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Insights into Editorial: The fear of executive courts

Insights into Editorial: The fear of executive courts

Judicial Activism Loosely interpret and apply the Constitution based on ongoing changes and values. Judicial Restraint Follow a strict interpretation of the Constitution. Believe judges should also follow precedent.


Justice S.R. Sen of the Meghalaya High Court observed in a judgment that “anybody opposing Indian laws and the Constitution cannot be considered citizens of the country.”

The case involved the denial of a domicile certificate. Justice Sen, however, thought it fit to further note that in 1947 India “should have been declared a Hindu country”.


Why this statement made by High Court Judge:

The Legislature ought to legislate to grant automatic citizenship to (non-Muslim) religious minorities “who have come from Pakistan, Bangladesh and Afghanistan”.

Justice S.R. Sen also noted that “our political leaders” in 1947 “were too much in a hurry to get the independence and thus, creating all the problems today”, and that “nobody should try to make India as another Islamic country”.


The meaning of judicial independence in reality:

General meaning of judicial independence as independence from the government.

Our Constitution is designed to ensure that judges can do their work “independent” of government influence:

  • fixed salaries, security of tenure, and an appointments process that through the Supreme Court’s judgments is insulated from executive control.


However, in reality, Independence, means something more:

  • It also requires that judges perform their constitutional role independent of personal biases, political and moral beliefs, and partisan ideologies.


  • Of course, adjudication is a political task, and there is no doubt that a judge’s political vision will inform her work.

That, however, does not authorise the judge to turn into a politician.

At all times, she is bound to maintain primary fidelity to the law and the Constitution: to the text of legal instruments, to the canons of legal interpretation, and to the body of judicial precedent that holds the field. These are crucial checks upon judicial power.


Judicial independence, therefore, depends on judges recognising that law, while being influenced by politics, is not reducible to it.

Law and adjudication must remain autonomous from partisan politics in important ways.

And the more we strengthen judicial independence in its first sense independence from the government the more attention we must pay to independence in this second sense.

This is because control brings with it accountability.

  • Politicians, for example, remain “accountable” to the people in at least some sense, because they depend upon them in order to continue in office after five years.
  • Judges who are insulated from any external control are accountable only to themselves, and their own sense of the limits of their constitutional role.


Accountability only to oneself, however, is a very weak form of constraint. The temptation to overstep is always immense, more so when such immense power has been placed in one’s own hands.

Therefore, it is here that “legal culture” plays a critical role in establishing judicial accountability.

    A Legal Culture –

  • which has a set of unwritten, but clearly established, norms that determine what is or is not acceptable in the process of adjudication.


  • which has not sprung up out of a vacuum, but created and nurtured by judges, lawyers, legal academics, the press and the citizenry.


Judicial Review or Judicial Activism: Where the line has been differentiated?

The record of the courts in protecting civil rights has been a mixed one. In far too many cases, courts have tended to defer to the executive and the government.

However, judgments like the national anthem order, the Tirukkural order, the NRC process, and Justice Sen’s recent foray raise an altogether more frightening prospect: that of an “executive court”.

By an executive court, I mean a court whose moral and political compass finds itself in alignment with the government of the day, and one that has no compunctions in navigating only according to that compass.

Instead of checking and limiting government power, an executive court finds itself marching in lockstep with the government, and being used to set the seal of its prestige upon more controversial parts of the government’s agenda.



Each organ of our democracy must function within its own sphere and must not take over what is assigned to the others. Courts should be wary of making rules on their own, as it would amount to transgressing into the policy domain.

The people of India and their representatives should explore ways of addressing judicial activism in the country.

Equilibrium in the exercise of authority must be maintained at all times with the powers of the legislature and executive subject to judicial review.

The only check possible in the exercise of powers by the judiciary is self-imposed discipline and self-restraint by the judiciary itself.

The faith and confidence of people in the judiciary must always be maintained. The judiciary must provide accessible, affordable and quick justice to the people.


Way Forward:

we urgently need the return of a thriving legal culture, one that uncompromisingly calls out political posturing of the kind we have recently.

And this legal culture cannot pick and choose, criticising regressive orders like Justice Sen’s, while exempting judgments that equally cross the line, but nonetheless seem to have achieved a “right outcome”.

Only a principled consistency in requiring that judges must always give reasons for their judgment can halt the transformation of the constitutional court into an executive court.