This article is written by Aditya Narayan Tripathy.
Table of Contents
Abstract
Independence of the judiciary has become one of the core requirements for every democracy in order to uphold the basic tenets of rule of law. For this very purpose, it becomes of utmost importance, that there is an impartial judiciary without any interference from other pillars of democracy i.e. the executive and the legislative. The present paper discusses judicial independence in the context of rule of law. Further, an outline has been drawn with regard to the independence of the judiciary and the rule of law under the Indian scenario. Under this, the paper discusses the appointment and removal of judges in India, the three judges’ cases, the Bangalore declaration and a small brief on the much-criticised NJAC Act, 2014. The paper ends with a small conclusion along with a few suggestions which can be considered to ensure an independent and impartial judiciary to ensure the rule of law.
Introduction
Rule of Law has been the base of every democracy and in order to ensure that the rule of law exists, there should be an independent judiciary. The term ‘Rule of Law’ in simple words means that there should be the supremacy of law. This means that where the rule of law exists, no one should be considered to be above the law; even the duties and acts of the state’s executive organ must be governed by the law. Thus, A free society and constitutional democracy need an independent judiciary. It ensures the rule of law and the realisation of human rights, as well as a society’s prosperity and stability.
The independence of the judiciary is a contentious issue in the present era. With the increase of government abuse of power, the judiciary has become the last resort for victims of abuse of the law. The separation of powers between the executive and the legislature is essential to the rule of law. Although the concept of an independent judiciary can be traced back to medieval England, the independence of the judiciary is a gift to us from the Indian Constitution, which has been engrafted in the Constitution. It is clear that the judges are protected by the Constitution from unwarranted criticism by the legislature, except in the case of a motion to remove them from office.
The judiciary is considered as the custodian of the rule of law and due to this, it becomes of utmost importance that this fragile pillar of democracy is protected from any interference. The independence of the judiciary has been declared as the basic structure of the Constitution in India and thus has been given wide powers for its smooth functioning. In every democratic nation across the world, an independent judiciary comprised of judges with competence and a commitment to the Rule of law is the strongest guarantee of judicial independence. Thus, it becomes of utmost importance to understand the concept of judicial independence as laid down under the Indian Constitution.
Independence of Judiciary and Rule of Law
The theory of division of powers appears to be the judicial independence’s starting point and focal point. As a result, it specifically refers to the judiciary’s separation from the executive and legislative branches. But what is a division of powers? Montesquieu, a leading French philosopher, saw despotism as a constant threat to any government that was not already despotic and argued that it could best be avoided by a structure in which various bodies exercised legislative, administrative, and judicial authority, all bound by the rule of law. This is known as the separation of powers principle.
One of the best methods used by the judiciary to uphold the rule of law is through the method of judicial review. Judicial review is the power of the courts to examine the constitutionality of the laws passed by the legislature and also the executive orders of the government. The judiciary by using this power keeps a check over legislative and the executive organs. The origin of the concept of judicial review can be traced to the case of Marbury v. Madison, in which Chief Justice Marshall laid down that judiciary has the power to examine the laws made by the legislature. However, many scholars, have criticised this concept due to various reasons such as judicial tyranny, over reliance on judges, of being undemocratic and has been termed as an obstacle to healthy democracy.
Rule of Law and Judicial Independence: Indian Scenario
Dicey’s rule of law has been adopted under the Indian Constitution. The theory of rule of law is explicitly stated in the preamble of our Constitution. Planning and welfare systems are often defined as effectively attacking the rule of law because they influence human liberties and liberty in a variety of ways.
Indian Constitution apart from separating powers between the centre and the State, has also ensured separation of powers between the legislative, executive and judiciary. The independence of judiciary was ensured so that the judiciary acts as a check and balance among the three organs of the government. Although the polity is dual under the Constitution, the judiciary is unified and can interpret and adjudicate both the central and state laws. The composition of the judiciary in the country is of a pyramidal nature. Constitution of India despite considering the judiciary as an independent body, does not explicitly mentions it apart from Article 50 wherein it has been mentioned that the judiciary should be separated from the executive. However, the Constitution has clearly laid down the provisions with regard to the appointment of judges in India.
Appointment of Judges in India
To ensure complete independence, all the matters regarding, transfer, appointment, discipline, etc., with regard to the subordinate judiciary has been placed with respective High Courts under whose territorial region they fall. The executive has been given a limited role in issuing only formal orders. With regard to the appointment of judges to the higher judiciary, the power of appointment has been vested with the President with the condition of prior consultation with the judiciary.
Appointment of Judges of Supreme Court
Article 124 of the Constitution, says regarding the establishment of Supreme Court, consisting of Chief Justice and other judges. The number of judges in the Supreme Court has been increasing from time to time in order to cope with the rising pendency of the cases. The Article further lays down the rule for the appointment of a judge to the Supreme Court. The rule states that a Supreme Court judge must be appointed by the President by a warrant signed by him. The President will nominate Supreme Court judges after consulting with the Supreme Court’s senior-most judges and, if necessary, the State’s High Courts. According to the interpretation of these rules by the court, the process of nominating a judge is initiated by the chief justice through a collegium consisting of himself and four of the senior-most judges of the Court. The Constitution has not laid down any specific rule with regard to the appointment of the Chief Justice of India. Over the years, the Court has developed a system that the senior-most puisne judge would become the Chief Justice whenever the vacancy arose.
The Constitution of India has also laid down the provisions for appointing Acting Chief Justice and ad hoc Judges to the Supreme Court. Article 126 lays down the provision for the appointment of Acting Chief Justice from the other puisne judges of the Court when the office of the Chief Justice is vacant by reason of absence or when the Chief Justice is unable to perform the duties of his office. Article 127 of the Constitution has laid down provisions for the appointment of ad-hoc judges to the Supreme Court. The drafters of the Constitution felt that it would be inappropriate to appoint a temporary judge to the Apex Court. Accordingly, the provision of appointing ad-hoc judges was introduced.
Appointment of Judges of High Court
With regard to the appointment of judges of High Court, the Constitution has specified a similar procedure as that to of appointment of judges of Supreme Court. Under Article 217, a judge of the High Court would be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, Governor of the State and the Chief Justice of the State in case of appointments of a judge other than the Chief Justice. Chief Justice of High Courts is usually appointed through transfers from different states. In addition to this, Articles 223, 224 and 224A have also been inserted in the Constitution for laying down guidelines with regard to appointment of acting Chief Justice, additional and acting justices and appointing of retire judges at the sittings of the High Court.
Under Article 223 if the office of the Chief Justice is vacant by reason of absence or when the Chief Justice is unable to perform the duties of his office, the President can appoint any other judge of the Court to act as the Chief Justice. In order to tackle if any temporary increase in the business of High Court, or a judge is performing the duty of Chief Justice, the President can appoint duly qualified persons as additional or acting judges under Article 224. However, the concept of additional judges has become a permanent feature because most of the permanent vacancies of judges are filled by additional judges. Under Article 224A, the Chief Justice of the High Court, with the consent of the President request a retired judge of that Court or any other High Court, to sit and act as a judge of the High Court for that State and would be entitled to allowances as decided by the President.
Removal of Judges in India
A Supreme Court or High Court judge can resign his or her position by writing to the President under his or her hand, but he or she can only be removed from office by an order of the President issued after an address by each House of Parliament in a specified manner. Article 124(4) of the Indian Constitution, read with proviso (b) to Article 124(2)(a) and proviso (b) to Article 217(1) for ‘proved misbehaviour or incapacity.
The procedure for the investigation and proof of the misbehaviour or incapacity of a Judge and for the presentation of an address to the President has been prescribed by the Judges (Inquiry) Act, 1968. Under the procedure laid down by the Act, a notice of a motion for presenting an address to the President for the removal of a Judge, if given in Lok Sabha, is to be signed by not less than one hundred members of the House and if given in Rajya Sabha, by not less than fifty members of that House. The Speaker or the Chairman, as the case may be, after due consideration and consultation, may admit or refuse to admit the motion.
On admitting of motion, a committee will be constituted having powers equal to that of a civil court. The committee will look into the allegations and charges against the judge. After completing of investigation, the report would be put before the speaker or the chairman as the case may be. The motion pending in the respective House or Houses, as the case may be, will not be heard if the Committee absolved the Judge of any misbehaviour or incapacity. If the Committee’s report finds that the Judge has committed some wrongdoing or is incompetent, the motion, along with the Committee’s report, will be brought before the House for consideration. The misbehaviour or incapacity of the Judge will be considered to have been shown if the motion is adopted in compliance with constitutional provisions, and an address praying for the Judge’s dismissal will be delivered in the specified manner by each House of Parliament in the same session in which the motion is adopted.
The Judges’ Cases
The Three Judges Cases were landmark decisions that sought to resolve the question of judicial appointment and ensure the independence of the judiciary. The Constitutional process calls for the President to nominate judges “in consultation” with the Chief Justice of India. However, the phrase “in consultation” is a bit of a misnomer.
The first case with regard to appointment of the judges came before the Supreme Court in S.P. Gupta v. Union of India The Case dealt with question of judicial appointment and transfer. In this case, Justice Venkataramiah stated that if in case, the President rejects a particular name or in case there is conflict of opinion, in such situations, the President has to consult all the authorities engaged in the appointment of judges, but is not bound by their consultation. Justice Bhagwati, further added that the opinion of the CJI won’t be given primacy in situations of conflicting opinions as such primacy would amount to rivalry. Adding to this, Justice Desai opined that all the concerned authorities engaged in the appointment of judges should put forth all the material during consultation.
However, Justice Desai clarified that the President will have the right to differ from the other constitutional functionaries i.e. Chief Justice of India, Chief Justice of the concerned High Court and the Governor of the State, for cogent reasons and take a contrary view. It was argued before the Bench only in this case that the Executive should have no say in the selection of judges. Explaining the extent of judicial independence, Justice Venkataramiah said that the true concept of judicial independence is when the executive, after appointing judges, does not interfere with the former’s function. the collegium system of appointing judges was first suggested in this case as it was felt that would help in maintaining the true spirit of independence of judiciary.
The Court, again met with the issue of appointment of judges in the second judge’s case in 1993. In Supreme Court Advocates-on Record Association v. Union of India, the court while hearing a petition with regard to vacancy of judges, the First Judges Case was referred again to a nine-judge Bench. The Court while hearing this case partly overruled judgment of First Judges’ case. While delivering the judgement, the court ruled out that during conflict of opinions the Chief Justice of India’s opinion would be dominant and also decisive. The collegium system for appointment of judges, comprising of Chief Justice and two more senior most judges of the Supreme Court or the High Court as the case may be, was also introduced through this case. The Supreme Court further stated that the President may move a High Court judge under Article 222 in the “public interest” in consultation with the CJI, and the approval of the judge in question was not a precondition.
In re Special Reference 1 of 1998, also known as the Third Judges’ Case, the Supreme Court’s nine-judge bench clarified the definition of consultation and extended the collegium to include the Chief Justice of India and four senior most judges after the Chief Justice of India. The Court went on to say that the Chief Justice’s particular opinion was insufficient to be called a consultation.
Bangalore Declaration
The Judicial Group on Strengthening Judicial Integrity approved the Bangalore Draft Code of Judicial Conduct in 2001, and it was revised at the Round Table Meeting of Chief Justices held on November 25-26, 2002, at the Peace Palace in The Hague. The Code often known as Bangalore Declaration focussed on various principles such as independence of judge, impartiality, integrity, propriety, equality, competence and diligence of the judges. The Bangalore Principles of Judicial Conduct are increasingly being agreed by various areas of the worldwide judiciary as well as international organisations concerned with judicial integrity. These principles reflect the highest traditions in judicial function as envisioned in all societies and legal systems. It has been difficult to reach consensus on these core principles, but the Judicial Integrity Group’s unwavering commitment to reaching a result that will be universally accepted has enabled it to overcome the obstacles that have arisen.
National Judicial Appointment Commission (NJAC)
The NDA government in the year 2014, proposed to set up the National Judicial Appointments Commission comprising of CJI, two senior judges, the Law Minister and “two eminent personalities” appointed by the Prime Minister and Leader of Opposition with enactment of the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014. However, due to the fear of encroachment upon judicial independence, the Supreme Court, in a case filed by the Advocates-on-Record Association struck down the NJAC Act and Constitution (Ninety-ninth Amendment) Act, 2014 as unconstitutional as these Acts infringes on the independence of Judiciary and violates separation of power.
Conclusion and Suggestions
A free society and constitutional government need an impartial judiciary. It guarantees the rule of law and the realisation of human rights, as well as a society’s prosperity and peace. The makers of Indian Constitution believed that such a society could be created through the guarantee of fundamental rights and an independent judiciary to guard and enforce those rights. They had given the judiciary a leading role in realising the vision, which it had to fulfil individually and without interference from the other two branches of government. The judiciary’s independence is sought to be preserved not just for its own sake, but also to ensure the constitution’s smooth operation and the achievement of its objective of a free, just, and democratic society.
A.V. Dicey who gave a constructive definition of rule of law and the same has been adopted in the Indian Constitution. In India, the Supreme Court has been entrusted with the duty to be the sole authority to interpret and guard the Constitution and being the guardian of the Constitution, it makes it mandatory for the Supreme to act as an independent and impartial body. Despite the constitutional provisions, some gap still exists in order to ensure complete independence of judiciary. Accordingly, few steps need to be taken to ensure complete independent judiciary. The first is that, there should be complete separation of executive from judiciary with a Security of service i.e. a complex procedure for removal. Secondly, there should be an impartial and unbiased appointment of judges based on merit and calibre.
In India, there is a dire need to check the process of appointing judges, which is done through the much-criticised collegium system which is done behind the doors without any information being shared outside which results in biasness. So, there should be some third party to re-consider the name suggested. Thirdly, there should be impartiality and freedom from irrelevant pressures must be ensured to the judges in all aspects of adjudication and also independent from directives, guidelines, or any kind of pressures from fellow judges. Fourthly, higher Social Status with Adequate emoluments should be given to judges. And lastly, adequate post retirement benefits should be given to judges so as to ensure impartiality during their sitting period. In the end, words of Caroline Kennedy are worth mentioning. She says, ‘The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.’
References
- https://shodhganga.inflibnet.ac.in/bitstream/10603/124062/10/10_chapter%203.pdf
- http://sri.nic.in/sites/default/files/Constitutional%20Provisions%20relating%20to%20appointment%20and%20transfer%20of%20Judges%20of%20the%20higher%20judicary.pdf
- Dewan, Nakul. “Revisiting the Appointment of Judges: Will The Executive Initiate A Change?” Journal of the Indian Law Institute 47, no. 2 (2005): 199-223. http://www.jstor.org/stable/43951965.
- Constitution of India, 1950
- V. N. Shukla, ‘Constitution of India’, Eastern Book Company, 13th Edition (2017)
- https://www.unodc.org/documents/nigeria/publications/Otherpublications/Commentry_on_the_Bangalore_principles_of_Judicial_Conduct.pdf
- Jaising, Indira. “National Judicial Appointments Commission: A Critique.” Economic and Political Weekly 49, no. 35 (2014): 16-19. http://www.jstor.org/stable/24480485.
- Chandrachud, Abhinav. “The Insulation of India’s Constitutional Judiciary.” Economic and Political Weekly 45, no. 13 (2010): 38-42. http://www.jstor.org/stable/25664275.
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