The Great Indian Judiciary


This article was written by Toshan Chandrakar a student of  H.N.L.U. Raipur.

India has often been faced with situations where its paramount democratic institutions have clashed.[1] One such run-in was the struggle of power between the judiciary and the legislature which reached its boiling point in mid 1970’s and when the Supreme Court gave the most monumental decision in its history on 23rd April 1973 in the form of Kesavananda Bharati v. State of Kerala[2]. The decision of the case mandated that any amendment to the constitution would have to pass the basic structure filter created by the Supreme Court. Hence, establishing the fact that India’s judiciary is indeed one of the most powerful judiciaries in the world and also the most powerful pillar of democracy among the four in India (the others being, Legislature, Executive and the ‘Media’).

Judicial Activism

India is also a land of hundreds of thousands of gods. We, the people of India have a quite optimistic perspective on the things. An extraordinary talent in a person is enough to take you to a position which is above all but god himself, in this country. But when it comes to treating normal people like gods, we are in synchronization with rest of the world. For example, the profession of a doctor is god like. Similarly, many consider a person occupying the pious position of judge to be that of great pride, honor and responsibility, again, god-like. The reason being the belief that just as a God provides justice in order for establishing Dharma, Judges provide Justice in order to maintain law and order in the country. But these professions due to commercial greed have become corrupt and unreliable at times. The guardian of the Constitution of India, (of whose soul resides in the preamble itself and which derives its powers from the preamble), that is the Indian judiciary, has over the time become weak.

But the role of judicial activism and the suo moto power has always found its place and used as a perfect measure by the Courts in restoring the faith of the people, the citizens of India, in the judiciary. One such instance was in 1978. With its decision in Maneka Gandhi v.Union of India[3], the Supreme Court went beyond its immediate mandate to make some striking assertions, which went on to become the bedrock of the protection of human rights of the aam aadmi in the years that followed.[4] The decision of the Supreme Court of India was an inflexion point in the court’s movement towards a broader interpretation of the fundamental rights guaranteed by the constitution.[5] This was an attempt to resurrect the positivist image of the courts of India which faced severe criticisms in its judgments during the course of the ‘national emergency’ of 1975.

Since independence, judiciary has been playing a very active role in dispensing the justice since A K Gopalan v State of Madras[6] case followed by Shankari Prasad[7] case, etc. However, judiciary remained submissive till 1960s but its assertiveness started in 1973 when Allahabad High Court rejected the candidature of the then Prime Minister Indira Gandhi and introduction of PIL by Justice P. N. Bhagwati further expanded its scope.[8]

The loss through law

The point where the Judiciary has seemed a little weak when cases like the famous Shah Bano[9] case and Union Carbide Corporation v. Union of India and Others[10] (remembered as the Bhopal Gas tragedy case). The facts of both the cases are well known to the people of India as well as people worldwide.

Shah Bano Case

Before this case, the court had judged many similar cases. Yet the Shah Bano case was not the same. It was the case which changed the politics of the country. The secular forces took a step back and communal forces went ahead of them. The case is also regarded as the fuel in the fire which burned the Baburi Mosque (or the ‘disputed territory’)  as well as Godhra in 2002. The case was very simple. It merely asked the question “Can a divorced Muslim Woman Claim Maintenance?”

In this case the apex court decided that Mahr, which is a marriage gift given to the bride in Islamic marriages, cannot be treated as maintenance. Shah Bano, the wife of a lawyer was divorced after the pronouncement of triple Talaq. The lower court and the high court both decide in the favor of the divorced woman. The constitutional bench of 5 judges delivered a unanimous verdict, explained the sextion 125 of CrPC that whether the sposes were ‘Hindus or Muslims or Parsis, pagans or heathens’ was ‘wholly irrelevant’.[11]

The matter should have ended with the judgment. But it didn’t. While the educated liberal Muslims accepted and welcomed the judgment, traditional Muslims took it as a challenge. How dare 5 ‘Hindu’ judges decide the laws of their religion?

This era marked the era of Vote bank politics at its worst stage. Over ruling the judgement, the Rajiv Gandhi government passed the Muslim Women (Protection of Rights in Divorce) Act, 1986. Critics argue that it is more a ‘dissolution of rights in divorce’ act. According to it, the maintenance has to be paid only during the three month iddat period.

The outcome of the ugly vote bank politics was that from holding two parliamentary seats in 1984, the BJP cashed on its Hindutva movement, winning 85 seats in 1989, 119 seats in 1991, and finally, 182 seats in 1998 to become the single largest party in the NDA.[12]

Union Carbide Corporation v. Union of India

Justice delayed is justice denied. On the night of 2-3 December, 1984, Bhopal faced a tragedy which would change the country’s position on the international community forever. On the unfateful night, 40 tonnes of Methyl Isocyanate (MIC) gas got mixes with water causing an exothermic reaction which resulted in MIC escaping into the atmosphere and coverted entire Bhopal into a Gas chamber. More than 8000 people died within 2 weeks and injuring more than 6,00,000 people and the future generations. Tort law in India was not developed enough to deal with a case of such gigantic proportions. Hence, the government of India filed a complaint against the UCC before the Southern District Court in New York, USA, before the Judge Hohn Keenan Court. However, Judge Keenan dismissed the case saying that the Judiciary of India is perfectly capable of dealing with this case back in India. In September 1986, the Union of India started proceedings against UCC. District court ordered UCC to pay INR 360 crores while on appeal the high court reduced it to mere 250 crores. Aiming for speedy justice, the Supreme Court ordered fine of 750 crore rupees. This was 6 times less than the actual compensation sought meaning each victim would get around 50,000 rupees.

Have we woken up from the nightmares we faced in the form of these cases? Maybe the public has but we still don’t find the courts giving speedy decisions andproper justice at the same time. Justuce T.S. Thakur’s concern remains a big worry. While law students aim at high paying law firm jobs and corporate hirings, the courts struggle for good lawyers, advocates, judges and such other law enforcement agencies. Indeed, it is a matter of concern.

[1] Milan Dalal, ‘India’s New Constitutionalism: Two Cases That Have Reshaped Indian Law’, Boston College International and Comparative Law Review, vol. 31 (2008): p.257

[2] AIR 1973 SC1461

[3] AIR 1978 SC 597

[4] Zia Mody, Ten Judgments that Changed India (2013): p 32

[5] Zia Mody, Ten Judgments that Changed India (2013): p 31

[6] [1950] SCR 88

[7] Shankari Prasad v. Union of India [1952] 1 SCR 89


[9] Mohammed Ahmed Khan v. Shah Bano Begum; AIR 1985 SC 945

[10] (1989) 1 SCC 674

[11] Shah Bano at para. 7

[12] Zia Mody, Ten Judgments that Changed India (2013): p 61


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