INDEPENDENCE OF JUDICIARY UNDER INDIAN CONSTITUTION Raunak Bagade 1 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. 2 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. 3 The doctrine of Separation of Powers 4 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 other s functioning. 5 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 1 Law Officer, Marketing Division, Indian Oil Corporation Limited 2 Higher Judicial Appointments in India The Dilemma and the Hope: Trusting the Wisdom of the Generations, NUALS L.J. Vol. 8, 2014 3 Judicial Independence in Transition, Springer Science & Business Media, 25-Apr-2012 4 Speech of the Chief Justice on Separation of Powers Doctrine Roles of the Legislature, Executive and Judiciary, Available at indiacode.nic.in/mjr/speech%20cj.doc 5
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. 6 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. 7 The constitution of India adopts diverse devices to ensure the independence of the judiciary in keeping with both the doctrines of constitutional and Parliamentary sovereignty. Elaborated provision are in place for ensuring the independent position of the Judges of the Supreme Court and the High Courts. 8 Firstly, the judges of the Supreme Court and the High Courts have to take an oath before entering office that they will faithfully perform their duties without fear, favour, affection, ill-will, and defend the constitution of India and the laws. Recognition of the doctrine of constitutional sovereignty is implicit in this oath. Secondly, the process of appointment of judges also ensures the independence of judiciary in India. The judges of the Supreme Court and the High Courts are appointed by the President. The constitution of India has made it obligatory on the President to make the appointments in consultation with the highest judicial authorities. He of course takes advice of the Cabinet. The constitution also prescribes necessary qualifications for such appointments. The constitution tries to make the appointments unbiased by political considerations. Thirdly, the Constitution provides for the security of tenure of Judges. The judges of the Supreme Court and the High Court s serve during good behavior and not during the pleasure of the President, as is the case with other high Government officials. They cannot be arbitrarily removed 6 The Dynamics of Judicial Independence, Springer 7 Available at http://mulnivasiorganiser.bamcef.org/?p=482 (last accessed on 26/7/2017) 8 Available at https://www.importantindia.com/2146/independence-of-judiciary-in-indian-constitution/ (last accessed on 26/7/2017)
by the President. They may be removed from office only through impeachment. A Judge can be removed on the ground of proved misbehavior or incapacity on a report by both Houses of Parliament supported by a special majority. Fourthly, their salaries and allowances are charged upon the Consolidated Fund of India. Further, the salaries and allowances of Judges of Supreme court and High courts cannot be reduced during their tenure, except during a financial emergency under Article 360 of the constitution. Fifthly, the activities of the Judges cannot be discussed by the executive or the legislature, except in case of removal of them. Sixth, the retirement age is 65 years for Supreme Court judges and 62 years for High court judges. Such long tenure enable the judges to function impartially and independently. Seventh, a retired Supreme Court judge cannot practice engage in legal practice in any court in India. However, a retired High court judge can practice law in a state other than the state in which he served as a High Court judge. These restrictions ensure that a retired judge is not able to influence the decision of the courts. 9 Methods to Secure Independence of Judiciary: Sincere efforts have been made to secure the independence of judiciary through the following methods 10 : (a) High Qualifications: Politics in the appointment of judges has been avoided by prescribing high minimum qualifications for such assignments in the Constitution itself. An aspirant for such an important office must have been a judge of a High Court, at least for five years or must an advocate of a High Court be at least for ten years, or be a distinguished jurist. 11 (b) As already mentioned, every judge is paid a high salary to maintain his status and dignity. As per Act of 1986, the Chief Justice was to draw Rs. 10,000 p.m. and the other judges were paid Rs. 9,000 p.m. However in the recent past, the salaries of Judges of the Supreme Court were raised to Rs. 30,000 p.m. and that of Chief Justice Rs. 33,000 p.m. Their salaries have been further hiked in view of such hikes of other top officers of the Government as 9 The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges, Martinus Nijhoff Publishers 10 Shayonee Dasgupta & Sakshi Agarwal, Judicial Accountability and Independence: Exploring The Limits Of Judicial Power, available at https://www.scribd.com/document/110403923/judicial-accountability-and-independece 11
per 6th Pay Commission report and cabinets generosity to hike the salaries of the top executives viz., President, Vice- President and Governor etc. as well. Three-fold hike in case of judges (Rs. 90,000) and 1, 00,000 p.m. in case of Chief Justice. In addition, they enjoy free residential accommodation and many other perks. During their term of office, their salaries and allowances cannot be altered to their disadvantage, except in grave financial emergency. The administrative expenses of the Court are charged on the Consolidated Fund. Evidently, their salaries and allowances compare favorably with those of judges in other courts of the world. 12 (c) Security of Tenure: The Judges of the Supreme Court enjoy security of tenure. They are not removable from office except by an order of the President and that also only on the ground of proved misbehavior or incapacity, supported by a resolution adopted by a majority of total membership of each House and also by a majority of not less than 2/3 of the members of that House present and voting. (d) Lengthy Tenure: Although the Constitution does not provide for life tenure, the existing provision of 65 years, in effect amounts to nearly the same. A retiring age of 65 is, by Indian standard, very high, considering the average span of life in India and also the average fitness of persons for work in old age. Moreover, a retired judge according to Article 128, may be reappointed a judge by the Chief Justice of India, with the consent of the President. Hence, if a judge is hale and hearty, sound in mind as well as in body, capable of rendering service, for a few years more, he can be easily accommodated. Longevity of tenure keeps him immune from temptation to amass fortunes for the old age. (e) Oath to Work Fearlessly: Before assumption of office, the judges have to take an oath to perform their duties fearlessly and to uphold the Constitution. The ruling party committed to a particular ideology expects the judges to read the writing on the wall and act accordingly. The supersession of three judges and appointment of a junior judge as Chief Justice raised the issue. Ex-Chief Justice S.M. Sikri was of the view that commitment to the philosophy of the ruling party, is not the part of the oath administered to a judge. Hence such commitment should not be expected of him. 12
(f) No Practice after Retirement: A retired judge of the Court is prohibited from practising law before any Court of authority within the territory of India. The Constitution, however, permits the appointment of a retired judge for a specialized form of work by the Government, for instance for conducting enquiries and special investigations. Das Commission for conducting enquiry against Sardar P.S. Kairon, ex-late Chief Minister of Punjab is an example of such enquiries assigned to a judge. 13 (g) Control over Establishment: The Court is fully authorized to have its own establishment and have complete control over it. It was, however, thought that in the absence of such a provision, the Court s independence becomes illusory. If for promotion, the establishment is to look to other quarters, it is likely to affect the independence of the judiciary. Hence, all appointments of officers and servants of the Supreme Court are made by the Chief Justice and the judges of the Supreme Court whom he may direct for the purpose. Their conditions of service also are determined by the Supreme Court. 14 (h) Immunities: The actions and decisions of the judges in their official capacity are immune from criticism. They may, however, be subject to critical academic analysis. In order to maintain the dignity of the Court and to protect it from malicious criticism, the Court has been empowered to initiate contempt proceedings against any alleged offender and take appropriate action. The Court is, also authorized to stop any act that might prejudicially affect its arriving at an impartial and independent decision. 15 CONCLUSION There is a saying that Power tends to corrupt, and absolute power corrupts absolutely 16 - 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 importance of the independence of the judiciary was long ago realized by the 13 14 15 16 Available at https://acton.org/research/lord-acton-quote-archive (last accessed on 26/7/2017)
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.