The concept of judicial independence is not defined in an exact way and often varies from jurisdiction to jurisdiction. This does not detract from its status as a cornerstone of the rule of law. It also does not mean that there are no core features of judicial independence upon which there is universal agreement. Vital to the concept of judicial independence is the idea that courts should not be subject to improper influence from the other branches of government, or from private or partisan interests. Judicial independence is therefore conceived and understood in relation to other institutional actors.
Qualified and independent judges are essential for the legitimacy of the judicial system and the administration of justice. Courts can only contribute to the ‘rule of law’ if the courts are legitimately composed and judges are independent.
Judicial independence can be defined as the ability of individual judges and the judiciary as a whole to perform their duties free of influence or control by other actors. Judicial independence is as old as constitutionalism itself. Formal guarantees 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 larger shift of power from the King toward Parliament and the courts.
The Constitution of India, unlike the USA, does not follow the doctrine of Separation of Powers, but it has been reiterated in many cases that the independence of the judiciary is a basic part of the constitution. For the judiciary to be independent and impartial to serve the constitutional goals, the Judges need to act fairly, reasonably, free of any fear and favor. The judiciary stands between the citizen and the State as a rampart against misuse or abuse of power by the executive. Therefore, it is absolutely essential for the judiciary to be free from executive pressure or influence that has been provided in various provisions of the Constitution.
The independence is not limited only from executive pressure or influence, but also from any other pressure and prejudices. It has many dimensions, fearlessness of other power centers, economic or political. Impartiality, independence, fairness and reasonableness in decision-making are the hallmarks of the judiciary. If “impartiality” is the soul of the judiciary, “independence” is its lifeblood. Without independence, impartiality cannot thrive. It is the independence of judicial thought. It is the freedom from interference and pressures which provides the judicial atmosphere where a judge can work with absolute commitment to the cause of justice and constitutional values. Its existence depends, however, not only on philosophical, ethical or moral aspects but also upon several mundane things namely security in tenure, freedom from ordinary monetary worries, freedom from influences and pressures within (from others in the judiciary) and without (from the executive). Independence of the judiciary is a part of its basic structure. The constitutional ethos of an independent judiciary cannot be permitted to be diluted by acts of implied intervention or undue interference by the executive in the impartial administration of justice, directly or indirectly.
Sincere efforts have been made to secure the independence of judiciary through the following methods:
The Supreme Court and High Courts are given authority to recruit their staff and frame rules. The salaries and allowances of the judges are not put to the vote of the Legislatures. The administrative expenses including salary allowances and pensions of the Supreme Court and High Court judges are charged to the consolidated fund of India and the states respectively. The judges of the Supreme Court are debarred from pleading after retirement before any Court or judicial authority in India. The conduct of the judges of Supreme Court and High Courts in discharge of their duties shall not be discussed in legislature.
Politics in the appointment of judges has been avoided by prescribing high minimum qualifications for such assignments in the Constitution itself. An aspirant for such an important office must have been a judge of a High Court, at least for five years or must an advocate of a High Court be at least for ten years, or be a distinguished jurist.
Every judge is paid a high salary to maintain his status and dignity. As per Act of 1986, the Chief Justice was to draw Rs. 10,000 p.m. and the other judges were paid Rs. 9,000 p.m. However in the recent past, the salaries of Judges of the Supreme Court were raised to Rs. 30,000 p.m. and that of Chief Justice Rs. 33,000 p.m.
Their salaries have been further hiked in view of such hikes of other top officers of the Government as per 6th Pay Commission report and cabinets’ generosity to hike the salaries of the top executives viz., President, Vice- President and Governor etc. as well. Three-fold hike in case of judges (Rs. 90,000) and 1, 00,000 p.m. in case of Chief Justice. In addition, they enjoy free residential accommodation and many other perks.
During their term of office, their salaries and allowances cannot be altered to their disadvantage, except in grave financial emergency. The administrative expenses of the Court are charged on the Consolidated Fund. Evidently, their salaries and allowances compare favorably with those of judges in other courts of the world.
The Judges of the Supreme Court enjoy security of tenure. They are not removable from office except by an order of the President and that also only on the ground of proved misbehavior or incapacity, supported by a resolution adopted by a majority of total membership of each House and also by a majority of not less than 2/3 of the members of that House present and voting.
Although the Constitution does not provide for life tenure, the existing provision of 65 years, in effect amounts to nearly the same. A retiring age of 65 is, by Indian standard, very high, considering the average span of life in India and also the average fitness of persons for work in old age. Moreover, a retired judge according to Article 128 may be reappointed a judge by the Chief Justice of India, with the consent of the President.
A retired judge of the Court is prohibited from practicing law before any Court of authority within the territory of India. The Constitution, however, permits the appointment of a retired judge for a specialized form of work by the Government, for instance for conducting inquiries and special investigations.
The Supreme Court is equipped with full powers to make rules for regulating its practice and procedure and to take effective steps for the enforcement of its decrees and orders.
Indian judiciary is considered as one of the most independent and impartial all over the world. However, there have been issues with the independence of Indian judiciary in recent times:
The Chief Justice of Supreme Court is appointed by the President with consultation of such of the judges of the Supreme Court and High Courts as he deems necessary for the purpose. But in appointing other judges, the President always consults the Chief Justice of India. He may consult such other judges of the Supreme Court and High Courts as he may deem necessary. But practically the power of President to appoint judges is purely formal because in this matter he acts on the aid and advice of Council of Ministers. So there is the apprehension that Ministers may bring politics in the appointment of judges.
The practice up to 1973 was to appoint the senior-most judge of the Supreme Court as the Chief Justice of India. But on April 25, 1973, this 22 years practice was suddenly bidden goodbye by the Government within few hours of the delivery of the judgment in the Fundamental Rights case. Justice A.N. Ray was appointed as Chief Justice of India superseding three of his senior colleagues, justices, Shetal, Hegde and Grover who later on resigned from the Supreme Court.
The transfer of judges of the higher judiciary also affects the independence and functioning of the judiciary. The Constitution provides for the transfer of a judge from one High Court to another High Court. But there is no effective safeguard against the abuse of this power by the Government.
The superior judiciary must be free from executive influence and pressure. The transfer of the judges on rumors and suspicion violates elementary principles of Natural justice. The alternative is to hold an inquiry into the conduct of a judge for transfer. But there is no provision in our Constitution for such an enquiry. The fear of transfer causes in many cases a good deal of harassment to the judge concerned. It affects the social, family life and education of the children of the judge. Therefore, a judge in order to be able to discharge his social, family and official duties has to understand the psychology, the sociology and the climate of State in which he functions. In many cases these transfers are made on disciplinary grounds and considered as punishment. There are a certain example which shows the influence of executive on the judiciary in the matters of appointments, transfers and promotions etc.
The salary and allowances of the Judges of Supreme Court and High Court are secured in our Constitution. But there is no time schedule for revision of their salary and allowances. It affects the economic condition of judges in the developing society. A permanent judge of Bombay High Court resigned his office in July, 1966, stating publically that having regard to the rising cost of living, it was no longer possible for a judge to maintain his position and status of the salary fixed sixteen years earlier, and that a judge could not honestly discharge his duties with a feeling all the time of being treated unfairly by the State. Recently the Government revised the salary and other benefits of judges after 37 years.
The judicial independence seems to have suffered erosion due to the practice which has been developed by the Government of employing judges in various capacities after retirement. The talent of retired judges may be used for discharging judicial functions and improvement of judicial system in public good. It is shameful and undesirable, if the Supreme Court judge has to look forward to government employment after retirement. If a judge wishes to have Government job or any government appointment after his retirement, then a normal citizen and litigant may well get the impression that judge is not fully detached in a case where the government is a party. The Law Commission has expressed that this practice has a tendency to affect the independence of the judges and should be discontinued
Justice Ranjan Gogoi is not the first Chief justice to accept post retirement benefits from the government.
Over the years, the Law Commission of India’s reports have recommended several reforms. In addition to these, there were reports by Justice GC Rankin (1925), Justice SR Das (1949), and Justice VS Malimath (2003). Civil society organisations have also released reports on the different facets of the justice delivery system. Despite the plethora of such documents, the inefficient justice delivery system has only become more inefficient.
The Constitution of India provides justice for all. Members of the Judiciary are the administrators of justice. The judges strive to ensure free and impartial administration of justice in order to provide its citizens fairness in application of law. The duty of judges is considered to be very pious, therefore the constitution has provided for independence of judiciary so that they can remain impartial to serve the constitutional goals, act fairly, reasonably, free of any fear or favor. The problem starts when the other organs, i.e. the legislature and the executive start to interfere with them. The external interference not only erodes the piousness of the profession but curtails individuals of their rights. In the recent past it has been seen that retired judges takes public office within a very short span of time after their retirement. Amazingly, it was found that they were involved in many decisions important to the government in their tenure and more surprisingly they ruled in favor of the government. These early-retirement appointments are a real issue to worry about. The decision of the court of hearing a useless political petition urgently and refusing to consider an urgent petition, involving real problems of needy people is not understandable.
Verifying, please be patient.