The importance of an independent judiciary

Source: Hindustan Times dated 28.01.2020

-- Madan Lokur (Retired Supreme Court Judge)

The freedom of the judiciary, and the top court, has been sought to be compromised on several occasions in the past. But it has always bounced back.

In The Federalist No. 78 (14th June, 1788) Alexander Hamilton explained the rationale of the people of the United States (and now by extension, we the people of India) ordaining and establishing an independent judiciary in the Constitution. He said: “There is no position which depends on clearer principles, than that every act of delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do, not only what their powers do not authorise, but what they forbid.” This passage is the key to understanding the role of an independent judiciary in a republican democracy.

The independence of the judiciary has been sought to be compromised on several occasions in the past. But it has always bounced back. Will it do so once again?

The first few years of our Republic saw the spectre of supersession in the appointment of the Chief Justice of India but the Supreme Court judges stood firm and the thought banished. Judgments were delivered declaring some laws as unconstitutional. Some of these declarations were nullified by Parliament by amending the Constitution to validate laws and regulations and, indeed, place some of them beyond judicial scrutiny by introducing the Ninth Schedule in the Constitution. The Supreme Court took this in its stride and continued to stand as a beacon of hope for many, particularly in matters relating to the recognition and enforcement of fundamental rights guaranteed by the Constitution.

The establishment believed, mistakenly, that by virtue of its powers, it could do not only what was not authorised but what was forbidden. The commitment of the Supreme Court to the Constitution led to the theory of committed judges. The establishment believed that the appointment of judges committed to its philosophy would be amenable to legislative changes. Matters came to a head in the early 1970s when the Supreme Court was called upon to decide whether the Constitution was plasticine in the hands of Parliament. Fortunately, the Supreme Court reminded the representatives of the people that they are not superior to the people themselves. This reminder was achieved through the judgment in Kesavananda Bharati’s case which enunciated what is now part of constitutional folklore -- the basic structure doctrine.

The high point of the independence of the judiciary was followed by the Emergency. During this period, the independence of the Supreme Court reached its nadir. Through its decision in the ADM Jabalpur case (Justice Khanna dissenting) the Supreme Court virtually suspended Article 32 of the Constitution, which guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of fundamental rights. BR Ambedkar described this article as the soul of the Constitution and the very heart of it. Ironically, many judges in the high courts saved the day for the independence of the judiciary -- perhaps, they were made of sterner stuff.

Post the Emergency and two supersessions in the appointment of the Chief Justice, the Supreme Court rebounded with constitutional justice and human rights taking centre stage. Public interest litigation made the establishment accountable as never before and the people came to appreciate that they were the principals and masters, not the deputies or servants and that they were superior to their representatives. Elected governments in the States could no longer be overthrown by the establishment by merely invoking Article 356 of the Constitution and the political executive was made to appreciate that it was prohibited from doing not only what was not authorised by the Constitution, but what was forbidden. This allowed human rights to gain considerable importance; draconian preventive detention laws were interpreted with compassion so that continued detention without trial became a rarity. All this while, the Supreme Court endeavoured to maintain its independence from the establishment and I daresay it succeeded.

The second decade of the new millennium saw a renewed attempt to contain the independence of the judiciary with the passage of an amendment to the Constitution incorporating the National Judicial Appointments Commission for recommending the appointment of judges. This amendment was declared unconstitutional by a 4:1 majority by the Supreme Court on the ground of violation of the basic structure of the Constitution which recognized the independence of the judiciary. This effectively confirmed the collegium system of recommending the appointment of judges. That’s when the fire started.

Over the years, we are witness to the establishment rejecting, for slim and sometimes undisclosed reasons, the recommendations made by the collegium and sometimes sitting on them. We have also seen the collegium passing resolutions that are hard to believe, let alone rationalise. There is considerable criticism of the collegium system but no one has suggested a better alternative that ensures the independence of the judiciary or suggested returning to the pre-collegium days and handing back the power of recommending and appointing judges to the establishment in consultation (not concurrence) with the Chief Justice of India. The solution today is only to tweak and strengthen the collegium system through dialogue, and this is urgent.

We are also witnessing judgmental fluctuations by the Supreme Court, perceived by many as succumbing to the pressures of the establishment in its core function. What has happened to the independence of the judiciary, they ask? Is the sentinel on the qui vive surrendering its obligation to preserve and protect the rights of the people? Unfortunately, a few even recall ADM Jabalpur. Only time will tell but admittedly, recent trends are quite disturbing and the light at the end of the tunnel is getting dimmer. Unless these trends are arrested, law students of the future will be studying a different Constitution, with or without a Republic.