Judicial independence and executive interference

By bitiuris | lawonchain | 23 Jul 2022



The founding members of the Indian Constitution emphasized on the doctrine of separation of powers while framing the constitution. It was influenced by Montesquieu’s idea of trias politica where the three key functions of the government of a state, viz., law making, law implementing and law enforcing are handled by three different branches in the state. Each branch has an independent and separate responsibility which collectively runs the state. This division of responsibility, as the theory states, prevents concentration of power and thus ensures that there is no misuse, through ‘checks and balances.’


The independence of judiciary has been called to test many times especially during the period of Emergency imposed in 1975. It was the darkest of the days in the legal history of India as the judiciary had failed miserably at the hands of the legislative which exercised control over the executive, in a blatant disregard of the provisions of the Constitution. This term paper seeks to provide a brief analysis on the independence of judiciary and executive interference especially during the National Emergency.


Emergency: A loophole to curb judicial independence?


Articles 352, 356 and 360 of the Indian Constitution recognizes three types of emergencies; national, state and financial. It was borrowed from the Weimar Constitution of Germany, Article 48. The makers of the constitution failed to take note of the abuse of this power that helped Hitler establish a martial law. Habeas Corpus, a constitutional right was curtailed in Germany among other rights such as freedom of press and right of assembly. This was later observed in the ADM Jabalpur v Shivkant Shukla[1] judgement 43 years later, in India, when a National Emergency was in force. During Emergency, a presidential order served under Article 359(1) lead to suspension of rights under part III of the Indian Constitution which included the Fundamental Rights. Dissenting in the Additional District Magistrate Jabalpur case Justice H.R. Khanna opined that “[e]ven in the absence of Article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law…”


However, in a recent 9 bench judgment[2] of the Supreme Court of India it was overruled and held that the right to privacy is a fundamental right which is protected under Article 21 – Right to Life.[3]


The 42nd Amendment


Touted as the ‘mini-constitution’; the forty second amendment was an almost complete revision of the Constitution of India. It was passed during the period of Emergency. Powers of the Supreme Court was curbed and that of the High Court, stripped, in adjudicating upon matters related to constitutional validity of the acts carried on during the Emergency. The events which led to declaration of a state of Emergency being imposed were highly questionable and various political analysts conclusively pinned it to a political agenda of the ruling party.


Article 368 was amended by the 42nd amendment to the extent that any changes that were made by this amendment was barred from being called into question and put under judicial scrutiny by “any court on any ground.”[4] Another hallmark of this amendment is the introduction of fundamental duties and directive principles of state policy (“DPSP”) which aimed at substituting and taking precedence over the Fundamental Rights. Although this effort was defeated as the basic structure doctrine was already established in Keshavananda Bharati v State[5] in 1973. It limited the scope of article 368 in amending the constitution at its root level. Fundamental Rights were held to be a part of the basic structure of the Constitution in this case. Later, section 55 of the Constitution (forty-second Amendment) Act, 1976 which took away the powers of the court in adjudication upon matters of constitutional validity, was held to be unconstitutional in itself in the case of Minerva Mills v UOI.[6]


The 42nd Amendment by and large had stemmed from the decision in the case of State of Uttar Pradesh v Raj Narain[7] where the Allahabad High Court found Mrs. Indira Gandhi to be guilty of electoral malpractice. She was effectively barred from holding her elected office or contesting elections for the next 6 years. Upon the amending act coming into force, election disputes were saved from judicial inquiry.[8] This enabled Mrs. Gandhi to retain her office. This amendment further allowed the office of the prime minister to usurp unlimited powers which was evident during the period of Emergency.  


44th Amendment and the undoing of legislative overreach 


The period during the National Emergency of 1975 registered a significant economic growth[9] and this was probably the only positive effect that it had. There were gross human rights violations such as the forced sterilization program which was targeted at a single community.

Fascism had taken shape with the misuse of powers of the constitution. Emergency provisions under part XVIII of the Constitution were misconstrued to fulfill the political agenda of the ruling party rendering the judiciary as hapless as the common man.


Therefore, emergency provision related to proclamation of emergency was overhauled with the introduction of the 44th Amendment. Such as one of the requirements for proclamation of emergency in Article 452(1) being ‘internal disturbance’ was later replaced with ‘armed rebellion’. This was done so as to avoid letting the ruling party use protest against it to impose emergency like it happened in 1975. Further, article 74 of the Constitution was amended which now required the President to act in accordance with the advice of the Council of Ministers to impose emergency. The Fundamental Rights were restored to their status quo pre-Emergency. Since the new government in 1977 did not have enough seats to repeal the 42nd Amendment bill, hence the 43rd and 44th amending bills were introduced to undo as much damage as possible. It could not, however, restore the constitution to its former self.


Appointment of the 15th Chief Justice of India


Justice H.R. Khanna who gave the dissent in the ADM Jabalpur case was the only judge who had stood up to Mrs. Gandhi. Before the collegiums system was in place, judges of the Supreme Court of India were appointed based on a tradition which elevated the senior most judge to the position of the Chief Justice of India. The Indira Gandhi government, however, appointed Justice M. H. Beg who was Justice Khanna’s junior.[10] This encroachment upon the judicial independence was widely criticized and in an effort to thwart such future executive interference, the judicial appointments were sought to be brought under the power of the Chief Justice and not the Executive.




Post the Emergency era, various judicial developments have reposed the faith of the public in the independence of the judiciary. Hallmarks of such initiatives are Public Interest Litigations (‘PIL’) started by Justice Bhagwati and the courts acting parens patriae in the Bhopal Gas Tragedy case[11] which originated from the same jurisdiction which once decided the ADM Jabalpur case; a socialist measure now exploited by crony capitalists.         


[1] ADM Jabalpur v Shivkant Shukla 1976 AIR 1207, 1976 SCR 172

[2] ALL WP(C) No.494 of 2012. Also overruled Union of India v Bhanudas Krishna Gawde 1977 AIR 1027, 1977 SCR (2) 719 which followed the ADM Jabalpur case.

[3] A Rare Moment In History: Justice D.Y.Chandrachud Overrules His Father’s Judgment In ADM Jabalpur Case. Available at

[4] Art.368 cll.4, The Constitution (forty-second Amendment) Act, 1976

[5] Keshavananda Bharati v State of Kerela AIR 1973 SC 1461.

[6] Minerva Mills Ltd. and Others  v Union of India and Others AIR 1980 SC 1789.

[7] State of Uttar Pradesh v Raj Narain 1975 AIR 865

[8] Section 20 of The Constitution (forty-second Amendment) Act, 1976 substituted Article 103 of the Constitution. This conferred the power to decide disqualification of person found guilty of electoral malpractices upon “the President  and his decision shall be final.” Further, this decision was to be made in consultation with the Election Commission.      

[9]The positive side to it. Available at

[10] Long March of The Supreme Court Bar Association. Available at

[11] Union Carbide Corporation v Union Of India Etc 1990 AIR 273

How do you rate this article?




random draft notes on legal cobwebs in the Indian startup ecosystem and off-hand comments on certain judgments

Send a $0.01 microtip in crypto to the author, and earn yourself as you read!

20% to author / 80% to me.
We pay the tips from our rewards pool.