ABSTRACT

Judicial independence plays a very important role for the smooth running of Democratic system of any Country. The written constitution of a Democratic country constitutes the philosophy of welfare state where it gives wide powers to the government to run the government and make policies for the socio-economic development of the people. In such type of functioning, there is threat of abuse of political powers by the government. For proper implementation of Rule of law which is responsible for the good governance of the society, an independent and unbiased authority is required. An independent and unbiased judiciary alone can fulfil this task to keep checks and balances on the functioning of the legislature and executive. In the present scenario our judicial system is facing several issues which affects its independency. This article explains how the odd behaviours of the Judiciary and Executive over appointment of Judges in Constitutional Court is affecting the independence of judiciary in our Indian Judicial System.

KEYWORDS

Judiciary, Appointment of Judges, Collegium system, Independence of Judiciary, Separation of powers.

INTRODUCTION

Among all three wings of the Government, the judiciary plays a very important role in the governance of the Democratic system of a State. It has been a matter of debate since the establishment of the democratic system in the world that the judiciary should be independent and free from internal as well as external pressure and pulls. It is true that the very purpose ofdemocracy is not served merely by the enactment of the law. So, the constituent assembly, at the time framing of the Constitution, was concerned with securing the stability and prosperity of society and that is why thefounding father,Dr. Ambedkar,quoted that:

“There can be no difference of opinion in the House that our judiciary must be both independent of the executive and must also be competent in it. And the question is how these two objects can be secured.”

The Constitution of India is based on the separation of powers, and it provides various provisions that establish the judicial independence. But here the question arises, whether the judiciary is free to work in an arbitrary way? The answer is no; independence of the judiciary does not mean arbitrariness or absence of accountability. The Judiciary is accountable to the Constitution, to democratic traditions, and to the Country.

However, it is the Constitution alonethat assures the judicial independence for the judiciary and the judges. But in the present scenario, there are several factors that are affecting the independent powers given to the judiciary, and it has become a debate all over the country that whether our judiciary is free from executive interference.

The Independence of The Judiciary:Meaning

The term Independence of the Judiciary has not been defined anywhere, neither in the Constitution of India nor in the General Clauses Act. Its dictionary meaning says, the freedom of the judiciary from interference or direct external control, particularly by other branches of government, i.e., executive or legislative[1]. In legal parlance,judicial independence implies the power to uphold without fear or favour the Rule of Law, personal freedom and liberty, equality before the law and impartial and effective judicial control over the administrative and executive actions of the Government.

Components of Independence of The Judiciary

Independence of Judiciary is adequately guaranteed by the Constitution of India –

Security of tenure – The Indian Constitution provides security of tenure to the Judges of the Supreme Court and High Courts. It means to say that once the judges have been appointed, they continue to remain in office till they reach the age of retirement, 65 years as in the case of Supreme Court[2] and 63 years as in the case of High Courts[3]. The only exception where they can be removed from the office by an order of the President, and that too on the grounds of proven misbehaviour and incapacity.

Salary and allowance of Judges – The salaries and allowances of the Judges are fixed and are not subject to a vote of the legislature. In the case of Supreme Court Judges, they are charged on the Consolidated fund of India, and in the case of High Court Judges, they are charged on the Consolidated fund of the State. Again, except in the event of a grave financial emergency, their emoluments cannot be altered to their disadvantage[4].

Power and jurisdiction of the Supreme Court – Parliament has no right to curtail the power of the Supreme Court and High Courts. Parliament is authorised to confer supplementary powers on the Supreme Court to enable it to work more effectively. They may add power and jurisdiction to these courts. In civil cases, Parliament may change the pecuniary limits forappeals to the Supreme Courts. But the powers of the Supreme Court cannot be taken away.

Restriction on discussion in the Legislature regarding the conduct of any Judge – Article 211 of the Constitution of India restricts the Legislature on discussion with respect to the conduct of any Judge of the Supreme Court or High Court in discharge of his duties. Article 121 also provides the same in the case of Parliament but except upon a motion for presenting an address to the President praying for the removal of the judge.

Power to punish for its contempt – Supreme Court and High Courts enjoys the power to impose its contempt of court under Article 129 and 215 respectively. They can punish any person for their contempt. The power given under Article 129 to the apex court makes it a court of record also it means to say that judgement pronounced by the Supreme Court shall be binding on all the courts subordinate to it.

Separation of Judiciary from the Executive – One of the Directive Principles of State Policies envisaged in the Constitution of India directs the State to take steps to separate the judiciary from the executive in the public services of the State. The object behind putting this provision is to draw the line among the all the three organs of the Government and to secure the judiciary free from any interference.

Factors effecting the Independence of The Judiciary

Theoretically, it is correct to say that the Indian judiciary is independent, but in this 21^st century there are several factors,that are affecting judicial independence, like the influence of political parties, interference by other organs of the government, non-transparency in the appointment of judges, dominating environments created by powerful entities, etc.

Several times, it has been alleged that the appointment of judges in the constitutional courts suffers from non-transparency.By the judicial pronouncements, Hon’ble Courts uphold that the independence of the judiciary is a basic feature of the Constitution,which means to say that the Legislature is not authorised to make any type of provision thatcontradicts judicial independence.

Appointment of Judges

The Judges of the Supreme Court and High Courts are appointed by the President under Article 124(2) and 217 of the Constitution of India after the consultation with the Judges of the Supreme court and High courts as the President deem necessary for this purpose. Article 124(2) states that “Every Judge of the Supreme Court shall be appointed by the President by the warrant under his hand seal after consultation with such of the Judges of the Supreme Court and High Courts of the State as the President may deem necessary for this purpose[5]. Article 217 states that “Every Judge of the High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State and in the case of appointment of a Judge other than the Chief Justice, after the consultation with the Chief Justice of the High Court.”[6]

Collegium System: Composition and appointment process

A Collegium system in India (Judge-selecting-Judge) is a system by which Judges are appointed and transferred only by the Judges. The purpose of introducing this system was to strengthen and improve the appointment and transfer. Collegium system in Supreme Court is headed by the Chief Justice of India and comprises four other senior-most Judge of the Supreme Court who recommend appointment and transfer of Judges. A High Court Collegium is headed by the incumbent Chief Justice and two senior-most Judges of that court.

For the appointment process the Collegium sends the recommendations of the names of lawyers or judges to the Central Government. The Centre gives the names for investigation to conduct background checks and resends the file to the Collegium. Collegium considers the names or suggestions made by the Central Government and resends the file to the government for final approval. If the Collegium resends the same name again then the Government is mandated to appoint the respective person. Names recommended for appointment by a High Court collegium reach the government only after approval by the CJI and the Supreme Court collegium.

Evolution of Collegium System in India

Collegium system is not rooted in the Constitution; it has evolved through Judicial pronouncements. To protect the process of appointment from the political influences the Constituent assembly adopted the Consultative process. Till 1973, it was the practice to appoint Senior most Judge as the Chief Justice. Law Commission of India headed by the then Attorney General M.C. Setalvad had disfavoured this practice in 1956 and recommended that seniority should not only be the main consideration and experience of a person, his administrative competency and merit should be Judged. On 25^th April 1973, this practice was suddenly broken and three senior Judges namely, Hon’ble Justice Shelat, Hegde and Grover JJ. Were superseded. However, this action of the Government suffered severe criticism by the Bar and general public. But the Government supported its action on the ground of absolute discretion of the President, recommendation of the Law Commission and the philosophy of Judges to be taken into account by the executive.[7]

But whether “consultation” referred in the Articles 124(2) and 217(1), with the CJI meant “concurrence”, i.e., the recommendation of the judiciary would be binding on the Government?

First Judge case: S.P. Gupta v. Union of India[8]

In this case, Hon’ble Supreme Court of India upheld the Executive Supremacy and Constitution Bench by majority held that the term “consultation” used in Articles 124 and 217 was not “concurrence” meaning that although the President will consult these functionaries, his decision was not bound to be in concurrence with all of them.[9]

Once this decision was rendered by the Hon’ble Court, the Government started disregarding the recommendations of the Judiciary. In 1993, once again the issue was taken to the Supreme Court and the Judgment of the S.P. Gupta case was overruled.

Second Judge Case: S.C. Advocate-on-Record Association v. Union of India[10]

In the Second Judge case, Nine Judge Bench of the Supreme Court by majority of 7:2 overruled its earlier judgement of S.P. Gupta case. In this case Hon’ble Supreme Court held that in matters of appointment of Judges of the Supreme Court and High Courts, the CJI should have primacy. To ensure that neither political bias nor personal favouritism or animosity should play any part in the appointment and transfer of Judges Hon’ble Court devised a specific procedure called ‘Collegium System’. The collegium system, the court said that the recommendation should be made by the CJI in consultation with his two senior most Judges, and that such recommendation should normally be given effect to by the executive. Court further added that Executive may ask the collegium to reconsider the matter if it had an objection to the name recommended, if, on reconsideration, the collegium reiterated the recommendation, the executive was bound to make the appointment.

Third Judge Case: In re Presidential Reference No.1 of 1998

In this case the Hon’ble Supreme Court laid down guidelines for the functioning of the Coram for appointments and transfers this has come to be the present form of the collegium, and has been prevalent ever since.

• The recommendation should be made by the CJI and his four senior most colleagues, instead of two.
• Supreme Court judges who hailed from the High Court for which the proposed name came, should also be consulted.
• It was also held that even if two judges gave an adverse opinion, the CJI should not send the recommendation to the government.

National Judicial Appointment Commission (NJAC)

NJAC, a Constitutional body was established in the year 2014 to replace the present Collegium System of appointing Judges.It was established by amending the constitution under 99^thConstitution (Amendment) Act, 2014. Parliament also passed the National Judicial Appointments Commission Act, 2014, to regulate the NJAC’s functions. Both, the National Judicial Appointment Commission Act and the said Amendment came into force on April 13, 2015.

The NJAC consists of –

• Chief Justice of India along with two senior-most Judge of the Supreme Court next to the CJI.
• Union Law Minister
• Two eminent persons, nominated for period of 3 years by a committee consisting of the Prime Minister, Chief Justice of India and Leader of Opposition in Lok Sabha. These persons are not eligible for re-nomination.

However, on 16^th October 2015, by majority of 4:1 Hon’ble Supreme court struck down the Constitutional validity of NJAC Act and restored the old collegium system of appointment of Judges in higher Judiciary[11].

Fourth Judge Case: Supreme Court Advocate-on-Record v. Union of India 2015

In this case the constitutional validity of the 99^th Constitutional (Amendment) Act, 2014 was challenged on the ground that the said amendment and the NJAC Act is violating the ‘Principal of Separation of Powers’ and so it is touching the Basic Structure of the Constitution.

The five-judge bench of the Supreme Court invalidated the new Articles 124A, 124B, and 124C added by 99th Constitutional Amendment and the accompanying Act (the National Judicial Appointments Commission Act, 2015) because of the glaring violation of the Basic Structure Doctrine on the constitutional Rule of law and independence of the judiciary. The Court further pointed out that the inclusion of Union Minister of Law and Justice and two eminent personsto the Commission violates the separation of powers thus cancelling judicial primacy. Finally, the court struct down the whole NJAC Act and said that the system of appointment of Judges to Supreme Court and High Court restored according to the position prior to the 99^th Amendment Act.

However Supreme Court has acknowledged that the collegium system is lacking transparency and credibility which would be rectified by the Judiciary.

Collegium system: Executive v. Judiciary

In the recent time, the debate has been reignited between the Judiciary and the Government. The government has reiterated the need for the NJAC. Few months earlier, as per the article published in The Indian Express dated 17 Dec. 2022, the Union Law Minister Kiren Rijiju stated that “the Collegium System of appointments was opaque and needed to be reconsidered”.

Further, by blaming the Collegium System he stated, there are huge pendency of cases in Courts to vacant posts of Judges and this issue can be resolved by “a new system of appointments”.

Criticism by the executive against the judges appointing judges process says that the Collegium System is –

• Non-transparent and opaque – It is closed-door affair in every sense. No one knows when does collegium meets and how it takes decision. Since it does not involve an official procedure, no written manual for its functioning no exact eligibility criteria of Judges, hence, it lacks transparency.
• Promotes nepotism – As nepotism is engulfing other institutions, the judiciary is also not free from this malpractice. According to a data published in newspaper approx.38% of the incumbent Judges have deep connections in the Judiciary or the Government. It means 12 of the 32 judges are either related to a former Judge or a political leader.
• Undemocratic and insufficient – Since they are not selected by the people their judicial accountability is not towards the people or anyone else. Also, this process of selection is unable to resolve the increasing cases of vacancies and so the pendency of cases to the courts.

Judiciary on the other side is continuously defending the Collegium System. Month ago, while speaking at a Conclave, Hon’ble Chief Justice of India, Justice D Y Chandrachud said “Not every system is perfect but this is the best system we have developed. But the object was to protect the independence of the judiciary, which is a cardinal value. We have to insulate the judiciary from outside influences if the judiciary has to be independent.”

One another view, recently, while delivering a lecture on the “Evolution of Independence of Judiciary as a Basic Feature of the Constitution” Hon’ble former Chief Justice of India, Justice UU Lalit stated –

“Kesavananda Bharti has been the fulcrum in this direction, when it comes to independence of judiciary. Not just in terms of matters that should or should not come before the courts but even as to who shall constitute the courts, how the persons concerned are to be selected. This is where the two ideas have emerged. That to my mind is the greatest contribution of the dictum in Kesavananda Bharti. Not just on the functional side but even on the organisational side, it has contributed to the development of law in that regard.”

Basic structure contains many nuances including the concept of the independence of judiciary. Kesavananda Bharti has laid down that there are certain features of the Constitution which are so inviolable, so important for the existence of democracy, and for individuals to achieve their full potential and these cannot be frittered away, he remarked.[12]

CONCLUSION

From the above discussion it is clear that to keep the Judiciary independent from external and internal pulls and pressure the first step is to make the appointment of Judges free from executive interference because it violates separation of powers. Along with that appointment process should be transparent and free from nepotism and this can be improved by the hands of the Judiciary. The independence of the judiciary is a cornerstone of democracy, ensuring that the rule of law prevails over the whims of political powers. While the Constitution of India provides various safeguards to maintain judicial autonomy, the ongoing tussle between the judiciary and the executive over the appointment of judges reveals cracks in the system. The evolution of the Collegium system, although rooted in judicial pronouncements to protect judicial independence, has been criticized for its lack of transparency and accountability. The striking down of the National Judicial Appointments Commission (NJAC) highlighted the judiciary’s resistance to perceived encroachments on its independence, yet it also exposed the need for reforms within the existing framework.

The debate between the efficacy of the Collegium system and the need for a more transparent and accountable method of appointing judges continues to be a contentious issue. The judiciary argues that insulating the appointment process from external influences is essential for maintaining its independence, while the executive points to inefficiencies and opacities that demand change. As the dialogue persists, it is imperative to strike a balance that upholds the independence of the judiciary while addressing the valid concerns of transparency and merit-based appointments.

Ultimately, any reform must ensure that the judiciary remains an unbiased arbiter of justice, free from external pressures, while being accountable to the principles enshrined in the Constitution. The future of India’s judicial appointment process will significantly impact the robustness of its democratic framework and the public’s trust in the justice system. Therefore, continuous evaluation and adaptation of the appointment procedures are essential to safeguard the independence and integrity of the judiciary.

[1] Oxford Reference, Judicial independence – Oxford Reference  (30/05/2024)

[2] INDIA CONST. art.124 § 2.

[3] INDIA CONST. art. 217 § 1.

[4] INDIA CONST. art. 125 § 2.

[5] INDIA CONST. art.124 § 2.

[6] INDIA CONST. art. 217.

[7]Dr. J. N. PANDEY, CONSTITUTIONAL LAW OF INDIA 561 (Central Law Agency 2022)

[8] S.P. Gupta v. Union of India, AIR 1982 SC 149

[9]Dr. J. N. PANDEY, CONSTITUTIONAL LAW OF INDIA 561 (Central Law Agency 2022)

[10] S.C. Advocate-on-Record Association v. Union of India, (1993) 4 SCC 441

[11] Supreme Court Advocate-on-Record v. Union of India, (2015) AIR SCW 5457

[12] Sheryl Sebastian, Kesavananda Bharti Judgement The Fulcrum On Which Jurisprudence Of Judicial Independence Has Developed : Ex-CJI UU Lalit, LIVE LAW (30/05/2024, 6:05 PM), Kesavananda Bharti Judgement The Fulcrum On Which Jurisprudence Of Judicial Independence Has Developed: Ex-CJI UU Lalit (livelaw.in)