Influence of Legislation On Judiciary

Author:- Gurvinder Kaur Bagga

India is a democratic country where we live. Being a part of one of the biggest democracies in the world we must know what it actually means, as I quote a memorable phrase of President Abraham Lincoln, “democracy is the government of the people, by the people, and for the people.” India is a democratic country based on three tiers of government working independently and they are LEGISLATURE, JUDICIARY, and EXECUTIVE. They all have a great influence on the overall functioning of the government and each of the tiers works flawlessly without any hindrances. The Legislature is a body that looks after bringing up new laws for a state or country.

There are groups of people who attend and evaluate these decisions after keeping in mind the aftermath of promoting any new law.  The second tier, Judiciary, is independent in a constitutional vision that lies beneath the legislature but the question arises does the legislature influence judiciary or is it just due to speculations because of some evil mindset? In this democratic era of freedom, some high authorities or personalities of powerful stature tries to sabotage justice. And this idea of deliberately harming and hollowing the system impedes the judiciary which forms an influence of legislature on the judiciary. Therefore, this article talks about the struggle and scandal on the two major tiers of government i.e. Legislature and Judiciary. 

Political infulence and the judiciary:

All we need is to create an appropriate balance between the Judiciary and the Executive to settle things back to normal for the beneficiary and harmony of the system. To gather more knowledge let’s swim deeper for understanding how it eventually works. The judges or Judiciary body are appointed under INDIAN HIGH COURT ACTS by the chief justice of that high court with the consultation of the governor and then the names go to the supreme court where the CJI approves them with the consultation of the president of India.[1]

If we talk about the justice of the honourable Supreme Court then there are basically two ways in which they can be appointed firstly the chief justice of High Court uplift them and the second way is that after the conference with the President, they can be straightaway nominated by the Supreme Court Collegium. So, it can be observed that the power with regard to the appointment of judges lies within the hand of the President. It is all performed in a well systematic order but still remains ineffective in a long run due to few loopholes and invisibility of the political system to people and judicial intervention etc. 

As far as the appointment of the judges of Supreme and High Court is concerned, a feeling of disgruntlement was revealed in the 14th report of the Law Commission in the midst of nine-year after the birth of the Constitution. When the retirement of the judge of the Supreme Court took place in the year 1973 this matter became debatable for everyone as the Executive diverge from the ingrained way of appointing the topmost judge as a Chief Justice who was of lower rank as compared to the three topmost judges whose rank was superior.

On the other hand, the three judges who were of higher rank decided to relinquish the job as a resulting dispute started regarding that the judicial system should be independent. The same thing happened in another case also when the retirement of the Chief Justice took place and the topmost judge who ranks second was appointed on that place as a consequence of which the judge who was of superior rank decided to resign from his job.[2]

There are two case laws which talks about both the above circumstances:

In this case, it was laid down that the basic structure of the constitution cannot be amended.

 In this case, it was held that it is not necessary during the emergencies to suspend the Fundamental Rights so as to prevents the court from examining the legality of detention.

This shows the connection between the appointment of judges and independent judiciary. When the government came into the power, then the question regarding the appointment of the judges was raised then it was recommended that there is no problem in appointing the topmost judge who ranks lower.


At the time of emergency in the year of 1975 to 1977, a large number of transfers took place of Judges of the High Court and the main reason was that the judges gave the Judgement which was inappropriate. If we talk about Justice S.H. Seth. He was the one who was transferred from the Gujarat High Court to Andhra Pradesh High Court. But after that, an appeal was filed in the Honorable Supreme Court in which he said that the chief justice and the president were not aware of his transfer and it was done without their consent subsequently the appeal was rejected. Although at the time of the Congress Government no further transfer took place of the judges.

In this case, again the relevant question was raised with regards to appointing the judges and the additional judges. This case is also termed as First Judges Case. The court held that the transfer should be done in the interest of the public. And further, it was held that appointing the additional judges will be violating judicial independence, and they cannot be appointed as permanent judges. But later on, this judgement was censured. Again, this matter was placed before the Law Commission. The First Judge Case caused the disgruntlement which gave rise to the Second Judge case which was popularly known as – Supreme Court Advocates on Record Association V. Union of India: in this case, a petition was filed under Article 32 of the Indian Constitution. It was appealed to fill the vacancies which still exist in the Supreme court and the High Court.

The judgement which was given in the First Judge case was quashed and the bench comprising of Nine-Judge highlighted that at the time of the appointment of judges’ participatory consultative process should be involved consequently no priority should be given to the constitutional functionary. Further, the court held that in a judicial collegium there must be CJI and two topmost judges. In case if they may present a different opinion in some case then the priority will be given to the CJI decision and then to two judges. But this decision of court also not further remained for a longer period of time. And this case gave rise to the Third Judge Case.

It was held that the CJI’s opinion was not authentic for the government and further it was perceived that there must be four senior-most judges. The decision should be made consensually but if there is some kind of difference in their opinion then the person can only be appointed in accordance with the opinion of CJI. However, it may be a case where most of the people from the collegium are saying a different thing but CJI is in favour then, in that case, no appointment should be done.

If we talk about the appointment in the case of the High Court then the principle of seniority was highlighted but if a person is praiseworthy then he must be appointed whether he is a senior or not. At the time of the decision, there must be two topmost judges and Chief Justice of the concerned High Court. As far as transfer of judges is concerned then regarding that CJI should discuss it with the Chief Justice of High Court from which place an applicant should be transferred and the discussion regarding this should be brought before the CJI and the topmost judges of the Honorable Supreme Court. As we can see from the above discussion efforts have been made to maintain the balance between the judiciary and executive


After a couple of years when India got independence, it was observed that Justice H J Kania was in office when he died in the year 1951 then at that time Jawaharlal Nehru was the Prime Minister of India and he wants that Justice Patanjali Sastri should take place of Justice H J Kania.

A lot of difference is there in today’s time and in earlier times. Earlier there was unity and courage that is seen between the judges if we talk further so at that time all the six judges of the Honorable Supreme Court were threatened to resign because they don’t want that Justice Sastri take place of Justice H J Kania. Few months before his retirement, the government accepted the non – existent convention.

Let’s take another example, a few months before the emergency came into force. Raj Narayan who was a social activist filed a petition in Allahabad High Court against Indira Gandhi because he did not want that Indira Gandhi should not be appointed as the Prime Minister of India. An investigation took place and it was found that her appointment was unsound. An order was passed by Justice J M L Sinha who was the High Court Judge at that time. The court ordered her to vacate her office and she should get re-elected within six months.

An Indian judiciary has given an outstanding judgement. However, Supreme Court issued a stay order to her and this order was not carried out because after that an emergency was imposed. This kind of crucial decision was made with regard to dispensing Justice.


There is one doctrine which is known as the Doctrine of separation of power. This doctrine not only separates the functioning of the Executive, Legislature and Judiciary but also helps them to act as an independent body. This helps them to keep a check on the functioning of another branch. I think that in order to work smoothly it is necessary to maintain a proper balance and equitable representation between the Executive and the Judiciary so that they can never advantage of their powers.

Judicial Independence cannot take place of the three branches that is Executive, Legislative and Judiciary of the government. It is not right to say that because of the political influence one cannot get Justice but on the other hand Political Influence has a negative impact on the main purpose of the Judiciary that is to uphold the truth and justice. For democratic governance of the country, the concept of competent and independent Judiciary was incorporated.

Author Gurvinder Kaur Bagga is a second – year law student at Amity University, Lucknow Campus.

[1] iPleaders Blogs, , (Last Visited May 27, 2021)  

[2] Legal Service India, , (Last Visited May 27, 2021)

[3] iPleaders Blogs, , (Last Visited May 27, 2021) 

[4] Legal Service India, , (Last Visited May 26, 2021).

[5] Legal Service India, , (Last Visited May 26, 2021).  

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