Independence of Judiciary in India

Dr. B.R. Ambedkar 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.

Introduction
In writing of India's chances of ascending the international rankings in the coming years, Edward Luce in his book In spite of the Gods says: India also possesses institutional advantages that have convinced some people that the Indian tortoise will eventually overtake the Chinese hare. As India's economy develops, these soft advantages, such as an independent judiciary and a free media, are likely to generate ever-greater returns2. But is the judiciary in India really independent? A complete answer to the question warrants a doctoral thesis and a short discourse like of today is necessarily selective and therefore incomplete. I have tried to maintain a balance between legalistic and lay approaches while making it clear which side of the fence I stand. Any attempt at an answer must be prefaced with two questions both of which I seek to briefly answer: The first question is: Who do we include within the term judiciary? Is it limited to Constitutional Courts or does it also include those tribunals which decide rights and have the

trappings of a court? Second: What does independent mean? I will answer the second question first. Different dictionaries have given as many as 12 different meanings to the word independent. Of the twelve I have chosen three-Freedom from outside control; Not influenced or affected by others; impartial and capable of thinking or acting for oneself. Independence in all these senses must be complete, unimpaired and uncorrupted and that means first-that independence is antithetical to corruption and second-that it is ensured by accountability. The Chief Justice of India has recently spoken of institutional integrity3 and he drew a distinction between personal and institutional integrity. I would like to borrow that phrase and draw a distinction between the institutional independence of the judiciary and the independence of a judge. The Judiciary of India is an independent body and is separate from the Executive and Legislative bodies of the Indian Government. The judicial system of India is stratified into various levels. At the apex is the Supreme Court, which is followed by High Courts at the state level, District Courts at the district level and Lok Adalats at the Village and Panchayat Level. The judiciary of India takes care of maintenance of law and order in the country along with solving problems related to civil and criminal offences. The judiciary system that is followed in India is based on the British Legal System that was prevalent in the country during pre-independence era. Very few amendments have been made in the judicial system of the country. 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 Shetreets 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. Law is supreme : Care has been taken in the Constitution to ensure independence of Judiciary. As a matter of fact it is also treated as a basic feature of the Constitution which cannot be touched. But the full import or meaning of the expression "Independence of the Judiciary" is often not realized. There are many facets to it. Independence of Judiciary does not mean merely independence from outside influences but also from those within. Danger from within have much larger and greater potential for harm than dangers from outside. To protect Judges from dangers which emanate from sources outside there are many others who help. So far as the dangers from within are concerned, Judges are the one primarily responsible for them and they are the ones primarily who can avoid them - at a time, when the need for independence of the Judiciary and its preservation is the greatest. It is necessary that Judges are fully alive to this danger.1 Court Administration: Next comes the need for making the Judiciary a single over arching authority. Responsibility of Court administration has to be exclusively that of the judiciary, that is, the practice of supply of administrative component and financial sanctions by the executive have to be stopped. Transfer of power is not a gift but a burden to be shouldered with. Ultimately the public blames the judiciary. No house can have two masters and be strong. Judicial administration has been operating with beggarly budget because it does not generate profit. It is high time that the Judiciary should alone be made a sole authority to take care of the administration of Justice.2 Control over subordinate Courts: There is another important facet of independence of the Judiciary provided under the Constitution, according to which the control over district Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, person belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court.3 It is not mere conferment of power on the High Courts, the provision has been enacted to ensure that the subordinate judiciary also is immune from executive influence. That is why the control over the subordinate judiciary is entrusted to the High Court and to no one else because the control remains within the Judiciary itself which is what ensures the maintenance of independence of the subordinate judiciary.
1

J.S. Verma, Constitutional Obligation of the Judiciary, R.C. Ghiya Memorial Lecture, at Jaipur on 28th June, 1997, in New Dimensions of Justice, p. 10 (2000 Edn., Universal Law Publishing Co. Pvt. Ltd., Delhi). 2 J.D. Kapoor, J., Strengthening Administration of Justice, AIR 2002 (Journal) p. 88. 3 Article 235 of Constitution of India.

Former Chief Justice of Supreme Court, J.S. Verma said regarding the accountability of the judges, There is no point is saying that there is no corruption in the judiciary. No one is going to say it much less accepted. One cannot go on sweeping it under the carpet and not accept it to show. When moral sanction doesnt work, then legal sanction is required. Citing the example of Shiv Prasad Sinha, a judge of Allahabad High Court, he said, There were allegations against him and the finding was that some judgments of his appeared to be made for extraneous considerations. At a meeting of the Supreme Court on May 7th, 1997 two resolutions were adopted. One, that the Chief Justice should devise an in-house procedure for enforcing accountability. And two, all judges should declare their assets. The in- house procedure is also stuck now because there is no mode of enforcement. Justice Verma said that accountability of judiciary is key to its independence. Judicial independence means independence from your own infirmities. Latent dangers are more lethal. Unless you have fearless and independent judges, judicial independence is a myth.. If in a court of 20 there are 2 judges whose integrity for good reason is doubtful, I think it is a very serious threat. In a recent decision, the Supreme Court has reiterated the high standard of moral and ethical behaviour expected from a judge, and the desirability of a suitable in-house procedure to maintain discipline among judges by self-regulation.4 All the judges in the judiciary indeed represent judicial branch of the State entrusted with judicial functions. They are not employees of the State holding office during the pleasure of President/Governor of the State, as the case may be5. The judiciary upholds rule of law and prevent the State from violating the rights of the individuals and compelling the State to discharge its duties. It is part of their accountability factor that they stand as impenetrable bulwark against every assumption of power. It is founding faith of the Constitution of India6. It is part of their duty to uphold independence of judiciary and acknowledge their accountability to the people and constitution. As a unified institution charged with dispensing justice, it is part of their duty that judges as individuals and as part of a monolithic organ find ways and means for delivering justice in least possible time at lesser expense. Time-consuming and enormously high cost solution to any legal problem is worse than the legal problem. It is in this area that we are concerned with financial independence and fiscal autonomy of the judiciary. A battered judiciary (after an initial regrettable hiccup in the form of the decision in S.P . Guptas case) picked itself up and with all the interpretative tools at its command -termed by many as an unacceptable feat of judicial activism-by a composite judgment in several public interest litigations virtually wrested the powers of appointment, confirmation and transfer of judges from the Executive. Their reason for doing so was to secure the independence of the judiciary from Executive control or interference. Procedural norms were judicially prescribed for transfer and
4 5

C. Ravichandran Iyer v. Justice A.M.Bhattacharjee. All India Judges Association v Union of India : AIR 1993 SC 2493 6 Union of India v Sankal Chand : AIR 1977 SC 2328

appointn1ent of judges. At present every proposal for appointment or transfer of a judge can only be initiated by a collegium of senior judges together with the Chief Justice of the High Court or Supreme Court as the case may be. From being a mere consultant, the Chief Justice of India and the Supreme Court collegium now have the final word. As the Supreme Court put it No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India and The opinion of the Chief Justice of India has not mere primacy, but is determinative in the matter of transfers of High Court Judges/Chief Justices. An Independent Judge The independence of the judiciary and of the judicial system of course ultimately depends on the personal integrity of each judge. It goes without saying and I do not intend to dwell on the fact that judges have to be above corruption in the monetary sense. But it needs restating just as it needed stating in 1988 when judges of countries gathered in Bangalore and formulated what have come to be known as the Bangalore Principles. The principles are intended to establish standards for the ethical conduct of judges. Detailed guidelines have been classified under 6 heads termed values: Independence, Integrity, Impartiality, Propriety, Equality, Competence and Diligence. In fact all six values are facets of the first and cardinal one of independence. Judges are fierce in using the word as a sword to take action in contempt against critics. But the word is also used as a shield to cover a multitude of sins some venial and others not so venial. Any lawyer practising before a court will I am sure have a rather long list of these. I have chosen seven. The first is the sin of brushing under the carpet or turning a Nelsonian eye. Many judges are aware of injudicious conduct of a colleague but have either ignored it or refused to confront the judge concerned and suppressed any public discussion on the issue often through the great silencer-The Law of Contempt. The second sin is that of hypocrisy. A favourite rather pompous phrase in judgments is Be you ever so high, the law is above you or words to similar effect. And yet judges who enforce the law for others often break that law with impunity. This includes traffic regulations and any other regulation to which the ordinary citizens are subject. Some in fact get offended if their cars are held up by the police at all while controlling the flow of traffic-the feeling of offence sometimes being translated into action by issuance of a rule of contempt against the hapless police constable all in the name of judicial independence. The third sin is that of secrecy. The normal response of Courts to any enquiry as to its functioning is to temporize, stone-wall and prevaricate. As I have said elsewhere that the process by which a judge is appointed to the High Court or elevated to the Supreme Court is one of the best-kept secrets in the country. The issue whether the records relating to appointments of judges to the Supreme Court can be directed to be produced under the Right to Information Act is now

pending decision before the Supreme Court after which perhaps we will come to learn of the logical connection between judicial independence and secrecy. If independence is taken to mean capable of thinking for oneself then the fourth sin is plagiarism and prolixity. I club the two together because the root cause is often the same namely the prolific and often unnecessary use of passages from text-books and decisions of other judgeswithout acknowledgment in the first case and with acknowledgment in the latter. Many judgments are in fact mere compendia or digests of decisions on a particular issue with very little original reasoning in support of the conclusion. Often judges misconstrue judicial independence as judicial and administrative indiscipline. Both of these in fact stem from judicial arrogance as to one's intellectual ability and status. A judge's status like other holders of public posts is derived from the office or the chair. One has to merely occupy that chair during one's tenure with dignity and remember that each time a lawyer bows and says Deeply obliged --the bow is addressed to the office and not to the person. The Supreme Court has laid down standards of judicial behaviour for the sub-ordinate judiciary such as He should be conscientious, studious, thorough, courteous, patient, punctual, just, impartial, and fearless of public clamour, regardless of public praise but sadly some members of the higher judiciary exempt themselves from the need to comply with these standards. Intellectual arrogance or what some may call intellectual dishonesty is manifest when judges decide without being bound by principles of stare decisis or precedent. Independence no doubt connotes freedom to decide but the freedom is not absolute. It is bound to be in accordance with law. Otherwise we have lawyers and the sub-ordinate judiciary baffled while mastering the lawless science of our law faced with "that codeless myriad of precedent, that wilderness of single instances. Independence implies discipline to decide objectively and with intellectual integrity and as the judicial oath of office requires, without fear, favour, affection or ill will. Most importantly judges must be perceived as so deciding or to use Lord Hewarts classic dicta that Justice should not only be done, but should manifestly and undoubtedly be seen to be done, because the belief of corruption is as damaging to the credibility in the independence of the judiciary as the act of corruption. This brings me to the seventh and final sin of nepotism or what the oath of office calls favour and affection. What is required of a judge is a degree of aloofness and reclusiveness not only vis a vis litigants but also vis a vis lawyers. Litigants include the Executive. Injudicious conduct includes known examples such as judges using a guesthouse of a Private Company or a Public Sector Undertaking for a holiday or accepting benefits like the allocation of land from the discretionary quota of a Chief Minister. I can only emphasise again that nothing destroys a judges credibility more than a perception that he/she decides according to closeness to one of the parties to the litigation or what has come to be described in the corridors of courts as face value. As the Bangalore Principles succinctly

puts it: A judge shall not ...convey or permit others to convey the impression that anyone is in a special position improperly to influence the judge in the performance of judicial duties. 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. There is a saying that Power tends to corrupt, and absolute power corrupts absolutely - Lord Acton Whenever there is a mention of the independence of the judiciary, there is always a concern about the latent dangers of the judicial independence and there arises the importance of Judicial Accountability. The recent development in this regard is the recommendation of the Law Commission for the inclusion of a whistleblower provision, aimed at protecting those making complaints against judges, in a draft bill dealing with the removal of judges of the Supreme Court and High Courts. Introduction of such a bill by the Law Commission is a major step in the direction of making changes to the rigid procedure in our constitution for the removing of the judges of the Supreme Court and the High Courts. The final outcome of the above discussion is that the importance of the independence of the judiciary was long ago realized by the framers of the constitution which has been accepted by the courts by marking it as the basic feature of the constitution. It is well known law has to change so as to meet to the needs of the changing society. Similarly judicial independence has to be seen with the changing dimension of the society. Judicial Accountability and Judicial Independence have to work hand in hand to ensure the real purpose of setting up of the institution of judiciary.