JUDICIAL INDEPENDENCE IN INDIA

ANADI TEWARI

The author of this blog is Law Student, Faculty of Law, University of Lucknow

NEED FOR INDEPENDENCY

The paramount robustness of Judiciary lies in the command that it has over the hearts and minds of the people. Judiciary is one of the special body acting as he guardian of the people and in a way detached from politics and manned by men of higher stature and integrity, and who possess a love for fairness in its working. Independent Judiciary is said to be an essential of democracy. Judicial independence in itself not only means freedom from external influences but also means an independency in decision making vested in the judge. Judge should be self-reliant and not submissive.

It is taken that judicial independence is a good thing and there has been a normative consensus that it is a good thing. Judge has no other superior except the law and he has to work under the realm of it. He/she is independent in a way not to follow the dictation of administration but is bounded by law to work in non-arbitrary manner. We have seen that the drafters of the Constitution of India have tried to incorporate provisions to insulate the judiciary from external influence. There are declarations in form of provisions that the judiciary stands independent from executive,[1] further the roles of executive and legislative branches in the selection and removal of judges are held with limitations.

FREQUENT ASSAULTS ON JUDICIAL INDEPENDENCE

·         APPOINTMENT BY SUPERSESSION

Foremost, the attack on independence of judiciary can be very traced back to the earliest supersession in the year 1973 where the government suddenly departed from the old practice of appointing the senior-most as the Chief Justice of India and led to making Justice Ray as the new Chief Justice of India, clearly by-passing three senior-most judges, who then later resigned from the court in protest.

In P.L. Lakhanpal v. A.N. Ray[2], the very appointment was challenged before the Delhi High Court on grounds of being malafide and against the inherent rule of seniority and consultation envisaged under Art. 124(2), but the court dismissed the petition without providing a sort of reasonability against the allegations. The court iterated a futile reasoning that even if these contentions are held to be correct, they still don’t stand in against Justice Ray since he is the senior-most judge now as the previously three senior-most judges have already resigned. The petition will stand futile.

The appointment of Justice Ray came following the day of the Kesavananda Bharti case[3], where the three superseded judges have held the parliamentary power to amend the Constitution to be limited and cannot be exercised to abrogate the essential features of the Constitution. The selection of Justice Ray for ‘sturdy independence’ was strange.[4]

Later, after Justice Ray supersession, in the year 1976 again the same strategy was used and Justice Beg was appointed as the Chief Justice of India, by-passing Justice Khanna who was the senior-most that time. Justice Khanna resigned in protest and the futile reasoning of the court in the Lakhanpal case which favored Justice Ray, seems to be favoring Justice Beg.

·         

       TRANSFERS

Art. 222(1)[5] states that, “the President may, after consultation with the Chief Justice of India, transfer a judge from one High Court to any other High Court.”

Prior to the emergency in 1975, no judge was transferred without his consent but as per during the emergency, this power of transfer was found to be a convenient measure of punishing those judges, as one can clearly believe that this punishment is for the judgment pronounced against the government. A total of 16 High Court judges were uprooted and were transferred from one High Court to the other. It was to be seen that the word ‘consultation’ was requiring a structured meaning.

·       TENURE OF THE JUDGES

The judges of Supreme Court and High Court retire on attainment of age 65 and 62 years respectively. In India, the working of the judges end at a specific time but unlike India, in England, there is a life tenure for the judges. The limited tenure of the judges has given rise to number of atrocities, firstly, the lawyers having a thriving practice at the bar tend to refuse judgeship of a High Court. Secondly, the judges with a limited tenure tend to stay more focus on the temptation of working on projects in tribunals after retirement. Thirdly, after long years of judicial career, judges are likely to go back to the bar. The flow of justice can be full of disruption and the independence of judiciary can be under danger if such a thing is allowed to remain in vogue.

CONCLUSION

Judicial Independence is not merely a question of constitutional and administrative setting rather it is a question of habit and tradition. Independency cannot be achieved by any indulgence in the approach rather the appointment by people is the only option left to the distorting dependence of judiciary on the executive. The confidence of the people in its judiciary somewhere depends on whether the judge without any interference of the evils will redress the wrongs. Judges should be guided by no one but by his own conscience.

“A great jurist in the Transvaal... to whom I used to go for assistance as a youngster, once said to me, in regard to a very difficult case, ‘Although there may be no hope just now, I tell you that I have guided myself by one thing, or else I should not be a lawyer!’ The lawyers teach us that there is absolutely no wrong for which there is no remedy to be found in a court of Law; and if Judges say there is no remedy, then those Judges should be immediately unseated.[6]”

(At the Second Round-Table conference, Mahatma Gandhi voiced his views on the proposed Federal Court as the ‘palladium of liberty’.)

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[1] INDIA CONST. art. 50.

[2] P.L. Lakhanpal v. A.N. Ray, A.I.R. 1975 Del. 66 (India).

[3] Kesavananda Bharti v. State of Kerala, A.I.R. 1973 SC 1461 (India).

[4] Ashok H. Desai. “Assaults on the Judiciary.” Economic and Political Weekly, vol. 12, no. 18, 1977, pp. 726. JSTOR, www.jstor.org/stable/4365543 . Accessed: 30 Mar. 2020.

[5] INDIA CONST. cl. 1 art. 222.

[6] Ashok H. Desai. “Assaults on the Judiciary.” Economic and Political Weekly, vol. 12, no. 18, 1977, pp. 729. JSTOR, www.jstor.org/stable/4365543 . Accessed: 31 Mar. 2020.