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Independence of judiciary in the modern administrative state of India – a myth

April 8, 2021

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This article is written by Navreen Kaur.

“Law and order are the medicine of the body politic and when the body politic gets sick, medicine must be administered.” – Dr. B.R. Ambedkar

Table of Contents

India as an Administrative State

The history of an administrative system can be traced back to ancient India. At first, there was disruption of law and order but with the advent of agriculture, people divided themselves among tribes. These tribes were led by the tribe heads and they gradually grew in number. Some elements of democracy could be traced in their administration since the king (raja), catered to all branches of executive, legislative and judiciary^[1].

The Mauryan period witnessed the advent of civil and military offices. Arthashastra was but an informal constitution of the modern empire^[2]. There was an organized maintenance of economic records and the spy system was considered an important feature.^[3] The judicial offices constituted appointed officer Nawab, who handled matters of criminal justice and law order whereas Diwan took matters of civil justice and revenue collection^[4]. This practice was rendered corrupt due to heavy engagement in bribes, hence it was unreliable. During the Gupta period, the administrative structure was admirable despite a large empire. The major difference between the two was that the latter had comparative independence with respect to the provinces. However, it was in this period that the caste system became rigid and the position of women became miserable^[5]. Judicially, there was a lack of uniform laws which severely affected the administration of justice. There was no proportionality between the offence committed and the punishment rewarded.

Impact of the British Government on the Judicial System

The British invasion caused a sea of change by systematically destroying the ancient and medieval relics of administrative inheritance. In the initial years, the Indian officials were minimal in number while the East India Company officials were in power. The company had little intentions of making any innovations in the administration, so they hardly took over any responsibility. Thereafter, the Pitt’s India Act of 1784 gave supreme control to the British Government hence according Indian administration in their hands^[6]. This even acted as an incentive to exploit India economically. The British government then felt an urgent need to alter the Diwan system of justice and bring in place a uniform system that caters to their growing commercial needs. The introduction of the Common Law System in India began through the following leaders –

Warren Hastings (1732-1818) came up with a judicial plan to reform the system in order to make them accessible to the common masses and bring forth efficiency^[7]. It all began with restructuring areas where the smallest unit became a district. Each district had a Small Cause Adalat presided over by the head farmer. This delivery of administrative justice was subject to checks and balances. Other courts that were established in each of these districts were Mofussil Diwani Adalat for the civil cases and Mofussil Fozdari Adalat for the criminal cases. These courts were presided over by the collectors and the laws followed were Shastras for the Hindus and Qurans for the Muslims. Above them, the Sardar Nizamat Adalat was referred for death sentence hearings and property forfeiture. These were presided over by the Governors.^[8]

Lord Cornwallis (1786-1793) reduced the number of districts and increased the salaries of the collectors in each of those districts since his main area of emphasis was economy. A separate tribunal was created for revenue disputes whereas petty civil cases were handled by Registrars. However, their judgement was subject to approval of the Collector. It could be observed that the collectors were over-burdened with grave amounts of power whilst they were mere servants to the East India company.^[9]

The Supreme Court was directly accessible to the British nationals only. Even the Europeans were considered at par with the Indian natives, so they all had to follow the hierarchy of the Court system to reach the Supreme Court.

It was in 1793 that the collector’s burden was reduced. A civil servant from the East India Company took over the job of the collector. Moreover, the Executive came under Judicial control i.e. the executive could not draw any immunity from being tried under the law. Before the beginning of any trial, each court demanded a certain value in the form of fees^[10].

In 1935, the Government of India Act changed the structure from “unitary” to a “federal” type of government. The old proportional arrangements of judges of High courts were abolished. The Indian law, which was previously guided by religious books and customs, gradually moved to secular legal systems and common law. The Federal Court was established in 1937 and it provided for advisory as well as appellate jurisdiction. The qualification of the judges was supposed to be at least five years’ experience as a High Court judge or ten years’ experience for pleaders of High Courts of a province^[11]. Sir Maurice Gwyer became the first Chief Justice of the federal court in India.

Laws after Independence

The Constitution drafted by the legal mind of B.R. Ambedkar became the guiding light in all matters of legislature and the executive. The nation witnessed its most prominent leaders i.e. Jawaharlal Nehru and Mahatma Gandhi, who were also exemplary lawyers. This bulkiest constitution majorly emphasized on social welfare and it sought to empower the weakest members of the society^[12]. The nation independently undertook a social justice paradigm and till date, it attempts to secure constitutional rights for every citizen.

One of the biggest challenges posed to the British government was to formulate a certain set of laws that entail the religious and cultural diversity of India. Apart from the aforementioned attempts, Law Commission reports were also responsible for changing the dynamics from religious laws to a more objective perspective. Rule of Law was also introduced during the British regime which restricted arbitrary exercise of powers. importance was laid on the independence of the judiciary and the separation of powers. Post-Independence, India has maintained the hierarchy of Courts as was provided under the British rule.

Separation of Powers

The theory of Doctrine of Separation of Power was first propounded in 1747 by a French scholar Montesquieu^[13]. He attempted to draw strict lines of difference between the powers of the Executive, the Legislature, and the Judiciary. He strongly believed that to avoid a tyrannical form of government, one organ shall not interfere with the other. According to Montesquieu, if the same body or magistrate runs the legislature and the executive, liberty is said to be compromised^[14]. He was of the opinion that a judge could replace the legislator since there were no strict boundaries, hence the judge was capable of exercising arbitrary control. Therefore, it was jeopardizing for one organ of the government to perform the functions of the other.

However, when we talk about the separation of powers, we mean functions. The demand for strict classification of powers can very much co-exist with minimal interference with the functions. These functions are based on specialization^[15]. Power is merely a means to an end. Where no separation of power exists, what is exercised is not an arbitrary juxtaposition of powers, but an organized interconnection only of their functions. The question that arises is, can the judiciary act as an independent organ where this interconnection of all organs dictates a democracy?

India has a Parliamentary form of government with a clear division of powers and is a federal state with functions divided in Centre and State. In the parliamentary system of the UK, the practice of separation of powers is given less prominence and there are clear overlaps. The legislature is taken care of by the Parliament. The Queen, although an executive head, is also an integral part of the legislature. The judiciary is independent, but the judges are subject to removal on an address by the parliamentary houses^[16]. The adjudicatory powers are being increasingly delegated to the executive, indicating that there is not any kind of separation of powers in England.

In the Presidential mode of judicial Independence, for e.g. in the United States, the doctrine of Separation of Powers forms the basis of the American Constitutional structure. Although, between these separate organs, an alternative system of checks and balances exists to prevent supremacy. The President has the power of Veto against the legislature. Similarly, the legislature has the power of impeachment. The judiciary, in turn, has the power to put checks on both in lieu of judicial review. This principle of the power of American Courts to strike down laws violative of the constitution, was laid down in the case of Marbury v. Madison^[17]. Although complete separation of powers is incorporated in the US constitution, the lines are often blurred out in practicality^[18].

In India, the separation of executive and judiciary is incorporated in the Directive Principles of State policy of the Indian Constitution^[19]. Such rights are mere guidelines to the state and cannot be enforced through the court of law, which means that this separation is not absolute in nature. Hence, the concept of rigid separation of powers was rejected by the Constituent Assembly of India and the British practice of separation of powers was adopted.

The Constitution does embrace the idea of separation of powers but in an implied manner. There are certain provisions that do provide the power of legislation, exclusively to the legislature. Similarly, Article 50 separates the judiciary from the executive. However, this separation is not absolute because of functional overlaps. The legislature is empowered with the power of removal of judges. It even has the power to amend a law that has been declared ultra vires by the court. The judiciary has the power of making laws in the guise of an ordinance. Some jurists believe that the judiciary is independent hence the separation of power exists, but in India, apart from functional overlapping, there is personnel overlapping as well^[20]. The executive can affect the functioning of the judiciary by their discretion of appointment of Chief justice and other judges. This list is not exhaustive.

“The Indian Constitution has not indeed recognized the doctrine of separation of powering its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can very well be said that our constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belong to another”.^[21]

In the famous Keshavnanda Bharti case^[22], it was held that any amendment tampering with the basic features of the constitution will be struck down as unconstitutional. This further confirmed relaxation in the doctrine of separation of powers.

The Ethics of Independence

The Judge’s role requires an entirely new lens of ethical analysis. It is one thing to know a role well and it is an entirely different thing to fulfill the role since it differs in varied practice settings. Judges must focus on integrity, impartiality, fairness, competence, and independence^[23]. In every setting, the judges are accountable for the public interest. The doctrine of stare decisis contributes to impartial decision making whereunder the judges are bound to follow the precedents. However, if we take the example of Arbitral proceedings, the parties are provided with the privilege to choose their own arbitrators. This is bound to create an inherent bias hence creating a friction between independence and accountability. Moreover, the precedents hold little value in Arbitration proceedings.

The question that now arises is, whether the independence of judges is restricted to exercising their powers without any interference of the executive and the legislature or does it exceed to mean that the judges should be able to decide on a dispute, uninfluenced by any other factor?

India has successfully removed a major arena of the outside influence – the jury trials. They were always a matter of heavy controversy. It was difficult to find literate citizens who understood the foreign legal system. As a result, the verdict was seldom impartial and was heavily influenced by what was portrayed in the media. The famous case of Nanavati^[24] led to the abolishment of jury trials in India where the accused was projected as an honest officer who tried to protect his wife’s honour. Such examples reflect the amount of discretion a third pillar beholds. This was a landmark case in deciding the scope of judicial independence.

As the judges’ authority over decision making increased, it became important to question whether every impartial judge can be said to exercise judicial independence? Independence can be seen as a subset of impartiality which is but a desirable attribute^[25]. The basic concept of every fair hearing is that each party is given a chance to be heard. It is the duty of the judge to keep his/her personal morals aside while deciding on the dispute with the assistance of constitutional provisions. A judge shall attempt to look beyond the monolithic construction of statutes and apply the golden rule of interpretation wherein he/she shall attempt to depart from the textual word of law^[26]. Mere impartiality does not account to independence of thought.

Judicial Independence in India

The concept of Independence of Judiciary, like the many other concepts, derived from England^[27]. The role of the judiciary is to deliver fair and neutral decisions in accordance with their oath of office and their own sense of justice, without submitting to any kind of influence. It has been well established above that the constitution of India does not exhibit separation of powers in an absolute sense. The prime work of the judicial branch is to protect the constitution. It has been held by the Supreme Court of India that “the constitutional scheme aims at securing an independent judiciary which is the bulwark of democracy^[28].”

This judicial independence is only applicable to the system of delivering justice. The executive has the power regarding the subject matter of the judiciary including salaries and privileges.

The objective of judicial independence is to maintain a fair democracy. The judiciary has been assigned to uphold the Rule of Law and safeguard the fundamental rights of our citizens. If there is an intrusion of the executive in the judiciary, civil liberty will be compromised as the executive head would be empowered with arbitrary powers. The approach to judicial independence of a State reflects the society’s urge to meet the ends equal justice among chronic unequal.

The starting point of tussle between the legislature and the judiciary was the insertion of Article 31B of the Constitution of India which put the laws under the Ninth schedule outside the purview of judicial review, despite them being in violation of fundamental rights. This was the first instance of curtailment of judicial power. The Article not only immunized the legislators but also acted retrospectively to confer those laws that were inconsistent with the fundamental rights.^[29]

It is not only the case that the legislature has stepped in against the judicial review but at various instances, the judiciary has also overstepped its boundaries. In the Madras Bar Association case, the judiciary struck down the National Tax tribunal Act, 2005 as unconstitutional since the excessive power given to the executive to decide the jurisdiction of benches, compromised judicial independence at many levels^[30] In the case of SR Bommai^[31], the apex court laid down guidelines for dismissal of a state government in lieu of conducting the test of majority.

Apart from the aforementioned situations the appointment of judges has heavily affected the extent of judicial independence. Articles 124 and 217 of the constitution deal with the appointment of Judges to the higher judiciary. These Articles specify that the judges would be appointed by the President of India after ‘consultation’ with the Chief Justice of India and other judges. There was a public controversy in April 1973, when the executive appointed the fourth senior most judge as the Chief Justice, instead of the senior most one^[32]. In the public debate that followed, the critics blamed the executive for undermining the judiciary whereas the supporters defended the action on the grounds of national need. A clear nexus was established between the appointment of the judges and their scope of independence.

In the Judges case^[33], it was held that the ultimate power to decide on the appointment of a judge of the High Court or the Supreme Court, rests with the Union government and not the CJI. It was further held that the word ‘consultation’ under Articles 124 and 217 of the constitution, did not mean concurrence^[34]. This decision was found unsatisfactory by the legal fraternity and majorly criticized in scholarly writings.

In the second Judges case,^[35] the previous case was reversed by creation of the collegium wherein the CJI was given the primary role in judicial appointments. Justice J.S. Verma claimed “Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary,” However, this led to years of confusion since the precise role of CJi was never defined.

Finally, in the third Judges case^[36], the Supreme Court gave a unanimous decision reaffirming the 1993 judgement and the Collegium system was expanded to include the four-most senior judges of the court after the CJI.

There was lack of transparency which ignited fears of nepotism and elevation of judges based on past favours and personal relationships. There was an evident rise in judicial activism wherein rulings were suspected to be based on political considerations, rather than the existing law. An instance of judicial activism can be seen in the case of Aruna Shanbaug vs Union of India. The Supreme court turned down the plea for euthanasia filed by a social activist who claimed to be Aruna’s friend. In its landmark judgement, the court did allow passive euthanasia, but it was subject to approval by the High court.

The biggest attempt to reform the Collegium system was the National Judicial Appointments Commission. The NJAC was passed by the parliament as the 99th Constitutional Amendment Act in 2014^[37]. It was a purely democratic commission since it awarded no organ of the state, including the judiciary, an absolute freedom for the appointment of judges. Attorney General Mukul Rohatgi emphasized on the fact that the judicial appointments shall not be free of checks and balances. However, ten months after it received presidential assent, the Supreme court struck down NJAC as unconstitutional. The apex court found it to be in violation of separation of powers and an infringement on judicial independence.

Conclusion

The idea of separation of powers in India, comes to light by deconstructing the failure of NJAC. There was a legislative body that brought forth amendments in the subject-matter of the judiciary. This amendment received the assent of the executive head of the State, i.e. the President. But ultimately, the apex court successfully exercised its judicial independence to strike down what dictates their branch. It can be deduced that the judiciary is the only organ that is able to assert its independence. But does it exercise this authority without fail?

Recently, Justice S. Murlidhar was transferred from the Delhi High Court to the Punjab and Haryana High Court after the President’s signature to that order. The timing of this transfer was extremely controversial since he had called out on the Delhi Police for not registering a case against the hate speeches of the BJP leaders^[38]. This transfer prima facie suggests executive influence on the judiciary.

The nomination of the former Chief Justice, Ranjan Gogoi, to the Rajya Sabha evoked great amount of criticism from the opposition who termed it as ‘quid pro quo.’ The fact that a former CJI has been nominated four months within his retirement, raises questions about the constitutional separation of powers between the executive and the judiciary. Various senior advocates resented this nomination and called it gross violation of principles of judiciary^[39]. The reason stated by Gogoi was that he would be able to put forth judicial ideas in the Council of States. However, several other ways have been exercised by the judiciary to put their views out in the public. For example, Justice TS Thakur got emotional in one of his public speeches while addressing the problems in the judiciary.

Anand Teltumbde, an advocate for India’s most disadvantaged communities, was recently arrested under the UAPA. The Supreme Court refused to grant him bail and this unfair treatment by our judiciary underscores the loss of independence by India’s institution.

I conclude that judicial independence in the current administrative state is indeed a myth since this discretion, as mentioned in the above cases, is not free of political bias and arbitrary intrusion.