The political nature of the judicial process, the Indian debate on the judge's role, and structural challenges

Judicial and Legislative Process · Unit III · Topic 10 of 20 · 6 min read

In what sense the judicial process is political; the Indian debate from the Constituent Assembly through the supersessions and the 'committed judiciary' to Baxi and Dhavan; the institutional limits of courts; and the structural problems of pendency, vacancies, delay and access.

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1. In what sense is the judicial process political?
2. The Indian debate on the role of judges and judicial review
3. Institutional limits: what courts are not equipped to do
4. Structural challenges
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. Unit III pairs judicial independence with the “political” nature of the judicial process, and closes with the scope and limits of activism and the structural challenges facing the courts. The note on independence and accountability covers appointments and discipline. This note covers the rest: what “political” means, the Indian debate on the judge’s role, the institutional limits on what courts can do, and the structural problems that limit what they actually do.

1. In what sense is the judicial process political?

Not in the sense of party. A court is political in three other senses.

It allocates power and values. Deciding whether a law is valid, how far a right extends, or which level of government controls a subject distributes public goods and burdens. That is the classic definition of politics.
Judges bring a view of the public interest. J.A.G. Griffith (The Politics of the Judiciary, 1977) argued that English judges, drawn from a narrow social group, shared a conception of the public interest that tended to favour established authority. Critics replied that he understated the variety of judicial outcomes, but the claim that judges have a politics, in the broad sense, is now widely accepted.
Courts are participants in the power process. They interact with the executive and legislature, which appoint judges, fund courts, implement or resist decisions and can amend the Constitution.

Lord Devlin wrote on this twice in the Modern Law Review (“Judges and Lawmakers”, 1976, and “Judges, Government and Politics”, 1978, the article in the syllabus bibliography). In the first he drew a useful line between activist law-making, which keeps the law in step with a consensus that already exists in society, and dynamic law-making, which uses law to bring about a change the community has not yet accepted. He thought the first proper for judges and the second for Parliament, because judicial authority rests on being seen as impartial.

2. The Indian debate on the role of judges and judicial review

The Constituent Assembly preferred “procedure established by law” to “due process” and kept property rights subject to legislation with compensation, in order to keep social reform in the hands of the legislature.
Property and amendment (1950–1973). Each judicial check on land reform was met by an amendment (the First, Fourth, Seventeenth, Twenty-fourth and Twenty-fifth), and the Court answered with Golak Nath, 1967 INSC 45, and Kesavananda Bharati, 1973 INSC 91. The debate was whether an unelected court could stand in the way of an elected Parliament’s social programme.
The “committed judiciary”. The day after Kesavananda, in April 1973, three senior judges (Shelat, Hegde and Grover JJ.) were superseded when A.N. Ray J. was appointed Chief Justice. Ministers defended the choice by calling for judges committed to the government’s social philosophy. In 1977 Khanna J. was superseded after his dissent in ADM Jabalpur v. Shivkant Shukla, 1976 INSC 129. The episode showed that “independence” has to be protected by structure, not by convention alone, and it lies behind the later appointment cases.
The scholars. Upendra Baxi (The Indian Supreme Court and Politics, 1980) read the Court as a political actor, recovering legitimacy after the Emergency by opening its doors to the poor. Rajeev Dhavan (The Supreme Court of India: A Socio-Legal Critique of its Juristic Techniques, 1977) studied how the Court’s techniques of reasoning shaped its outcomes, and criticised its weak engagement with the social facts of the cases it decided.
The present debate is about whether the Court has become too powerful (governance through PIL, control of appointments) or not independent enough (deference to the executive in liberty and security cases, the “master of the roster” controversy). Both criticisms can be true of the same court at the same time.

3. Institutional limits: what courts are not equipped to do

The syllabus asks about the scope and limits of judicial activism. The limits are partly of legitimacy (who should decide) and partly of capacity (who can decide well).

Polycentric problems. Fuller argued that adjudication works poorly where a decision on one point changes many others, as in budget allocation or city planning.
Information. Donald Horowitz (The Courts and Social Policy, 1977) showed that courts decide social policy from the record of one case, without the means to gather data, monitor results or revise.
Implementation. Gerald Rosenberg (The Hollow Hope, 1991) argued that American courts produced little social change on their own, without support from the other branches. Indian experience is mixed: orders on vehicle fuel in Delhi and on free legal aid were implemented; many directions on prisons, police reform and manual scavenging have been repeated for decades.
Accountability. A court that governs cannot be voted out. That is why the Court has itself imposed limits on PIL and on the use of Article 142 (see the notes on PIL and on activism).

A balanced conclusion. The strongest case for activism is where the political process has failed a group that cannot use it (undertrials, bonded labourers). The weakest is where the Court replaces a policy choice by one it prefers, on matters it cannot monitor. A good answer names the test it uses to tell the two apart.

4. Structural challenges

The Court’s doctrine is only as effective as the system that delivers it.

Pendency and arrears. Very large numbers of cases are pending at every level; the National Judicial Data Grid publishes the figures court by court. Delay defeats the speedy-trial right recognised in Hussainara Khatoon, 1979 INSC 34, and fills prisons with undertrials.
Judge strength and vacancies. In All India Judges Association v. Union of India, 2002 INSC 165, the Court directed a phased increase in the judge–population ratio. The Law Commission’s 245th Report (2014), on arrears and backlog, proposed that the required number of judges be worked out from the actual rate of disposal rather than from population. Vacancies in the High Courts, which depend on the appointment process, remain a recurrent problem.
Delay in judgment. In Anil Rai v. State of Bihar, 2001 INSC 342, the Court laid down guidelines for High Courts on the time within which reserved judgments should be delivered.
The shape of the Supreme Court. A court of more than thirty judges sitting in small benches decides a very large number of special leave petitions, which makes its doctrine less consistent and weakens Article 141. The Law Commission’s 229th Report (2009) proposed a Constitution Bench in Delhi and regional cassation benches; the Court has not accepted the proposal.
Access. Cost, distance from Delhi, the language of the higher courts and the shortage of legal aid lawyers of quality keep the courts far from most litigants. Virtual hearings and translation of judgments into Indian languages are partial answers.
Infrastructure and dependence. Courts depend on the executive for buildings, staff and funds, which is a quiet limit on independence.

How this is examined

Expect “Is the judicial process political?”, “The independence of the judiciary and the political nature of the judicial process”, or “Scope and limits of judicial activism in India”. Use the three senses of “political”, Devlin’s activist/dynamic distinction, the Indian story from the Constituent Assembly to the supersessions, Baxi and Dhavan, the capacity limits (Fuller, Horowitz, Rosenberg), and the structural problems. Conclude with your own test for when activism is justified.

Now try the real questions: Judicial and Legislative Process past question papers.