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President calls for discretion in courtroom utterances


President Ram Nath Kovind said judges must exercise ‘utmost discretion’ while making utterances in courtrooms and quoted an American judge to argue that “courts are not representative bodies and are not designed to be a good reflex of a democratic society.”


GS-II: Polity and Constitution

Dimensions of the Article:

  1. President on Ancient Tradition and Role of Judges
  2. Issues with the Indian Judiciary
  3. Back to Basics: Functional Overlapping amongst the organs of Government
  4. Role of the Judiciary in Law Making
  5. Way forward

President on Ancient Tradition and Role of Judges

  • According to Indian tradition, Judges were viewed as an example of rectitude and detachment, analogous to sthitpragya [a person of steady insight].
  • A rich history of legions of such justices famed for their sagacious remarks and impeccable behaviour, which have become trademarks for future generations.
  • The President referenced Justice Frankfurter of the United States Supreme Court, who said in the 1951 case Dennis versus United States, “Courts are not representational entities.” They are not intended to accurately depict a democratic society. Their main characteristic is separation, which is based on independence.”

Issues with the Indian Judiciary

Appointment of Judges

  • The disadvantages of the Collegium method for appointing judges have been well-documented.
  • The Collegium system’s appointment of judges is completely opaque, and there was no method for verifying the appointment’s reasonableness. There is a complete absence of responsibility on the part of the Judiciary.

Social Media Platforms and Judiciary

  • It is necessary to evaluate the contemporary phenomena of the judiciary being attacked on social media sites.
  • There have been instances of people making derogatory statements against the judges on social media sites. Some criminals take advantage of the anonymity provided by such platforms.

Pending Cases

  • There are currently 3.9 crore cases pending in district and subordinate courts, 58.5 lakh cases in different high courts, and more than 69,000 cases in the Supreme Court, according to reports citing statistics from the National Judicial Data Grid and the Supreme Court.
  • Inadequate facilities and vacancies in several courts have also been mentioned by jurists.

Back to Basics: Functional Overlapping amongst the organs of Government

  • While separation of powers is key to the workings of Indian Government, no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers.
  • Every organ is, in a way, overlapped in its practical functioning with the other two organs of the Government. This overlapping enables the organs to act as a check on each other without too much interference.

Overlapping Powers of Legislature

With JudiciaryWith Executive
Impeachment and the removal of the judges. Power to amend laws declared ultra vires by the Court and revalidating it. In case of breach of its privilege and it can punish the person concerned.  The heads of each governmental ministries are members of the legislature. Through a no-confidence vote, it can dissolve the Government. Power to assess the works of the executive. Impeachment of the President. The council of ministers on whose advice the President and the Governor acts are elected members of the legislature. 

Overlapping Powers of The Executive

With JudiciaryWith Legislature
Making appointments to the office of Chief Justice and other judges. Powers to grant pardons, reprieve, respite or remission of punishments or sentence of any person convicted of any offence. The tribunals and other quasi-judicial bodies which are a part of the executive also discharge judicial functions.Power to promulgate ordinance which has the same force of the Act made by the Parliament or the State legislature. Authority to make rules for regulating their respective procedure and conduct of business subject to the provisions of this Constitution. Powers under delegated legislation.

Overlapping Powers of The Judiciary

With ExecutiveWith Legislative
Under Article 142, the Supreme Court functions as an Executive in order to bring about the complete justice.Judicial review, i.e., the power to review executive action to determine if it violates the Constitution. Rigidity / Non-Amendability of the Constitution under basic structure.

Role of the Judiciary in Law Making

The judiciary can play an important role in improving the lawmaking process. A straightforward way of doing this is by enforcing the text and spirit of the constitutional provisions governing legislative procedures.

Right implementation of constitutional procedures

  • Voice votes registered during the passing of the bill is marred with disagreement.
  • This issue arose most recently when the controversial farm laws were reportedly rushed and passed by voice vote in the Rajya Sabha despite objections by Opposition members.
  • The procedures have to be followed and if need be questions should be raised about the implementation.

Bills as Money Bills

  • The description of the Money Bill is provided under Article 110.
  • This Article identifies seven areas that can be governed through the enactment of Money Bills, including the imposition of tax, the regulation of borrowing and appropriation of money out of the Consolidated Fund of India.
  • Bills certified as Money Bills bypass the Rajya Sabha.
  • Therefore, the judiciary should intervene in a timely manner if the features mentioned in the article are not met.

Judicial Review

  • In exercising judicial review, the court’s role is to call on the State to provide justifications explaining why the law is reasonable and, therefore, valid.
  • The court can examine whether and to what extent the legislature deliberated the reasonableness of a measure.
  • The legislative inquiry would usually include evaluating the factual basis justifying the law, the suitability of the law to achieve its aim, and the necessity and proportionality of the law relative to its adverse impact on fundamental rights.
  • The Supreme Court adopted such an approach in the Indian Hotel and Restaurants Association (2013) case.

Doctrine of presumption of constitutionality

  • It is a legal principle where the judiciary initially assumes law enacted by the legislature to be constitutional, unless the law is declared unconstitutional by the Judiciary.
  • To sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.

Way forward

  • It is the responsibility of judges to speak in courtrooms with the utmost discretion. Even if offered with the best of intentions, indiscreet statements should be avoided.
  • Stakeholders must work together to find a way to decrease pendency and improve access to justice. Only a small percentage of the population can afford to approach the court of justice.
  • The “critical fulcrum” around which democracy revolves is justice. It was reinforced even more if the three pillars of democracy — the judiciary, the legislature, and the executive — coexisted peacefully.

-Source: The Hindu

February 2024