Context: Chief Justice of India D.Y. Chandrachud said the independence of judiciary depends on the freedom of each and every individual judge to function in office without the pulls of political pressure, social compulsions, and inherent bias.
“The independence of the Supreme Court is integral to the maintenance of a democratic way of life and rule of law. It is not very difficult for a nation which is a democracy having a Constitution to slip into chaos, into just the opposite of democracy,” Justice Joseph said.
Syllabus:
- General Studies- II: Governance, Constitution, Polity, Social Justice and International relations:
- Separation of powers between various organs dispute redressal mechanisms and institutions.
We are first going to understand:
- What is Rule of Law?
- Why the Judiciary needs to be Independent?
- Independence of Indian Judiciary
Rule of Law and its relation with Independence of Judiciary?
- It would be appropriate to discuss the views of Dicey, as he is known to be the main exponent of the concept of rule of law.
- According to Dicey’s theory, rule of law has three pillars based on the concept that “a government should be based on principles of law and not of men”, these are-
- Supremacy of Law;
- Equality before the Law; and
- Predominance of Legal spirit.
- According to Dicey, for the prevalence of the rule of law there should be an enforcing authority and that authority he found in the courts. He believed that the courts are the enforcer of the rule of law and hence it should be free from impartiality and external influence.
- The rule of law provides two basic protections against arbitrary or discriminatory government action.
- It provides that the rule applied to a particular case must be reasonably predictable.
- And it provides that the rule must be predictable without regard for the identity of the parties.
Judicial independence ensures, in particular, that judges are free to conclude that actions taken, or decisions made by the Government (or even by others) are in breach of the law, and that they are in particular in breach of individual's rights, including of course their fundamental, or human, rights - and to decide on the appropriate remedy.
Why the Judiciary needs to be Independent?
Independence of Judiciary is sine qua non of democracy. In a democratic polity, the supreme power of state is shared among the three principal organs. The constitutional task assigned to the Judiciary is no way less than that of other functionaries, legislature and executive.
Indeed it is the role of the Judiciary to carry out the constitutional message and it is its responsibility to keep a vigilant watch over the functioning of democracy in accordance with the dictates, directives, and imperative commands of the constitution by checking excessive authority of other constitutional functionaries.
Our Constitution does not strictly adhere to the doctrine of separation of powers but it does provide for distribution of power to ensure that one organ of the government does not trench on the constitutional powers of other organs.
The concept of distribution of powers assumes the existence of judicial system free from external as well as internal pressures. Under our constitution, the Judiciary has been assigned the onerous task of safeguarding the fundamental rights of our citizens and upholding the Rule of Law. Perhaps the most important power of the Supreme Court is the power of judicial review.
Judicial Review means the power of the Supreme Court (or High Courts) to examine the constitutionality of any law if the Court arrives at the conclusion that the law is inconsistent with the provisions of the Constitution, such a law is declared as unconstitutional and inapplicable. The term judicial review is nowhere mentioned in the Constitution.
However, the fact that India has a written constitution and the Supreme Court can strike down a law that goes against fundamental rights, implicitly gives the Supreme Court the power of judicial review. Together, the writ powers and the review power of the Court make judiciary very powerful. In particular, the review power means that the judiciary can interpret the Constitution and the laws passed by the legislature.
Many people think that this feature enables the judiciary to protect the Constitution effectively and also to protect the rights of citizens. The practice of entertaining PILs has further added to the powers of the judiciary in protecting rights of citizens.
Since the courts are entrusted the duty to uphold the constitution and the laws, it very often comes in conflict with the state when it tries to enforce orders. Therefore, the need for an independent and impartial Judiciary manned by persons of sterling quality and character, underlying courage and determination and resolution impartiality and independence who would dispense Justice without fear or favor, ill will or affection, is the cordial creed of our constitution and a solemn assurance of every Judge to the people of this great country.
The Judiciary cannot remain a mere bystander or spectator but it must become an active participant in the judicial process ready to use law in the service of social justice through a proactive goal oriented approach. But this cannot be achieved unless we have judicial cadres who share the fighting faith of the constitution and are imbued with constitutional values.
Judicial independence ensures, in particular, that judges are free to conclude that actions taken, or decisions made by the Government (or even by others) are in breach of the law, and that they are in particular in breach of individual's rights, including of course their fundamental, or human, rights - and to decide on the appropriate remedy.
Independence of Indian Judiciary
The constitution of India adopts diverse devices to ensure the independence of the judiciary in keeping with both the doctrines of constitutional and Parliamentary sovereignty.
Elaborated provision are in place for ensuring the independent position of the Judges of the Supreme Court and the High Courts.
- Firstly, the judges of the Supreme Court and the High Courts have to take an oath before entering once that they will faithfully perform their duties without fear, favour, affection, ill-will, and defend the constitution of India and the laws. Recognition of the doctrine of constitutional sovereignty is implicit in this oath.
- Secondly, the process of appointment of judges also ensures the independence of judiciary in India. The judges of the Supreme Court and the High Courts are appointed by the President. The constitution of India has made it obligatory on the President to make the appointments in consultation with the highest judicial authorities. He, of course, takes advice of the Cabinet. The constitution also prescribes necessary qualifications for such appointments. The constitution tries to make the appointments unbiased by political considerations.
- Thirdly, the Constitution provides for the Security of Tenure of Judges. The judges of the Supreme Court and the High Courts serve “during good behavior” and not during the pleasure of the President, as is the case with other high Government officials. They cannot be arbitrarily removed by the President. They may be removed from office only through impeachment. A Judge can be removed on the ground of proved misbehavior or incapacity on a report by both Houses of the Parliament supported by a special majority.
- Fourthly, the salaries and allowances of judges are charged upon the Consolidated Fund of India. Further, the salaries and allowances of Judges of Supreme court and High courts cannot be reduced during their tenure, except during a financial emergency under Article 360 of the Constitution.
- Fifthly, the activities of the Judges cannot be discussed by the executive or the legislature, except in case of their removal.
- Sixth, the retirement age is 65 years for Supreme Court judges and 62 years for High court judges. Such long tenure enables the judges to function impartially and independently.
- Independence of judiciary and rule of law are the basic features of the Constitution and cannot be abrogated even by constitutional amendments as observed by the Hon’ble Supreme Court in S.P. Gupta v Union of India; AIR 1982.
Certainly, let's expand on each of the mentioned aspects concerning threats to judicial independence in India:
- Retirement Age (Different for HC and SC Judges): The disparity in retirement ages for judges of the High Court (HC) and the Supreme Court (SC) can create a situation where judges might be influenced by the prospect of elevation to the higher court before reaching the retirement age. This could potentially compromise their independence as judges may be tempted to make decisions that align with the preferences of those in power.
- Post-Retirement Appointments: The practice of judges accepting post-retirement appointments, especially in government commissions, tribunals, or other quasi-judicial bodies, raises concerns about potential conflicts of interest. Judges may be inclined to rule favorably for the government during their tenure in the hope of securing a lucrative post-retirement position, impacting their impartiality.
- Appointment of Chief Justice of India: The appointment process of the Chief Justice of India (CJI) has faced criticism for lacking transparency. The influence of the executive and political considerations in the appointment process may compromise the independence of the judiciary, as the CJI plays a crucial role in determining the course of the judicial system.
- CJI as Master of the Roster: The CJI being the master of the roster implies that they have the authority to allocate cases to different benches of the court. This power, if not exercised judiciously, can lead to the manipulation of cases to favor certain outcomes or to assign cases selectively. Such discretion can be a potential threat to the impartiality of the judicial system.
- The Collegium System: The Collegium system, while intended to safeguard judicial independence, has faced criticism for being opaque and lacking accountability. The process of appointment and transfer of judges through the Collegium system might be susceptible to external pressures, potentially compromising the independence of the judiciary.
- Judicial Delays: Prolonged delays in the disposal of cases can undermine public confidence in the judiciary. The backlog of cases can be exploited by powerful individuals or entities to their advantage, and the perception of delayed justice might impact the credibility of the judiciary, thereby affecting its independence.
- Code of Conduct for Judges: While a code of conduct for judges exists, the effectiveness of its enforcement is crucial. Weak enforcement mechanisms can render the code toothless, allowing judges to engage in misconduct without facing adequate consequences, thus jeopardizing the integrity of the judiciary.
- Code of Ethics for Judges: The code of ethics is essential for maintaining the ethical standards of judges. However, the absence of a comprehensive and enforceable code, along with potential loopholes, may create opportunities for unethical behavior. This can undermine public trust and confidence in the judiciary.
The constitution provides for a judiciary, which is independent. Independence of judiciary is important for the purpose of fair justice. There should be no interference by the legislature or the executive in the proceedings of the judiciary so that it may pass a judgment that seems reasonably fair. In case of intervention, there may be an element of bias on the part of the judges in taking a fair decision. It is difficult to suggest any other way to make the Indian courts more self-reliant and keep them away from the influence of the other two organs.