Judicial independence is ultimately in the hands of judges

A judge of the Supreme Court or a High Court can only be removed through a motion passed by the special majority of the Parliament that is preceded by an equally long and complex process.

Former Chief Justice (CJI) of India DY Chandrachud, who retired recently, faced criticism on several counts. The bottom line of all these criticisms was whether judicial independence was being compromised.

Responding to some of these criticisms, Chandrachud said recently in an interview said that independence of the judiciary does not mean that judgments must be delivered always against the government.

The rule of law is undisputedly one of the most fundamental requirements of the democratic state. And, one ingredient that is essential for enforcing the rule of law is an independent judiciary.

Ensuring the independence of the judiciary was one of the foremost concerns of the makers of the Indian Constitution. In this context, it is important to note that the process of appointment of judges was so important for the Constituent Assembly members that the maximum number of amendments proposed were related to the article dealing with the appointment of judges.

Article 103 of the draft Constitution stated that judges of the Supreme Court shall be appointed by the President after consultation with such of the judges of the Supreme Court and the High Courts in the States as may be necessary for the purpose. The requirement of ‘consultation’ also became a matter of intense debate as the majority of members wanted the consultation to be binding and wanted the consultation to mean concurrence.

However, the Constituent Assembly did not want to create what one of its members TT Krishnamachari called an  "Imperium in Imperio”--an institution completely independent of the executive and the legislature and operating as a sort of superior body to the general body politic.

Dr BR Ambedkar was also against granting unfettered supremacy to the judiciary. The Constituent Assembly gave primacy to the executive as the consultation with the Chief Justice was not to be treated as concurrence.

The Supreme Court in the ‘First Judges Case’ approved this primacy given to the executive.  However, it was the ‘Second Judges’ case that institutionalized the Collegium system and established the primacy of the judiciary in judicial appointments. Since then, the judiciary has had the final word in the appointment process with little scope for executive indiscretion.

Out of several institutional requirements that are considered mandatory for the independence of the judiciary the most important are the appointment process of the judges, security of tenure and salaries and emoluments of the judges.

Security of tenure for the judges is ensured by putting in place an extremely difficult process of removal of judges which is very similar to the impeachment process of the head of the state. A judge of the Supreme Court or a High Court can only be removed through a motion passed by the special majority of the Parliament that is preceded by an equally long and complex process.

The salaries, allowances, privileges, leave and pension of the judges of the Supreme Court are determined from time to time by the Parliament but cannot be varied to their disadvantage after their appointment except during a financial emergency.

However, apart from the pressures from the executive, judicial independence is also marred by various other factors. As highlighted by Justice Chandrachud in a recent media interaction, in present times there are several "pressure groups” that tend to influence judges and judgments of the courts thus undermining judicial independence. “Traditionally, judicial independence was defined as independence from the executive. Independence from the judiciary even now means independence from the government. But that is not the only thing in terms of judicial independence. Our society has changed. Particularly with the advent of social media, you see the group of interest groups, pressure groups, and groups which are trying to use electronic media to put pressure on the Courts to arrive at certain outcomes”, remarked Justice Chandrachud, speaking at a discussion hosted by The Indian Express early this month.

Recently Justice BV Nagarathna, Judge, Supreme Court of India made an important point regarding the independence of the judiciary. Delivering a lecture,  she said, “Ultimately, the extent of independence of the judiciary relates back to independence, impartiality and integrity of the men and women holding judicial office. It is, therefore, all important that meritorious judges are appointed, who have the pulse of the Indian society and the Country in their hearts and the rule of law in their mind, while seeking to render justice. It is the personality of the judges that will determine in the truest sense, the extent of judicial independence and autonomy.”

It is a fact that the biggest threat to judicial independence always comes from the political executive and government. So, insulating judges from political influence is mandatory for an independent judiciary. However, at the same time, extraneous influence that undermines judicial independence is not always external. The personal basis, prejudices and ideological leaning of judicial officers apart from post-retirement considerations also have a considerable bearing on the extent of judicial independence. While there is no foolproof mechanism to check the personal biases, prejudices and ideological leanings of the judges, the post-retirement consideration is one aspect that needs serious thinking.

While there are multiple institutional safeguards to check any extraneous pressures adversely impacting judicial independence, whether to succumb to them or not is the ultimate call of those holding that high office.