Law and You > Constitutional Law > Independency of Judiciary Under Constitution
According to the doctrine of separation of powers, there are three main organs of the Government in State i.e., legislature, executive, and the judiciary. Legislature performs the function of legislation, the executive performs the function of execution and administration, while the judiciary performs the function of adjudication. According to the doctrine of separation of powers, these three powers and functions of the Government must, in a free democracy, always be kept separate and exercised by separate organs of the Government. Thus, the legislature cannot exercise executive or judicial power; the executive cannot exercise the legislative or judicial power of the Government. In this article we shall discuss the independency of judiciary.
The main elements of this theory are:
- There is a division of the agencies of government into three categories: the legislature, executive and the judiciary;
- There are three specific “functions” of the government. The functions must be separated if freedom is to be assured;
- The three branches of government shall be composed of quite separate and distinct groups of people, with no overlapping membership; and
- Each branch of government will act as a check on the exercise of arbitrary powers by the others.
In Re Delhi Laws Act AIR 1951 SC 332 case, the Court held that despite there being no express provision recognizing the doctrine of separation of powers in its absolute form, the Constitution does make the provisions for a reasonable separation of functions and powers between the three organs of Government.
Indira Gandhi v Raj Narayan, 1975 SCC (2) 159, the Court held that the separation of powers is an integral part of the basic features of the Indian Constitution. The executive power of central and a state government is vested in the president and the governor respectively.
Need of Independent Judiciary:
An independent judiciary is indispensable for upholding the rule of law, protecting individual rights, and safeguarding democracy. Here are several reasons highlighting the need for an independent judiciary:
- Checks and Balances: An independent judiciary serves as a vital check on the powers of the executive and legislative branches of government. It ensures that laws and actions by the government comply with the constitution and do not infringe upon the rights of citizens.
- Protection of Rights: An independent judiciary is essential for protecting the fundamental rights and liberties of individuals from encroachment by the state or other entities. Judges can impartially adjudicate disputes and ensure that individuals receive fair treatment under the law, regardless of their status or background.
- Fair and Impartial Justice: Judicial independence guarantees that judges can render decisions based solely on the merits of the case and the applicable law, free from political influence, pressure, or bias. This ensures fair and impartial justice for all parties involved in legal proceedings.
- Preservation of Democracy: An independent judiciary is a cornerstone of democratic governance. It helps prevent the concentration of power in any single branch of government and safeguards against authoritarianism, tyranny, and abuse of power. A judiciary free from undue influence is essential for maintaining democratic institutions and principles.
- Legal Certainty and Predictability: Judicial independence contributes to legal certainty and predictability by ensuring that court decisions are based on established legal principles and precedents rather than political expediency or arbitrary factors. This fosters stability, consistency, and trust in the legal system.
- Public Confidence and Trust: An independent judiciary enhances public confidence and trust in the legal system. When citizens believe that judges are impartial and free from external influence, they are more likely to respect court rulings, comply with the law, and have faith in the administration of justice.
- Promotion of Human Rights: An independent judiciary plays a crucial role in promoting and protecting human rights. Judges can adjudicate cases involving violations of human rights, hold perpetrators accountable, and provide remedies to victims, contributing to the advancement of human dignity and equality before the law.
- Economic Development and Investment: A transparent and independent judiciary is conducive to economic development and investment. It provides businesses and individuals with a reliable framework for resolving disputes, enforcing contracts, and protecting property rights, thereby fostering economic growth and prosperity.
Thus, an independent judiciary is indispensable for upholding the principles of justice, democracy, and the rule of law. It serves as a bulwark against abuse of power, ensures fairness and accountability in the legal system, and protects the rights and freedoms of individuals in society.
Constitutional Provision:
- The executive power of the Union and of the States is vested by the constitution in the President and Governor by Articles 53(1) and 154(1) respectively, there is no corresponding provision vesting legislative and judiciary provisions in any particular organ.
- Under Article 122, internal autonomy has been conferred on the House of Parliament. The validity of any proceedings in Parliament cannot be called in question on the ground of any alleged irregularity of procedure. A House has absolute jurisdiction over its own internal proceedings.
- Article 50 provides that the State shall take steps to separate the judiciary from the executive. One of the essential characteristics of the Federal Constitution is the independence of its judicial organ. The constitution of India being essentially federal contains certain provisions for securing an independent judiciary.
- Article 121 prohibits the discussion in the Parliament with respect to the conduct of any judges of the Supreme Court or a High Court is essential to protect the integrity of the judiciary so that it can function without being subjected to political pressures and criticism. Article 121 amounts to an absolute constitutional prohibition against any discussion in Parliament in respect of the judicial conduct of a judge of the Supreme Court or of a High Court.
- Articles 123, 213 and 357, provides that the powers of legislation shall be exercised exclusively by the legislature.
Role of Judiciary:
- The High Courts within a certain marginal sphere perform functions that are administrative in nature. Their power of supervision over subordinate courts as provided under Article 227 demonstrates a function that is administrative rather than judicial.
- Under Article 227, High courts have supervisory powers over all subordinate courts and tribunals and also the power to transfer cases.
- Under Arts. 145 & 225, the High Courts as well as the Supreme Court also have legislative powers by virtue of which they can frame rules regulating their own procedure for the conduct and disposal of cases.
In Asif Hameed v. State of J & K, AIR 1989 SC 1899case, the Court held that although the doctrine of separation of powers has not been recognized under the constitution in its absolute rigidity but the constitution-makers have meticulously defined the functions of various organs of the state. Legislative, Executive, and Judiciary have to function within their respective spheres demarcated under the constitution. No organ can usurp the functions assigned to another. Legislative and executive organs, the two facets of the people‘s will, have all the powers including that of finance. Judiciary has no power over the sword or the purse. Nonetheless, it has the power to ensure that the aforesaid two main organs of the state function within the constitutional limits. It is the sentinel of democracy.
Factors Contributing to Independency of Judiciary:
Mode of Appointment of Judges:
Articles 124 and 217 of the Constitution of India govern the appointment of judges. These articles state that the President of India appoints judges for the high court and Supreme Court after consulting the Chief Justice of India and other judges. This process evolved into a collegium system in India, where the Supreme Court’s four senior judges and the Chief Justice recommended judge decide on transfers and appointments. Three judges’ case developed this system in three stages. These three cases occurred between 1982 and 1998 and changed the process of appointing judges in India.
In S.P. Gupta v Union of India, AIR 1982 SCC149 case, where the court stated that the President of India can reject the Chief Justice’s recommendation for “Cogent Reason”. This decision shifted the balance of power in judicial appointments and transfers. In selecting or transferring judges, the president of India may choose not to consult the chief justice of India or other judges, creating an enormous power imbalance between the judiciary and the executive.
After 12 years, in 1993, in Advocates on record Association vs Union of India case. It is held that the Chief Justice of India to appoint judges in a “primal” role due to “justiciability” and “primacy”. That judge’s decision in S. P. Gupta v Union of India was reversed. Because appointing judges is a judicial family matter, the executive and judiciary cannot have equal powers and roles. This decision reversed the 1993 executive-judicial imbalance in judicial nominations.
In 1998, the Supreme Court ruled in Civil Advisory Jurisdiction. The Supreme Court was asked to interpret the term “consultation” as used in Articles 124, 217, and 222 of the Indian Constitution. However, did the CJI consult the judges or was it solely his? The Supreme Court of India established the collegium system in the third judge case. As a result of the Supreme Court’s 1998 ruling, a proper collegium system based on the 9 guidelines was established.
Long Tenure:
The Supreme Court and high court justices have been granted tenure security. In order to ensure that the judiciary is truly independent, judges must have a long term of service. If the judge’s term is too short, he or she will not be able to grasp all of the complexities of the law. Once appointed, they stay in their positions until they reach the retirement age, which is 65 years for judges of the Supreme Court (Article 124(2)) and 62 years for high court judges (Article 217(1)), respectively.
Security of Service:
For judicial independence, judges must be protected from dismissal by the executive branch and must be able to serve without fear of being removed at any time. It’s impossible for judges to rule against the executive (government) if they’re constantly afraid of losing their jobs.
Adequate Salary for the Judges:
There must be a sufficient amount of money for the judges to maintain a decent standard of living in order to make them truly independent. Judges’ salaries and allowances are set and not subject to a vote by the legislature, it is also a factor that contributes to the judges’ independence. Except in extreme financial emergencies, their pay structures can be changed, but they cannot be changed to their detriment (Article 125(2)).
High Qualification of the Judges:
To ensure the independence of the judiciary, it is essential that the judges have the ability to make correct decisions and freely express their opinions. As a result, judges who lack competence are swayed by arguments made by the lawyers and end up making erroneous decisions.
Separation of Judiciary from the Control of Executive:
According to Article 50, which is one of the Directive Principles of State Policy, the State must take action to keep the judiciary and executive branches distinct in its public services. Thus, there must be a separate, independent judiciary according to Article 50.
No Discussion on Conduct of Judge in Legislature:
According to Article 211, no debate over the behaviour of any Supreme Court or high court judge in the course of his duties shall take place in the state legislature. According to Article 121, no discussion of the behaviour of the Supreme Court or A high court judge in the performance of his duties may take place in Parliament until a resolution is presented by the President requesting the judge’s dismissal.
Penalty for Contempt:
According to Article 129, the Supreme Court is empowered to penalise for its contempt. Similarly, Article 215 stipulates that each high court should have the authority to impose punishment for contempt of itself
No Legal Practice After Retirement:
The Article 220 of the Indian Constitution states that “No person who has held office as a permanent Judge of a High Court shall plead or act in any court or before any authority in India except the Supreme Court and the other High Courts.” The judge should not be allowed to practice law after retirement.
Land Mark Case Laws:
The Rafale Deal Case:
Dassault Aviation, the French manufacturer of the Rafale fighter jet, announced a deal with the Indian government to purchase 36 of the aircraft in 2015. An offset clause of 50% meant that the French company was required to invest 50% of the contract value in India by purchasing Indian goods and services. The Reliance Group and the company announced a partnership for the following year. According to Dassault, the company intends to invest $115 million partially meet its offset obligations. As a result, the case ended up in the Supreme Court, where the plaintiffs argued that the deal was tainted.
Corruption charges were dismissed by the court due to the limited scope of judicial review available in defence cases. The government objected to the Court’s decision, claiming that it contained factual errors. The government presented the court with two reports, one from the Comptroller and Auditor General and the other from the Parliamentary Accounts Committee, both of which the court deemed to be “misinformation.” The Court ruled that the petitions should be examined on their merits, thus resolving the debate.
The Court held that the review petitions are without any merit and are accordingly the 3-judge bench of Ranjan Gogoi, CJ and Sanjay Kishan Kaul and KM Joseph, JJ dismissed, once again, re-emphasising that it’s original decision was based within the contours of Article 32 of the Constitution of India.
The Bhima Koregaon Case:
Several people were injured and a person was killed during celebrations for the bicentennial of the Battle of Bhima Koregaon in 2018. Activists were targeted by the police after they were accused of inciting violence with inflammatory speeches. Consequently, a petition for an investigation by the SIT (Special Investigation Team) was filed to investigate the Unlawful Activities Prevention Act charges against the detained activists. They claimed that the Mumbai Police were biased in their decision-making, which the plaintiffs countered.
The Supreme Court ruled in favour of dismissing the case with a two-to-one majority. In contrast to the Chief Justice of India, Justice Dipak Misra, and Justice Khanwilkar, who were both pleased with the Mumbai Police’s investigation, Justice D.Y. Chandrachud was not. As Justice Chandrachud argued, the arrests were politically driven.
Aadhar Act as a Money Bill Case:
In this case, the question was whether the Aadhar Act of 2016 was a money bill. A majority of the court agreed that it was a money bill. According to Section 7 of the Aadhaar Act, which states that Aadhar-based authentication can be used for benefits or services that are charged to the Consolidated Fund of India, the act is a money bill and can be used for such purposes. However, Article 110 of the Constitution stated that the money bill could only be used for services related to the Union Government’s spending and receiving of money. Consequently, the decision was criticized, with Justice Chandrachud, who dissented, calling it a fraud on the Indian Constitution.
The CBI-Alok Verma case:
Judgment was postponed in this case. Alok Verma, the director of the CBI, had been stripped of all his authority by the government. Under the Delhi Special Police Establishment Act, a high-ranking committee had to approve this. The Supreme Court scrutinized the CBI director’s corruption charges. The court later ordered Verma’s reinstatement as CBI director based on the selected committee’s penalties. Although Verma had only three weeks left on his contract, reinstatement was ordered. As a result, this sparked another round of criticism.
Is Independence of Judiciary at Stake?
The rafale case ruling, Bhima Koregaon case ruling, Adhar Act ruling were criticized on the grounds that they had political interests. However, there have been instances where the judges after retirement have enjoyed certain benefits. Former Chief Justice of India Ranjan Gogoi was made a member of the Rajya Sabha after stepping down from the post of CJI. Similar instances in the past have occurred. In 1991, Justice Ranganath Mishra stepped down as the CJI and was later made the Chairman of the National Human Rights Commission. Justice M. Hidayatullah was the Chief Justice of India who retired in 1970. He later became the Vice President of India. There have also been instances where the members of Parliament have become judges.
Conclusion:
In any society, disputes are bound to arise between individuals, between groups and between individuals or groups and government. All such disputes must be settled by an independent body in accordance with the principle of rule of law. This idea of rule of law implies that all individuals — rich and poor, men or women, forward or backward castes — are subjected to the same law. The principal role of the judiciary is to protect rule of law and ensure supremacy of law. It safeguards rights of the individual, settles disputes in accordance with the law and ensures that democracy does not give way to individual or group dictatorship. In order to be able to do all this, it is necessary that the judiciary is independent of any political pressures.