D.Y Chandrachud remarked in a speech that, “In the many that wear its apparel, the court emerges as one soul which knits together the Bar and the Bench in our desire to ensure justice to our citizens”. Justice and Judicial freedom are the foundation of any democracy. Justice refers to giving each and every person what they deserve. In the Maneka Gandhi v. Union of India, 1978, (Maneka Gandhi’s passport was issued on 1st June 1976 as per the Passport Act of 1967. On 2nd July 1977, the Regional Passport Office (New Delhi) ordered her to surrender her passport. The petitioner was also not given any reason for this arbitrary and unilateral decision of the External Affairs Ministry, citing public interest.) Justice Bhagwati said that Equality is against the arbitrariness of State action. So, this doctrine ensures equality of treatment. “The Seven-Judge Bench held that a trinity exists between Article 14, Article 19 and Article 21. All these articles have to be read together. Any law interfering with personal liberty of a person must satisfy a triple test: (i) it must prescribe a procedure; (ii) the procedure must withstand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must also be liable to be tested with reference to Article 14.” The judiciary ensures justice to the citizens of the country by interpreting the laws according to the Constitution of India. The vision of the Constitution makers was very clear and non-arbitrary, they ought India to be free, on her own laws and run by her own people, and the judiciary does exactly that, it is answerable to the constitution makers. In Hussainara Khatoon v State of Bihar, the judiciary’s role in upholding justice by addressing systemic delays in granting bail and trial to under privileged prisoners, emphasized the right to speedy trial under Article 21 of the Constitution. For instance, the Hon’ble Bombay High Court has recently started hearing a case pertaining to the acquittal of the 7/11 convicts, it has been noticed that these investigative agencies have a “communal bias” while probing terror related
cases, and due to this bias innocent people are put to jail. Let me make it clear, these people have been behind the bars for the past 18 years and their prime life is gone! Investigative agencies have failed us miserably in terror related activities. They are so affected by the public outcry that they fail to follow the law and thus create their own assumptions to back their decisions! There is a clear evidence that the accused and their families were forced to testify in a certain way, and in that manner, they were physically tortured despite the law being in force. An independent judiciary does not merely mean the insulation of the institution from the executive and the legislature branches but also the independence of individual judges in the performance of their roles as judges. The art of judging must be free of social and political pressure and from the inherent biases which human beings hold,” Former Chief Justice Chandrachud emphasized. In Golak Nath vs State of Punjab (1967), the judges observed that the three organs of the government are expected to exercise their functions within their limits and keeping in mind certain encroachments assigned by the Constitution. The Tussle between Judiciary and the Legislature can be narrowed down to the fight between powers. Judicial activism is omnipresent in the situation where judiciary assumes power to “make the laws” rather than interpreting it, like it was seen during the Vishakha guidelines in Vishaka and others v State of Rajasthan when the judiciary made its own rules to be enforced rather than the parliament to prevent sexual harassment at workplace. The Shiv Sena conflict highlights a pivotal moment in Indian politics, with significant implications for the judiciary’s role in resolving political disputes. The crisis stemmed from internal factionalism within the party, leading to questions of legitimacy and representation. The judiciary’s intervention became crucial as the
matter escalated to constitutional debates over the anti-defection law, the role of the Speaker, and the Governor’s powers. The Supreme Court’s handling of the case underscores its responsibility in maintaining the balance of power and safeguarding democratic processes. This episode not only reflects the challenges of adjudicating politically sensitive issues but also emphasizes the judiciary’s role as a custodian of constitutional values in a rapidly evolving political landscape.
The argument I’m trying to establish is that the judiciary needs to be given adequate freedom, the polar sides to it would lead to judicial over reach and judicial restraint. Judicial independence is of the utmost importance as only Judges with independent thoughts, not biased from political opinions, media arguments can make a judgement which upholds the ideals of the Indian Constitution. In the case of S.P Gupta v. Union of India, the Hon’ble Supreme court held that judicial independence is part of the basic structure of the constitution, emphasizing that judges must uphold justice impartially. Similarly, in Keshavananda Bharati v. State of Kerala, the judiciary asserted its independence by limiting parliaments power to amend the constitution in a way that violated its basic structure, including the rule of law and judicial freedom.
Judicial freedom is crucial for the securing the rights of the citizen. When the parliament assumes more power, it tries to push down the judiciary in many ways for instance during the emergency, in the case of Shiv Kant Shukla v. Adm Jabalpur, the judiciary had to succumb to executive pressure and had to rule that fundamental rights can be suspended. This is a reminder that what happens if the judicial freedom is compromised, Justice HR Khanna gave a dissenting opinion against Indira Gandhi and stood for Right to Life, Liberty during the period of emergency which even costed his Chief Justiceship. The case of DK Basu v. State of West Bengal dealt with the
requirement of the protection of the fundamental rights and human rights of the criminals with regard to duties of the police in view of the incidents of custodial violence – It was held that the balanced approach was necessary for meeting the ends of justice.
Justice and judicial independence are interdependent and to ensure that justice is secured to the people of the country, then the judges should be free from legislative and executive pressures. judicial activism has played a pivotal role in reining in the misuse of sedition laws. In Vinod Dua v. Union of India (2021), the Supreme Court quashed sedition charges against a journalist, reiterating that mere criticism of the government does not amount to sedition. Such decisions reflect the judiciary’s proactive stance in protecting democratic freedoms.
However, the delicate balance between judicial activism and overreach is crucial. While the judiciary must protect individual rights, it must also respect the separation of powers, leaving law-making to the legislature.
Reforming Sedition Laws: A Call for Justice Sedition Law was started by the colonial rulers and was used to suppress the desire for freedom and expression of the Indian masses. The British claimed that Sedition was introduced to account for political conditions in India—‘Language may be tolerated in England which it is unsafe to tolerate in India because in India it is apt to be transformed into action instead of passing off as harmless gas’. Are such destructive and undemocratic ideas to be tolerated in independent India? Is speaking against one’s own government sedition? Sedition laws must align with democratic principles to prevent their misuse against dissenting voices. These sedition laws were used to prison our fathers of the freedom struggle, Bal Gangadhar Tilak, Mahatma Gandhi are few names
to take. The fact that the sedition law was continued even after independence shows how laws are misused by the authorities to impose power. Recent debates around sedition laws have emphasized the need for judicial scrutiny to ensure they do not infringe upon constitutional freedoms. Although the word ‘sedition’ is skipped in the new BNS but it continues to exist in the criminal law as Section 152 in contrast to its predecessor IPC Section 121A . The definition also seems to be very vague and open to interpretation by the authorities.
But the terror of sedition is not only limited to the sedition law, authorities also use other laws to put the debated sedition law under the carpet but still there. On a tragic note, Siddique Kappan was arrested in October 2020 while on his way to Hathras in Uttar Pradesh after a Dalit woman from there died following a gang-rape. The charges heet makes ludicrous allegations against Kappan, who was arrested a year ago, while on the way to Hathras in UP, to report the murder of a Dalit woman. Kappan was booked under the stringent UAPA, and also charged with sedition (Section 124 A of IPC). He has been accused of conspiring to stoke unrest and riots — the chargesheet claims that Kappan did not write like a “responsible” journalist, “only and only reports to incite
Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, a shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
IPC
Read more at: https://devgan.in/ipc/section/124A/ Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial means, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.
BNS
Muslims”, and sympathised with Maoists and Communists. For another instance, in a T-20 match between India and Pakistan in Lucknow in 2021, five people were arrested for allegedly using indecent language against the Indian cricket team after the T-20 World Cup match, meanwhile three students from Jammu and Kashmir were charged for “cyber terrorism” ( Cyber terrorism is defined as Whoever, with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people by (i) denying or cause the denial of access to any person authorized to access computer resource; or (ii) attempting to penetrate or access a computer resource without authorization or exceeding authorized access; or (iii) introducing or causing to introduce any computer contaminant,) for allegedly adding a status with all hail Pakistan after the world cup. My question is, does putting such a slogan on a mere whatsapp status coming under any of these? Is the matter of such importance to label it as cyber terrorism? It is to be noted that the punishment under IPC Section 124A was either life imprisonment or up to 3 years imprisonment to which fine may be added. However, under BNS the punishment provided is either life imprisonment or seven years imprisonment and a mandatory fine. This indicates that just for the sake of it, the word sedition was skipped, but nevertheless, the wording remained somewhat similar and the punishment has increased. Should this be tolerated in a democracy like us? During the farmers protest, Disha Ravi was accused of criminal conspiracy and sedition for sending a toolkit which alerted citizens of what they could do on the ground level to support farmers. But my discussion here is not restricted to the legislature alone, the criminal contempt of the judiciary also extends my attention. For instance, in the recent tragic case of Atul Subhash, the suicide note explicitly mentioned that the judge had asked Rs. 5 lakhs to settle the case, why isn’t this being discussed? For a democracy to function in a healthy manner, criticism, suggestions, and protests are very crucial and steps need to be taken to safeguard this interest of
the public. The Hon’ble Sc has warned the Maharashtra government that it would halt schemes like ‘Ladki Bahin’ if reasonable compensation was not paid to the party affected by the acquisition of Land. The land was acquired by State of Maharashtra in Pashan in 1961 which was later given to Armament Research and Development Establishment in Pune. The Court also observed that the government had the money to distribute Ladli Behen and Ladka Bhau schemes but not for paying for the loss of land. Although the State Government did agree for a compensation after this but it was unreasonable for the location and time. In the case of Bombay Environmental Action Group & Anr. vs. State of Maharashtra & Ors., the Bombay High Court emphasized the importance of protecting and preserving the Sanjay Gandhi National Park (SGNP) from illegal encroachments. The court directed the state to ensure the removal of all unauthorized structures and encroachments, particularly those that were not eligible for rehabilitation under the established cutoff date. The judgment stressed the need for a concrete action plan, including fencing the park to prevent further encroachments and restoring its ecological integrity. The court reiterated that compliance with its orders was paramount to safeguard this vital environmental asset. “Somewhere this game has to stop. The sanctity of protected areas like the SGNP must be upheld, and the State is duty-bound to comply with the court’s directives to ensure its restoration.” In Janhit Manch and Others vs. The State of Maharashtra and Others, the Bombay High Court addressed the critical issue of illegal encroachments on public land and the impact on urban infrastructure and governance. The court directed the state to take immediate action to remove encroachments and ensure proper rehabilitation for eligible occupants, strictly adhering to the prescribed cutoff date. The judgment emphasized the need for efficient administration and compliance with court orders to maintain the rule of law and protect public resources. “Lawlessness in the guise of encroachments cannot be tolerated. The State must act decisively to protect public land and uphold
the rule of law.” The Supreme Court has ordered that no trees be cut in Mumbai’s Aarey Colony without its prior approval. The directive comes in response to concerns over tree-felling for infrastructure projects and aims to protect the area, which is often referred to as the “green lung” of Mumbai. The court emphasized the importance of environmental preservation and has sought detailed reports on the number of trees felled so far and the measures taken for reforestation.
This order reinforces the judiciary’s role in balancing development with ecological conservation.