The word ‘Independent’ has been variously defined and understood across different societies and cultures, however in legal systems the word means and implies ‘not dependent on’, or ‘not controlled by’, any outside agency or source.
Independence could be said to be the very soul of a functional Judiciary.Whatever be the political system of governance, people across Nations aspire for a Free and Independent Judicial system to serve them. In fact, such aspirations are common to, and bind different judicial systems across the comity of nations. If a Judicial System fails to enjoy public confidence, its deliverables would never constitute ‘justice’ — conversely, if the deliverables of a judicial system are not known to be impartial, just, equitable and appealing to good conscience, such system would never earn public confidence and high esteem in the minds and hearts of the common citizens.
Every Judicial System is required to functionally wield what may be referred to as the ‘power to judge’ or the ‘power to finally decide’ — what is `judged’ or `finally decided’ is human conduct or decisions or a state of things.
It is natural that such `power’ would come to be exercised when any such decisions, conduct or state of things, different and divergent from the accepted ones, is questioned, challenged and even sought to be brought in line with the accepted one. It is such `function’ & `decision’ of the Judge that must be`independent’ of any extraneous consideration or of any fear or prejudice of the Judge himself.
Independence of judiciary as an institution is different from independence of judges as the fountainheads of justice. I must hasten to add here that despite such institutional independence being different, in its ambit and requirements, from individual independence of judges, we must recognise that both are mutually interdependent and both are vital for any Judicial system to be known as strong and responsive. Proponents who call for a strong and independent judiciary would assert that in the absence of institutional independence of
judiciary, independent functioning of Judges cannot be assured and similarly, without strong and independent Judges, the `institutional independence’ of the `Judiciary’ would be a misnomer and futile.
A lot has been written and talked about measures which if properly implemented, go on to secure the independence of Judges as well as the Judiciary, as an Institution. Non-political appointments, security of tenure and rigorous procedure for removal, securing the reputation of and remuneration and immunities for the Judges, in-house accountability procedures, and implementation of code of judges’ conduct are some of such measures.
The United Nations General Assembly Resolutions Nos. 40/32 of 29 November 1985 and 40/146 of 13 December 1985 duly endorsed the Basic Principles on the Independence of the Judiciary, that were adopted at Seventh United Nations Congress on Prevention of Crime and Treatment of Offenders held at Milan in 1985. The Basic Principles too speak of the aforesaid measures, and for the sake of brevity, I would like to highlight the First Principle on the Independence of Judiciary before this august audience. It states and I quote,
“The independence of the Judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of judiciary. “
Having spoken about the different facets that constitute and facilitate the independence of judges and the judicial institution, I would like to invite members of this august audience to ponder over ways and means to strengthen the independence of judiciary. Strengthening of Institutions works best when they are strengthened from within and not when strength is sought to be infused from an external source. Strength that evolves from inside, touches the character and core or the Institution; in contrast, an external source could only lend ‘support’ to the Institution. Such external support would rarely strengthen the core of the Institution. That apart, independence of judiciary is not a one-time pill it is a ‘state of affairs’ that has to remain constant, in the face of continuous and recurrent waves of onslaught aimed at disturbing such ‘state’. It is also an aspiration that the stakeholders and leaders of the judicial organ must constantly seek out and defend.
In this context, we must remind ourselves that functionally, the judicial organ does not and can never win over friends — because Judiciary is not meant to be in the business of making or breaking of relationships/bonds/alliances/ nor does Judiciary pander to any constituency. Every Court of Law may seem like an island, existing in isolation and sovereign within its bounds, yet Judiciary and all its components are bound by common threads that are difficult for someone who is not a stakeholder to even begin to understand.
It is in this backdrop that this august house would like to consider that amongst the several steps that would be required to strengthen the independence of judiciary, the foremost would be to develop and nurture leadership at all levels of the Institution. This is one area where Judiciary is required to work hard in the coming years. Leadership roles bring decisiveness and direction at all levels. For the Institution to secure its independence, it isimperative that leaders at all levels of the Institution are on the same page and they think, act and speak likewise. Leadership skills at ground levels will also assist in securing independence of individual judges, without which institutional independence may be reduced to a mirage.
Besides investing in leadership roles, Judiciary also needs to work on securing its independence in financial matters. The control of revenues and on expenditure essentially vests with Governments, however such control is more often than not seen to be exercised as a tool of arm-twisting. There is an apparent lack of understanding globally that, by the dint of their Constitutional role, the Judicial organs essentially act like buffers and pressure valves, standing between the State agencies and the restive populace, absorbing all the heat and dust thrown up by the cycle of governance, or a lack thereof. This lack of understanding, coupled with the fact that Judiciary does not pander to any constituency, translates into low budgetary support for the Judiciary including for its infrastructure and human resource components. It would not be surprising if data would reflect that nations which support and invest heavily in developing a strong judicial infrastructure, with sufficient financial resources and powers, would be nations with more stable governments and administrations. I would draw reference to Principle no.7 of the Basic Principles on the Independence of Judiciary. It states and I quote,
“It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions. “
This principle is an affirmation, by no less than the United Nations, of the fact that financial autonomy and power hold the key to strengthening independence of the judiciary. In this context, it is apposite to clarify that the pitch is not for mere parking of finances by the Governments in the hands of Judiciary, but it is for complete autonomy in all financial matters. Absence of the requisite financial autonomy, would be gainsaying financial independence.
Now a little about India. The Indian Constitution under Article 50 makes it obligatory for the state to undertake steps to separate executive from the judiciary. The judges’ appointment process as envisaged under Articles 124 and 217 of the Indian Constitution for Supreme Court and High Court respectively envisages judicial oversight. The tenure has been also secured and removal is possible only by if there is proved misbehaviour and incapacity. Their salaries has been has been prescribed under constitution itself.
Let me point out how Indian Supreme Court has dealt with the above issues. If one goes for a more nuanced scrutiny it becomes obvious that except for some outliers, in almost all other cases, the executive in India has historically shown deference to the judiciary in the appointment of judges to the Higher judiciary. Here it must also be clarified that so far as subordinate judiciary is concerned, the selection process is through competitive exams. For
the Higher judiciary, to make the decision making participative and democratic, a collegium system has been envisaged. It constitutes of the Chief Justice of India and two and four other senior-most judges of the Supreme Court in cases of appointment of judges to the High Court and Supreme Court respectively.
The collegium is governed primarily by the consideration of the merit in recommending the names. However, it is also alive to the issue of a representative judiciary. Therefore, it looks into the issue of regional representation, demographic representation etc. too. The Supreme Court of late has started posting the decision of the collegium on its website to meet the standards of transparency.
Before I conclude, I seek to draw attention of this esteemed audience to the fact that in some phases in the journey of a Nation, when the legislative and executive wings get swept away from their duties and goals under the Constitution by waves of populism, it is for the Judiciary to rise and stand up to the populist forces and protect the Constitutional ethos from being desecrated by the populists. To some critics and naysayers, this situation presents a case for hoisting the classical counter narrative — Unelected Judges, acting under the Constitutional mandate, get to overturn the acts of the elected majority.
However, it is liar us to recollect that such situations across the world have heaped tremendous pressure on the Judicial organs, and it is no surprise that in some jurisdictions Judiciary too has succumbed to populist forces. This is also an area that requires Judiciary to prepare itself, to strengthen itself about such populist onslaughts on the independence of the Institution. The human agency, populist onslaughts on the independence of the Institution. The human agency, through which justice is sought to be administered, has to be adequately secured and fortified in ordinary times, so that it is sufficiently equipped to deal with such forces of populism in extra-ordinary times, lest they overrun the judicial
such forces of populism in extra-ordinary times, lest they overrun the judicial
edifice too. This would be our strongest case for strengthening the
independence of Judiciary.
With these words, one would take leave of this wonderful audience, thanking each of you for your attention and engagement. Thank you all.
Ranjan Gogoi is the Chief Justice of India. This is the full text of his address to the 14th conference of chief justices of members of the Shanghai Cooperation Organisation in Sochi, Russia, on 18 June.
As with others, this institution too is under considerable strain and stress.