‘The place of Justice is a revered place, and therefore not only the Bench, but also the foot space and precincts and purpose thereof ought to be preserved without scandal and corruption’ – Francis Bacon
Judiciary is considered as an arm of revolution of our country with respect to the social and economic domain. Although, the Constitution of India establishes the foremost law of the land on the basis of which other laws are drawn up, but the judiciary is the most important branch of law in terms of bestowing the people with values such as justice, significance of political will, and ensuring social and economic welfare by providing equal opportunity to all.
Judicial Independence and Accountability
Judicial independence is the cornerstone and basic feature of our Constitution. The directive principle of State policy in part IV of the constitution mandates separation of powers of judiciary from the executive, as essential for its role as the real watchdog under the Law. The higher judiciary in India has effectively enforced the rule of law, upheld the balance between the Centre and States and has contributed significantly to the advancement of public governance in the past few years. All this has only been possible because of the strong, independent and learned judges working in our courts, of whom any nation can be justly proud of.
However, over the last twenty years, some weaknesses in the system have come to notice, as regards to which every citizen feels concerned. The credibility of the judiciary, which is considered as our last holy cow, is at the danger mark owing to the contradictions of corruption, nepotism and non-meritocracy prevailing in our system and unfortunately, in the process of combating against this contagion, the justice system itself stands infected.
In the same context, Dr. Rajendra Prasad at the concluding session of the Constituent Assembly administered caution by saying that, “Whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the country is administered. That will depend upon the men who administer it… a Constitution, like a machine, is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them (1)”
Areas of Concern
The Constitution gives the power to the President of India i.e., the Government of India to make the appointment of judges in consultation with the CJI and other judges of the Supreme Court and the High Courts. However, the collegium has restricted its field of choice to the senior-most judges from the High Court for the appointments to the Supreme Court, failing to notice the several talented and skilful judges in the High Courts or members of the bar. The criticism against the collegium system also include lack of transparency, lack of consultations with the Bar, unworthy favouritism, lack of admission of meritorious members to the Bar, no display of the list of potential candidates in the public domain non adherence of guidelines and procedure in the selection process. These loopholes shake the core concepts of credibility and threaten the independence of judiciary.
Over the past few years, the judiciary seems to have lost the initiative to stand up firmly and instead the political executive, in-charge of the Parliament as provided in our constitutional scheme, now appears to determine the contents of the impending legislations. The 2010 judicial challenge to the applicability of the RTI Act on the office of CJI and the Supreme Court stating that they are above the law applicable to all other public functionaries in our republican democracy is a glaring proof of a blow for transparency and accountability considered as key principles of law. The simple idea that only law alone and not morality binds the judiciary contradicts the judicial tradition and is disturbing to the core.
Role of the Bar
An independent judiciary also necessitates the need of an independent bar. general public can only show their trust and confidence in the justice system if there is a high degree of trust and confidence between the bench and the bar. Therefore, in order to build that trust the bar should be allowed to have a certain degree of openness in dialogue
Advocates like M.C.Setalvad, C.K.Daftary, S.V.Gupte and H.M.Seervai and to name a few were leaders of the Bar who did not hesitate to guide the Chief Justices when ever the requirement came up to protect and preserve the dignity, credibility and the independence of the judiciary. However, in the recent verdict given against Advocate Prashant Bhushan was not at all applauded in this context. It is very important to understand that the Bench as well as the Bar play a vital in such a situation.
Post-retirement Conduct of Judges
The post-retirement behaviour of the superior judges of the Supreme Court is also relevant area of concern in context of independence of judiciary. Even though, the Judicial system provides for the appointment of persons who have proven integrity as to guard the values highlighted in the constitution, there is still a need for constitutional safeguards to prevent them from possible influence of executive through allurement in subtle manners.
Some instances of post-retirement activity of judges of Supreme Court include the nomination of former CJI Ranjan Gogoi to the Rajya Sabha after less than 6 months of his retirement. Recalling his work in the last year of his tenure, he was involved in many important judgments including the Rafale Deal case, the Ayodhya case and the Assam NRC case, which were directly associated with the then-BJP led government and were even ruled in the way the government wanted. Thus, appointments like these attract disapproval and completely question the credibility of the judiciary and pose a threat to its independence and must be averted.
The members of the Judiciary are the administrators of justice and their duty is considered to be very pious. The judiciary’s role should not that of a spectator within the purview of the judicial process, it must act as an active participant and have a more of a goal-oriented approach based on the values of constitution. Thus, the judges must ensure bias free, impartial administration of justice to all its citizens.
Scope and suggestions
It Judiciary is an interpreter of the constitution and the protector of the fundamental rights. The idea of Independent Judiciary can be converted into reality only if it does not act as a puppet in the hands of the executive or legislature. It should have an identity of its own which is not coloured with the biases of others. Since it is an autonomous body it must exhibit strength and authority in its functioning. To ensure its independence the procedure of appointing judges must be transparent and not accompanied by any malpractices. The appointed judges must be well-learned, having the capacity to deliver impartial and reasonable judgements without any unnecessary delay. The judges should have security of service and should be provided with justifiable salary along with the perks which they truly deserve.
It is not wrong to say that, ‘if impartiality is the soul of the judiciary, then independence is its lifeblood’. Without independence, impartiality cannot thrive. It is the freedom of independent judicial thought, freedom from interference and influence from executive and legislature which provides an appropriate judicial atmosphere where the judges can exercise their powers fearlessly with pure commitment. The existence of judiciary more or less depends on philosophical, ethical, moral aspects thus its Independence is of utmost importance and hence even a part of its basic structure. Therefore, the independence of the judiciary is the greatest need of the hour in order to also restore the public’s faith in the justice system.