Need to equip judiciary to deal with forces of populism
Non-political appointments, security of tenure and rigorous procedure for removal are among the several measures needed to strengthen the institution, bolster its independence.
The word “independent” has been variously defined and understood across different societies and cultures. However, in legal systems the word means and implies “not dependent on” or “not controlled by” any outside agency or source. 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. Every judicial system is required to functionally wield what may be referred to as the “power to judge” or the “power to finally decide” — what is “judged” or “finally decided” is human conduct or decisions or a state of things. It is natural that such “power” would come to be exercised when any such decisions, conduct or state of things, different and divergent from the accepted ones, is questioned, challenged and even sought to be brought in line with the accepted one. It is such “function” and “decision” of the judge that must be “independent” of any extraneous consideration or of any fear or prejudice of the judge himself.
Independence of the judiciary as an institution is different from independence of judges as the fountainheads of justice. Despite such institutional independence being different in its ambit and requirements, from individual independence of judges, we must recognise that both are mutually interdependent and vital for any judicial system to be known as strong and responsive.
A lot has been written and talked about measures which, if properly implemented, go on to secure the independence of judges as well as the judiciary, as an institution. Non-political appointments, security of tenure and rigorous procedure for removal, securing the reputation of and remuneration and immunities for the judges, in-house accountability procedures, and implementation of code of judges’ conduct are some such measures.
Strengthening of institutions works best when they are strengthened from within and not when strength is sought to be infused from an external source. Strength that evolves from inside touches the character and core of the institution; in contrast, an external source could only lend “support” to the institution. Such external support would rarely strengthen the core of the institution. That apart, independence of judiciary is not a one-time pill — it is a “state of affairs” that has to remain constant, in the face of continuous and recurrent waves of onslaught aimed at disturbing such a “state”. It is also an aspiration that the stakeholders and leaders of the judicial organ must constantly seek out and defend.
We must remind ourselves that functionally, the judicial organ does not and can never win over friends — because the judiciary is not meant to be in the business of making or breaking of relationships/bonds/alliances/ nor does the judiciary pander to any constituency. Every court of law may seem like an island, existing in isolation and sovereign within its bounds, yet the judiciary and all its components are bound by common threads that are difficult for someone who is not a stakeholder to even begin to understand.
Amongst the several steps that would be required to strengthen the independence of judiciary, the foremost would be to develop and nurture leadership at all levels of the institution. Leadership roles bring decisiveness and direction at all levels. For the institution to secure its independence, it is imperative that leaders at all levels of the institution are on the same page and they think, act and speak likewise. Leadership skills at ground levels will also assist in securing the independence of individual judges.
The judiciary also needs to work on securing its independence in financial matters. The control of revenues and on expenditure essentially vests with governments. However, such control is more often than not seen to be exercised as a tool of arm-twisting. There is an apparent lack of understanding globally that, by the dint of their constitutional role, the judicial organs essentially act like buffers and pressure valves, standing between the state agencies and the restive populace, absorbing all the heat and dust thrown up by the cycle of governance, or a lack thereof. This lack of understanding, coupled with the fact that the judiciary does not pander to any constituency, translates into low budgetary support for the judiciary — including for its infrastructure and human resource components. It would not be surprising if data would reflect that nations which support and invest heavily in developing a strong judicial infrastructure, with sufficient financial resources and powers, would be nations with more stable governments and administrations. In this context, it is apposite to clarify that the pitch is not for mere parking of finances by the governments in the hands of the judiciary, but it is for complete autonomy in all financial matters. Absence of the requisite financial autonomy, would be gainsaying financial independence.
Now, a little about India. The Indian Constitution under Article 50 makes it obligatory for the state to undertake steps to separate the executive from the judiciary. The judges’ appointment process as envisaged under Articles 124 and 217 of the Indian Constitution for Supreme Court and High Court respectively envisages judicial oversight. The tenure has been also secured and removal is possible only by if there is proved misbehaviour and incapacity. Their salaries have been prescribed under the constitution itself.
Let me point out how the Indian Supreme Court has dealt with the above issues. If one goes for a more nuanced scrutiny it becomes obvious that except for some outliers, in almost all other cases, the executive in India has historically shown deference to the judiciary in the appointment of judges to the higher judiciary. It must also be clarified that so far as the subordinate judiciary is concerned, the selection process is through competitive exams. For the higher judiciary, to make the decision making participative and democratic, a collegium system has been envisaged. It constitutes of the Chief Justice of India and two and four other senior-most judges of the Supreme Court in cases of appointment of judges to the high courts and Supreme Court respectively.
The collegium is governed primarily by the consideration of merit in recommending the names. However, it is also alive to the issue of a representative judiciary. Therefore, it looks into the issue of regional representation, demographic representation etc. The Supreme Court of late has started posting the decision of the collegium on its website to meet the standards of transparency.
Before I conclude, I seek to draw attention of this esteemed audience to the fact that in some phases in the journey of a nation, when the legislative and executive wings get swept away from their duties and goals under the Constitution by waves of populism, it is for the judiciary to rise and stand up to the populist forces and protect the constitutional ethos from being desecrated by the populists. To some critics and naysayers, this situation presents a case for hoisting the classical counter narrative — unelected judges, acting under the constitutional mandate, get to overturn the acts of the elected majority. However, it is for us to recollect that such situations across the world have heaped tremendous pressure on the judicial organs, and it is no surprise that in some jurisdictions, the judiciary too has succumbed to populist forces. This is an area that requires the judiciary to prepare itself, to strengthen itself against such populist onslaughts on the independence of the institution. The human agency, through which justice is sought to be administered, has to be adequately secured and fortified in ordinary times, so that it is sufficiently equipped to deal with such forces of populism in extraordinary times, lest they overrun the judicial edifice too. This would be our strongest case for strengthening the independence of judiciary.
Ranjan Gogoi is the Chief Justice of India. Edited excerpts from his address to the 14th Conference of Chief Justices of members of the Shanghai Cooperation Organisation at Sochi, Russia, on June 18
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