About the author:
Abhirami G Nair is a third semester LLM Commercial Law student at Bharat Mata School of Legal Studies in Ernakulam.
“There can be no differences in the House regarding the necessity of our judiciary’s independence from the executive branch and its inherent competence. How these two things could be secured is the question.” –B. R. Ambedkar
INTRODUCTION
The judiciary is a system of courts that works to uphold the supremacy of law in a country. It is essential to the operation of democracy. The judiciary, together with the administrative and legislative branches of the government, is one of the three main entities recognized by the doctrine of the ‘Separation of Powers’. The judiciary determines whether the law is correctly complied with, as well as interprets and applies the law in a variety of legal situations, whereas the legislative and executive are involved with creating and carrying out the law respectively. The judiciary must act impartially and independently. Constitutional culture is predicted by judicial independence. It serves as a tool for constitutionalizing public life. It assists the court to properly maintain its dual responsibility of keeping the constitution both static and relevant. For there to be an actual constitution and the ‘Rule of law’, judicial independence is a prerequisite. Without it, law will not be the one in power, instead the desires of those in positions of authority will dictate how any given situation is to be resolved. Furthermore, no constitution can protect its citizen’s rights if the citizen cannot defend themselves in public, and no person can challenge the executive branch if the judge in their case is always the same as the executive branch. The primary characteristic of the judiciary that serves as a bastion for the rights and freedom of the populace is its independence, which is mandated by the constitution to be protected by the independent judiciary. The fundamental tenets of our Constitution are fighting faith, courageous justice and judicial independence. As great as an idea it is, the principle of judicial independence serves as the cornerstone upon which our democratic society is built. If there is one idea that governs the entire structure of the Constitution, it is the idea of the ‘Rule of law’. According to the Constitution, it is the judiciary’s responsibility to ensure that every branch of the government operates within the bounds of the law, giving the ‘Rule of law’ meaning and effectiveness.
The idea of Judicial independence isn’t a fabrication, though it refers to a condition that may be too ideal to achieve. The concept of Judicial Independence, principally speaking means independence from the superintendent and from the legislative power. Judiciary has to apply the law legislated by the Council, a written declaration will ultimately describe judicial independence. It is a prerequisite for the rule of law. Few of the widely accepted measures of judicial independence are1:
1. The promotion of judges on the advice of the judiciary.
2. No retroactive legislation.
3. Adherence to the precedent doctrine.
4. Establish Judicial procedure shouldn’t be subject to constant administrative and executive review.
5. The possibility of Judicial review.
THE CONCEPT OF JUDICIAL INDEPENDENCE
The basic concept of the constitution is judicial independence. The constitutional system is motivated by a noble idea. The structure of our democratic policies is supported by it, with judicial independence serving as its basis2.According to N.A. Palkivala’s article in the Journal of the Bar Council of India3, “An Independent judiciary is the very heart of the republic.” That magnificent institution of an independent court serves as a democracy’s cornerstone, the source of its enduring life, a prerequisite for its development, and the hope for its wellbeing.
B.R. Ambedkar noted that the Constituent Assembly Members were generally in agreement that “independence of the judiciary” from the executive should be made as clear and as definite as it could be by law while debating on the subject of ‘Appointment of Judges’ to the higher judiciary. So, one can see that the Constituent Assembly realizes that the judiciary must be independent of the executive.
The renowned French philosopher Montesquieu was the first to support an independent judiciary. The legislative branch, the executive branch, and the judicial branch each have their own set of powers according to the ‘Separation of powers’ principle, which he supported. The founding fathers of the United States of America were astounded by his thesis.
The fundamental idea of ‘Judicial Independence’ was established with the enactment of the ‘Act of Settlement’ in England and Wales in 1701. By establishing that High Court Judges and Lords Justices of Appeal hold office during good behaviour, this statute expressly accepted the principles of judicial tenure security. There had to be formal procedures in place before a judge could be dismissed. However, the judiciaries in both India and the United States now have the power of judicial review. They have the authority to invalidate and declare unconstitutional any law passed by the legislature. In India, the Supreme Court will only overturn a law if it violates the fundamental principles of the constitution.
According to Justice S.B. Sinha, when one thinks about the independence of the judiciary, it should be visualized at two levels; In a more limited sense, where the concept is about the institutional independence of the judiciary and in a narrower sense which relates to the independence and impartiality of individual judges in relation to the appointment, tenure, payment of salaries, and procedures for removal from office.
However, the judiciary’s independence is only guaranteed when it collaborates with the other two branches of the government. In a highly perceptive statement, Justice V. R. Krishna Iyer expressed the opinion that the Indian Constitution works in harmonious cooperation with the tools of the executive and legislative branches. However, for the judiciary to be genuinely outstanding, it must possess an important level of independence. As, without a constitutional code of behaviour and accountability, independence could be hazardous and undemocratic; thus without them, the robes might come across as haughty.
As stated in the United Nation’s basic principles, “The independence of the Judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governments and other institutions to respect and observe the independence of the Judiciary.”4
JUDICIAL INDEPENDENCE AND SELECTION OF JUDGES
The process for choosing judges in India upholds judicial independence.
The Supreme Court and High Court justices are appointed by the President. The Indian Constitution mandates that nominations be made by the President of India in consultation with the highest judicial authorities. He naturally pays attention to the advice from the Cabinet. The qualifications needed for these posts are also laid forth in the constitution.
In accordance with the constitution, judges are guaranteed a tenure. Unlike other high-ranking government officials, Supreme Court and High Court judges serve “during good conduct,” not at the President’s pleasure, i.e. they are not beholden to the whims of the President. Only if they are impeached may they be dismissed from their position. A judge can be expelled for misconduct or incompetence upon a recommendation by both Houses of Parliament supported by a special majority.
The Indian Consolidated Fund is used to pay judges’ salaries and benefits. Furthermore, the salary and allowances of judges of the Supreme Court and High Courts cannot be reduced while they are serving, not even in times of financial hardship for the country. High Court judges must retire at 62, and Supreme Court justices must do so at 65. Long-serving judges are capable of operating impartially and independently.
VARIOUS CASE LAWS THAT DEMONSTRATE THE IDEA OF THE INDIAN JUDICIARY’S INDEPENDENCE
The court ruled in the 1982 decision of S.P. Gupta v. Union of India5 that judges must be bold and support the rule of law. The idea of the Judicial Independence is based on this.
In the Supreme Court Advocates-on-Record Association & Anr. v. Union of India6, the court stated that for democracy to be effective, the judiciary’s independence is required. The court went on to say that as long as the judiciary is kept apart from the government and the legislative, the rights and powers cannot be restricted.
CONSTITUTIONAL PROVISIONS ON AN INDEPENDENT JUDICIARY
The independence of the judiciary has been a topic of discussion all over the world. The independence of the court is, however, explicitly stated in the written Constitution of India, making this idea much more significant. Independence of the judiciary indicates that the legal fraternity has all the authorities to make their own judgements, without any external interference. The judiciary plays a crucial role in both delivering justice and resolving interstate conflicts. Only if the judiciary is free from all extraneous influences will this be possible. One of the most significant jobs in the legal system is that of the judge. Therefore, independence of the judiciary also refers to judicial independence. As a result, the judges are independent of the government and all of the judges above them in the judicial hierarchy, and they are free to present their findings and make judgements without being subject to any outside pressure. The Fifth Part of the Indian Constitution addresses the Union Judiciary. The appointment of judges in the courts is where the independence of the judiciary begins. Judges of the Supreme Court are appointed in accordance with Articles 124 to 147, while judges of the High Courts are chosen in accordance with Articles 214 to 231. Additionally, Articles 233 to 237 of the Constitution makes reference to the Subordinate courts. The District Court is the highest level of subordinate court. In order to ensure that each organ will carry out its responsibilities independently and without interfering with those of the other, as well as to support the principles stated in the Preamble, the Constitution’s framers divided the judiciary, legislature, and executive into three distinct organs of the government.
RELEVANT JUDGEMENTS WHERE THE INDIAN JUDICIARY’S INDEPENDENCE HAS BEEN CHALLENGED
Nobody in this world is flawless. How then, can a judge be completely impartial? Judicial independence has also been challenged in court decisions in India. Nevertheless, it should be noted that the Constitution of India has provisions for the appointment of judges to the Supreme Court and the High Court. However, the President of India is the one to extend ultimate approval when appointing judges.
Some of these rulings by the courts include:
THE RAFALE FIGHTER JET DEAL CASE7
In this case, the French and Indian governments agreed to buy 36 Rafale fight aircraft from the French manufacturer, Dassault Aviation in 2015. A 50% offset provision was also a part of the agreement, requiring the French business to spend 50% of the contract value on Indian products and services. Next year, the firm and the Reliance Group launched a joint venture. Dassault stated that it intends to invest $115 million in order to partially complete its offset requirement. As a result, the case was brought before the Supreme Court where the disputants asserted irregularities in the transaction. The Court rejected the corruption allegations on the grounds that defence cases were under a narrower purview of judicial review. The government argued that the court’s ruling had certain factual inaccuracies, which made it challenging. The Parliamentary Accounts Committee report and the CAG report, which were presented to the court by the government and were deemed to be inaccurate, were included in the judgement. The disagreement was resolved when the Court decided to consider the merits of the petitions.
CASE OF BHIMA KOREGAON
The bicentennial commemorations of the Bhima Koregaon battle was cut short in 2018 owing to chaos that resulted in one fatality and several injuries. A number of activists were detained after an investigation by the police, who claimed that their provocative comments contributed to the violence. Consequently, a PIL was filed asking for a SIT (Special Probe Team), to probe into the allegations made against the activists arrested under the ‘Unlawful Activities (Prevention) Act’. The plaintiffs claimed that the Mumbai Police’s judgement was biased. The Supreme Court heard the case and, by a vote of 2:1, dismissed it. The Mumbai Police probe was deemed satisfactory by the two justices; Chief Justice of India Dipak Misra and Justice Khanwilkar, but not by Justice D.Y. Chandrachud. In his dissenting opinion, Justice Chandrachud said that the arrests were made targeting political dissent8.
AADHAR ACT AS A MONEY BILL CASE9
Here, the question was whether the 2016 Aadhar Act was enacted as a money bill. Again, the majority of the court decided that it was a money bill. According to Section 7 of the Act, which stipulates that the Aadhar-based authentication can be used for benefits or services charged to the Consolidated Fund of India, the act was approved by Justice A.K. Sikri as a money bill. As a result, the legislation could be utilized as a money bill. In contrast, according to Article 110 of the Constitution, the Union Government may only utilize the money bill for services relating to spending and receiving money. As a result the decision was criticized, and Justice Chandrachud, who had voiced his disapproval of it, called it a fraud on the Indian Constitution.
THE CBI – ALOK VERMA CASE10
Here, in this instance, the verdict was postponed. Alok Verma, director of the CBI, had all of his authority removed by the government. A powerful committee was required to approve this in accordance with the Delhi Special Police Establishment Act. The Supreme Court looked at the specifics of the CBI director’s corruption allegations. Later, on the basis of the punishments imposed by the chosen committee, the Court ordered Verma’s restoration in his position as CBI director. However, the reinstatement was mandated with only three weeks remaining on Mr. Verma’s contract. Consequently, this sparked criticism once more.
A THREAT TO INDIA’S JUDICIAL INDEPENDENCE
On the grounds that they served political objectives, the court decisions described above have drawn criticism. However, there have been cases where judges have benefited from specific things after retiring. Like Ranjan Gogoi, a former Chief Justice of India, who was elected to the Rajya Sabha after leaving his position as CJI. Similar situations have happened in the past, Justice Ranganath Mishra retired from his position as Chief Justice of India in 1991 and thereafter became the Chairman of the National Human Rights Commission. India’s Chief Justice, Justice M. Hidayatullah, retired in 1970, preceding which he was appointed as the Vice President of India. There have been many cases where lawmakers have taken on judicial roles. The courts are closed as a result of the COVID 19 epidemic, and all physical hearings are conducted online. Due to the overwhelming number of cases that are now pending, this has made things challenging. As a result, the courts decided to issue rulings in matters that are of extreme importance. The listing of urgent matters for hearing, nevertheless, has generated debate. In the matter of Jagdeep Chokkar v. Union of India (2020), a petition was filed asking for houses for the migrant labourers who were left stranded and defenceless during the lockdown, while a plea filed in the case of Arnab Goswami v. Union of India (2020), for quashing the FIRs against him was heard the very next day, the former case was not heard immediately. Therefore, it came into question as to which case the court considered to be more significant and why. Additionally, Jammu and Kashmir’s internet remained down for nearly six months. It took a while for the Court to hear this case, thus the people of Jammu and Kashmir were shut off from the rest of the world and denied access to the internet for that long period. There have been several landmark decisions that were seen to have political interests, as we briefly mentioned in the situations when the court was criticised for having them, but the judiciary resisted. Raj Narain, an activist, challenged the nomination of the then prime minister Indira Gandhi in the case of Indira Gandhi v. Raj Narain11 on the grounds that it was flawed, this incident occurred immediately before the emergency was put in place. As a result of the Court’s finding that Indira Gandhi’s nomination was flawed, she was told to leave her position. This decision proved out to be one of the most significant decisions in terms of judicial independence. However, in recent years, the judiciary has come under severe criticism for the cases they prioritize and the judges’ post-retirement activities. This shows that the administration of justice still needs improvement. A few methods that could assist with this include:
• The judge’s salaries in India are lower than those in other nations, which is a major factor in their search for post-retirement jobs. Thus, an obvious method to prevent such activities, is to increase the judges’ salary and pension to a more reasonable amount that can be compared to other developed nations.
• It frequently happens that cases including people in power are given more priority than those that are important for social causes and should be heard promptly. The inadequate strength of the judiciary may be the cause of this. Increasing the judiciary’s capacity can aid in resolving important as well as really urgent issues.
• A statute must be implemented to prevent judges from taking employment after they retire. This will help maintain some consistency and discipline in how the courts function.
SUGGESTIONS
Article 124 of the Indian Constitution clearly stated that the President of India, along with the Chief Justice, can nominate any justice to the Supreme Court before it introduced the idea of the Collegium. This suggests that the constitutional authors themselves believed that the government should be involved in the nomination of judges. It has been made abundantly clear that the use of specific safeguards is necessary for all aspects of a democratic administration to function properly. Although the entire idea of the separation of powers was created to keep each branch of government independent of the other, the framers of the Constitution made a deliberate choice to keep the executive involved in the selection of the judiciary in order to prevent any abuse of power by a single branch of government. To safeguard judicial independence and to let judges to use their judgement freely without interfering with their personal or substantive independence, Collegium governance should be present when it comes to the promotion or transfer of judges. Thus, we may conclude that the judiciary must maintain its independence while not imposing itself on the other branches of the government. In order for the judges to understand the concept of independence, it is also vital to have appropriate and competent training programmez and seminars for the judiciary. It is a trait that has to be ingrained into their minds permanently. Periodic seminars may be quite helpful for getting judges from all across the nation together to talk about the pressures and challenges they all face and how to get beyond them.
CONCLUSIONS
The work that the judicial system performs is extremely challenging. As such, the judiciary has the authority to exercise the judicial independence that is referred to in the Indian Constitution. The judges are doing a fantastic job of providing the populace with fair justice. There will inevitably be people who might disagree with the choices made when doing this, resulting in this being the point at which the judiciary’s independence is questioned. Yet we can be assured that no one will ever be able to demonstrate that the Indian legal system has been influenced in any way. However, the aforementioned case laws and instances of judges finding employment after leaving the judiciary, makes it clear that our nation’s justice delivery system still needs to undergo significant modifications.
FOOTNOTES
1. Ankit Kumar, “The Theory and Practice of Judicial Independence a critical study”, V.B.S. Purvanchal University, 2020.
2. Dr P.N. Bhagawati J in S.P. Gupta v. President of India, AIR 1982, SC 149.
3. Vol. 9 (2) 1982, p. 203.
4. Principle 1 of the United Nations Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan from 26 August to 6 September, 1985, and endorsed by General Assembly resolutions 40/32 of November 29, 1985, and 40/146 of December 13, 1985.
5. AIR 1982 SC 149.
6. (1993) 4 SCC 441.
7. WP (Crl.) 225/2018; RP (Crl.) 46/2019.
8. https://www.scconline.com/blog/post/tag/bhima-koregaon/
9. WP (C) 494/2012.
10. Writ Petition (C) No. 1309 with 1315 of 2018.
11. (AIR 1975 SCC 2299).
