Judicial Independence : A Fragile Bastion

Kavin Gulati, Senior Advocate

18 Jun 2020 9:29 AM GMT

  • Judicial Independence : A Fragile Bastion

    Judicial independence, without the judiciary proactively asserting it, is a mirage.

    One of the leading French philosophers Montesquieu saw despotism, as a constant danger for any government not already despotic, and argued that it could best be prevented by a system in which different bodies exercised legislative, executive, and judicial power, and in which all those bodies were bound by the rule of law.[1] This is referred to as the theory of separation of powers....

    One of the leading French philosophers Montesquieu saw despotism, as a constant danger for any government not already despotic, and argued that it could best be prevented by a system in which different bodies exercised legislative, executive, and judicial power, and in which all those bodies were bound by the rule of law.[1] This is referred to as the theory of separation of powers. Leading nations of the world have adopted this theory as a part of their constitutional schemes, USA being a prime example. A rigid separation of powers, as under the American Constitution does not apply to India, but there is nevertheless a separation in the broad sense.[2] The Indian Constitution has made a demarcation without drawing formal lines between the three organs. The separation of powers between the legislature, executive and the judiciary, is a part of the basic structure of the Constitution. Independence of Courts from the executive and the legislature is fundamental to the rule of law.

    In theory, this sounds utopian, but as James Madison asked, "Will it be sufficient to mark, with precision the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power?" for "the legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex".[4]

    Judicial independence, without the judiciary proactively asserting it, is a mirage – a myth if you will. Under our Constitution, appointment of judges (to the Supreme Court and the High Court), their transfers and elevation to the Supreme Court are all by the President of India, with the concurrence of the Chief Justice of India. The other conditions of service including their salaries, perks and pension are all matters which are determined by legislation by the Parliament. All post retirement appointments including those as governors and to tribunals or commissions of enquiry are in the hands of the executive. Madison described the judiciary as the weakest of the three departments of power.[5] Sir Ninian Martin Stephen says an independent judiciary, although a formidable protector of individual liberty is at the same time a very vulnerable institution, a fragile bastion indeed. [6]


    Protection of this fragile bastion requires leadership, not only from the Supreme Court of India as an institution, but also from the Chief Justice as an individual. 'Judicial independence in is as much about perception as reality. It involves removing reasons to suspect the judiciary of partiality or bias'[7]. Judicial independence can be perceived by ensuring a transparent appointment process, security of tenure, protection of terms of service and more importantly taking steps to ensure that the dignity of the individual and his office is not compromised in any manner .[8]

    India has had the misfortune of having 47 Chief Justices in its short life of 70 years till now, with tenures ranging between 17 days (K.N. Singh CJ) to 2696 days (Y.V. Chandrachud CJ). The tenure of some other Chief Justices was as follows: A.K. Sarkar (105 days), J.C. Shah (35 days), L.M. Sharma (85 days), S.P. Bharucha (185 days), S. Rajendra Babu (29 days), R.M. Lodha (153 days).

    Imagine a multinational company such as Apple, Goggle or Levers having to contend with a new CEO at such short intervals. Similarly if the Prime Minister of the Country or the Chief Ministers were liable to change after a couple of months in office , it would lead to either a policy paralysis or complete confusion – with each incumbent trying out a new policy .

    The Chief Justice is more than a Judge. He is a representative of the Judiciary as an institution. He is expected to speak up for the judiciary of the nation and the States on issues that affect judicial independence. Leadership requires more than just being able to react when a crises develops, but also deciding at what point and when to respond. [9] Time has come for an incumbent Chief to get at least four to five years in order to enable him to put his/her policies in place and gives direction and vision to the judiciary .This of course would require foregoing the rule of seniority, which is now a judicially established rule. It would require the senior most judges to sacrifice their claims to the chair, and elect the most able administrator and visionary amongst themselves. Such a course will also prevent the executive from foisting a person of their choice, as was done previously.


    Post retirement employment of the judges is seen as the greatest threat to judicial independence. Independence is as much about perception as it is about reality.[10] Professor Alysia Blackham writes –"While there is no suggestion of bias or impropriety in how these judges behaved prior to retirement, their post retirement careers may have implications for actual or perceived judicial independence". "Thus when issues arise in relation to a judge's post retirement career; this may have implications for the perceived independence of the judicial branch as a whole".[11] It is for this reason the appointment of judges as governors, members of parliament, or as members of tribunals or commissions are not viewed by the citizen in good light.

    It would be way better therefore to increase the age of judges both for the Supreme Courts and the High Courts to anywhere between 70 to 75 years (as is the case in most advanced countries around the world) with a rider that a judge on retirement, would be ineligible for government service for the next 5 years. Such a step would be perceived as strengthening judicial independence. Chief Justice Posner had the following to say, "Judges are less likely to decide cases with a view towards maximising their future career opportunities, and are therefore more likely to decide cases impartially, the less of a future they have. We want judging to be a terminal job rather than a spring board to another career".[12]


    Experience has shown that, most governments have from time to time tried to undermine judicial independence by a combination of fear, harassment, inducement, cajoling and the like. Soon after the famous Kesavananda Bharati [13] decision (which imposed a fetter the power of Parliament, by holding that it could not alter the basic structure of the Constitution), the Government disregarded seniority of three judges who were a part of the majority – Justices J.M. Shelat, K.S. Hegde and A.N. Grover and instead appointed Justice A.N. Ray. Similarly the lone dissenter in the now infamous ADM Jabalpur case [14] (which justified preventive detention without the citizen having recourse to his fundamental rights) Justice H.R. Khanna was again superseded and M.H. Beg was appointed as Chief Justice of India. Similarly, supersession's were resorted to while appointing Chief Justices to High Courts. Further, the practise of transfers as a punitive measure has been adopted from time to time starting with the transfer in 1980 of Chief Justice K.B.N. Singh from Patna to Madras (now Chennai), and transferring Chief Justice M.M. Ismail form Madras to Kerala , leading to the resignation being tendered by Justice Ismail. This was followed by the transfer of Chief Justice Satish Chandra from Allahabad to Calcutta and Chief Justice Sandhawalia from Punjab to Patna. Both these Chiefs were appointed during the Janta regime and their transfers were affected in the congress regime.

    All this was possible, as the Supreme Court in the First Judges case [15] had interpreted the word 'consultation' used in Article 124(2) and Article 217(1) and Article 222 of the Constitution to not mean concurrence of the Chief Justice, thereby giving the government the handle to ignore the suggestions of the Chief Justice in the matter of appointment of Judges (to the Supreme Court and High Courts) and transfer of Judges from one High Court to the other. The Second [16] and the Third [17]Judges cases, however in the years 1993 and 1998 respectively, while overruling the first Judges case held that in view of a conflict between the President and the Chief Justice, the view of the Chief Justice would have primacy and would prevail. The appointment and transfer of Judges of the Superior Judiciary was now to be controlled by the respective collegiums of the Supreme Court and High Courts, with the Supreme Court collegiums having an overarching control.

    Sadly, the gains made on the judicial side were soon lost by the Collegiums (consisting of the senior most judges) by resorting to ad hoc and arbitrary transfers of Judges from one High Court to another. About 50 Judges were transferred by a Collegium headed by the then Chief Justice M.N. Venkatachliah. Some years later nearly 20 judges were transferred during Chief Justice Kapadia's tenure. These transfers were made to get over the nexus between judges and their relatives practising in the same courts as well as to transfer judges who were perceived to be suspect. Needless to say these transfers were made without confronting the Judge concerned with any adverse material against the Judge, without a hearing and in total disregard to the principle of natural justice in the name of public interest. While this measure brought great personal glory to the individual members of the collegiums (projecting them as crusaders against corruption and nepotism), it resulted in showing the High Courts in very poor light. The reputation of the most important judicial institution in the country – the High Courts, was tarnished, not to mention tarnishing of the image of the transferred judges, who were treated as proclaimed offenders, on mere hearsay, and without a hearing.

    Transfers since then have now become routine. Judges of High Courts, who have ruled against the governments of the day, face transfers or supersession. It has become a tool for oppression and sending out a message to tow the line of the government or face the music. Successive collegiums have failed to stand up to this executive interference and have acted simply on intelligence reports, also prepared at the instance of the executive. Such actions lower the morale of the judges of the High Court and dissuade good candidates from taking up Judgeship. Assuming a judge is tainted, how would it help by transferring him? The answer lies in taking the process of appointment of judges more seriously , by undertaking a more intensive and rigorous examination of the proposed appointees and not recommending or refusing to recommend them simply on the reports of the investigation bureau, which sadly has become a stooge of the government. This would result in a better pool of judges being elevated. The Supreme Court should devise a robust mechanism to deal with complaints against judges, including developing its own intelligence wing. The offending material against the judge must be placed before the judge concerned and their response must be elicited, followed by a deeper examination of the same by a committee of senior judges. If any truth is found, then depending upon the gravity of the misdemeanour, the judge concerned can be warned, or removed from that jurisdiction or asked to resign. Transfer should really be the last option. Such measures would go a long way in enhancing judicial integrity.

    The fact that there is a power to transfer available by virtue of Article 222 of the Constitution ought not to be the reason to utilise that power routinely and indiscriminately. Similarly, the practise of appointing Chief Justices to the High Court from another High Court has achieved little. The tenure of such incumbents is usually too short for them to do any substantial good for the development of that High Court.

    Louise Arbour [18] while rendering a speech in 2013 had the following pertinent observations to make "We see at play a circle that can be either vicious or virtuous: in a country where the judiciary is held in low esteem and perceived as incompetent or corrupt or both, it would be difficult to attract the kinds of judges that would, in time, transform that perception. If the opposite is true, and judges are held in high esteem and enjoy public trust and social prestige, better candidates will come forward for judicial appointment and actual selection of one over the other will matter less". The ball therefore is clearly with the Supreme Court.

    (Research inputs by Soumya Gulati, Final Year Student of law at Government law College, Mumbai)

    [1] Stanford Encyclopedia of Philosophy

    [2]Chandrachud J in Indira Nehru Gandhi v Raj Narain (1975) Supp. S CC 1

    [3] State of TN Vs the State of Kerala (2014) 12 SCC 696

    [4] James Madison in the Federalist No 48

    [5]James Madison in the Federalist No 78

    [6] N.Stephen , 'Southey Memorial Lecture 1981:Judicial Independence – A Fragile Bastion '(1981) 13 Melbourne Law Review 334 @338

    [7] Julie Debeljak , Associate Director , Castan Center for Human Rights Law , Monash Univeristy - ' Judicial Independence : A Collection Of Material For Judicial Conference of Australia

    [8] Ibid.

    [9] Honourable David K Malcolm – 'Role of the Chief Justice '- Southern Cross University Law Review- volume 12 -2008

    [10] Julie Debeljak , Associate Director , Castan Center for Human Rights Law , Monash Univeristy - ' Judicial Independence : A Collection Of Material For Judicial Conference of Australia

    [11] Alysia Blackham, Senior Lecturer – 'Judges and Retirement Ages'- Melbourne University Law Review, Vol. 39, Pg.378

    [12] Chief Justice Richard A. Posner- 'Aging and Old Age'( University of Chicago Press, 1995), 350-1

    [13] (1973) 4 SCC 255

    [14] (1976)2 SCC 521

    [15] 1981 Supp (1) SCC 87

    [16] (1993) 4 SCC 441

    [17] (1998) 7 SCC 739

    [18] Louise Arbour Ex Judge ,Supreme Court of Canada ( as reported by the International Crisis Group )

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