This is transcript of video lectures from the series of [[15 Video Lectures on Indian Constitution]] **Navigate to other lectures in this series:** [[Introduction to Indian Constitution]] | [[Constituent Assembly Debates]] | [[Preamble of Indian Constitution]] | [[Citizenship in India]] | [[Right to Equality]] | [[Reservation Policies and Indian Constitution]] | [[Freedom of Speech & Expression]] | [[Right to Life and Personal Liberty]] | [[Freedom of Religion]] | [[Rights of Minorities]] | [[Directive Principles]] | [[Fundamental Rights, Directive Principles & Fundamental Duties’ Relationship]] | [[Union Executive Powers & Position of President & Prime Minister]] | [[Indian Judiciary]] | [[Constitutional Amendments & the Basic Structure Theory]] # Chapter 14 - Lecture 14 By Prof. (Dr.) Faizan Mustafa Namashkar, welcome to the online course on Indian Constitution offered by Nalusar University of Law and sponsored by Ministry of Law and Justice, Government of India. In the last lecture, we talked about union executive and today we are going to the third most important organ of our state, that is Indian judiciary. So Indian Constitution, as we had discussed earlier, is a federal constitution. Federalism has been held to be the basic structure of the Constitution. What is federalism? Federalism is all about distribution of powers between center and states. If power is allocated to two sets of governments, the disputes are bound to arise. And therefore an independent organ is required to resolve these disputes. Moreover, supremacy of the Constitution is an essential ingredient of federalism. If constitution supremacists to be maintained, we require an independent and impartial judiciary so that it can freely, fairly and independently interpret the Constitution. For the Constitution guarantees certain fundamental rights and only an independent organ can protect these rights. And therefore, judiciary was given the role of protector and the guarantor of people's fundamental rights. As a matter of fact, true federalism under Indian Constitution is visible only in the judiciary because our high courts are not subordinate to the supreme court. Chief Justice of India is not the boss of Chief Justice and judges of the high courts. In fact, even in respect of the supreme court, Chief Justice of India is only the first amongst equals. What is judicial review? Judicial review is the power of constitutional courts to examine the constitutionality of laws and the executive's actions. Expression judicial review has not been used in the Indian Constitution. Unlike American Constitution, our Constitution does not even expressly west judicial power in the courts. But the separation of power's principle has been incorporated as division of functions of three organs under the Constitution is abundantly clear. So judicial power in the sense of judicial power of state is clearly vested in the courts and this was so even prior to independence. So courts in India have the power to review the state action. Article 13, Article 32 and 26 of our Constitution give the power of judicial review to the supreme court and high courts to declare any legislative, executive or administrative action void if the same is in contravention of our Constitution. One big question which may be legitimately raised. If we are giving this power to the judges to sit over judgment that is seasons of democratically elected representatives of the people sitting in the parliament, is it not anti-democratic? The answer is that those judicial review may look like anti-democratic but this power has been given to ensure constitutionalism so that parliament remains within their allotted sphere and do not transgress the limits laid down by the Constitution so that the supremacy of the Constitution is maintained and the parliament does not turn majoritarian. And before the birth of our republic, statements of Nero's stature explicitly elaborated government's view on the judicial review. On 10th September 1949 in the Constituent Assembly, this is what Nero said. Within limits no judge and no supreme court can make itself a third chamber. No supreme court and no judiciary can stand in judgment over the sovereign will of parliament. If we go wrong here and there, it can point it out. But in the ultimate analysis where the future of the community is concerned, no judiciary can come in the way. And then Nero said, and if it comes in the way, ultimately the whole Constitution is a creature of parliament. He went on to say on the possibility of picking up pro-government judges. When he said, if courts proved obstructive, one method of overcoming hurdle is the executive which is the appointing authority of judges, begin to appoint judges of its own liking for getting decisions in its own favor. Indian Constitution does not prescribe any procedure for the appointment of Chief Justice of India, but a healthy convention has been developed to appoint senior most judge as Chief Justice of India. What is judicial activism? According to Blacks Law Dictionary, judicial activism is a philosophy of judicial decision making whereby judges allow their personal views about public policy among other factors to guide their decisions. Giving a new meaning to the provision to suit the changing social or economic conditions or expanding the horizons of rights of individual is termed as judicial activism. Thus when courts assume functions of the executive and the legislature, then we call this as judicial activism. How judicial activism has worked in India? In Vishakhya versus the state of Rajasthan, 2004 judgment, the Supreme Court held in the absence of enacted law to provide for effective enforcement of basic human rights of gender equality and guarantee against sexual harassment and abuse, more particularly sexual harassment at workplaces, we lay down the guidelines and norms specified here and after for due observance at all workplaces or other institutions until the legislation is enacted for the purpose. If legislation is not in place in extraordinary situation, the Supreme Court main woke its powers under 142 and issued guidelines. If you look at the Vishakhya case, subsequently the law was eventually enacted by the Parliament and sexual harassment at workplaces, prevention, prohibition and redressal act was passed in 2013. Why Independence of Judiciary is Important? Independence of Judiciary is the hallmark of modern, liberal and democratic state. Independent Judiciary is required to maintain balance between the interests of individuals and society. One task in his book, Spirit of Laws, had said, there is no liberty if power of judging be not separated from the legislative and the executive powers. An independent judiciary is therefore the sign que non of vibrant democratic system, only an impartial and independent judiciary can stand as a bulwark for the protection of rights of the individuals and need out even handed justice without fear of favor. In SP Gupta Vars' Union of India, 1982 Judgemento, Supreme Court held judges should be of a stern stuff and tough fiber, unbending before power, economic or political and they must uphold the core principle of rule of law which says, be you ever so high, the law is above you. This is the principle of Independence of Judiciary which is vital for the establishment of real participatory democracy, maintenance of rule of law as a dynamic concept and delivery of justice to the vulnerable sections of community. It is this principle of Independence of Judiciary which we must keep in mind while interpreting the relevant provisions of the Constitution. This is what Supreme Court said in SP Gupta. How Independence of Judiciary has been ensured by the Constitution? The independence and impartiality of the judiciary are not private rights of judges, we should not live under this confusion. Independence of Judiciary is not the right of judges, it is the right of the citizens. Ultimately, judicial legitimacy and power rest on public confidence in the courts, in the judges themselves and in their decisions. And therefore, it is the duty of the court to ensure that people's confidence and trust in them is not eroded. Independence of Judiciary is in fact the most cherished goal of any legal system and the process of appointment of judges is rightly seen as a crucial mechanism to achieve this goal. How do we protect judges? Ensure their independence. Their salaries cannot be varied and reduced except during financial emergency. They have been given security of tenure. So their impeachment process has been made very difficult. Judges of Indian Supreme Court and High Court can be removed only through impeachment on grounds of prove misbehavior or incapacity. Let us now come to the crucial question. Independence of Judiciary will be preserved if the appointment process of judges is fair and transparent. Indian Supreme Court, as you know, is the most powerful court in the world. It has 33 plus 1 judges. Originally article 124 of the Constitution had provided 7 plus Chief Justice of India, 7 plus 1. But 124 gave power to the Parliament to prescribe a larger number. Accordingly, Parliament enacted the Supreme Court number of judges Act 1956, which provided the maximum of 10 judges. Article 124 says that judges of Supreme Court would be appointed by the President after consultation with such judges of Supreme Court and High Court as President may deem necessary. Then it says, but the Chief Justice of India shall always be consulted in the appointment of judges. How the Collegium System came into being? As for Article 124, President has to merely consult Chief Justice of India and such other judges of Supreme Court and High Court's He Deem's Necessary. Supreme Court has itself held in SP Gupta Vs Union of India in 1981, that President is not bound by the advice of CJAI and other judges. He has to consult and after consultation he can take his decision. Therefore, if you look at Article 124, we had primacy of the executive in the appointment of judges in the first four decades of our republic. But subsequently, Supreme Court in Supreme Court advocates on record association 1993. And then in 1998, in the presidential reference, observe that President is bound by the recommendation of the Collegium of Chief Justice of India plus four senior most judges. This is how Collegium was born. How Collegium System has worked. When judges are appointing judges, ideally the system should have ensured timely appointment of more competent, independent and fearless judges. But a closer scrutiny of Collegium's decisions reveal that at times their decisions are as unpredictable as English weather. There is neither any transparency nor any accountability. One may say that the constitution favors a wider consultative process in the appointment of judges of Supreme Court. In my view, there is a great merit in this provision. Wisdom is not the monopoly of few chosen ones in the apex court. We have great judges in our high courts. If President wants, he should have a right to consult them. Accordingly, to remedy this situation, in 2014, Government of India brought in National Judicial Appointment Commission Act and also amended the constitution. But in 2016, Supreme Court struck down the Constitutional Amendment and the NJC Act on the ground that it undermines the primacy of the opinion of Chief Justice of India, which the Supreme Court said is the basic structure of the Constitution. Thus to conclude, we can say that independence of judiciary is important for any democratic country. Judicial review is a mechanism to ensure supremacy of the Constitution. Judicial activism is not good as it goes against separation of powers, doctrine and Supreme Court through judicial activism should never cross what is called constitutional boundary. Because then it will negate the principles of separation of powers and principles of constitutionalism. Supreme Court does not have a role in the governance of the country, that is the role assigned to the government. In the next lecture, we would discuss Parliament's power to amend the Constitution. Thank you very much. Namashka. ---  *Disclaimer: I am not asserting any claim over this content. The content is entirely from the Ministry of Law & Justice and NALSAR University of Law's joint online course on the Indian Constitution. My effort has been to make the transcript available for people like myself who prefer to read or quote it rather than to listen. This is part of my public self-archiving project. For more details, see [notes.daktre.com](https://notes.daktre.com) or [daktre.com](https://daktre.com).* **Navigate to other lectures:** [[Introduction to Indian Constitution]] | [[Constituent Assembly Debates]] | [[Preamble of Indian Constitution]] | [[Citizenship in India]] | [[Right to Equality]] | [[Reservation Policies and Indian Constitution]] | [[Freedom of Speech & Expression]] | [[Right to Life and Personal Liberty]] | [[Freedom of Religion]] | [[Rights of Minorities]] | [[Directive Principles]] | [[Fundamental Rights, Directive Principles & Fundamental Duties’ Relationship]] | [[Union Executive Powers & Position of President & Prime Minister]] | [[Indian Judiciary]] | [[Constitutional Amendments & the Basic Structure Theory]] Last updated: 2026-02-21 22:48