Independence of Judiciary: How Judges are Independent to deliver Justice
Introduction- India, the world’s largest democracy has a concept of Independence of Judiciary which plays a very crucial role in the Judicial System. Peoples across all over the country faced different types of incident relating to violations of human rights, criminal cases, contract cases etc. to solve or get rid of from these cases peoples approach the Local Courts, High Courts or the Supreme Court, sometimes many famous personalities like actors, politicians, business tycoon etc. who have a great impact on the society at large also approach to the courts for their cases, so it’s a duty of a judge of the courts that he will perform his duty free from any influences or control by other elements, weather governmental or private. Only an independent judiciary which is free from any type of partiality can stand as a bulwark for the protection of the rights of the citizens without any fear or favour. The independence of the Judiciary is normally assures from the Constitution but it also assured from conventions, legislations and other suitable norms and practices, and the independence of the judiciary is totally depend on the favorable environment created and backed by all state organs public opinion and the judiciary. In our country India, the independence of the judiciary is subject of national debate over last few years. Jurists, politicians, legislators, and the layman also exercised their mind in it. The supporters and the opponents have cogent argument in support of their point of views. Here’s a question of great importance whenever the Supreme Court holds a particular Act or particular clause of an act passed by parliament ultra-vires of the Constitution.
Historical Background- Montesquieu, was the famous French Philosopher who propounded the idea of an Independent Judiciary. The first political philosopher who believed in the theory of separation of powers (Libertyfund) of the three branches of government:-
The father of the American Constitution was very impressed by this theory and therefore established an Independent Judiciary in America. In United Kingdom, the judiciary has not been independent or supreme, yet their judges have been giving decisions without any type of fear or favour. They are very impartial and independent from any external element in their judgment. The U.K. does not have a written constitution but still its citizen enjoys no less liberty than Americans. The concept of Judicial Independence came into being in England in 1701. The state finally recognized the importance of security of judicial tenure by establishing that High Courts Judges and Lords Justice of appeal hold office during good behavior. Before 1701, judges hold offices during the pleasure of crown and like any other crown servant he could dismissed by the king or queen at will. Since the act of settlement only possible to remove a senior judge from office through an address to queen agreed by both House of Parliament.
Constitutional Provisions- The Indian Constitution is the fundamental law of the land from which all other laws derive their authority. Including all the powers of the state and also all its different organs have their sources in it and must be exercised subjects to the provisions and limitations laid down to it. The constitution of India adopted diverse ways to ensure the independence of judiciary in keeping with both the doctrines of constitutional and parliamentary sovereignty. Part-IV of the Indian Constitution (Singh, Jagran Josh, 2019) directs that the State to make all efforts to keep the judiciary out of the politics. This warns the government for the future, because the independence of the judiciary means the Independence of the judges to give their judgment freely. There are following point which ensures the independent positions of the judges of the Supreme Court and the High Court:-
Firstly, the Supreme Court and the High court judges have to take an oath before entering in the office that all the judges will faithfully and honestly perform their duties without any type of fear, favour, ill-will, affection and defend the constitution of our country and its laws.
Secondly, the process of the appointment of the judges also ensures the independence of judiciary in our country.
Thirdly, the constitution of our country provides the security of tenure of judges.
Fourthly, their salaries and allowances are charged upon the consolidated fund of India. Their salaries can’t be reduced during the tenure, until there was financial emergency under Article 360 of the Indian Constitution.
Fifthly, the activities of the judges cannot be discussed by the executive or the legislature, except in case of removal of judges.
Sixthly, the retirement age of the judge of Supreme Court judge is 65 years and for high court judge it was 62 years.
Seventhly, a retired Supreme Court judge cannot do legal practice in any court of India. These restrictions ensure that a retired judge is not able to influence the decision of the courts.
These points of judicial system in India play an important role for maintaining the Independence of Judiciary. The highest court for justice is Supreme Court. Then there are high courts and district courts in every state. After this there are People’s court known as Lok Adalats. If there no decision is reached in these Lok Adalats, then the cases move to courts.
Some Important Case Laws Relating to Independence of Judiciary- There are many case laws relating to Independence of Judiciary in our country. Some of them are mentioned below:-
Union of India v. S H Sheth (Union of India v. S H Sheth, 1978) also known as the Sankal Chand’s case. In this case, the Supreme Court of our country stated that prior consent is not required while transferring the judges. Although Justice Untawalia and Justice Bhagwati gave dissenting judgments. The Janta Government repealed the changes in the 42nd Amendment. The statutory conventions for the appointment of judges were recognized by Mrs Gandhi had superseded Justice Khanna, the senior most judge due to his judgment in the A.D.M Jabalpur v. Shukla (A.D.M Jabalpur v. Shukla, 1976), the Habeas Corpus. Then the removal of Justice O.N Vohra, additional Judge of the Delhi High Court because he gave fair judgment against Mr. Sanjay Gandhi. All this shows the cost of being transparent and fair there. The independence of the judiciary is always subject to the exploitation of the powerful, as it is vulnerable. The salary and the allowance of the judges are secured in the India Constitution, but there is no time schedule for its revision.
In the celebrated decision of the Supreme Court of India case name S.P Gupta v. Union of India (S.P Gupta v. Union of India, 1981), the constitution bench held that, Judges of the courts should be stern, stuff and tough fiber, unbending before power, economic or politicial, they must uphold the core principle rule of law which says, law is above you. This is the principle of Independence of Judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law is dynamic concept and delivery of social justice to the vulnerable section of the society. It is the principle of Independence of Judiciary, which we roust keep in mind while interpreting the relevant of the constitution.
The Independence of the judiciary has suffered erosion because of the practices which have been carried out by the Government. The retired judge can also be used to improve the condition of the judicial system. In the case of Orissa v. Sudhansu Sekhar Mishra (Orrisa v. Sudhansu Sekhar Mishra, 1967), it highlighted that only for the good reason if the high court find it suitable will have it authority to spare the period agreed of services of any of the officers under the control for filling up. Such executive posts as it may require the service of the judicial officer. The government stated that the high court judicial officers should not be permitted to acquire the intrest in the Secretariat. The reforms on paper will not be effective unless the judicial takes initiatives to make implementation into reality.
Examples where judges believed that Independence of Judiciary is in Big Threat- There are few examples where we clearly see the eroded of Independence of judiciary:-
At the time of the imposition of emergency in 1975 in India (The Economic Times, 2019), Justice A.N Ray who was the judge of the supreme court of India, appointed as the Chief Justice of India with the help of the politician and his appointment superseded three senior judges of the Supreme Court namely- J.M Shelat, A.N Grover and K.S Hegde, which is viewed as unprofessional work because in India Chief Justice of India have to be a senior most judge of the Supreme Court. So, this was viewed as the direct attack on the democracy. This was considered to be unprecedented in the legal history of our country and it has been called as the Blackest Day in the Indian Democracy.
In 2019 when the chief justice of India was Mr. Ranjan Gogoi claimed that the independence of the judiciary was under big threat. Because at time there was a charge of sexual harassment against him. There was a large conspiracy to destabilize the judiciary which was remain independent, there was some bigger force or power or some external element behind the women, with criminal track, making sexual harassment charges against him, Justice Ranjan Gogoi said (Jain, 2019).
Recently former judge of Supreme Court Kurian Joseph said that (Scroll in, 2020) independence of judiciary was under big threat because of various factors, including those who are inside the institution. He said that “I have never seen the Supreme Court of India’s Bar so politically and communally divided”.
Suggestion and Reforms to make Judiciary Independent- The Independence of Judiciary can be made true if the following suggestions and reforms can be implemented in our country. The judiciary should not be a puppet and can’t be controlled by the hands of the executive or the legislature. Judiciary should possess an independent identity of its own. It should showcase autonomy in its functioning. The process or mechanism of appointment of judges should be very transparent. There should not be any malpractices. The judges should be well-learned and should have the capacity to deliver judgments. The judges should be entrusted with a long tenure and security of service. This will ensure that they deliver judgment without any influence of third party, fear or impartiality. The judges should be provided with appropriate salary and allowance also other perks such as accommodation and so on. There should be ban on practice after retirement. They enjoy the power to punish for contempt of court. The judiciary also has vast jurisdiction. It acts as the interpreter of the constitution and the protector of the fundamental rights. They also have to determine the constitutional validity of all laws.
Conclusion- The constitution of India provides for judiciary, which is totally independent and independence of judiciary is very important for the aim of fair and equal justice. In justice there should be no interference by the legislation, executive or any type external elements, so that it takes a judgment seems reasonably fair. The judges of the courts have not be biased for any party. The legislature has big law making powers but when it transgresses its constitutional bounds, the courts have the power to quash its action by writs or command fresh operation by appropriate directions. It is very difficult to suggest the any other way to make the Indian courts more self reliant and keep them away from the any other external influences. The constitution of India facilitates that the judiciary acts independently. In order to achieve the fair justice, there is highly need of the of the Independence of the Judiciary. Justice should be fairly dispressed without any interference of the third party or any other type of external power. There should be no biases and the judges should take due care, reasonableness and rationality in making judgments. Independence of the judiciary is need of the hour and there should be proper operations and influence by the other organs that are executive and legislature. There should be imparted without any other undue influence by any third party other than the once imparting justice.
Name of the Author- Mayank Raj Maurya
Name of the College- Lloyd Law College, Noida