 Supreme Court cases.
    • And also due to this backlog, most of the prisoners in India’s prisons are detainees awaiting trial.
  • Separating judiciary from the executive
    • Now-a-days, The Supreme Court is called upon to decide a large number of cases in which the government has a direct interest(mostly politically sensitive).
  • Master of roaster issue 
    • Roster is defined as a systematic planner to allocate different tasks to all the members in order to achieve higher efficiency.
    • ‘Master of Roster’ refers to the privilege of the Chief Justice to constitute Benches to hear cases.
    • The Chief Justice of India is the first amongst the equals but by virtue of his office assumes significant powers as the Master of the Roster to constitute benches and allocate matters.
    • The SC has reaffirmed this position in a rather disappointing decision in Campaign for Judicial Accountability and Reforms v. Union of India, (2018).The result has been catastrophic.
    • Many matters were either treated casually or deflected for no reason from serious hearing.
  • Judge Population Ratio
    • The judge-population ratio in India stood at 21.03 judges per million people in 2022.
    • On the other hand, this ratio stood at 107 for the USA, 75 in Canada and 41 in Australia per million people. 
  • Corruption in judiciary 
    • There is no system of accountability. The media also do not give a clear picture on account of the fear of contempt.
    • Justice Narayan Shukla, who retired from the service in July 2020, is accused of taking a bribe for passing an order that favoured the Lucknow-based medical college, which was disbarred in May 2017 from admitting students by the Medical Council of India (MCI), the country’s medical education regulator.
  • Hardships of the undertrials
    • In jails, most of the prisoners are undertrials, who are confined to the jails until their case comes to a definite conclusion.
    • In most of the cases, prisoners end up spending more time in jail than the actual term that might have been awarded to them had the case been decided on a time.
  • Infrastructure
    • Of the total sanctioned strength of 24,280 judicial officers in India, there are only 20,143 court halls, including 620 rented premises, and 26 per cent of the court premises have no separate toilets for women and 16 per cent do not even toilets, while only 54 per cent courts have purified drinking water facility.
  • Independence vs Accountability

Importance of Judicial Independence

Administration of Law and Justice JusticeCreative and Balanced Role
Final court of AppealUphold Constitutional Morality

Constitutional Provision to ensure Independence

  • Security of Tenure of Judges: They can only be removed from office by the President’s decree, and only based on proven misbehaviour and incapacity.
  • Salaries and Allowances of Judges: In the case of Supreme Court judges, they are charged to the Consolidated Fund of India, whereas in the case of High Court judges, they are charged to the State Consolidated Fund.
  • Powers and Jurisdiction of Supreme Court: The Supreme Court’s powers and jurisdiction can only be expanded by Parliament, not reduced. Parliament may change the monetary cap for appeals to the Supreme Court in civil matters.
  • No discussion on the conduct of Judge in State Legislature / Parliament: Article 211 states that no debate of any judge of the Supreme Court or a High Court’s conduct in the exercise of his duties shall be allowed in the State legislature.
  • Power to Punish for Contempt: The Supreme Court and the High Court both have the authority to punish anyone who disobeys the law.
  • Separation of the Judiciary from the Executive: One of the Directive Principles of State Policy, Article 50, states that the State shall take steps to separate the judiciary from the executive in the state’s public services.

Challenges Faced in Ensuring Judicial Independence

  • Political Influence in Appointment and Transfer of Judges: Appointment procedures can be inappropriately influenced by the appointing authorities’ political or personal interests. To avoid this risk, it is critical to ensure that procedures are transparent, objective, and non-discriminatory.
  • Post-retirement appointments: Judicial independence suffers if governments can – directly or indirectly, publicly or privately – coerce, incentivize, or undermine judges and their decisions. The post-retirement appointments of judges may become a hurdle in achieving Judicial Independence.
  • Attacks on Judges: Threats and attacks on judges are a matter of concern in ensuring the independence of the judiciary. The recent murder of a Judge in Jharkhand throws light on the safety of judges. To give judgments in an unbiased manner, the judges’ safety should be ensured.
  • Arbitration Practice: Most SC Judges on retirement start their Arbitration practice. This may develop a prior linkage with any corporate company, industry or organisation for a future job.

The most important challenge for the regulation of judicial accountability is that the judiciary is an independent organ and the independence of the judges cannot be done away with.

  • Any attempt to make the Judiciary accountable to the Legislature or Executive will make it susceptible to external pressure. It is very difficult to balance the Judicial Accountability vis-a-vis Judicial Independence.
  • There exists no other way in which a judge can be removed except through impeachment and the process is long and complex.
  • Due to this, it is difficult to augment judicial accountability. Again, the process can’t be diluted as it will impinge on judicial independence.

Importance of Judicial Accountability:

  1. It promotes the rule of law by deterring conduct that might compromise judicial independence, integrity and impartiality. 
  2. It promotes public confidence in judges and judiciary.
  3. It promotes institutional responsibility by rendering the judiciary responsive to the needs of the public it serves as a separate branch of the government.

Pandit Nehru Remarked: Judges of the Supreme Court sit on ivory towers far removed from ordinary men and know nothing about them.” Judges are awarded the image of demi god’s.

For proper implementation of this concept of judicial accountability, it is expected that the judges should follow a code of conduct which may be broadly called as ethics for judges. 

  • Recusal: A judge is not expected to adjudicate in a case if he has got interest therein. 
  • Equal Opportunity: A judge does not belong to any particular section or division or group. He is a judge of all people. In the courts of law there is always equality. A judge should be departed from personalities who are parties to the case but only with merits.
  • Maintain a distance: The judge must maintain distance between himself and the parties to the dispute and their lawyers during the conduct of the trial. One can take into notice that now a days the growth of a new caste in legal profession who thrive not by intellectual or professional capabilities but by utilizing their close connection with the judges.
  • Avoid too much social interaction: The Hon’ble Supreme Court in Ram Pratap Sharma vs Daya Nand issued a note of caution to the effect that a judge should not to accept any invitation and hospitality of any business or commercial organization or of any political party or of any club or organization run or sectarian, communal or parochial line.
  • Cooling off Period of two years must be made a part of legal principles for retired judges of SC and HC after their retirement.
  • Sealed Cover Jurisprudence: The practice of providing information by the government agencies in sealed envelope that can be accessed by Judges only is sealed cover jurisprudence.
    • Instances of Sealed Cover Jurisprudence:
      • NRC report asked by SC.
      • Rafale jet deal.
      • BCCI Reform case.
      • Bhima Koregaon case.


  • Against the principles of transparency and accountability of the Indian justice system.
  • Enlarge the scope for arbitrariness in court decisions.
  • Not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication. This is contrary to what SC has said in P. Gopalakrishnan vs The State of Kerala:- That disclosure of documents to the accused is constitutionally mandated, even if the investigation is ongoing.
  • It stands in contrast to the idea of an open court where decisions can be subjected to public scrutiny.
  • Violates Principles of Natural Justice – as it creates bias against the accused and the accused is kept in dark on the charges framed against him.
  • Results in arbitrariness in judicial decisions – because the judge is taking decisions based only on the information provided by the government agencies.
  • Judgments in such instances cannot be said to be Reasoned Order

Supreme Court in Pegasus Issue State does not get a Free pass every time the spectre of national security is raised and that national security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning”

Recent Supreme Court observations against sealed envelopes

  • INX Media Supreme Court while granting bail to P. Chidambaram, criticised Delhi High Court’s decision to merely rely on documents submitted by the Enforcement Directorate (ED) in a sealed cover as it violated the principles of fair trial.
  • Criminal Appeal Filed against Bihar Government Chief Justice of India Justice N.V. Ramana did not approve admitting information in a sealed cover by the Bihar Government.
  • Ongoing Media One Trial in SC – The Central Government had come with its files to hand over to the court in a sealed cover. Justice DY Chandrachud expressed that he was against the practice of ‘sealed cover jurisprudence’ and asked the government the reasons as to why it could not disclose the details.

Executive vs Judiciary

  • History
    • The first constitutional amendment (1951) started the long-drawn battle between the executive and the judiciary.
    • In 1970, the President using power conferred to him under Article 366(22) of the Constitution passed an order abolishing the Privy Purses. In H. H. Maharajadhiraja Madhav Rao vs. Union Of India upheld the validity of the Privy Purses. Now, again the executive was blown up by the judiciary in this judgement.
    • In Maneka Gandhi vs. Union of India when the arbitrary action of the executive stopped Maneka Gandhi from going foreign by seizing her passport, the court quashed such order by saying that the right to travel foreign comes under the ambit of Article 21 of the Constitution. The concept of judicial review, and judicial activism after implementation opened a larger scope for the Courts to intervene in any kind of action by the Executive.
    • In 2015, the Supreme Court struck down the NJAC legislation as unconstitutional, paving the way for the latest round of confrontation. With the Memorandum of Procedure (MoP) for judicial appointments still stuck, almost every appointment is fraught with tension.
  • Centre’s interference in appointment of Judges
    • Appointments and transfers go to the root of the administration of justice and where judicial review is severely restricted. Interference in system of administration of justice does not augur well for the institution
    • The year 2018 witnessed one of such bitter clashes when Law minister Ravi Shankar Prasad wrote a letter to the CJI Deepak Mishra segregating the recommendation of the Supreme Court recommendation of appointing two judges to the Supreme Court. The Government returned the recommendation of the Collegium of elevating Uttarakhand Chief Justice K.M Joseph to the Supreme Court back for reconsideration.
  • Political influence in the adjudication process
    • The reasons for such biases may be a result of the judge’s own political affiliation or any political pressure that threatens the judge and his position. The politicians wield the power in some cases to manipulate the legal system through threats and political intimidation.
  • Accountability
    • The biggest issue of overlap might be that a particular organ cannot be held accountable for its decision, for example, Judicial Decision in 2G case, Coal Block case.
  • Transfer of Judges
    • Since October 2017, 8 percent of High Court judges (about 86), including some 60 percent of High Court Chief Justices (about 15 of them), have been transferred (an average of over 20 judges per year). In September 2021 alone, 32 judges were transferred. This is double the number of judges transferred during the Emergency. The new collegium under the current Chief Justice of India, N.V. Ramana, started functioning from April 24 this year and has already made 34 transfers.
    • The rationale for giving the Union executive the power to transfer individual independent, resolute and fearless judicial defenders of the rule of law and Constitutional rights are read by the public as a broader signal that the judicial system as a whole is opposed to judicial independence and the protection of rights.
  • Memorandum of Procedure
    • The Memorandum of Procedure is a document framed by the government in consultation with the Chief Justice of India, which lays down the procedure for the appointment of judges to the Supreme Court and various High Courts. It was first issued in November 1947 and has been updated since.
    • Judicial appointments in India follow a complicated procedure, involving both judges and the government. A committee of judges known as the collegium puts forward names and the government is generally expected to approve them. This process is governed by a Memorandum of Procedure.
    • The process runs into difficulties when the government refuses to appoint a judge recommended by the collegium.
    • Ramana had said that since May, the collegium has recommended 106 names for judges and nine for chief justices. Of these, the government had cleared the names of only seven judges and one chief justice.
    • Ramana’s public statements brought attention to a fault-line between the executive and judiciary: the appointment of judges.
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