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Independence of The Judiciary: A Constitutional Response

The place of Justice is a hallowed place, and therefore not only the Bench, but also the foot space and precincts and purpose thereof ought to be preserved without scandal and corruption. - Francis Bacon

Independence of Judiciary is indispensable in democratic system of governance. Since the establishment of the democratic form of Governments in the world there is a worldwide debate on the issue that the Judiciary should be independent from any type of pressures and pulls i.e., from within and outside. The Independence of Judiciary got added importance in the countries having Written Constitutions. Under the Written Constitution, the Government has been conferred with wide powers required for the running of the Government. But where the Constitutions contain the welfare philosophy there the Government has to make policies for the socio-economic development of the people.

In such type of functioning Government may at times abuse the political power. Independent Judiciary is required to maintain balance between the interests of individuals and society. In this way an independent judicial system was considered sine qua non for the smooth functioning of democracy. And all leading democracies of the world emphasises this need time and again. Initially, there was a demand for institutional independence. now the trend is towards the independence of individual Judges. The genesis of institutional independence we found in the theory of separation of powers which stress for functional independence. But the independence of individual Judges depends on the provisions of the Constitution pertaining to their appointment, conditions of service, transfers, benefits and security of tenure.

Concept of Independence of Judiciary

The concept of Independence of Judiciary is of modern origin and accepted as a hall-mark of a liberal democratic state. But the term independence has neither been defined in the Constitution of India nor in the General Clauses Act. Hence for a proper comprehension of the meaning of the term independence it is necessary, first to examine its etymological and dictionary meaning and then its legal meaning.

A dictionary meaning ascribes to it, the state of being not dependent on another persons or things for support or supplies. In a literal sense, independence means absence of external control or support. In other words, it signifies something that it is not dependent on or controlled by any other agency or authority. In legal parlance Independence of Judiciary mean the power of upholding without fear or favour, the Rule of Law, personal freedom and liberty, equality before law and impartial and effective judicial control over administrative and executive actions of the Government.

Hence the Judicial organ of the State should not be in a position of subordination to another organ or branch. In this sense the Independence of Judiciary depends on the power of the Courts and allows to be exercised without executive interference. The Judiciary has to be free from the control and subordination of the executive as well as the legislature. In this way Judges should be independent and free from any restrictions, inducement, influence, pressure, threats direct or indirect from executive and legislature. Not only this Judges must be independent and free of their colleagues and superiors in discharge of their judicial functions. They must be free to judicial functions. They must be free to discharge their duties and functions without let or hindrance.

However, the concept of independence is relative one and is generally applied in its functional terms. Hence the responsibility of a Judge to constitutional and legal norms forms the foundation and the real rationale for judicial independence. An Independent Judiciary is the sine qua non of a vibrant democratic system. Only an impartial and Independent Judiciary can stand as a bulwark for the protection of the rights of the individuals and meet out even handed justice without fear or favour. The Judiciary is the protector of the Constitution and, as such, it may have to strike down executive, administrative and legislative acts of the Centre Government and the States. For Rule of Law to prevail, Judicial independence is of prime necessity.

The Independence of Judiciary is normally assured through the Constitution of India but it may also be assured through legislations, conventions and other suitable norms and practices. The constitutional or the foundational laws on Judiciary are, however, only the starting point in the process of securing Judicial independence.

Ultimately the Independence of Judiciary depends on the totality of a favorable environment created and backed by all State organs including the Judiciary and the public opinion. The Independence of Judiciary also needs to be constantly guarded against the unexpected events and the changing social, political, economic conditions; it is too fragile to be left unguarded. In India, the question of Independence of Judiciary has been a subject of heated national debate over the last many years. This question assumes great importance whenever the Supreme Court holds a particular Act or particular Clause of an Act passed by Parliament ultra virus of the Constitution of India.

Judicial Independence in India

The Independence of Judiciary is not to be determined in all its ramifications as some apriori concept but it has to be determined within the framework of the Constitution of India. The thrust is to ensure that adjudication is untrammelled by external or controls and Independence of Judiciary under the Constitution of India is confined to the adjudicatory functions of the Courts or Tribunals and they are insulated from executives control in that behalf. A notable feature of the Constitution of India is that it accords a dignified and crucial position to the Judiciary in India.

The existence of a fearless and Independence of Judiciary is thus founded in the constitutional structure in India. Independence of Judiciary is not genuflexion; nor is it opposition to every proposition of Government.

Democracy, as envisaged in Constitution of India proceeds on the fundamental postulate that ultimately political sovereignty vests in the people of the country. This sovereignty gains social reality and dynamic viability only of the constitutional instrumentality submits tacitly to the broad oversight of the sovereign people. But the people in general obviously cannot exercise monitoring, controlling, disciplining and perform the like function.

Therefore, need is for checks and balances so that power vested anywhere may not go haywire and may become amendable to the constitutional fundamentals and answerable to those who are the ultimate masters or donors of the power. The founding fathers of the Indian Constitution, keeping democratic principles (transparency and accountability) in view, demarcated and delineated powers of three organs of the Government with an understanding that each organ will power perform its assigned role and will endeavour to bring life to the goals enshrined in the Preamble. They also enshrined sufficient provisions to make the three instrumentalities of Government accountable for any act of omission or commission committed on their part through transparent methods. India practices constitutional governance by Rule of Law. Be it Legislature, Executive or Judiciary; all are creatures of the Constitution of India, 1950.

In this democratic set up, the Judiciary is an impartial umpire that resolves disputes within the boundaries laid down by a Written Constitution and distribution of constitutional powers between different organs, namely, Parliament, State Legislatives and Executive. An independent judiciary is expected by every citizen of the country and is not only a fundamental right, but is also a part of the basic structure of Constitution of India. Independence of Judiciary is one of the basic structures of the Constitution of India and has also been recognised as a human right by International Conventions.

In our Constitution, three wings of Government are enshrined, and each of these three wings of Government has to work independently in spite of the fact that they are inter connected with each other. Justice Krishan Iyer observed for distinction that judiciary has to draw the line between individual liberty and social control. The objective of justice is deeply enshrined in the Preamble of the Constitution of India.

In fact, Judiciary does not only dispense justice between one individual and the other or between one group of people and the other, it also does justice in the controversies arising between individuals and States, States State. All the above responsibilities can be discharged only when the country has an authoritative, independent and impartial Judiciary.

It is neither judiciary made to opposition measure nor Governments pleasure. In the celebrated decision of the Supreme Court in S.P. Gupta Vs Union of India, 1982 (2) SCC 831the Constitution Bench of the Supreme Court held that;
Judges should be of stern stuff and tough fibre, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says Be you ever so high, the law is above you. This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community. It is this principle of independence of the judiciary which we roust keep in mind while interpreting the relevant provisions of the Constitution.

...While the administration of justice draws its legal sanction from the Constitution, its credibility rests in the faith of the people. Indispensable to that faith is the independence of the judiciary... the framers of the Constitution took great pains to ensure that an even better and effective judicial structure was incorporated in the Constitution, one which would meet the highest expectations of judicial independence...., held another Honble Judge in the same Judgment.

Later in 1993, another Constitution Bench in the Second Judges Appointment Case i. e Writ Petition (Civil) 1303 of 1987 titled Supreme Court Advocates-on-Record Association & Anr. Vs Union of India declared:
431. Independence of Judiciary is the sine qua non of democracy. So long as the Judiciary remains truly distinct from both the Legislature and the Executive, the general power of the people can never be endangered from any quarters. Montesquieu in his book Spirit of Laws observed there is no liberty, if the power of judging be not separated from the legislative and the Executive powers.

The framers of the Constitution made it known in an emphatic-voice that separation on Judiciary from Executive, which is the life-line of independent Judiciary, is a basic feature of the Constitution. Dr. B. R. Ambedkar in his speech in the Constitution Assembly on June 07, 1949 observed as under:
I do not think there is any dispute that there should be separation between the executive and the judiciary and in fact all the articles relating to the High Court as well as the Supreme Court have prominently kept that object in mind.

Isolation, independence and matters of principle
Courts are understood as being isolated from short term political pressures. Unlike elected legislators, who are accountable to their constituents and respond to their immediate needs, unelected judges with fixed tenures and salaries can deliberate in a ‘neutral’ manner and render decisions that may be politically unpopular but necessary for the long term preservation of human rights and democracy.

Judges are not bound by party ideology or the need to garner the popular vote, so they can arrive at substantively ‘better’ decisions. For example, after a terrorist attack, public sentiment may overwhelmingly favour the torture and public execution of a captured terrorist.

The Government, acting on the demands of the electorate, may decide to torture and execute the terrorist (after all, good Government responds to what the people want). The Courts however, isolated from public sentiment and understanding the long-term benefits of upholding the Rule of Law and human rights, can ensure the captured terrorist receives a fair trial.

A second assumption underpinning the public trust in Courts is that Courts rely on precedent (Stare Decisis) and settled legal principles to decide cases. Therefore, once Courts construe the phrase ‘equality’ or ‘liberty’ as having an expansive meaning, the same expansive interpretation will subsequently be applied irrespective of how politically significant or insignificant the facts of a case.

This is often why progressive Judgements are celebrated, because we presume that the reasoning of these Judgements will bind future Benches of the Court and Lower Courts. The last, and perhaps most significant, assumption about Courts is that they stand independent from the elected Government. Coupled with their isolation from short-term political pressures and their commitment to decide cases on legal principles, this leads to the overarching argument that Courts stand as a check against the abuse of Government power.

The Constitution of India has created a democratic Republic and a trinity of instrumentalities to enforce its paramount provisions without fear or favour, affection or ill will. The Executive echelons, when they exceed their power as inscribed and circumscribed in the Suprema Lex, are subject to scan, scrutiny and correction by the Higher Judiciary.

The Legislature has vast law-making powers and is functionally competent to perform an inquest into the Administration. But when it transgresses its constitutional bounds, the Court can quash its action by writs or command fresh operation by appropriate directions.

However, Judges, vested with considerable power, are oath-bound by the Constitution of India, without violating jural parameters and performing with exemplary good behaviour. Judicial bounds of dignity and propriety are real and noble. The Independence of Judiciary holds a prominent position as far as the institution of Judiciary is concerned.

Courts have always tried to uphold the Independence of Judiciary and have always said that the Independence of Judiciary is a basic feature of the Constitution of India. Courts have said to so because the Independence of Judiciary is the pre-requisite for the smooth functioning of the Constitution of India and for a realization of a democratic society based on the Rule of Law. The comparative study of the constitutional provisions reveals that the judicature is no less important than the other organ of the State. It keeps every organ of the State or other constitutional and non-constitutional bodies within their limits assigned to them and prevent encroachment on the sphere of each other. Thus, it prevents chaos and works for peace prosperity communal harmony and amity.

Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature, Jammu.
Email: [email protected], [email protected]

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