“The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.”
-Caroline Kennedy
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INTRODUCTION
India, being the largest democracy, rests its functioning according to the constitution. And one of the vital organs of the government is the Judiciary. The judiciary, also known as the "Watchdog of Democracy" is one of the strongest bodies and is deemed to be independent,so that it can guarantee justice to each and every citizen of India. It functions in accordance with the Rule of Law, and has provisions to maintain the functioning of the judiciary without interference from the executive and the legislature. In order to protect the rights of individuals and mete out even-handed justice to them, the judiciary must work in an independent and impartial way with no fear or apprehension.
Independence of Judiciary is one of the essence of our Constitution since it ensures non-interference by the other organs of the government in the field of judiciary to make justice fair and unbiased. At the same time, it enables the judiciary to maintain a check on the other two organs of the government in cases of violation of the Constitution. In short, it becomes established that the Independence of the Judiciary as a concept was framed by the Framers of the Constitution not to protect the judiciary but for the broader interest of protecting the Constitution itself. But, whether this independence of the judiciary, very rightly claimed by the constitution itself, is truly independent from external interference or not, remains as one of the most debatable questions.
CONSTITUTIONAL PROVISIONS FOR SECURING JUDICIAL INDEPENDENCE
A just and fair judiciary can be attained only through the provisions of Equality before Law and Equal Protection of Law. This enables the judges to conduct their judicial duties of delivering justice in an impartial and unbiased manner. To achieve this, the presence of institutional independence is also necessary so that the judiciary can regulate its day-to-day activities without interference from any other source. Also, the persons involved in judicial processes must be self-sufficient and well-qualified in their respective fields of expertise, so as to deliver fair justice without depending on any other sources.
Provisions of the Constitution in securing the independence of the judiciary include -
Judicial Appointments
Originally, Articles 124 and 217 of the Constitution describe the process of appointing Judges to the Supreme Court and High Courts, respectively. According to these articles, the Central Government, through the President, is primarily responsible for the appointment of judges. The President appoints judges after consulting with other Supreme Court and High Court judges, including the Chief Justice of India (CJI) for Supreme Court judges. For the appointment of Chief Justices to the High Court , the President consults with the CJI, the concerned High Court judges, and the state's Governor. Thus, the Executive was given significant influence over judicial appointments.
However, the whole process of appointment of judges has evolved through various phases starting from the First Judges Case, 1981 (S.P Gupta Vs Union of India) in which a seven-judge Constitution Bench held that the President of India is the final authority to appoint judges and he is not bound to follow the advice of the judges whom he consults. Thereafter, the Second Judges Case, 1993 (Supreme Court Advocates-on-Record Association Vs Union of India) had a nine-judge Constitution Bench that overruled the decision given in the SP Gupta Case and in turn, developed a specific procedure called the ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary. Through this system, the CJI was given primacy in matters of appointment and transfers to safeguard the independence of the judiciary from other organs. In the Third Judges Case (1998), minor modifications were made in the 1993 decision. It was held that the recommendation of appointment should be made by the Chief Justice of India along with his four senior-most colleagues and the group would be referred to as the Collegium. The senior-most judge of the SC was to be made the CJI according to both the 1993 and 1998 decisions. Lastly, in the Fourth Judges Case (2015), the constitutional validity of both the Ninety-Ninth Constitutional Amendment and the NJAC Act, 2014, was challenged in the Supreme Court in 2015. A constitutional bench of five judges with a majority of 4:1 struck down this amendment, declaring it unconstitutional and void, stating that it posed a threat to the independence of the judiciary.
Tenure of Judges
The Constitution mentions the fixed tenure of Judges to the Supreme Court and the High Court respectively. Unlike the US, the Indian Constitution does not provide for life tenure, hence, the retiring age for judges in India is 65 years. Under Article 128, a retired judge can be reappointed as a judge by the CJI with the consent of the President. According to Article 124(2), Judges of the Supreme Court retire at 65 years. A judge can resign his office by writing to the President. Article 217(1) mentions the retirement age of the judges of the High Court at 62 years. It seems that the provisions regarding the tenure of Judges are still quite satisfactory for the protection of Independence of the Judiciary.
Salary of the Judges
The executive has control over judicial salaries and this has never been seen as a threat to the Independence of the Judiciary. The salary of the judges in the case of the Supreme Court is charged from the Consolidated Funds of India and in the case of High Courts it is charged from the Consolidated Funds of States. Under Article 125(2), the salary of judges cannot be altered to their disadvantage .
The salary and allowances of the judges need to be increased both in the higher and lower levels of the judiciary. This helps in motivating the judges as they are already burdened with a multitude of cases. The judicial system requires young, efficient, and talented judges through which the issue of delay in the disposal of cases could be done away with and this requires an increment in their emolument.
Transfer of Judges
Under Article 222(1) of the constitution, the President holds the power to transfer a judge after consultation with the Chief Justice of India. However, this transfer of judges is seen as an opportunity by the governments and judges to reward and punish individuals. It becomes evident from the fact that during the Emergency, 16 High Court Judges were transferred which was seen as a punitive action by the government to punish those judges who gave judgments against it. For instance, Justice Shivakanta Shukla from the ADM Jabalpur case (also called Habeas Corpus case of 1975) nearly made it to the Supreme Court but the final report of recommendation prevented him from becoming a Justice of the Supreme Court. Another recent example (in the year 2021) for the same would be that of Sanjib Banerjee, the Chief Justice of Madras High Court who has been transferred to the Meghalaya High Court on the account of criticising the ECI for being irresponsible, adding that he should ‘face murder charges for flouting Covid Protocol’. Transfer of judges is necessary for uniformity in judgments so that no judge can develop a syndicate in their respective home state. However, it needs to be regulated by policies that are more systematic, transparent, and more predictable.
INDIA’S JUDICIAL CRISIS
Contentious issues like that of political intervention and executive going against judiciary verdicts, judicial activism, massive backlog of cases, abysmal level of female representation, defects of the collegium system, post retirement offers affecting pre-retirement verdicts, and most importantly the continuous problem of varying interpretations on different cases by different benches, continue to threaten the independence of the judiciary.
EXECUTIVE/ POLITICAL INTERVENTION
The judiciary is supposed to be free from interference from the government according to the Rule of Law, but the encroachment of political influence has appeared to be inevitable over the years. Both direct and indirect attempts to undermine the independence of the judiciary have been at play. The government does not directly hold the power of compelling a judge to give a judgment in their favour but they create pressure from the “lobby” that could affect their appointment or create such an atmosphere that forces the judges to favour the government. This was evident in 1975 in the State of Uttar Pradesh v. Raj Narain case, when the Allahabad High Court invalidated the Indira Gandhi election on accounts of alleged electoral malpractices conducted and it consequently led her to declare a national emergency. In fact, former CJI Ranjan Gogoi after taking the oath as a nominated member of Rajya Sabha in an interview said that if a case is not decided in a particular way they favoured, they question the judge’s integrity and malign him in every way possible. This clearly highlights the issue of political intervention in the judiciary. Misuse of power by the judges is often seen due to a lack of accountability. The judges on several occasions have put morality and their position at stake; one such example is the charge against Justice Arun Madan for seeking sexual favours from a doctor in exchange of judicial favours regarding a pending case of the doctor. Another noteworthy case is of former CJI Ranjan Gogoi, when a former employee of the SC accused him of sexual harassment but in response Gogoi formed an in-house committee and very conveniently gave himself the clean chit, further resulting in a transfer of the victim. Overall, there are lots of instances that put many questions on the integrity of the judiciary and the relation between political leaders and the judiciary.
JUDICIAL ACTIVISM
Another point of concern is that in the name of judicial activism, the judiciary has started performing both executive as well as legislative functions to some extent. Instead of judicial ‘interpretation’, there have been cases of judicial ‘legislating’. One such example is when the Supreme Court issued administrative guidelines and orders to the Election Commission of India to take action against all those political parties who have chosen candidates with criminal backgrounds. Although many of these decisions were well-appreciated, they might result in an interference with the democratic process. The whole notion of ‘Separation of Power’ becomes questionable with these instances. However, it might also be noted that most of the time, the judiciary is compelled to intervene in areas where the legislature is reluctant to delve into. A recent example would be the SC’s probe into the issue of same sex marriage in which the government kept mum. However, in its ruling, the SC stated that only the state can validate same-sex marital unions.
MASSIVE BACKLOG OF CASES
Another crisis faced by the Indian Judiciary is the massive backlog of over 50 million civil and criminal cases. Neelam Krishnamoorthy’s long quest for justice for her two children, who died in 1997 in a theatre fire in New Delhi, highlights the deep anguish caused by delayed justice. Although her activism led to better safety measures, the legal battle spanned over two decades, ending with a Supreme Court ruling that waived the prison sentences for the theatre owners. The prolonged struggle left Krishnamoorthy pondering whether she would have chosen extrajudicial measures if she had known how elusive justice would be. Some of the causes behind the pendency in delivering justice by courts include the abysmally low ratio of judges to the population (around 21 judges per million population), inadequate funding, lack of infrastructure, and most importantly the archaic rules inherited from the British, perpetuating a slow and cumbersome legal procedure. This only inculcates this sentiment: Justice Delayed is Justice Denied.
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DEFECTS OF THE COLLEGIUM
Last but not the least, the collegium system of appointment of judges is far from perfect. One of the biggest faults would be that of nepotism and favouritism. The Collegium does not provide any guidelines in selecting the candidates for the position of judgeship of the Supreme Court which leads to a wide scope for biases, nepotism, and favouritism. There is a lack of transparency and accountability, with no information available or open to the public in regard to the basis of the appointment of judges. This has led to privileges of only some communities while others fail to get adequate representation. Although the collegium has serious transparency issues, sometimes the executive also stands responsible in preventing adequate representation to the judiciary. One such instance is the case of Saurabh Kirpal, a queer advocate, who was nominated twice by the collegium only to be sent for reconsideration by the Executive. Resultantly, many High Court Bar Associations have had to repeatedly protest against inappropriate appointments, elevation, and transfers.
INADEQUATE FEMALE REPRESENTATION
Although women’s position in the judiciary has improved over the years, they are still under-represented in higher judiciary, with only around 6% of judges of the SC being women. According to a 2020 report, only 11.5% of the judges of high courts are women; subordinate courts have about 30% of women judicial officers; only 15% of 1.7 million advocates are women and the Bar Council of India has no women representation at all. All this indicates a rather poor condition of women’s representation in Indian Judiciary, thus highlighting its patriarchal nature. Several efforts are at play to resolve this matter. One such initiative is by the Indian Government which has set a goal of at least attaining 33% of judicial positions filled by women. It is noteworthy that former CJI N.V. Ramana called for and demanded a 50% reservation of women to correct the gender imbalance in the Indian judiciary. With serious efforts, it is likely that the crisis of the abysmal level of female representation will stand as resolved over time.
CONCLUSION
Rajendra Prasad in his concluding speech of the Constituent Assembly had very rightly remarked:
“Whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the country is administered. That will depend upon the men who administer it… a Constitution, like a machine, is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them”.
In this regard, the expectation from the judiciary is indeed very high in view of the nature of its role in the Constitution. As the custodian of the rule of law, the judiciary in India plays a crucial role in upholding and protecting the rights of citizens, and maintaining the balance of power between the different branches of government. As the guardian of the Constitution, the judiciary ensures that laws and executive actions adhere to constitutional mandates, safeguarding democratic principles.
Judicial accountability is much needed to maintain the independence of the judiciary in a republican democracy. Despite several attacks on the judiciary from the executive, restraining the independent thinking of judges, the judiciary must try not to stray away from its actual motive of delivering justice. Furthermore, the process of appointment of judges ought to be performed in a fair and transparent manner in order to maintain the integrity and trust in the judicial system.
Author's Bio
Ayana Dutta is a second year student at Hindu College pursuing B.A.(Hons) Political Science. She is a law aspirant and has a keen interest to delve into contemporary social and political issues.
References
https://www.theindiaforum.in/forum/executives-attempt-discredit-and-undermine-independence-judiciary
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