Watercan Uofo Law

INDEPENDENCE OF JUDICIARY IN INDIA : A CRITICAL ANALYSIS

ATIN KUMAR DAS LL.M Ist YEAR.NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL

INTRODUCTION

The framers of the Indian Constitution at the time of framing of our constitution were concerned about the kind of judiciary our country should have. This concern of the members of the constituent assembly was responded by Dr. B.R. Ambedkar in the following words:

“There can be no difference of opinion in the House that our judiciary must be both independent of the executive and must also be competent in itself. And the question is how these two objects can be secured”.

The question that arises at first instance in our minds is that what made the framers of our constitution to be so much concerned about providing the separate entity to the judiciary and making it self competent.

The answer to this question lies in the very basic understanding that so as to secure the stability and prosperity of the society, the framers at that time understood that such a society could be created only by guaranteeing the fundamental rights and the independence of the judiciary to guard and enforce those fundamental rights. Also in a country like India, the independence of the judiciary is of utmost importance in upholding the pillars of the democratic system hence ensuring a free society.

It is a well-known fact that the independence of the judiciary is the basic requisite for ensuring a free and fair society under the rule of law. Rule of law that is responsible for good governance of the country can be secured through unbiased judiciary.

The doctrine of Separation of Powers which was brought into existence to draw upon the boundaries for the functioning of all the three organs of the state: Legislature, Executive and the Judiciary, provides for a responsibility to the judiciary to act as a watchdog and to check whether the executive and the legislature are functioning within their limits under the constitution and not interfering in each others functioning. This task given to the judiciary to supervise the doctrine of separation of powers cannot be carried on in true spirit if the judiciary is not independent in itself. An independent judiciary supports the base of doctrine of separation of powers to a large extent.

It is theoretically very easy to talk about the independence of the judiciary as for which the provisions are provided for in our constitution but these provisions introduced by the framers of our constitution can only initiate towards the independence of the judiciary. The major task lies in creating a favorable environment for the functioning of the judiciary in which all the other state organs functions in cooperation so that the independence of the judiciary can be achieved practically. The independence of the judiciary has also to be guarded against the changing economic, political and social scenario.

Whenever there is a talk regarding the independence of the judiciary, there is also a talk of the restrictions that must be imposed on the judiciary as an institution and on the individual judges that forms a part of the judiciary. In order to ensure smooth functioning of the system there must be a right blend of the two.

MEANING – THE INDEPENDENCE OF THE JUDICIARY

The meaning of the independence of the judiciary is still not clear after years of its existence. Our constitution by the way of the provisions just talks of the independence of the judiciary but it is no where defined what actually is the independence of the judiciary.

The primary talk on the independence of the judiciary is based on the doctrine of separation of powers which holds its existence from several years. The doctrine of separation of powers talks of the independence of the judiciary as an institution from the executive and the legislature.

The other meaning of the judicial independence can be found out by looking at the writings of the scholars who have researched on the topic. Scholars have followed the “constituent mechanism” (i.e. what constitutes the judiciary) to define the independence of the judiciary. Scholars try to define judiciary by talking about the independence of the judges which constitutes judiciary. Therefore the independence of the judiciary is the independence of the exercise of the functions by the judges in an unbiased manner i.e. free from any external factor.

So the independence of the judiciary can be understood as the independence of the institution of the judiciary and also the independence of the judges which forms a part of the judiciary.

Shetreet in his work tries to explain the words “Independence” and “Judiciary” separately, and says that the judiciary is “the organ of the government not forming a part of the executive or the legislative, which is not subject to personal, substantive and collective control, and which performs the primary function of adjudication”.

The final outcome that can be derived from Shetreet’s writings is that the independence of the judiciary as an institution and the independence of the individual judges both have to go hand in hand as the independence of the judiciary as an institution is not possible without the independence of the individual judges and is the institution of the judiciary is not independent, there is no question of the independence of the individual judges.

NEED FOR THE INDEPENDENCE OF THE JUDICIARY

The basic need for the independence of the judiciary rests upon the following points:

To check the functioning of the organs: Judiciary acts as a watchdog by ensuring that all the organs of the state function within their respective areas and according to the provisions of the constitution. Judiciary acts as a guardian of the constitution and also aids in securing the doctrine of separation of powers.
Interpreting the provisions of the constitution: It was well known to the framers of the constitution that in future the ambiguity will arise with the provisions of the constitution so they ensured that the judiciary must be independent and self-competent to interpret the provision of the constitution in such a way to clear the ambiguity but such an interpretation must be unbiased i.e. free from any pressure from any organs like executive. If the judiciary is not independent, the other organs may pressurize the judiciary to interpret the provision of the constitution according to them. Judiciary is given the job to interpret the constitution according to the constitutional philosophy and the constitutional norms.
Disputes referred to the judiciary: It is expected of the Judiciary to deliver judicial justice and not partial or committed justice. By committed justice we mean to say that when a judge emphasizes on a particular aspect while giving justice and not considering all the aspects involved in a particular situation. Similarly judiciary must act in an unbiased manner.

COMPONENTS – THE INDEPENDENCE OF THE JUDICIARY

The components of the independence of the judiciary as talked of here refers to some of the requisite terms and conditions which are so necessary that if they are absent, the independence of the judiciary also cannot exist.

It is very difficult to lay down certain set conditions as law is dynamic in itself and of the changing economic, political and social scenario.

CONSTITUTIONAL PROVISIONS –

THE INDEPENDENCE OF THE JUDICIARY

Many provisions are provided in our constitution to ensure the independence of the judiciary. The constitutional provisions are discussed below:

Security of Tenure:The judges of the Supreme Court and High Courts have been given the security of the tenure. Once appointed, they continue to remain in office till they reach the age of retirement which is 65 years in the case of judges of Supreme Court (Art. 124(2)) and 62 years in the case of judges of the High Courts (Art. 217(1)). They cannot be removed from the office except by an order of the President and that too on the ground of proven misbehavior and incapacity. A resolution has also to be accepted to that effect by a majority of total membership of each House of Parliament and also by a majority of no less than two third of the members of the house present and voting. Procedure is so complicated that there has been no case of the removal of a Judge of Supreme Court or High Court under this provision.
Salaries and Allowances:The salaries and allowances of the judges is also a factor which makes the judges independent as their salaries and allowances are fixed and are not subject to a vote of the legislature. They are charged on the Consolidated Fund of India in case of Supreme Court judges and the Consolidated Fund of state in the case of High Court judges. Their emoluments cannot be altered to their disadvantage (Art. 125(2)) except in the event of grave financial emergency.
Powers and Jurisdiction of Supreme Court: Parliament can only add to the powers and jurisdiction of the Supreme Court but cannot curtail them. In the civil cases, Parliament may change the pecuniary limit for the appeals to the Supreme Court. Parliament may enhance the appellate jurisdiction payday loans
of the Supreme Court. It may confer the supplementary powers on the Supreme Court to enable it work more effectively. It may confer power to issue directions, orders or writs for any purpose other than those mentioned in Art. 32. Powers of the Supreme Court cannot be taken away. Making judiciary independent.
No discussion on conduct of Judge in State Legislature / Parliament: Art. 211 provides that there shall be no discussion in the legislature of the state with respect to the conduct of any judge of Supreme Court or of a High Court in the discharge of his duties. A similar provision is made in Art. 121 which lays down that no discussion shall take place in Parliament with respect to the conduct of the judge of Supreme Court or High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the judge.
Power to punish for contempt: Both the Supreme Court and the High Court have the power to punish any person for their contempt. Art. 129 provides that the Supreme Court shall have the power to punish for contempt of itself. Likewise, Art. 215 lays down that every High Court shall have the power to punish for contempt of itself.
Separation of the Judiciary from the Executive: Art. 50 contains one of the Directive Principles of State Policy and lays down that the state shall take steps to separate the judiciary from the executive in the public services of the state. The object behind the Directive Principle is to secure the independence of the judiciary from the executive. Art. 50 says that there shall be a separate judicial service free from executive control.

CONCLUSION

The independence of the judiciary as is clear from the above discussion hold a prominent position as far as the institution of judiciary is concerned. It is clear from the historical overview that judicial independence has faced many obstacles in the past specially in relation to the appointment and the transfer of judges. Courts have always tried to uphold the independence of judiciary and have always said that the independence of the judiciary is a basic feature of the Constitution. Courts have said so because the independence of judiciary is the pre-requisite for the smooth functioning of the Constitution and for a realization of a democratic society based on the rule of law. The interpretation in the Judges Case giving primacy to the executive, as we have discussed has led to the appointment of at least some Judges against the opinion of the Chief Justice of India. The decision of the Judges Case was could never have been intended by the framers of the Constitution as they always set the task of keeping judiciary free from executive and making it self-competent. The decision of the Second Judges Case and the Third Judges Case is a praiseworthy step by the Court in this regard.

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INDIAN JUDICIARY: TYRRANY OR ACTIVISM

A democratic government bends in itself three organs in order to maintain transparency in between these organs. The rule making, rule interpreting and rule protector comes to be known as the legislature, executive and the judiciary respectively. Law making powers lies over the legislature, whereas the executive is there to execute these made laws as orders, procedures, bye-laws, ordinance etc. And the Judiciary comes to protect these laws for the welfare of the citizens, where even the judiciary receives independence in order to protect the rights of the citizens without the involvement of any of the organs. Such a formula of transparency is said, to be known as Doctrine of Separation of Powers, which came into existence by the famous thinker Montesque.

In India, the doctrine of separation of powers was not adopted in its absolute rigidity, but the ‘essence’ of that doctrine with the doctrine of constitutional limitation and trust implicit in the scheme was duly recognized in the Delhi Laws case, AIR 1951 SC 332. Separation of judiciary from the executive is mandated in article 50 of the Indian Constitution, with the independence of judiciary from the other organs of the government as a necessary corollary: Chandra Mohan v. State of U.P., AIR 1966 SC 1987. Later on, the doctrine of separation of powers was elevated to the status of a basic feature of the Indian Constitution in the landmark case of Indira Gandhi v. Raj Narain, AIR 1975 SC 2299, wherein it was observed, thus: “… the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances”.

As India became the 105th nation to achieve its independence, it adopted the multi-tier judicial system as was practiced by the Britishers. Since independent India had to undergo a political turmoil in the early 70’s, as a student of law I can draw a line of demarcation, the first of which can be marked as the post-independence period or the pre-emergency period, where the Indian Judicial system was more in tune with the parliament i.e. the legislature, when a seven judges bench held “the parliament is supreme, it can change any part of the constitution including the fundamental rights but cannot change its basic structure (Keshavanandan Bharti vs. State of Kerala) by overruling its 5-judges bench’s earlier decision of Gopalan’s case and was a period of parliamentary hold over the judicial system. Time changed soon after there were suppressions of Justice Hegde, Shelat, and Grover, which was later again repeated in the case of Justice H.R.Khanna, who was superceded as had given an opposite view towards the government in the famous case of A.D.M Shukla . Soon changes were expected and came a period of post-emergency period, were the judiciary no where remained under the dominion of the parliament and soon came several judgments against the governments wish and hence was marked as Judicial Activism.

The word judicial activism, judicial overreached, judicial credibility sounds to be quite synonymous to judicial review and judicial creativity. Until and unless the judiciary works with its full competency and honesty. The judges should not in any manner fail to police themselves. It was Hon’ble Speaker Mr. Somnath Chatterjee who had marked that the M.P.’s are working hard to destruct the democracy. But after the happening of several cases of corruption of the judges it’s hard to say the judiciary is working with its full credibility. A learned judge of today marks that when we had joined the judiciary there were less than 20% of corrupt judges and when the time comes towards his retirement after serving the nation for more than three decades he with tears in his marks that today we have more than 80% of corrupt judges in the system. It’s shameful for the nation when we see a sitting Supreme Court Judge involved in the Ghaziabad case, when we see a Chief Justice of a certain High Court as among one of the most corrupt judges in the system. It was the then Hon’ble President Mr. A.P.J.Abdul Kalam, who had refused to elevate such a judge but sooner or later he was there.

Time has come when there came three inquiries at a time, going over the corruption of judges in order to get their impeachments done by the parliament. Even the Judges Inquiry (Amendment) Bill has been introduced in the parliament and has been approved, which comes as per the Canadian Law. Where now even a novice could complain against a corrupt judge, where the Chief Justice of India will head such a council with some senior judges of the Supreme Court. The judiciary has realized its corrupt practices after six decades of India’s independence. It was Justice H.R.Khanna, who in his book “NEITHER ROSES NOR THORNES.” had marked over the corruption of two judges when he was in the Delhi High Court, and when he reported such matter to the Chief Justice of Delhi High Court of that time then he transferred such corrupt officers rather taking any action against them.

The authority of a judge comes for the public as he being only a mere public servant, his authority comes from public confidence based on their own conduct, their integrity, impartiality, learning and simplicity. No other vindication is required in a democracy and there is no need for them to display majesty and authority”. In the neo-liberal era, all organs of the state ooze ruling or elite class ideas and this is true for the judiciary as well. Unfortunately the filth of liberalization like corruption has affected our judiciary severely. This is a fact accepted by some of the prominent judges themselves. Hence it is time that measures should be taken for ensuring accountability and transparency in the judicial system. It is a fact that our judicial system still embraces the reminiscence of British aristocracy after completion of six decades of its complete independence.

The Indian Judiciary has become a den of corruption. The extortion of litigants has become a regular business of today’s judicial servants. The whole money extorted from the litigants is beings collected with the Reader of the court. From this booty, lunch is being served for the Judiciary; their monthly households are met. The remaining booty is being distributed among the staff of the judge. The litigants should be protected from this exploitation by the system. It should be the judges who should police themselves without any kind of discrimination on any basis.

The real question lies in, whether such a judicial system goes towards a reign of tyranny or just activism. As far as the system is working towards nation building and in national interest it cannot be called as a tyranny but as judicial creativity. Judicial activism can be called as quite synonymous to judicial credibility or creativity. Where judiciary is known as the paterfamilias of the organs of the government and the nation, it should work for the welfare of the nation and its citizens, in order to protect the rights of the citizens. And such a system should not be obsolete in nature; changes, reformations are must for a better today and tomorrow,mspaydayloans with a balanced amount of checks over each other.