The judiciary must stand up to populist forces and protect the Constitutional ethos from being desecrated by populists.
Former CJI Ranjan Gogoi

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Introduction:

In India, the Constitution has established an integrated judicial system with a hierarchy system of courts where the Supreme Court at the top (National Level) followed by the High Court (State Level) and Subordinate Courts (District Level). The Supreme Court of India was inaugurated on January 28th, 1950, and succeeded the Federal Court of India which was established under the Government of India Act of 1935. At present the composition of the Supreme Court is of 34 Judges (1 Chief Justice and 33 other Judges); these changes were made in 2019 under the enactment of the Supreme Court (Number of Judges) Amendment Act, 2019 when the center notified an increase in the number of judges from 31 to 34. Originally the Supreme Court consisted of 8 Judges (1 CJI and 7 other Judges) which was amended in 1956, where there were 10 other Judges, to 13 in 1960, to 17 in 1977, to 25 in 1986, to 30 in 2008, to 33 in 2019. Appointment of Judges: The Chief Justice of India is appointed by the President under clause (2) of Article 124 of the Constitution, where the other Judges of Supreme Court is also appointed by the President on the recommendation of the collegium (a close group of Chief Justice of India, 4 most senior Judges of the court and the senior-most judge hailing from the high court of a prospective appointee.

Independence of Supreme Court:

Supreme Court being the highest court of appeal, is the guarantor of fundamental rights of the citizens and guardian of the Constitution. To do so it is very necessary that the effective discharge of the duties assigned to it is independent and not affected by any undue influence. It is essential that the working of the judiciary is free from all the encroachments, pressures and interferences of the executive and legislative.

To ensure and safeguard the independence and impartial functioning of the Supreme Court, Constitution has made following provisions:

  1. Mode of Appointment: The Judges of the Supreme Court are appointed by the President only after accepting the recommendation of the members of the judiciary itself (Collegium), which is obligatory to the President. It is done only to curtail the discretion of the executive and to keep a check that the appointment is not done under any political influence.
  2. Security of Tenure: Judges of the Supreme Court are provided with the Security of Tenure as they can only be removed by the President in the manner and the grounds that are provided in the Constitution, not during the pleasure of the President.
  3. Fixed Service Conditions: The service conditions of the Judges of the Supreme Court remain fixed. Their salaries, allowances, privileges, leave and pension is determined from time to time by the Parliament. They cannot change these conditions after the appointment except during financial emergencies.
  4. Conduct of the Judges cannot be discussed: As per the Constitution, Parliament and State Legislature is prohibited to discuss the conduct of the Judges of Supreme Court with respect to the discharge of their duties, except when an impeachment motion is under consideration of the parliament.
  5. Power to Punish for its Contempt: Supreme Court has the power to punish any person for its contempt (Suo Moto). Their power cannot be questioned or opposed by anybody, it vested upon them to maintain their authority, dignity, and honor.
  6. Freedom to Appoint its Staff: Executive cannot interfere in the appointment of staff and servants of the Supreme Court or in the prescription of their conditions of services. These appointments are done by the Chief Justice of India.
  7. Its Jurisdiction cannot be Curtailed: The Constitution of India has provided the Supreme Court with guaranteed jurisdiction of various kind and the Parliament is not authorized to curtail or interfere in the jurisdiction and power of the Supreme Court.
  8. Separation from the Executive: The constitution directs that the Executive cannot interfere in the Judicial matters nor the executive authorities should possess any judicial power.[1]

IS JUDICIARY IN INDIA TRULY INDEPENDENT?

One of the most controversial aspects of justice delivery is the appointment of judges. At first, there were independent judges in India who took independent decisions. Many of these decisions were not in the favour of establishment and plans were made to overturn these decisions but the judges stood like a rock, leading to the establishment of the committed judiciary. To some extent, these establishments succeeded in interfering with the independence of the judiciary, but the judiciary struck back and declared itself to be the sole authority to recommend judges for appointment.

Do judges really appoint judges?

No. There are many cases where we can see that the government is stalling in the appointment of judges by saying it is the government that appoints judges. When a question was raised in the Parliament on November 27, 2019 it was said that the high courts made 239 recommendations and these recommendations are “under various stages of processing” with the government and the Supreme Court collegium but how many of these are pending with the government is not known, but it is more than likely that it is in majority and how long will it take to be finalized is not known. The Supreme Court has no power to ensure that the process is expeditiously completed by the government and warrants of appointment signed by the President. It is a myth that judges appoint judges.

Supreme Court said that the government continues to stall the process of recommendations, which does nothing but display their misplaced power. Transfer of judges is another weapon in the armory of the government and is suggested by the government for reasons that would not stand scrutiny even in the court of a munsif, but the Supreme Court has been unable to stand its ground. Fortunately, there are still some voices that believe in the virtue of an independent judiciary as against a committed one, but we need to hear them loud and clear.[2]

Executive Overpowering Judiciary:

It is nothing new that executive trying to possess judicial power and taking matters in their own hand, signs of the strain are already felt in the criminal justice system with extra-judicial killings in Uttar Pradesh (encounter of gangster Vikas Dubey) and Telangana (encounter of all 4 accused in the gang rape of Priyanka Reddy). I believe that these are unmistakable signs that our criminal justice system has collapsed or is definitely near collapse. Elimination of the accused and not prevention of the crime seems to be the flavor of the year and a society governed by the rule of law should not accept it at all.

Conclusion:

As the former Chief Justice Of India has rightly said that “Independence of judiciary is not a one-time pill, it’s a state of affairs”. 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 a good conscience, such a system would never earn public confidence and high esteem in the minds and hearts of the common citizens. Therefore, we can conclude by stating that nowadays, our laws and regulations, whether it is related to Judicial Independence or social welfare, are just in the books and written form, there are not being implemented in practical life. Executives and Legislative are interfering in Judicial powers and authority which needs to be stopped and the Rule of Checks and Balance should be tightened.


Ananya Tripathi

Ananya Tripathi is a law student, pursuing BBA LLB (Hons.) from IMS UNISON UNIVERSITY, Dehradun. She has a keen interest in criminal law and constitutional law. She believes she belongs to the natural law school of Jurisprudence. She is a quick learner and adapts to the environment easily.

[1] M LAXMIKANTH, INDIAN POLITY (6th ed. 2020)

[2] India’s Judiciary Is Facing An Increasing Lack Of Trust By Public, https://www.outlookindia.com/magazine/story/india-news-indias-judiciary-is-facing-an-increasing-lack-of-trust-by-public/302545

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