In legal parlance, independence of judiciary mean the power of upholding without fear or favor, the rule of law, personal freedom and liberty, equality before law and impartial and effective judicial control over administrative and executives actions of the government.By committed justice we mean to say that when a judge emphasized on a particular aspect while giving justice and not considering all the aspects involved in a particular situation. Similarly judiciary must act in an unbiased manner.
The government many times have tried to make our judiciary committed to the government. It started during the days of the Emergency when the then PM Indira Gandhi, by her appointments made it clear in what sense the judiciary should be committed.
In 1973, the case Madhav Rao Scindia V. Union of India, and other few judgments when the nation’s senior-most judges questioned the government, they were superseded by Justice AN Ray to become the Chief Justice of India. Again, in 1977, the powerful dissent of Justice HR Khanna in the case ADM Jabalpur V. Shivkant Shukla, where it was held that fundamental rights can be suspended during the emergency, cost him his the post of CJI as he was superseded by Justice MH Beg. Many judges of the High Court who did not toe the line with the government were transferredwithout their consent and the attempts were made to install committed judiciary in the Supreme Court. Every government that flirts with authoritarianism is insecure about the judiciary. The phenomenon cuts across the globe.
Various provisions enriched by the framers of the Constitution
- The judges are appointed by the President after consultation with judicial authority. The President can remove a judge after an address presented to him by each house of Parliament.
- The security of tenure is guaranteed to every judge. A judge of Supreme Court or High Court can be removed only on the ground of proved misbehavior or incapacity.
- The privileges, rights and allowances of the judges cannot be altered to their disadvantages after appointment. The salaries and allowances of the judges are not put to the vote of the Legislatures.
- The administrative expenses including salary allowances and pensions of the Supreme Court and High Court judges are charged to the consolidated fund of India and the states respectively.
- The conduct of the judges of Supreme Court and High Courts in discharge of their duties shall not be discussed in legislature.
The framers of the Constitution established independent and impartial judiciary in India. But the image of judiciary in its functional aspect is not fully independent. Under Article 124 the judges of the Supreme Court of India are appointed by the President of India with the consultative process and the opinion of CJI was hardly avoided. The senior most judge of the Supreme Court was made the CJI till 1973, when the concept of committed judiciary first came into picture.
In Sankal Chand’s case, the Supreme Court by majority held that prior consent was not necessary to transfer a judge and ‘consultation’ under Article 124 does not mean ‘concurrence’ and the executive is not bound by it. The Government may completely ignore the advice of legal experts. It is submitted that by this ruling the Court itself endangered the independence of Judiciary. The same was followed in S.P. Gupta v. Union of India, which received a huge criticism.
In Supreme Court Advocates on record v. Union of India, the above judgment was overruled and held that the opinion of the Chief Justice shall be binding on the President as he is more competent than other constitutional machineries to accrue the merit of a candidate. And in this the collegium was instituted which constituted the CJI and two senior most judges for appointment of Supreme Court judges.
In the Third Judges case, the Court upheld the Second Judge judgment and expanded the collegium to include four senior-most judges along with the chief justice.
National Judicial Appointments Commission Bill, 2014, proposed a body which would have been responsible for the appointment and transfer of judges to the higher judiciary in India. The Commission was established by 99th amendment act of the Constitution. The NJAC replaced the collegium system and the commission consisted of CJI, Two other of senior judges of the Supreme Court, the law minister, and two nominated eminent persons. It may be termed as an attempt to take the judiciary back to emergency period and make the judiciary a committed judiciary again.
The fourth judges’ case, the court with4:1 ratio struck down the 99th Amendment Act and consequently the NJAC Act, thereby declaring the said amendment as unconstitutional as it violated independence of judiciary. It gave judiciary upper hand in the matter of appointment of judges, but it has raised substantial question on its slowly growing power of judicial review.
The concept of judicial independence is not confined to independence from the government. It requires the judges to perform their constitutional role independent of personal biases, political and moral beliefs and uphold the supremacy of the Constitution. If the judiciary is not independent, the other organs may pressurize the judiciary to interpret the provision of the Constitution according to them.
The Independence of the judiciary as is clear from the above discussion hold a prominent position as far as the institution of judiciary is concerned. The independence of judiciary is the pre-requisite for the smooth functioning of the Constitution and for a realization of a democratic society based on the rule of law.Also, there exists over 400 vacancies in total, so judiciary should be committed to increase the efficiency of the judiciary and understand what is more important, the independence of judiciary or the efficiency or both as according to me they both are dependent on each other.