The democracy commences from “We the People” and stands upon its four pillars which include Justice which is social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and opportunity; and the promotion of Fraternity among all assuring the dignity of an individual and the unity and integrity of the nation. The democracy is ensured by the organs of the government which includes Legislature, Executive and Judiciary. However, the only strength of the mentioned pillars is the rule of law which is majorly established and protected by the judiciary which leads to the true upliftment and protection of the citizens.
“The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.” – Caroline Kennedy.
An independent judiciary is the sine qua non for keeping alive the spirit of a democracy in accordance with the evolution of the nation. Only an independent and impartial judiciary can stand as an apposite factor for the protection of rights of the citizens and implementation of the obligations in the interest of justice. The judiciary is the protector of the constitution and takes necessary steps to strike down the dissolute and distorted statutes or rules and regulations made by the Legislatives or Executives; which leads to the existence of rule of law. However, the constitution only provides basis of the independence of judiciary, wherein for achieving it in its true sense the judicial body has to exercise its powers in an impartial and unfavorable manner in the ends of justice. For preventing the hampering of the basic structure of the Constitution, the independence of judiciary must not dearth while continuously guarding it from the unexpected despotic economic, social, or political changes in the nation. Disowning of independence of judiciary would mislead the nation towards the demolition of rule of law.
MEANING OF INDEPENDENCE OF JUDICIARY
Independence of judiciary does not mean the existence of arbitrariness or the absence of accountability in the judicial body; it means the existence of judiciary with the absence of influence, biasness and favors. It means that the judiciary is free from the absurd influence of the legislative and executive bodies or the other organs of the government are disallowed to interfere in the decisions of the judiciary. The main concept of the independence of judiciary came into existence after the establishment of the Doctrine of Separation of Powers which is originated by Article 50 of the Constitution of India; which states that the State shall take necessary steps which leads to the separation of judiciary from the executive in matters of public services of the State. The true sense of independence of judiciary is not the literal separation of judiciary from executive and legislative, but it simply means that the Honorable Judges are independent enough to decide any matter in accordance with the law and to protect the rule of law for the existence of constitutional democracy in the State by impartially exercising their judicial powers given to them. There is no such hard and fast adequate definition of the independence of judiciary; it is only required to be explained in a manner which must fulfill the perspective of serving justice to the nation.
The famous French philosopher, Montesquieu, was the first political philosopher who propounded the idea of independent judiciary. He believed in the theory of Separation of Powers among the organs of the government and considered it as an integral part to run the administration of the State. This theory had a puissant impact on the Fathers of the American Constitution and became the reason of establishment of independent judiciary in their country. The American citizens have colossal faith in the judiciary and consider independent judiciary as the only factor which can save them from the infringement of their rights. Whereas, the concept of independent of judiciary took more time to grow in the United Kingdom. Before the year of 1701, the Honorable Judges were able to hold their offices at the will of the Crown and can be dismissed at the will of the Crown. However, there is no written constitution in the United Kingdom, but still its citizens enjoys liberty no less than the American citizens and no major clash between the Parliament and the Judiciary has occurred so far. The impact of Crown on the judiciary can be found by taking into consideration the Hampden’s Case in which majority of seven out of twelve Honorable Judges gave an award of collection of money to the Crown without any prior parliamentary approval. One of the Honorable Judges was even of the view that rex is lex (The King is Law). The Act of Settlement of 1701 secured the judicial independence in the country, which declared that the judicial tenure would be lawful only during the good behavior and the lawful removal of an Honorable Judge would only be upon the address of both the Houses of Parliament. As of now, the security of the judicial tenure is in accordance with the statutes of the country. However, unlike India and United States of America, the judiciary of United Kingdom is incompetent to declare any law passed by the legislature as unconstitutional. Whereas, the judiciary of the United States of America and Indian have the power to declare any law as unconstitutional by exercising their power of Judicial Review. They can hold any law passed by the legislature and strike it down. In India, the judiciary strikes down any law if it finds any law as ultra vires to the Constitution, or if it finds that any law hampers the basic structure of the Constitution.
CONSTITUTIONAL PROVISIONS IN INDIA
There are no such expressed provisions titled as the Independent Judiciary in the Constitution of India. But, in accordance with the landmark case of S.P. Gupta v Union of India[i], the Honorable Supreme Court observed that independence of judiciary and rule of law are enshrined in the basic structure of the Constitution and cannot be taken away or removed even by the Constitutional amendments by the Parliament. Even no act or statute passed by the Parliament can remove any of the features which are enshrined in the basic structure of the constitution as the Constitution of India is the supreme law of the land and all the other acts or statues derive their authorities from it. As per Article 50, the Indian Constitution specifically directs separation of judiciary from the executive and taking necessary steps for the same in matters of public services for the State.
The Constitution of India has different provisions to ensure the independence of judiciary and maintaining the constitutional and parliamentary sovereignty. The provisions which ensure the independent positions of the Honorable Judges of the Honorable Supreme Court and the Honorable High Courts are as follows:
- The Honorable Judges of the Honorable Supreme Court and the Honorable High Courts have to take an oath that they will perform their duties faithfully without any favor, fear, affection, or ill-will and defend the Constitution in every circumstance, which implicit the Doctrine of Constitutional Sovereignty (Article 124 (6) and Article 219 of the Indian Constitution).
- The Honorable Judges of the Honorable Supreme Court and the Honorable High Courts also establishes and ensures the independence of judiciary as they are appointed by the Honorable President of India with the consent of highest judicial authorities. And this particular consent is mandatory because of the Constitution of India as it prescribes mandatory qualifications for such appointments as well as tries to make the appointments unbiased by the political considerations (Article 124 (2) and Article 217 of the Indian Constitution).
- The Honorable Judges of the Honorable Supreme Court and the Honorable High Courts serves on the basis of their good behavior and unlike the other high government officials they can neither be removed on the basis of arbitrariness nor on the will or pleasure of the Honorable President of India. They can only be removed through the methodology or process of impeachment on the ground of misbehavior or incapacity on a report by the both Houses of Parliament by a special majority (Article 124 (4) of the Indian Constitution).
- Except in the circumstance of a financial emergency in accordance with Article 360 of the Indian Constitution, the salaries and allowances of the Honorable Judges of the Honorable Supreme Court and the Honorable High Courts cannot be reduced during their judicial tenure which is charged upon the Consolidated Fund of India (Article 125 of the Indian Constitution).
- Except in the case of removal of an Honorable Judge, the activities of the Honorable Judges can never be a part of discussion of the executives or legislatives (Article 121 of the Indian Constitution).
- The retirement age of an Honorable Judge of the Honorable Supreme Court is 65 years and the Honorable High Courts is 62 years which too enables them to function fairly and independently (Article 124 (2) and Article 217 of the Indian Constitution).
NEED OF INDEPENDENT JUDICIARY
“Society is a web of social relationships.” – MacIver & Page.
A country commences from an individual, then to a family, then to a society, and then ultimately forms one. Conflicts or disputes are the part of a society as each and every individual or group of individuals are of different opinions and that is why conflicts are bound to arise between individuals, group of individuals or groups and government. All such disputes must be resolved in an independent manner in accordance with the principle of rule of law. The principle of rule of implies that every individual – rich or poor, male or female, white or black, literate or illiterate, etc. are subjected to the same law. The primary role of judiciary is to safeguard the rights of individuals and protect rule of law by maintaining the supremacy of law. Moreover, an independent judicial body ensures that the spirit of democracy does not allow the existence of dictatorship or monarchy which snatches away the essential fundamental rights of the citizens. In order to achieve the mentioned purpose, it is a necessity that the judicial body must exist independently.
THE FOUR VOWS
The Indian lawyer, nationalist and the social activist, also known as the “father of the nation”, Shri Mohandas Karamchand Gandhi, who in the eyes and hearts of millions of Indians is a Mahatma (Great Soul) have given eleven vows during his legendary lifetime in which he became the soul of the nation by becoming the leader of the nationalist movement against the cruel British Rule of India through his Doctrine of Non-violent protest to achieve social and political progress in the country. His vows were the reason behind his national contribution and universal recognition which are stated below[ii]:
- Ahimsa (Nonviolence)
- Satya (Truth)
- Asteya (Non Stealing)
- Brahmacharya (Self Discipline)
- Asangraha (Non-possession)
- Sharirshrama (Bread Labor)
- Aswada (Control of the Palate)
- Sarvatra Bhayavarjana (Fearlessness)
- Sarva Dharma Samantva (Equality of all Religions)
- Swadeshi (Use locally made Goods)
- Sparshbhavana (Remove Untouchability)
Instead of creating imbalance between or among the organs of government, the independent judiciary will give a strong base for the existence of rule of law as well as provide machinery for serving justice to the country. If the four out of eleven vows of Bapu will be adopted by the Indian judiciary, then it will lead to its independence in a manner which will lead to the establishment of justice. And those four vows are:
- Satya (Truth)
- Sarvatra Bhayavarjana (Fearlessness)
- Sarva Dharma Samantva (Equality of all Religions)
- Sparshbhavana (Remove Untouchability)
HOW THE FOUR VOWS ESTABLISHES INDEPENDENT JUDICIARY
A judicial organ of a monarchy is different from a judicial organ of a democracy. As the judicial organ of a monarchy works on the will of the King/Queen/Crown, whereas, the judicial organ of a democracy works in accordance with the rule of law. The spirit of a democratic judicial organ is constituted from truth (Satya), fearlessness (Sarvatra Bhayavarjana), secularism (Sarva Dharma Samantva) and equality (Sparshbhavana). These are the pillars on which judiciary is based upon. And only these values decide the factor of independence of judiciary, which are used to serve the purpose of a democratic judicial organ.
The judiciary which is independent from every kind of influence from the legislative and executive organs of the government would ensure pure supremacy of law. Regardless of the circumstances or the influential powers of the parties to the dispute, if the Honorable Judges would act fearlessly and truthfully, then they will be able to decide each and every dispute from a secular and impartial perspective. That is how the judiciary will be able to maintain the constitutional democracy in the country.
While deciding the matters which are presented before the Honorable Courts, it is an essentiality to disclose the truth by the parties to the dispute. However, a party only discloses those facts which cannot be used against it. In this situation, an Honorable Judge can find the truth only after exercising his/her power or using his/her intelligence in an independent manner. And that independent manner can only be achieved by being committed to the Indian Constitution and acting in a fearless and truthful manner.
The Honorable Supreme Court by acting fearlessly and truthfully safeguards the fundamental rights of the citizens which are given in Part III (Article 12 – Article 35A) of the Indian Constitution. Safeguarding the fundamental rights of the citizens leads to the occurrence of abolition of untouchability (Article 17), abolition of titles (Article 18), establishment of rule of law, etc. which ensures the co-existence of every citizen in an equal manner.
“The greater the power the more dangerous the abuse.” – Edmund Burke
With great power, comes great responsibility. Establishing the four vows means that the Honorable Courts have to use their independence in a manner which serves the purpose of the judiciary and maintains it dignity and accountability. For avoidance of misuse of independence, the Indian judiciary is categorized in a hierarchical manner from the Honorable Supreme Court to the Honorable High Courts and then onto the Honorable District Courts which ensures the maintenance of accountability and dignity of the organ.
[i] S.P. Gupta v Union of India AIR 1982 SC 149
[ii] Mark Shepard, Mahatma Gandhi and His Myths (Shepard Publications 2002)
Author: Khalid Ali Khan Afridi