A Mere Myth or Truth
The article ‘Independent Judiciary in India: A Mere Myth or Truth’ by B. Jenitha Dharshini critically analyzes the independence of our Indian Judiciary. It also attempts to evolve a system of standard metrics to measure the degree of judicial independence. The focus then shifts to the factors that threaten judicial independence and any plausible solution to those problems.
In countries with written constitutions, especially in India and the US, the doctrine of separation of powers gains importance. In such countries, the judiciary is required to function effectively and impartially to ensure a system of checks and balances for the other organs. If not, democracy remains merely a mirage. Without an independent judiciary, democracy would be overwhelmed and destroyed. There is a need to scrutinize if the judiciary is able to play such a pivotal role without any impediment or interruption.
However, maintaining judicial autonomy is a herculean task, more so in a country like India where the legislature, executive and judiciary perform overlapping functions. Independence of the judiciary depends upon several factors the prevailing political environment, the impartial stand of the judges, people’s faith in the court system etc. It is true that there can be no straitjacket formula to measure judicial independence.
However, we can attempt to evolve certain standard metrics to assess and analyse the extent to which courts in India are able to function freely and adjudge impartially. This can be done by thorough research on the Indian Constitution, the extent to which the doctrine of separation of powers is applicable to the country, the recent trends in the context of judgments of the court, the prevailing political environment, the history of cases dealt with and the power enjoyed by the judges.
“If impartiality is the soul of the judiciary, independence is the lifeblood. Without independence, impartiality cannot thrive. Independence is not freedom for judges to do what they like; but, the independence of judicial thought” held the Supreme Court in Union of India v. R. Gandhi.
Long before the observations of the Court, the significance of judicial independence was not lost upon the Constitution makers. We require an impartial authority completely disassociated from the other organs of the State yet well aware of the socio-political-economic restraints within which the State operates. This is elucidated by the provisions of the Constitution that allow for the separation of powers and independence of the judiciary. Moreover, our history as a federal democracy has proved time and again that the judiciary is no paper tiger.
It is armed with enough teeth to balance the other organs and protect the rights of individuals from being overridden by the ever-turning political tide. However, considering the unprecedented pandemic, followed by an economic slowdown and increasing communalism among the general public, now more than ever an independent judiciary is the need of the hour.
Constitutional safeguards of judicial independence
Power of contempt
Article 129 of the Constitution of India provides the Supreme Court with the power to punish for contempt of itself and its subordinate courts for both civil and criminal contempt. The Contempt of Courts Act, 1971 does not restrain this power of the Supreme Court. Subordinate courts also have similar power. In Delhi Judicial Service Association v. State of Gujarat, the Apex Court, in its power, arrested five police officers for handcuffing the Chief Judicial Magistrate of Nadiad.
Similarly, in Mohammed Aslam v. Union of India, the Court sentenced the Chief Minister of Uttar Pradesh to one-day imprisonment and a fine of 2000 Rupees for allowing construction on land in a dispute where the court had issued an injunction to put up any permanent structure on the land.
Security of tenure of judges
Article 124(2) of the Constitution of India provides security of tenure to the Honourable Judges of the Supreme Court of India, i.e. till they attain the age of superannuation at 65 years unless he/she is impeached. The procedure for impeachment is also complex and cumbrous. Article 124(4) states that impeachment occurs with Presidential assent when a motion for impeachment is passed by 2/3rd of the members present and voting and later sent for Presidential assent in the same session. Impeachment can occur only on the grounds of wilful misconduct or inability to discharge his requisite duties.
The Judges Inquiry Act, of 1968 allows the Speaker of the Lok Sabha or Chairman of the Rajya Sabha to constitute a Committee to investigate the conduct of the Judge before a motion for removal is allowed. The committee takes into account the deposition of the witnesses and expert opinion, and the judge to be impeached is also allowed to make representations before the final report is submitted. So far, a motion for impeachment has been passed only for the removal of Justice Veeraswami, and even that motion failed to be passed with a 2/3rd majority. Hence, judges cannot be removed according to the whims and fancies of the executive. This is a major safeguard of judicial independence.
Appointment of Judges out of the Scope of the Executive
The appointment of judges takes place through the collegium system. The role of the president in appointing judges is nominal and minimal. He usually sanctions the recommendations of the collegium. The executive tried to undermine the independence of the judiciary by passing the 99th amendment Act 2014, incorporating Articles 124A, 124B, and 124C of the constitution, which provided an NJAC (National Judicial Appointments Commission) for the appointment of judges.
The NJAC consisted of The Chief Justice of India (ex officio chairperson), two senior judges of the Supreme court, the union law minister and two eminent persons nominated by a committee consisting of the Prime minister, the CJI and the leader of the opposition or the leader of the single largest opposition party in Lok Sabha. However, the 99th amendment was struck down in the Supreme court Advocates on Record Association v Union of India, popularly known as the third judges’ transfer case, thereby restoring the institutional autonomy of the judiciary.
Salary of Judges
According to Article 125 of the Constitution, the salaries of judges are charged to the consolidated fund of India and are not paid by the executive. Initially, the salaries were paid as specified in the second schedule, and they cannot be revised downwards during the tenure of a judge.
Separation of Powers
Article 50 expressly provides for the separation of powers. Being provided in Part IV of the Constitution, it is unenforceable. However, it clearly states that the constitution envisages the independence of all functionaries of the state, and this should also be a legitimate expectation of citizens. Moreover, considering the significance of Directive principles in policy formulation, it appears to be a reminder to the executive not to abridge upon judicial independence.
Finally, Article 138 of the constitution only allows the enlargement of the jurisdiction of the SC and makes no provision for its curtailing.
A Critical Analysis of Judicial Independence
The Constitution provides the above-mentioned provisions to ensure judicial independence. However, the concept of judicial independence itself is quite dynamic and depends upon the political environment, the capability of Courts to enforce their verdicts, its relationship with the executive and legislature and the extent of the practical application of the doctrine of separation of powers.
For instance, the International Court of Justice lacks an enforcement mechanism to ensure the execution of its decrees and its verdicts are often undermined by countries which enjoy veto power in the UNSC. Its independence is easily compromised. Similarly, The Supreme court established in Calcutta under the Regulating Act 1773 operated in a political environment that invalidated many judgements passed by the court. The decrees of the court often contradicted the decisions adopted by the Governor General and his council. This intervention of the executive in the judiciary creates a lack of judicial independence. Moreover, an analysis of the Raja Nand Kumar case decided by the same court shows a clear influence of Warren Hastings (the then Governor General) on the judiciary leading to curtailment of judicial autonomy.
Though there can be no precise standards or metrics evolved that can quantify the degree of independence of courts, we can analyse the recent trend in judgements, the conduciveness in the political environment and judicial activism, thereby gaining a fair picture of authority and autonomy Courts enjoy. The metrics include:
1. Calling out arbitrariness in executive actions
Autonomy from political intrusion is key to judicial independence. This is reflected in a court’s judgements. Only an independent judiciary can clamp on the arbitrary use of executive power without turning a blind eye to it. The following cases depict the instances where the Indian courts have effectively checked executive arbitrariness:
In a recent decision, former CJI NV Ramana questioned the requirement for a colonial law like sedition (Section 124A IPC ) that was used to silence revered leaders like Mahatma Gandhi in the modern era. He termed it arbitrary and excessive, while other laws could effectively deal with internal and external aggression. It was also pointed out that this law though upheld in the Kedarnath Singh case, was still amply restricted, and the time had come for it to answer the litmus test of Article 19(a) (freedom of speech and expression). This coming at a time when activists like Disha Ravi, Arundhati Roy, Binayak Sen, and several anti-CAA and anti-farm law protestors got slapped with sedition law points towards judicial independence.
In the context of suppressing the right to freedom of speech and expression, the Supreme Court also condemned the fact that people were still being booked under charges of sending grossly offensive or menacing information using a computer resource or communication device under Section 66A of the Information Technology Act 2000, which had been struck down by the Shreya Singhal case, in 2014.
Denial of bail under UAPA (Unlawful Activities Prevention Act):
The Delhi High court granting bail to activists Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha, who were booked under Sections 15,17 and 18 of the UAPA did not mince its words as it expressed displeasure about the Centre’s response towards the CAA protests. “In its anxiety to suppress dissent, the state has blurred the line between the right to protest and terrorist activities” stated a two-judge bench consisting of justice Siddharth Mridul and Justice Anupam Jairam. It also dismissed the plea filed by the government, citing reasons to deny bail to the activists as “superfluous verbiage, hyperbole and stretched inferences”.
These instances depict a clear detachment of courts and politics. Courts in India enjoy considerable autonomy in this sphere.
2. Vigilante of people’s rights
Impartiality, fairness and reasonableness in decision-making are the hallmarks of the judiciary. This is necessary to uphold individual rights and can only be carried out by an independent institution. The following cases showcase how the courts have risen up to protect the rights of the common man:
Oxygen Deficiency in Delhi:
The second wave of the pandemic saw an acute shortage of oxygen supply in the national capital of Delhi. The centre claimed that the ruling AAP government was exaggerating its claim for oxygen at least four times, while the AAP vehemently opposed these claims. Finally, it was the Supreme Court that directed the Centre to allocate a 537MT supply of oxygen at once to meet the immediate demand and also appointed a committee to look into the claims of exaggerated demand. Only an impartial and independent authority can intervene and arbitrate between the Centre and its provinces, especially in a federal system of governance.
Labourer’s plight during a lockdown:
A very short notice before a nationwide lockdown left thousands of labourers stranded away from their hometowns. The opposition, led by Sonia Gandhi, offered to shoulder their travelling expenses while the government retorted that the railways were already incurring 85% of the costs. There was no actual clarity on the road back home for several workers, and many tried to walk back home, thousands of miles away, even as the ruling party and the opposition kept sparring with each other with words. It was the Supreme court that took Suo motu cognizance of the issue and directed the states to form a clear-cut plan to ensure the safe transit of those who wished to return to their hometowns and to ensure the basic welfare of those who continued to stay.
Courts in India have proved capability in this aspect also. They have not bent to the pressures of vested interest groups.
3. Judicial review
Judicial review is the power of a court to adjudicate upon the constitutional validity of legislative and executive mandates. It is not expressly conferred by any statute but is to be implied from Article 13 of the Constitution. Judicial review is crucial in demarcating the extent of power enjoyed by the executive and legislature, maintaining the supremacy of the constitution and protecting civil liberties. Hence, if the court enjoys wide power to scrutinize the decisions of the other organs, it is an indication of its independence. The ambit of judicial review is elucidated below:
Tribunals Reforms Bill
The power of judicial review extends not only to laws but also ordinances passed by the president or governor under Article 213 and Article 123. Hence, the court struck down the provisions relating to conditions of service and tenure of members of a tribunal from the Tribunals reforms (Rationalisation and Conditions of Service) Ordinance 2021.
These provisions fixed the minimum age of members at 50, and their tenure was restricted to 5 years or the age of retirement, whichever was earlier. The age of retirement for chairpersons of a tribunal was fixed at 70 years and that of members at 67. Amendments were also made to section 184 of the Finance Act 2017 by section 12 of the ordinance in an attempt by the government to regulate the terms of service of the members of tribunals which come within the judicial umbrella. The court adhering to the principle of separation of powers, struck down these provisions of the ordinance, thereby protecting its own independence.
The ability of the judiciary to protect its own independence and the wide ambit of judicial review in India is noteworthy.
Threats to Judicial Independence
So far, the picture painted is that courts in India have complete independence to exercise their authority effectively in all spheres to which their jurisdiction extends. However, even in the USA, where the doctrine of separation of powers is absolute, there are yet difficulties in its practical application, and a completely independent judiciary remains but a theoretical concept. The peculiar conditions of governance in a diverse nation like India do not allow for an absolute application of the doctrine of separation of powers, and there are too many overlapping functions of the organs that a strict application of the doctrine is an impossibility. Moreover, the political scenario in India continues to be an affront to an independent judiciary. In such circumstances, several challenges need to be overcome if the concept of judicial independence is to be achieved.
Impediments to Judicial Independence
1. Re appointment of retired judges to political posts
Just four months post-retirement former chief justice Ranjan Gogoi was nominated as a member of the Rajya Sabha. The reason cited for such a nomination was he would be able to present judicial ideas in the council of states. But what made the circumstances of his appointment peculiar was he had delivered judgements in the Ayodhya case as well as the Rafale deals just months before retirement, cases in which the government was deeply involved. This is not an isolated incident or an unusual occurrence.
Justice P Sadhasivam was appointed governor of Kerala post-retirement, J. M C Changla was appointed High Commissioner to the UK and ambassador to the US, and J. M Hidayathullah was elected Vice President in 1970. All these pose a major threat to judicial independence as such potential post-retirement benefits may disturb the impartiality with which judges deliver judgements and the entire integrity of the institution.
2. Political statements and influence
While speaking at the inaugural function of the International Judicial Conference in February 2020, Justice Arun Mishra called Prime Minister Modi “a versatile genius who thinks globally and acts locally”. In a similar occurrence, J. M R Shah, former Chief Justice of Patna High Court, raised Modi to the status of a hero. “Modi is a model. He is a hero. This is what has been said about him for the past month. there are thousands of clippings on social media. The newspapers are also publishing the same”, the judge said, praising the Prime Minister. India is a democracy, and all citizens are entitled to hold a political opinion.
But what made such praise of the Prime Minister a complete affront to judicial independence was that the individuals made both statements in their capacity as judges, honoured members of the third pillar of democracy that is supposed to isolate itself from all political influence. This problem is not new to this era. Justice P N Bhagwati, also a former chief Justice, penned a note of heartfelt congratulations to Indira Gandhi after her landslide victory in the 1980 elections. Coincidentally, he also sided with the government in the ADM Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, where the Supreme court upheld that the government could infringe upon the fundamental rights of citizens in times of emergency. This is a tough challenge to overcome as it concerns the psychological awareness of judges that any political preference should be set aside once they take up the mantle of judges.
3. Article 31B
Article 31B placed certain laws in the ninth schedule of the constitution, these laws were placed out of the purview of judicial review, thereby curtailing the jurisdiction of the court and granting the legislature immense power to formulate laws that might be constitutionally invalid yet outside the power of the court to strike down.
4. Tussle between the Judiciary and Other Organs
The legislature and executive are representative organs, while the judiciary is not. This means that the other organs tend to have leanings towards the majority, while the judiciary is only concerned with the interpretation of individual rights. This might bring the organs in conflict with each other.
One of the best examples of such conflicts is the Muslim women protection of rights on divorce Act 1986 passed by the then Rajiv Gandhi headed Congress government. It overturned the decree of the court in the Shah Bano case, where the court declared that a husband had a duty to provide maintenance to his wife upon divorce even beyond the iddat period as specified by the Muslim personal laws.
The Rajiv Gandhi government, by passing the aforementioned Act, shifted the responsibility of providing maintenance to the Wakf board in a move to appease the religious minorities who were enraged by the judgement of the court that contradicted their personal laws. A similar position has risen in the Tribunals Reforms Act that the BJP government has pushed through without debate, which includes several provisions of a previous ordinance struck down by the apex court. These conflicts lower the credibility of the judiciary. It raises the question if it is so easy to overturn the decree of a court, why approach a court in the first place? This cuts at the grassroots of the balance of powers between the organs and therefore harms the independence of the judiciary.
5. Skeletal strength of the Indian Judiciary
The courts are independent in their functioning but they do depend on the executive (president) to act upon the recommendations of the collegium and appoint judges to the Supreme court as well as the lower courts. The centre has shown a very lax attitude towards judicial appointments leading to the judiciary operating with skeletal staff, leading to a massive backlog in cases. It is understood that independence means being capable of exercising authority without outside influence or hindrance. With a lack of judges to fill in the vacancies, the courts may not be able to adequately exercise the authority bestowed upon them by the constitution and thereby lose their independence.
Justices Sanjay Kisan Kaul and Hrishikesh Roy called out the “recalcitrant attitude” of the government in the appointment of judges. The Delhi High court will operate with less than 50% judges in a week’s time” the judges noted. Further, they also stated that the Supreme court had been operating with a strength of 32 judges, with the latest appointment being that of J Kishan Kaul almost two decades earlier.
If the executive continues to choke out the strength of the judiciary, there arises a risk to its independence. This is because, with minimal strength, courts may not be able to able to deal with the cases leading to an immense backlog. This will lead to people approaching extra-judicial bodies like khap panchayats instead of approaching the court. This is against judicial independence.
6. Political intrusion
The political scenario in India continues to blur the well-defined lines between the judiciary and politics. In a shocking incident, The Wire, a widely acclaimed magazine, revealed that the supreme court staffer who had accused Former Chief Justice Ranjan Gogoi and eleven of her family members were included in the list of high-value targets of the Pegasus spyware. While the opposition continues to allege that the government used the spyware to target critics and journalists, it raises eyebrows that the supreme court staffer was among the high-profile targets.
Similarly, in September 2019, Justice Kureshi, who was meant to be transferred to Madhya Pradesh High Court was transferred to the Tripura High Court. It is noteworthy that he sentenced Home minister Amit Shah to police custody in the Sohrabuddein Sheik fake encounter case. When judges do not enjoy immunity from such external intrusions how can one expect impartial judgements or preservation of independence?
Dr. BR Ambedkar said,
“ the people may lose faith in the executive or legislature but it will be an evil day if they lose confidence in its judiciary. ”
People’s faith in the judiciary persists only as long as this sacrosanct institution remains independent and impartial with no external leanings, a true protector of people’s rights, interpreter of the constitution and caretaker of constitutional rights. The judiciary in India is currently facing a torrential onslaught on its independence, several researchers argue that independence of the judiciary is but a modern myth in India.
However, the recent judgements of the Supreme Court provide fresh hope that the independence of the judiciary might yet be preserved intact. ultimately, it falls on the judiciary to maintain its autonomy despite adversities and setbacks. It is a mammoth challenge, especially in the non-conducive political environment that exists currently,the the but the Indian judiciary is quite capable of rising up to this challenge.
  11 SCC 1 (India)
 1991 AIR 2176
 1995 AIR 548
 AIR 2015 SC 5457
 Kedar Nath Singh v. State of Bihar,1962 AIR 955
 Singhal v. Union of India, (2013) 12 SCC 73
 Mohd. Ahmed Khan v. Shah Bano Begum, 1985 (3) SCR 844