Article: Judicial Independence

Judicial Independence

Indian Judiciary, the third pillar of democracy, is the sole guardian and protector of the constitution. It upholds the rule of law and ensures that democracy doesn’t turn into tyranny of the majority. With over 4 crore pending cases in 544 district courts, 25 high courts and a Supreme Court bench, it is seen as an important institution for grievance redressal. As Lord Bryce said, ‘there is no better test of the excellence of government than the functioning of its judicial system’.

Indian Constitution envisages an active judiciary which is fiercely independent, at par with executive and legislature. Had it not given a basic structure, democracy wouldn’t have survived in India and we would’ve gone down the same path as other 3rd world countries. Major judgements such as Kesavananda Bharti case and Third judges case have further consolidated the position and power of the judiciary.

Article 36 refers to judiciary as ‘the state’ and article 129 refers to it as a ‘court of record’ and it has power to punish for its contempt. Apart from that, article 142 empowers the court to release any decree in order to do complete justice in a matter pending before it. The judiciary has different types of jurisdictions, including original, writ, appellate and advisory. It has the power to adjudicate on matters between central and state governments and between state governments. It provides for numerous petitions too, for enabling justice for all. For instance, a special leave petition is for getting a case transferred from a lower court to itself, while a review petition is to review an earlier judgement made by the court. In cases of a death sentence, a curative petition comes into scene. For enforcing fundamental rights of citizens, writ petitions can be called into play. Furthermore, Public Interest Litigation introduced by Justice PN Bhagwati makes justice accessible for anyone, as even socially disadvantaged people, minorities and non-governmental organizations can seek justice in matters pertaining to the larger cause. It was brought by the judiciary in order to advance human rights and equality.

The constitution provides a number of safeguards to protect the independence of the judiciary. The salaries, privileges and pension of the judges of supreme court are charged upon the consolidated fund of India. They are fixed, so they can’t be changed to the judges’ disadvantage after their appointment by the president. The conduct of the judges cannot be discussed in the parliament unless an impeachment motion is initiated. Any impeachment must be ratified by a special majority in the parliament, and the grounds of impeachment can only be misconduct or incapacity.

However, there has been much fervor around the issue of appointment of judges in the supreme court. The current system involves a collegium of four senior-most judges who send their recommendation to the president and he puts a stamp on it. This system has garnered much criticism due to opaqueness inside the judiciary, leading to the ‘Uncle Judge Syndrome’. In 2015, the NDA government passed the National Judicial Appointments Commission bill like several other countries to involve civil society and legislature in the appointment and transfer of judges of supreme court and high courts. It suggested a committee involving CJI, 2 senior judges of supreme court, union minister for law and justice, opposition leader of the Lok Sabha and 2 eminent persons nominated by the PM's committee. There was also veto power given to the law minister and eminent person over CJI’s opinion. This bill passed by the parliament, was quashed by the Supreme Court as it stated that it increased the indebtedness of judiciary on executive. There was also reluctance regarding the definition of eminent person and their selection. Though, Supreme Court accepted the flaws of the collegium system and ensured ways to include transparency, such as posting of recommended names, minutes of meetings, views of the judges on official websites of the Ministry of Law and Supreme Court of India.

Pratap Bhanu Mehta talks about the phenomena of politicization of judiciary and judicialization of politics. He believes that judiciary is itself a political institution and judges are ‘delicate political balances’, reason being that many of its decisions are not based on legal principles but on political requirements. For instance, the finishing up of certain cases in a hushed manner over others that’ve been pending for way longer, or even taking up of PILs that are less urgent over the ones that are critical but embroiled in political tussle. All of these situations show the subtle influence that any ruling government has over the judiciary and hence all the judgements. He also believes that India is a classic case of ‘judicial governance’, where judiciary is more concerned about stigmatizing the executive than addressing real public issues, and it has in no way helped the quality of life get better. It is often seen that judicial activism turns into overreach and judges are found filling the shoes of legislators.

However, Prof. Upendra Bakshi has defended it by saying that the judiciary might make some judgements based on sentimentalism rather than reason, but overall it has contributed to the deepening of democracy. For instance, since there was no law on sexual harassment passed by the parliament or in the constitution, the court went ahead and created a set of rules called ‘Vishakha Guidelines’ which still serve as a directory to sexual harassment at workplace.

Until recently in 2019, the Supreme Court was reluctant to include the office of Chief Justice of India under Right To Information Act, 2005, citing the critical and delicate nature of the kind of information that is involved in the cases. It was seen that while the judiciary takes initiative to bring transparency and accountability to the functioning of government, it is reluctant with respect to its own accountability. Some believe that the judiciary even uses its image to strengthen its power, and protects erring judges in the name of judicial independence. Though, now that the office of CJI is under RTI’s ambit (as CJI is a public authority), the verdict underlines that RTI is not to be used as a tool for surveillance and there has to be a balance maintained between transparency and independence of judiciary. A key takeaway from the judgement is also that now the disclosure of details of personal assets of serving judges is not a violation of their right to privacy.

Though, it can’t be overlooked that the judiciary has been less supportive of government proposals like ‘Judicial Standards and Accountability Bill’ in the name of judicial independence.

Hence, it is evident that though the transformation is slow, we are heading towards a more empowered judiciary with checks and balances in place. There’s no doubt that there need to be certain grievance redressal systems for the judiciary and a greater number of alternate dispute redressal mechanisms in place to finish larger chunks of cases in less time. It will also mean that there’s lesser concentration of power and overload of work in the supreme court and greater efficiency in disposing cases.

(Entry for Think India Article Writing Competition, 2020)

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