[Editor’s Note]

For most of its over seven-decade existence, the judiciary in India occupies a sense of pride based on its effectiveness to defend individual liberty, expansion of justice to the marginalized, and ability to check and balance executive excesses. However, in the last seven years, the judiciary finds itself faced with pressure to succumb to the governments biding under a full legislative majority. In this contribution to the Working Papers Series on Judicial Independence and Democracy in Asia, Senior Fellow with ORF Niranjan Sahoo addresses the key features of the evolution of the judicial powers in India and their role in shaping its freedom and democracy. The author argues that India is at a critical crossroads and faces a significant erosion of judicial freedom and constitutionalism. To protect these core aspects of democracy, the rule of law, and human rights, the author suggests that the way forward might be through the higher court`s slow recognition of its declining reputation and steady effort to revive public faith.

※ The following are excerpts from the article. For the full text, please check the attached file at the top of this page.

1. Introduction

In a functioning liberal democracy, judicial independence is a non-negotiable feature. The judiciary remains the key agency to maintain checks and balances in the constitutional division of powers among the key branches of the government. This apart, an autonomous and independent judiciary plays a pivotal role in protecting citizens’ rights from potential violations by the executive branch. Additionally, the judiciary serves as the key protector of the constitution and upholds the country’s foundational norms and democratic values. In this regard, the judiciary in Indian has played a critical role in the young republic’s eventful democratic journey in the last seven decades. Not only has it kept the executive branch within constitutional limits, but it has also done exceedingly well to expand many new rights and liberties for the vulnerable and dispossessed sections of the societies.

However, in recent years particularly since the rise of executive power under the current dispensation led by the right-wing Bharatiya Janata Party, the judiciary has come under intense pressure while exercising its constitutional role as protector of individual freedom and acting as a major check on the executive excesses. Today, however, this historic institution known for being a bastion of justice and freedom finds itself at an important crossroad. This comes in the backdrop of a majoritarian populist government that has exercised visible control over the judiciary. The long-established constitutional ‘separation of powers’ is under great stress today. There are concerns in appointments of judges, accountability, corruption, pendency, issues of access and affordability of justice for ordinary citizens, and questionable judgments in recent times. This paper attempts to do a quick scan of the evolution and key features of judicial power in India, its roles in shaping freedom and democracy, current challenges, and the way forward.

2. Judiciary: Structure and Independence

The Indian judiciary is one of the strongest in the world because of the wide-ranging powers it enjoys and how its foundation has been laid in its functional independence. Unlike the United States, India has an integrated judicial system. The Supreme Court is the highest court of the country, followed by the High Courts at the level of the state and then the district courts. Additionally, there are multiple quasi-judicial bodies such as tribunals and mediation centers for alternate dispute resolution. Unlike the British legal system, which is entirely based on the common law system, where it had originated from, the Indian system incorporates the common law system along with statutory law and regulatory law. The Constitution framers were clear with their vision of an independent judiciary. Laying down the foundation for clear appointments of judges, creating security of their tenures and clear conditions of service.

■ Niranjan Sahoo is a Senior Fellow with ORF’s Governance and Politics Initiative. With years of expertise in governance and public policy, he now anchors studies and programmes on democracy, human rights, federalism, electoral reforms (particularly issues related to political funding), and cross-cutting issues of exclusion, insurgencies, affirmative action and inclusion. A recipient of the Asia Fellowship (2009) and a former Sir Ratan Tata Fellow, he currently serves as the South Asia member for the Carnegie Rising Democracies Network, where he debates and writes on democracy, foreign policy, human rights and other related issues.

■ Typeset by Juhyun Jun Research Associate
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