Importance Of Independent Judiciary | Author : Jasmee Atul Sanghani | Volume II Issue IV |

ABSTRACT

All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.

-Andrew Jackson

The foundation pillar of democracy is built with the basic requirement of rule of law; an independent and impartial judiciary is quintessential for an effective maintenance of rule of law.A.V. Dicey, in 1885 enunciated that the “Rule of law”, is  “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence or arbitrariness, of prerogative, or even wide discretionary authority on the part of the Government.[1]The people of a nation may lose confidence in the Executive, or the Legislature but it will be an evil day if they lose their confidence in its judiciary. The judiciary is the guardian of fundamental rights as well as other civil liberties enshrined under the Constitution. The judiciary contributes vitally in the preservation of peace and order by settling disputes between the State and Citizens and among citizens which leads to a harmonious and integrated social existence[2]. Through this article the author tries to accentuate the need of independent judiciary in the present time as there have been lot of conjecture regarding the acceptance of Rajya Sabha nomination by a former Chief Justice of India (Mr Ranjan Gogoi); further tries to put emphasis on impartial judicial decisions, appointments and transfer, without any political interference. The desire of being appointed to executive offices after retiring from judiciary is quite enticing, which impair the independence of judiciary as it is amenable to be abused by the Executive or Government in power.

Keywords: Rule of Law, Independent Judiciary, Democracy

INTRODUCTION

• An independent judiciary is not only a fundamental right of every citizen envisaged under the constitution but is also a part of basic structure. Independence of the Judiciary is one of the basic structures of the Indian Constitution and has also been recognised as a human right by international conventions.[3]
• Independence of judiciary means an unbiased and impartial judicial system of a country, which can take its decision without any interference of executive or legislature. In other words, judges should be nonpartisan and unprejudiced from restrictions, inducement and threats direct or indirect from executive or legislature. Judges should also be independent from their colleagues and superiors in discharge of their judicial functions[4]
• This judicial function envisaged in the Written Constitution, can hardly be effective in practice without an authoritative, independent and impartial arbiter of constitutional issues and also that it is necessary to restrain political propagandas to be exercised in order to influence any judicial decisions.
• The members of the Constituent Assembly were very much concerned with the question of independence of the Judiciary and, hence, made several provisions to ensure the same. The Apex court observed that, “The constitutional scheme aims at securing an independent Judiciary which is bulwark of democracy”[5].
• The consequential attention was put by the assembly upon barring judges from taking up executive appointments post retirement. On 7 June 1949, while debating upon the necessity of independent judicial system one of its members, Professor KT Shah moved a motion, which, if passed, would have prohibited judges of the Supreme Court or of any of the High Courts, who had served for five consecutive years on the bench, from being appointed to any executive office, including the office of an ambassador, minister, plenipotentiary, or high commissioner, as well as of a minister in the government of India or under the government of any state in the union. Although the constituent assembly voted against such a proscription, the commission’s chairman Dr B.R. Ambedkar, however, rebuffed Shah’s suggestion, arguing that “The judiciary to a very large extent is not concerned with the executive: it is concerned with the adjudication of the right of the people and to some extent of the rights of the Government of India and the Units as such, To a large extent the judiciary would be concerned with the rights of the people themselves in which the government of the day can hardly have any interest at all. Consequently the opportunity for the executive to influence the judiciary is very small and it seems to me that purely for a theoretical reason to disqualify people from holding other offices is to carry the thing too far.”[6]
• This belief of the founding father of constitution was fragmented by the Indira Gandhi led government, which aimed at creating a judiciary committed to political agendas.

CONSTITUTIONAL PROVISIONS AND JUDICIAL DECISIONS, PERPETUATING THE IMPORTANCE OF INDEPENDENT JUDICIARY

1. Historical Background

• Independence of Judicial system in a democratic country is very crucial, henceforth for the drafting committee of the constitution, accumulation of provisions accentuating independence of judiciary was at paramount importance. Though, these provisions has just remained in black and white and its functional aspect is not fully independent

2. Article 124(2)[7]

• The judges of the Supreme Court are appointed by the President. The Chief Justice of Supreme Court is appointed by the President with consultation of such of the judges of the Supreme Court and High Courts as he deems necessary for the purpose. But in appointing other judges, the President always consults the Chief Justice of India. He may consult such other judges of the Supreme Court and High Courts as he may deem necessary.
• But, amalgamating with Article 74[8], the power of president is not absolute but, he acts upon the aid and advice of council of ministers, which might arise some suspicion over interference of political power

1. Sankal Chand’s case[9]

• Independent judiciary also depicts transfer of judges from one high court to another without any interference of the other two pillars[10].But there is no proficient safeguard against the abuse of this power by the Government. During emergency[11] a list of 56 judges, to be transferred without their consent, had been prepared, but initially 16 judges were transferred and the names of the other State judges on the list consciously were looked in order to shake the newer of the judges of the High Court’s[12].One of the judges so transferred was Mr Justice S.H. Seth, of Gujarat High Court who with laudable courage, filed a writ petition[13] against the Union of India and the Chief Justice of India (Justice A.N. Ray).
• The Supreme Court by majority held that prior consent was not necessary to transfer a judge. However, Bhagwati J and Untawalia, JJ; Gave dissenting judgement stating that transfer without consent of the Judge obstructs the independence of judiciary.

1. Keshvananda Bharti Case[14]

• This Landmark decision is also prevalently known as the Basic Structure Doctrine case, this case is also a spectator to conflict between Judiciary and Legislature. Independent judiciary is one of the fundamental aspects of the basic structure doctrine.
• In this particular case, the petitioner challenges three amendments viz. 24^th, 26^th and 29^th; Another aspect which made this case more renowned is that those three amendments were passed by legislature under the Indira Gandhi led government.
• The question sought to be answered was whether the power of Parliament to amend the Constitution as per Article 368(1)[15] is unrestrained, or whether there are ‘implied limitations’, in the exercise of such a power. Summarily, can the Parliament amend every part of the Constitution as per the procedure provided, or certain fundamental provisions, that evidently form its core, more sacred than the rest of the provisions and thus cannot be altered under any circumstances?
• This resulted into strife between the Judiciary and Legislature as to who is more supreme, in the judgement itself it was made very clear that the constitution is the supreme authority and thus any amendment in contravention with the fundamental provisions of the constitution (Basic Structure) is unconstitutional and void. As it is stated above that the independent judiciary is one of the aspects of basic structure, thus cannot be impaired and any provision that is passed by the Legislature with a blanket protection and is out of the reach of judiciary is also considered as null and unconstitutional as the power of judicial review for the protection of rule of law and democracy cannot be ruptured bylegislative amendments.
• For an instance, Mr Justice R.N. Aggarwal was promoted to additional judge in Delhi High Court; consequently a vacancy occurred on the retirement of a judge. His name was endorsed for the permanent post. But he got neither appointed as a permanent High Court Judge nor re-appointed as an Additional Judge, but reverted back as a Session Judge, Because Justice R.N. Aggarwal and Justice Rangarajan in Kuldip Nayyar’s case, delivered a judgment which criticized the Government and hence Justice Rangarajan was transferred to the Assam High Court and Justice Aggarwal was made a Session Judge. Furthermore, Justice Lalit of Bombay High Court was repudiated to be re-appointed as an Additional Judge of High Court of Bombay in spite of his recommendation to the office by the Chief Justice of Bombay High Court. But his appointment was denied by the then Prime Minister Mrs Indira Gandhi[16]
• The First Judges Case ( 1982)[17]
• The debate over the word “consultation” encompassed in Article 124 of the constitution led to different interpretations of the same, the court held that consultation does not mean concurrence and it only implies exchange of views.

1. The Second Judges Case(1993)[18]

• The court reversed its earlier ruling and changed the meaning of the word “consultation” to “concurrence”. Hence, it ruled that the advice tendered by the chief justice of India is binding on the President in the matters of appointment of judges of the Supreme Court. But, the Chief Justice would tender his advice on the matter after consulting two of his senior most colleagues.
• From 1950 to 1973, the practise has been to appoint the senior most judge of the Supreme Court as the Chief Justice of India. This established protocol was violated in 1973 when A N Ray was appointed as Chief Justice by superseding 3senior most Judges; the three superseded judges were J M Shelat, K S Hegde and A N Grover. All the three resigned from the Supreme Court. They were superseded due to their judgement in Keshvananda Bharti Case, which was not favourable to the Government.Again in 1977, M U Beg was appointed as Chief Justice superseding Justice H R Khanna, due to his dissenting judgement in the ADM Jabalpur v. Shivkant Shukla Case, which was not appreciated by the Government[19].
• This discretion of the Government was curtailed, as the court opined that the senior most judge of the Supreme Court should alone be appointed to the office of the Chief Justice.

1. The Third Judges Case(1998[20])

• The court opined that the consultation process to be adopted by the Chief Justice requires “consultation of plurality of judges”. Furthermore, the recommendation made by the Chief Justice without complying with the norms and requirements of the consultation process are not binding on the Government.

1. The Fourth Judges Case(2015[21])

• The Apex Court held both NJAC and 99^th Constitutional Amendment, unconstitutional and void. Consequently, the earlier collegium system became operative again. The court opined that the NJAC would affect the independence of judiciary. 

3. Does Post Retirement Appointment Of Judges Of Higher Judiciary Into Executive Offices Impede Independence Of Judiciary?

• P Sathasivam (former chief justice of India), was sworn in as the governor of the state of Kerala. Although there is no bar against the selection of a former judge to a gubernatorial position, the appointment raises substantial questions that bash independence of judiciary[22].
• Recently, there have been lot of conjecture regarding the acceptance of Rajya Sabha nomination by a former Chief Justice of India (Mr Ranjan Gogoi); furthermore emphasis should be put on impartial judicial decisions, appointments and transfer, without any political interference. The desire of being appointed to executive offices after retiring from judiciary is quite enticing, which impair the independence of judiciary as it is amenable to be abused by the Executive or Government in power.
• It was an evil day in the history of a democratic nation like India, when four senior most judges of the Apex Court called a press conference; the press conference was held to address the crisis in the judiciary, it was enumerated by Chalmeshwar J and quoted herein that, “the administration of the Supreme Court is not in order, and many things which are less than desirable which have happened in the last few months. Time and again as senior members of the court – it goes without saying that we are the senior most judges of the country also by virtue of age and our office today; we thought we had a responsibility to the institution, to the nation. We tried to collectively persuade the Chief Justice that certain things were not in order therefore he should take remedial measures. Unfortunately, our efforts failed. Thus we are convinced that unless this institution is preserved and it maintains its equanimity, the democracy will not survive in this country, or any country. The survival of a democracy, it is said, the hallmark of a good democracy, is an independent and impartial judge. Judge is symbolic here[23].

 CONCLUSION

• The judicial independence seems to have been grinding down due to the practice which has been developed by the Government of employing judges in various capacities after retirement. The aptitude of retired judges may be used for discharging judicial functions and improvement of judicial system. It is disgraceful and objectionable, if the Supreme Court judge has to rely upon government employment after retirement. If a judge wishes to have Government job or any government appointment after his retirement, then a normal citizen and litigant may get the impression that judge is not fully detached in a case where the government is a party. The Law Commission has expressed that this practice has a tendency to affect the independence of the judges and should be discontinued[24]

DECLARATION

Author hereby declares that this Research Article titled

“Importance of Independent Judiciary”

Is an original work of the Author and is a result of Author’s own intellectual efforts. The matter embodied has been properly referenced and acknowledged to avoid any kind of copyright issues. This article has not sent either for review or publication elsewhere.

BIBLIOGRAPHY

• M Lakshmi Kant, Indian Polity, (McGraw Hill Education (India) Pt. Ltd 5^th edition, 2017)
• M. Seervai, Constitutional Law of India, Vol. II, 2266 (Bombay: N. M. Trepathi.3rd Edition, 1984)

Dr J.N. Pandey, the Constitutional Law of India (Central Law Agency, ed.

[1]A.V. Dicey, Law of the Constitution, 197-198(8^th ed. Liberty Fund, Inc., 1915).

[2] Din Dayal Sharma, “Independence of Judiciary and Impartiality in India”, (ii) SCJ 24 1968.

[3] Subhojit Sadhu, Judicial Accountability of the Indian Judiciary, SCJ, p. 27, July 2007.

[4] Sunil Deshta, Independence and Accountability of Judiciary in India: Problems and Solutions, Volume III Issue 4 OJLSS, p.49, March 2009.

[5] A.C.Thalwal v. High Court of Himachal Pradesh, (2000) 7 SCC 19; AIR 2000 SC 2732 (India).

[6] Suhrith Parthasarthy, “Why BR Ambedkar insisted judges should not be barred from cushy post-retirement jobs”, The Caravan, (10^th September 2014). https://caravanmagazine.in

[7]INDIA CONST. art. 124, cl. 2.

[8] INDIA CONST. art. 74, cl. 1, 2.

• There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:

Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.

• The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.

[9] Union of India v. S.H. Sheth, (1978) 1 SCR 423.

[10]INDIA CONST. art. 122, cl. 1

(1) The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.

[11] The Proclamation of Emergency on June 25, 1977 by Mrs IndiraGandhi (the then prime minister of India).

[12] H.M. Seervai, Constitutional Law of India, Vol. II, 2266 (Bombay: N. M. Trepathi.3rd Edition, 1984).

[13] Union of India v. S.H. Sheth, (1978) 1 SCR 423.

[14] Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. AIR 1973 4 SCC 225

[15]INDIA CONST. art. 368, cl. 1

(1): Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.

[16]H.M. Seervai, Constitutional Law of India, Vol. II, 2266 (Bombay: N. M. Trepathi.3rd Edition, 1984).

[17] S.P. Gupta v. President of India And Ors. AIR 1982 SC 149, 1982 2 SCR 365.

[18] SCARA V. UOI, AIR 1994 SC 868.

[19] M Lakshmi Kant, Indian Polity, p. 26.2, (McGraw Hill Education (India) Pvt Ltd 5^th edition, 2017).

[20] AIR 1999 SC 1.

[21] SCARA V. UOI, Writ Petition (Civil) no. 13 of 2015.

[22]Suhrith Parthasarthy, “Why BR Ambedkar insisted judges should not be barred from cushy post-retirement jobs”, The Caravan, (10^th September 2014). https://caravanmagazine.in.

[23]Chalmeshwar J, at the press conference held by the then  senior most judges of supreme court at January 12, 2018.

[24]14^th Law Commission Report, Reforms of the Judicial Administration, 46, Vol. (1) 1948.