Is our judiciary really independent?

Justice has always been a nebulous concept while the judiciary has been the repository of public faith in the access to justice.


Representational image (PHOTO: Pixabay)

Judicial independence is the ability of courts and judges to perform their duties free of influence or control by other actors, whether government or private. The term is also used in a normative sense to refer to the kind of independence those courts and judges ought to possess. That ambiguity in the meaning of the term judicial independence has compounded already existing controversies and confusions regarding its proper definition, leading some scholars to question whether the concept serves any useful analytical purpose. There are in general two sources of disagreement. The first one is conceptual, in the form of a lack of clarity regarding the kind of independence that courts and judges are capable of possessing. The second is normative, in the form of disagreement over what kind of judicial independence is desirable. As a practical matter, the type of judicial independence that is widely considered both the most important and the most difficult to achieve is independence from other governmental actors. On the one hand, that type of judicial independence is highly valued among those who impute to courts a special responsibility for ensuring that individual and minorities do not suffer illegal or unjust treatment at the hands of the government or tyrannous majority. On the other hand, that type is considered especially difficult to achieve because the other branches of government ordinarily possess the power to disobey or thwart the enforcement of judicial decisions, if not also to retaliate against the courts for the decision that they oppose. In Alexander Hamilton’s famous formulation, the judiciary is the “Least dangerous" branch, having no influence over either the sword or the purse and is therefore least capable of defending itself against the other branches.

Formal guarantee of judicial independence from government control date to at least 1701, when England’s Act of settlement granted judges explicit protection from unilateral removal by the crown in the context of a large shift of power towards parliament and the courts. Today the idea of judicial independence has such broad and powerful normative appeal that even states that do not honor it in practice are want to profess a commitment to it. Most of the world’s current written constitution contains some form of explicit protection for the independence of the judiciary and protection of constitutional documents that contain such protections, has been increasing over time. Judicial independence has been formally endorsed at the international level as well-for example, in the Basic Principles on the Independence of the Judiciary, adopted by the United Nations General Assembly in 1985. Any comprehensive and coherent definition of judicial independence must address several questions. The first is: Independence for whom; the second is –Independence from whom and the third one is-Independence from what? To supply satisfactory answers to those questions, however, it is necessary to consider why judicial independence is valuable and what is supposed to accomplish. In other words, it is necessary to address the question,Independence for what purpose.

Indian judiciary, if I'm not mistaken is not free from politics. We often take people in judicial system (Lawyers & Judges) to be from some other planet, which is misleading. These people come from same society. Naturally they do have their own bias, opinion and views like anybody else, which makes them political. Justice has always been a nebulous concept while the judiciary has been the repository of public faith in the access to justice. After the executive and legislatures fall short, when one fails to get his grievance redressed the judiciary is the only hope which come to one’s rescue. Time and over again, the judiciary through its landmark judgments and judicial activism have proved that this faith is not misplaced. But while some consider the judiciary, the sanctuary of escape clauses, loopholes and acquittals for want of evidences, it is not free from political interference. It is imperative to note here that the separation of powers is an integral part of the constitutionalism of the country and in that light, the best way to guarantee responsibility by the government towards its subjects. In countries like India and United States, activists frequently complain about judicial activism: judges are said to be guided by political considerations in interpreting the Law certainly, judicial activism is more plausibly a danger in countries that follow common law systems derived from England, where judicial precedents are given more weight than in civil law systems, where legislatures codify Law, which then take precedence over judicial interpretations. Does India have one of the democratic world’s most unaccountable judicial branches? The issue of judicial accountability has been the matter of great debate in India over the past two decades. No country in the world has reached the extreme of judicial power that India has. As in most other democratic countries, judges in India were initially appointed by the government, after consulting with Chief Justice of the Indian Supreme Court. However, many politically-biased judges were appointed, leading to the establishment of an extra constitutional “Collegium system” in which only judges could appoint other judges, placing India’s judicial branches outside of checks and balance of the legislative and executive powers in the country. The collegium itself is made up three to five senior judges who can consult with the government, which can only exercise its power by sending or proposed appointee back for reconsideration. However, if the collegium reiterated its choice unanimously, the government would have to appoint that judge.

This practice was rationalized in a strong manner, one which was not laid out in the Indian constitution. In 1993, the Supreme Court held that since independence of judiciary was part of the basic structure of the Constitution, it could not be compromised through executive or legislative interference in the appointment process. Therefore, only the judiciary itself could appoint judges. The basic structure doctrine has been used by the Supreme Court to prevent numerous constitutional amendments, despite there being no stipulation for this concept in either the original Indian Constitution or in the works and thought of its founders. In 1951 Supreme Court case, the court held that no part of the Constitution was unnamable. While there is no doubt that corruption and nepotism are problems in India to be guarded against, especially by the branch of government whose job  is to upload the law, it would be exceedingly strong for a branch of government to be completely unaccountable by appointing its own successors without public input.

(The views expressed are the writer's own)

First Published:Dec. 28, 2020, 2:47 p.m.

Leave a comment