Introduction
1. On the two ideas that I’ve been invited to speak to you about today – the rule of law and judicial independence - the fate of entire nations is made and unmade. Will this not apply to India?
2. In the meaning and persistence of these ideas in India, and in studying the crests and troughs in India’s journeys toward them, fascinating insights are to be found for constitutionalists everywhere, particularly on the subjects of what makes up a constitutional democracy in contemporary times and how its institutions are challenged to perform if it is to endure.
3. Today, I propose to address some facets of the rule of law in India, and then present the Indian debate around how to realise judicial independence, as it is made out by the Indian Supreme Court’s engagement with several issues including the theme of appointments to the judiciary.
4. Through addressing both themes from the perspective of the world’s largest democracy’s success and travails, I wish to convey to you today that working and perfecting any democracy is continuing work, in which patience, positivity and persistence are the key ingredients. In other words it is work in progress!
The Rule of Law
5. In the Indian legal and constitutional imagination, a commitment to the rule of law is not only indispensable to our vision of democracy, but to the very idea of a civilized state. The vast literature on the subject understands the idea in two ways, and I would venture that India’s journey has been to travel from one towards the other in the years since 1947 when India became free.
6. In the colonial period, as also in the early decades of the Republic, the attribute of writtenness of the law was treated as a sufficient condition to achieving the rule of law. The work of the English Utilitarians in codifying laws in key areas of Indian life – from the personal laws governing family life, to the criminal laws and contract law to laws which would regulate procedure and evidence in the courts – was a crucial element of the colonial architecture of the rule of law.1 For their logical rigour and clear distillation of foundational legal ideas, a number of these laws are fine examples of successful codification. They remain cornerstones of India’s legal system today. In addition, British Judges brought to bear three important virtues in their work in India—1. Punctuality and Discipline 2. Respect for Adjudication in accordance with law 3. Recognition of merit in the Indian Bar.
7. This legacy continued beyond independence. In addition, two of the Judges were the foremost educationists and scholars of Indology. (Sir Maurice Gwyer and Sir John Woodroffe)
8. The emphasis on written law is a threshold condition for any society committed to order and to peace. But in a legal imaginary in which writtenness and formality are treated not only as the sine qua non for the rule of law, but as exhaustive of the idea, there is no guarantee of justice. In the theatre of the colonial courtroom, this distinction between the rule of law and justice played out in among the most recognizable criminal trials of the Indian freedom movement – such as in the trial of Mohandas Karamchand Gandhi for the offence of contempt of the court in 1922, and of numerous others for crimes including that of sedition. Some of these narratives are presented in a greatly edifying work by AG Noorani on the subject.2
9. From these stories, the idea that we treat laws and procedures as ipso facto instruments of justice or of peace and flourishing at our peril is eloquently made out.
10. Indeed, historians of empire have shown that the law – written law – and a fastidious application of it can engender and reproduce violence and injustice.3 In fact, the introduction of the rule of law, as contrasted from the “personal and arbitrary rule of the Oriental despot” was used as a justificatory device in the British imperial project, as it was enacted in India.4 Rule of law in the imperial project lacked a critical substantive premise – that of equality of all, namely of the imperialist and the so called native. Without this substantive commitment – let alone the wider range of rights contemporary legal systems guarantee, laws and the courts could not strive towards justice but rather became instruments of the opposite. As we march on in the years beyond Independence, the Archetypal Despot (in any state form) can surface in conditions of comparative Judicial non-criticality.
11. The identity between the rule of law and the formal existence of laws combined with a machinery of courts for their mechanical application has persisted in the Indian legal imagination. It was not truly dismantled until the this decade, when 9 judges of the Supreme Court in Puttaswamy v. Union of India5 struck down earlier precedent by which, a technical reading of the Constitution’s text which would defeat the rights guaranteed within, had been applied. I will return to this unfortunate case, ADM Jabalpur, but at this stage I want to make clear that India now commits to a thick conception of the rule of law, and has expressly jettisoned the thin, anaemic vision of the ADM Court.
12. Judges who participated in ADM were brilliant minds. There was one heroic dissenter, however, the Majority ruled on the fallacious equations of State being for altruistic public good and a political idea which had to be tested by a Constitution which is humanistic in principle.
13. The best articulation of a rich and substantive vision of the rule of law comes from a British judge, Lord Bingham, whose eight-point list of elements of the rule of law requires:
First: “the law must be accessible and so far as possible intelligible, clear and predictable.” [Legal Certainty]
Second: “questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.” [Law, not Discretion]
Third: “the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.” [Equality before the Law]
Fourth: “the law must afford adequate protection of fundamental human rights.” [Rights Guarantees]
Fifth: “means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.” [Access to Justice & to the Courts]
Sixth: “ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers.” [Government Servants exercising Limited Powers in Good Faith]
Seventh: “adjudicative procedures provided by the state should be fair.” [Fairness in Adjudication]
Eighth: “the rule of law requires compliance by the state with its obligations in international law, the law which whether deriving from treaty or international custom and practice governs the conduct of nations.” [Observance of International Law]
14. Across the world today, scholars and commentators are taken up with the idea of ‘rule of law backsliding’7, the idea that countries across the globe are faced with a weakening rule of law. To contend with this, all we need to do is recognize that the rule of law – though it is contrasted with the rule of men, it cannot eliminate the need for wise men and women in institutions of political power and constitutional significance, who discharge their functions not only with an eye to meeting all the requirements of the letter of the law, but also with a keen intuition for justice and regard for the Constitution. This human element is captured in the list of rule of law desiderata I have just presented to you in the need for discretion, and the need for just and fair adjudicators. And this intuition for justice – for looking to act in substantively just and constitutional ways in addition to meeting the letter of the law (where it exists) – is what the Indian Supreme Court has begun to refer to as ‘constitutional morality’.
15. If the rule of law is, in fact, the rule of law and of good and wise men and women, there can be no more important determinant of its health than the legitimacy and independence that the Judges of our Constitutional Courts possess. As we say of our Supreme Court, it is a sentinel on the qui vive.
16. Let us turn then to the issue of judicial independence.
Judicial Independence
17. Like many others, India’s constitutional system rests on a simple premise. Though artificial, this premise is indispensable. The Constitution’s democratic credentials depend on it. Put simply, it assumes that in their natural state, all individuals are free and equal. But with absolute freedom comes chaos and anarchy. Society will always have some who choose to use their freedom to another’s detriment. The solution lies in an ordered liberty. The people thus agree to a settlement. They choose to part with a small measure of their freedom in exchange for certain assurances. Principal among these are that at all times and at all costs, their freedom will be protected and their equality guaranteed.
18. In India, this settlement was completed on the 26th of November 1949, when the people adopted a Constitution. Like the US Constitution, this too was “conceived in liberty and dedicated to the proposition that all men are created equal”.8 The people were assured rights, including the freedom to speak and worship as they desired. From the United States we borrowed Federalism, distributing legislative and executive powers between the Union and the States. From the United Kingdom we took the Westminster model of government and free and fair elections. At the federal level, law-making was left to a bicameral parliament and everyday governance to a Council of Ministers responsible to it. A similar system was established in the States. The most important task of all, that of ensuring that the terms of the settlement were not breached, fell to the Judiciary. The Supreme Court became the final interpreter of the Constitution. And together, the Supreme Court and the High Courts were tasked with the highest duty - checking the actions of both the Executive and the Legislature, each of whom was bound by the Constitution.
19. Considering the enormity of this responsibility, insulating the courts ought to have been a matter of constitutional design. No court can be expected to perform its checking functions with interference from other branches of government. True to their oaths of office, judges must act “without fear or favour, affection or ill-will” for without an independent Judiciary, the Constitution is little more than a statement of empty promises. To ensure this, all judicial institutions must be independent of other branches of government. More importantly, individual judges too must be independent, shielded from all things that could cause them to deviate from their oaths. The Constitution acknowledged this by placing a duty on the State to ensure the separation of the executive from the judiciary in the public services of the State.9 With limited exceptions, it also barred any discussion in Parliament and the State Legislatures that relates to the conduct of judges in the discharge of their duties.10
20. But even as a matter of design, no Judiciary can enjoy absolute independence. No Judiciary ought to. The Judicial power is as easily misused as any other. “The challenge in any modern constitutional democracy”, noted a former Indian judge, “is to design a system that institutionally secures the independence of the judiciary as well as produces a degree of accountability”.11 In India’s constitutional design, this was sought to be achieved through executive involvement in judicial appointments and a role for the legislature in the removal of judges. Today I’ll speak a few lines on the appointment process for the constitutional courts. It offers a fairly comprehensive view of how the concept of judicial independence has evolved in India.
Appointments
21. At first glance, the process of appointing judges in India gives little assurance of judicial independence. On the contrary, it suggests complete executive control. As it originally stood, Article 124 of the Constitution provided that every Judge of the Supreme Court would be appointed by the President “after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose”. Though, if the appointment concerned a Judge other than the Chief Justice, the President was also bound to consult the Chief Justice of India. The appointment process was similar for the High Courts. Article 217 empowered the President to appoint Judges after consulting the Chief Justice of India, the Governor of the State in question, and the Chief Justice of the concerned High Court.
22. For those unfamiliar with India’s political system, the Office of the President of India is comparable to the Crown. In practice, the President is the Union Executive, Government of India. He cannot act independently and must always follow the advice of his Ministers.12 As for the Chief Justice of India, he is only the first among equals. In administrative matters, he sits above other justices of the Supreme Court. In judicial matters, however, all judges are equal.
23. In effect, judicial appointments to India’s constitutional courts were to be made by the Central Government, the Executive, the very authority against whose transgressions the courts were to shield the citizen. By design, India’s system stood on shaky ground. No checks were built into the appointment process to avoid abuses of power. The requirement to consult the Chief Justice could hardly provide sufficient protection against an interfering Executive. Our hope was that the Executive would reject self-interest and always act with good intentions.
24. It might come as a surprise then that the early years of the Supreme Court saw little tension between the Executive and the Judiciary. Constitutional design played no part in this achievement. The process worked because the President chose to follow convention over the letter of the law. Though the Constitution only required him to consult the Chief Justice of India, in practice, the President – that is, the Executive – always agreed with the Chief Justice’s recommendation. The first five Chief Justices of the Supreme Court by their distinction, learning and character, assisted by India’s greatest Attorney-General set the tone of independence tempered with humility. The appointments made to the Court led to the Court being an institution of strength and public confidence. Even though political leaders had a claim to democratic pedigree through elections yet, they did not view the Court neither as an ally or adversary. The Constitution remained paramount.
25. One likely reason behind this early success was the pervasive desire to make the new Constitution work. A cautionary tale had unfolded before us: two nations won independence on August 15, 1947. By January 1950, India was governed by its own Constitution. But the people of Pakistan had to wait until 1956 to adopt a Constitution, one that was forcefully abrogated only two years later. It was crucial that India invest all its efforts in working the Constitution, in giving it every chance to succeed.
26. And thus, independent India saw wisdom in leaving appointments to the Chief Justice. In 1959, Cabinet Minister Govind Ballabh Pant rose in the upper house of Parliament and said: “Sir, so far as appointments to the Supreme Court go, since 1950 when the Constitution was brought into force, nineteen Judges have been appointed and every one of them was so appointed on the recommendation of the Chief Justice of the Supreme Court”. Aware of the efficacy of this convention, he added that the Chief Justice was “the most competent, dependable and eminent person” to advise on matters of appointment.
27. A few altercations notwithstanding, this convention was followed for over two decades. Judges were appointed on the recommendation of the Chief Justice. It was in the 1970s that faults in constitutional design became apparent. The Supreme Court and the Central Government clashed in a number of cases, prompting an angry Executive to upset the status quo.
28. Four judgments are widely regarded as the cause for the decline in judicial independence. All four were pronounced during Indira Gandhi’s first two terms as Prime Minister. While these remain among the most important decisions in the history of the Supreme Court, I will only refer to them briefly. The first of these was IC Golak Nath v. State of Punjab.14 Over a series of decisions concerning a citizen’s right to property, the Supreme Court had confirmed that regular laws made by Parliament could not abrogate fundamental rights and could only affect those rights to the extent the Constitution permitted. However, Parliament also enjoyed the power to amend the Constitution.15 Doing so required a special, two-thirds majority in Parliament, and, in some cases, ratification by at least half of the State Legislatures. As the law then stood, Parliament could, in exercise of this amending power, alter any part of the Constitution, including provisions that guaranteed fundamental rights. The amendment power was plenary.
29. This issue arose again before a bench of eleven justices in Golak Nath. By a majority 6 to 5, the Court found that fundamental rights guaranteed by the Constitution were sacrosanct, inalienable, and inviolable. Even in exercise of its power to amend the Constitution, Parliament could not touch them. Hurting the government’s land reform policies, the decision was a setback for both Parliament and the Executive that controlled it.
30. The second case was the matter of RC Cooper and the Union of India.16 Here, by a majority of 10 to 1, the Supreme Court struck down the Government’s decision to nationalise 14 private banks.
31. RC Cooper was followed by the Privy Purses Case.17 A brief background is necessary. In the months following independence, several Princely States merged with the Indian Union. Until these mergers, they were sovereign states in international law. In exchange for their sovereignty, their titles and their land, the rulers of these states were guaranteed certain payments from the Government of India. This guarantee was also recorded in the text of Constitution. The Government sought to abolish this system and end these payments. It did so, not by amending the Constitution, but by a Presidential order. In a careful and scholarly judgment authored by Justice JC Shah, the majority struck down the order. Both the majority judgment and Chief Justice Hidayatullah’s concurring opinion made little effort to hide their displeasure and disdain for the Government’s actions. A great Indian statesman, C Rajagopalachari, said of the case: “…the Supreme Court has, if I may say so respectfully, justified its existence. It has saved India’s honour. The Court has justified the people’s confidence in it as an impregnable bulwark for safeguarding justice and democracy against authoritarianism.”
32. By the early 70s, the Executive had been accused of appointing judges who would overrule Golak Nath and help it secure a verdict favouring an unlimited amending power for Parliament. The scope of Parliament’s powers, and the role of the courts in enumerating them, would emerge again in our fourth case - the famous decision in Kesavananda Bharti v. State of Kerala.19
33. The Government argued that the amending power was unlimited. In theory, Parliament could remove all fundamental rights, extend its own term indefinitely, or replace the republican system with a hereditary monarchy. The Supreme Court met both sides in the middle. Overruling the judgment in Golak Nath, a bench of 13 justices, by a majority of 7:6, held that Parliament’s power to amend the Constitution extended to amending fundamental rights. But there was a limit on this power. Parliament could not amend the basic structure of the Constitution.
34. A fourth defeat didn’t go down well with the Government. The judgments in Kesavananda Bharti were pronounced on the 24th of April 1973.
35. Chief Justice Sikri, who was in the majority, was to retire the following day.
36. By convention, the senior-most judge at the Supreme Court was to be appointed the next Chief Justice. This convention had been followed in the case of all previous Chief Justices. Justice JM Shelat was next in line, except he had ruled against the Government in Kesavananda, as had the two judges that followed him – Justices Hegde and Grover. All three were eminent Judges but a trifle too independent for the Government’s liking.
37. On April the 25th, Justice AN Ray was appointed Chief Justice of India, superseding all three judges senior to him. An important convention was broken for the first time in the Constitution’s history. Referring to his friendly dissents, former Attorney General CK Daphtary said it best - the boy who wrote the best essay got the first prize!
38. Ray’s appointment exposed deep cleavages in the body politic. Judicial independence had been hit. Weaknesses in constitutional design were now visible. Then, as often happens in India, in a climate filled with cynicism and despair emerged a story of courage. Prime Minister Indira Gandhi was at the peak of her powers when, in June 1975, Justice Jagmohan Lal Sinha of the Allahabad High Court found her guilty of electoral malpractices under the Representation of People Act and annulled her election! Resisting immense pressure, this Judge disqualified her from contesting elections for six years.
39. On June 23, while the Supreme Court was in recess, her appeal against the High Court’s decision came up before Justice VR Krishna Iyer of the Supreme Court. He sat alone, as judges often did during the summer recess. On June 24, he declined to order a complete stay of the High Court’s judgment, though allowed her to participate in Parliamentary proceedings without a vote. The way Justice Iyer conducted the hearing was an outstanding example of Judicial calmness, learning and transparency. All the windows of the Court hall of the Chief Justice’s Court were opened and milling crowds of lawyers were silently watching the proceedings. The following morning, President Fakhruddin Ali Ahmed, on the advice of the government, declared a National Emergency in India.
40. The Emergency was a period of eclipse in India’s history. Human rights suffered at the hands of an oppressive government as the Supreme Court watched on, acquiescing in silence. Several people were detained under a law called the Maintenance of Internal Security Act. Most were the Government’s political rivals, dissenters, and journalists, effectively anyone who disagreed with the Executive. This is an archetypal oppression. This is being witnessed all over the world. I believe that an inactive Judiciary, and a Judiciary rendered less mobile in ideological tugs of war, willy-nilly supports the continuance of such suppression.
41. Several detenus challenged their detention in various High Courts. The Government argued that the Constitution permitted the President to suspend the enforcement of all fundamental rights during an Emergency.20 This suspension, they said, extended to the right to challenge an unlawful detention in court. The High Courts would have none of it. In their finest hour, nine High Courts upheld personal liberty, finding that detenus had a right to move the courts during an emergency. These Judges were visited with punitive transfers! It was indeed a miracle that some of them were appointed to the Supreme Court after the executive government changed. The initiative was taken by an eminent lawyer-turned Law Minister who was assisted, in fairness, by the then Chief Justice Beg (who had superseded H R Khanna). The Law Minister, the Prime Minister and the Chief Justice concurred on the name of S V Gupte to be the new Attorney General for India, a man of great integrity, dignity and aloofness. Thus, the history of Law Officers became a story of moral leadership!
42. In ADM Jabalpur, Appeals against these judgments came up before the Supreme Court. The Government repeated its arguments in favour of unchecked power. When the Bench asked whether a remedy would lie if a policeman killed someone for reasons of enmity, Attorney General Niren De said that during the Emergency, it would not. The Attorney-General, a man of great industry, was a formalistic interpreter of the Constitution. Indeed any Law Officer must never lose the prism of India’s struggles against oppression. To permit its repetition by the State is a tacit participation in egregious darkness. If the light of Freedom and Conscience of the Nation has been lit by a Constitution, any subsequent aberrations have a strong historical reminder of multiple egregiousness of power, authority and harsh invasion of the Citizen as a unit of existence, denying him equality and character assured by the Constitution. The Constitution does not confer religious identity, because that is not man’s chosen circumstance, but freedom from discrimination and protection of hiscConscience can be ascertained by Humanistic Determinism of the Constitution.
43. In what continues to be regarded as the Supreme Court’s darkest moment up to a time, it overruled the High Courts and found in favour of the Government. Even if a detention was mala fide, even if it had no legal authority, the courts could not be approached. Habeas Corpus stood suspended in an emergency. One Judge opined that the detenus were all well housed and well fed, and that the State’s care for them was “almost maternal”.
44. The majority, in what came to be known as the Habeas Corpus Case21, had given a clear indication of a committed Supreme Court, and of Judges frightened by a powerful Government. The reason to hope was a sole dissenter – Justice HR Khanna. Like Lord Atkin decades before, he put duty before all else, deciding in favour of liberty. And for his independence, he paid a heavy price. Based on the seniority rule, Khanna was to follow Ray in the Chief Justice’s office. Upon Ray’s retirement, the President superseded Khanna in favour of Justice Beg and Khanna resigned.
45. To regain glory is a slow and arduous journey. Some factors enable it. They are a determination of the individual Judge’s spirit, commitment to the Constitution and a certain understanding of asymmetry of power and law, the former being the raw untamed agent of human authority, while the latter being the soul or conscience of society. By failing to insist on law, society cries in pain, its soul watches, hoping for the dawn of assurance which can come only from the Judiciary. These are definitive moments when the Court needs to reflect upon its own trajectory, its moral alignments, and most importantly the duty to enhance hope because the Constitution is a document of hope.
46. It is against this backdrop that we must consider later developments affecting judicial independence. Past events laid the foundations for a protectionist Supreme Court, one focused on self-preservation and damage control. It became necessary for the courts to regain the people’s trust. This required a revaluation of the judge’s role. Judges were no longer impartial umpires, they were champions of constitutionalism, active participants in the Indian experiment.
47. Few put it better than Justice PN Bhagwati: “27. Having disposed of the preliminary objection in regard to locus standi of the petitioners, we may now proceed to consider the questions which arise for determination in these writ petitions. The questions are of great constitutional significance affecting the principle of independence of the judiciary which is a basic feature of the Constitution and we would therefore prefer to begin the discussion by making a few prefatory remarks highlighting what the true function of the judiciary should be in a country like India which is marching along the road to social justice with the banner of democracy and the rule of law, for the principle of independence of the judiciary is not an abstract conception but it is a living faith which must derive its inspiration from the constitutional charter and its nourishment and sustenance from the constitutional values.
It is necessary for every Judge to remember constantly and continually that our Constitution is not a non-aligned national charter. It is a document of social revolution which casts an obligation on every instrumentality including the judiciary, which is a separate but equal branch of the State, to transform the status quo ante into a new human order in which justice, social, economic and political will inform all institutions of national life and there will be equality of status and opportunity for all. The judiciary has therefore a socio-economic destination and a creative function. It has to use the words of Glanville Austin, to become an arm of the socio-economic revolution and perform an active role calculated to bring social justice within the reach of the common man. It cannot remain content to act merely as an umpire but it must be functionally involved in the goal of socio-economic justice…. What is necessary is to have Judges who are prepared to fashion new tools, forge new methods, innovate new strategies and evolve a new jurisprudence, who are judicial statesmen with a social vision and a creative faculty and who have, above all, a deep sense of commitment to the Constitution with an activist approach and obligation for accountability, not to any party in power nor to the opposition nor to the classes which are vociferous but to the half-hungry millions of India who are continually denied their basic human rights.
We need Judges who are alive to the socio-economic realities of Indian life, who are anxious to wipe every tear from every eye, who have faith in the constitutional values and who are ready to use law as an instrument for achieving the constitutional objectives. This has to be the broad blueprint of the appointment project for the higher echelons of judicial service. It is only if appointments of Judges are made with these considerations weighing predominantly with the appointing authority that we can have a truly independent judiciary committed only to the Constitution and to the people of India. The concept of independence of the judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective. It is to aid the judiciary in this task that the power of judicial review has been conferred upon the judiciary and it is by exercising this power which constitutes one of the most potent weapons in armoury of the law, that the judiciary seeks to protect the citizen against violation of his constitutional or legal rights or misuse or abuse of power by the State or its officers.
The judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse of power by the executive and therefore it is absolutely essential that the judiciary must be free from executive pressure or influence and this has been secured by the Constitution-makers by making elaborate provisions in the Constitution to which detailed reference has been made in the judgments in Sankalchand Sheth case [Union of India v. Sankalchand Himmatlal Sheth, (1977) 4 SCC 193 : 1977 SCC (L&S) 435 : (1978) 1 SCR 423 : AIR 1977 SC 2328] . But it is necessary to remind ourselves that the concept of independence of the judiciary is not limited only to independence from executive pressure or influence but it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It has many dimensions, namely, fearlessness of other power centres, economic or political, and freedom from prejudices acquired and nourished by the class to which the Judges belong. If we may again quote the eloquent words of Justice Krishna Iyer: “Independence of the Judiciary is not genuflexion; nor is it opposition to every proposition of Government. It is neither Judiciary made to Opposition measure nor Government's pleasure. [ Mainstream, November 22, 1980] The tycoon, the communalist, the parochialist, the faddist, the extremist and radical reactionary lying coiled up and subconsciously shaping judicial mentations are menaces to judicial independence when they are at variance with Parts III and IV of the Paramount Parchment.”
Judges should be of stern stuff and tough fibre, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says, “Be you ever so high, the law is above you.” This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community. It is this principle of independence of the judiciary which we must keep in mind while interpreting the relevant provisions of the Constitution.”22
48. After a forgettable decade, the Judiciary of the 1980s placed individual liberty first. The era of public interest litigations had begun. Judges were now clothed with immense power. The people began to see the Judiciary as the only institution on their side. All manner of petitions were brought before the courts. The citizen no longer trusted her government to perform basic tasks. When potholes plagued Indian roads, they turned to the courts for relief. When forest land was being wiped clean to make way for industry, when religions refused to discard arcane practices, they trusted the courts alone.
49. The appointment process remained unchanged during this period. In December 1981, in what is known as the First Judges Case,23 the Supreme Court had confirmed that the Executive enjoyed primacy in the appointment process. It did add, however, that the requirement to consult the Chief Justice was mandatory. This consultation had to be real, substantial and effective, not illusory. As far as appointments to the High Courts were concerned, the Court noted that while the President was bound to obtain opinions from the Chief Justice of India, the Governor of the State in question and the Chief Justice of the concerned High Court, neither of the three opinions would enjoy primacy over the others. Indeed, this was all the Court could have done. As the Court had itself noted, the text of the Constitution did not permit of a meaning that gave the Chief Justice’s opinion primacy in the appointment process.
50. But by the 1990s, a new problem had emerged. The list of pending matters before Indian courts was increasing by the day. The judicial system was on the verge of collapse. An obvious solution was to appoint more judges, especially since several posts lay vacant in the High Courts. Even where names had been recommended by the Chief Justice, appointments were facing delay. The Executive had discovered a new weapon in its arsenal – the pocket veto. Enjoying primacy in the appointment process, it could simply sit on appointments that made it uncomfortable. There was little the Judiciary could do but request that all appointments be finalised.
51. Nevertheless, a larger bench was formed. The task of reconsideration fell to nine justices in the Second Judges Case.24 In a remarkable verdict, the Court gave the Chief Justice the final say. Only the Chief Justice could initiate the appointment process. He, the Court found, was best placed to advise on matters of appointment.
52. The Court went further. Though the Constitution had only envisioned the Chief Justice’s participation in the appointment process, he was not to act alone. The expression “Chief Justice” was to mean the Chief Justice and the two senior-most judges of the Supreme Court. These three judges would form the ‘Collegium’, a body that represented diverse views within the Judiciary. If judges were to be appointed to a High Court, the Chief Justice was to take the views of his senior colleagues into consideration, particularly those of judges familiar with the High Court in question. In elevating High Court judges to the Supreme Court, seniority, not suitability, was to be the principal consideration. Finally, the President was bound to accept the Chief Justice’s recommendation. No appointment could be made without his consent. If the Executive found a candidate unsuitable, it would explain its reasons to the Chief Justice. But if the Chief Justice refused to change his opinion on the candidate’s suitability, the Executive had no choice but to proceed with the appointment.
53. In the First Judges Case, the Supreme Court upheld the Executive’s primacy in the appointment process by relying on basic democratic principles. It had argued that the responsibility for appointments must vest with the Executive as only it was directly accountable to the people. In the Second Judges Case, this argument was countered by the following reasoning involving constitutional principles:
“454. The majority view in S.P. Gupta [1981 Supp SCC 87 : (1982) 2 SCR 365] to the effect that the executive should have primacy, since it is accountable to the people while the judiciary has no such accountability, is an easily exploded myth, a bubble which vanishes on a mere touch. Accountability of the executive to the people in the matter of appointments of superior judges has been assumed, and it does not have any real basis. There is no occasion to discuss the merits of any individual appointment in the legislature on account of the restriction imposed by Articles 121 and 211 of the Constitution. Experience has shown that it also does not form a part of the manifesto of any political party, and is not a matter which is, or can be debated during the election campaign.
There is thus no manner in which the assumed accountability of the executive in the matter of appointment of an individual judge can be raised, or has been raised at any time. On the other hand, in actual practice, the Chief Justice of India and the Chief Justice of the High Court, being responsible for the functioning of the courts, have to face the consequence of any unsuitable appointment which gives rise to criticism levelled by the ever vigilant Bar. That controversy is raised primarily in the courts.
Similarly, the Judges of the Supreme Court and the High Courts, whose participation is involved with the Chief Justice in the functioning of the courts, and whose opinion is taken into account in the selection process, bear the consequences and become accountable. Thus, in actual practice, the real accountability in the matter of appointments of superior judges is of the Chief Justice of India and the Chief Justices of the High Courts, and not of the executive which has always held out, as it did even at the hearing before us, that, except for rare instances, the executive is guided in the matter of appointments by the opinion of the Chief Justice of India.”
54. Crucially, public opinion favoured the courts. The people had lost faith in other institutions. Any attempt by the Government or Parliament to overturn the Second Judges Case would be viewed as interference. It was this public trust that allowed the balance to be shifted in favour of the courts in the matter of appointments.
55. Doubts remained regarding how this new appointment system was to function. In 1998, the President made a reference to the Supreme Court, seeking its opinion on “a substantial question of law as to the interpretation of the Constitution”.25 In effect, the President sought a clarification of the Second Judges Case. He wanted the Supreme Court to explain how the new system was to work.
56. The Supreme Court answered the reference in what came to be known as the Third Judges Case.26 The Court reiterated that the opinion of the Chief Justice of India had primacy in matters of appointments. However, this opinion was to be formed not by the Chief Justice alone, but by him in consultation with a collegium of judges. Altering its ruling from a few years before, the Court increased the strength of the Collegium to five. The principal objective of the Collegium, the Court added, was to ensure the best talent was brought to the Supreme Court. By virtue of their long tenures, the Chief Justice and the senior-most puisne judges were well-suited to achieve this objective.
57. The solution crafted in both the Second and Third Judges Cases was far from perfect. As to the reasoning in these cases, critics argue that the decision to accord primacy to the Chief Justice finds no support in the text of the Constitution. On the contrary, the text supports Executive control. Critics would also allege that there is also no doctrinal justification behind the assumption that the courts – at the exclusion of all other functionaries – are qualified and entitled to pronounce on who mans them. More importantly, practical considerations could be raised: It was unclear how judges would perform this new role in light of their ever-increasing judicial work. In addition to hearing dozens of cases every day, senior judges now had to track the careers of potential appointees. Fundamentally, there was no guarantee that unlike the Executive, the Collegium would do the right thing and no recourse if it didn’t. Finally, it was unclear how an “opinion” of the Court in answer to a Presidential reference could alter the terms of a judgment, particularly when both were pronounced by nine judges! And yet, imperfect as it is, the solution of the Collegium has survived.
58. Efforts towards securing judicial independence, and particularly towards a strong and unimpeachable judicial appointments system remain a work-in-progress.
59. The 99th Amendment was challenged before five justices of the Supreme Court. By a 4 to 1 majority, the Court struck down the amendment.27 Central to the Court’s reasoning was an assumption that the independence of the Judiciary could only be ensured if the Judiciary enjoyed primacy in the appointment process. Primacy of the Judiciary in the appointment process was part of the Constitution’s Basic Structure, they said. With only three judicial members in the NJAC, this primacy was lost. The Collegium was revived, though the Court accepted that its functioning had been far from perfect. It was agreed that the Court and the Executive would settle on a Memorandum of Procedure for judicial appointments.
60. And here we are. In 1950, the system rested on hope, hope that the Executive would do the right thing. Seventy years on, the system rests on the hope that the Judges will do the right thing.
61. For a mind trained in English law - that is one comfortable with the idea of a sovereign elected Parliament - these developments in India, where the separation of powers operates somewhat uniquely, may seem peculiar. Judges have the power to strike down legislation, to declare constitutional amendments invalid, and to determine what constitutes the Constitution’s Basic Structure.
62. The Magna Carta was annulled by the Vatican mere weeks after it was signed. Centuries before they issued Declarations of Incompatibility, English judges sat in the Star Chamber. President John Adams too once “packed the courts”.
63. Every Institution has its moments of glory and challenge. The present are moments of challenge. Courts have an accentuated duty to be conscious of Constitutional Freedoms when Governments begin to be strident in authority. Indeed Governments must become conscious if they do not herald a new perspective, they will be remembered in history exactly as the Emergency Rule! Judicial Power is never a facilitator for Executive intentions. On the contrary it has to be an interrogator or scrutineer of Executive Power. Denial of liberty, but more significantly, denial of access to justice will be a historical charge of neglect which neither the Government nor the Courts must face.
64. Indeed one needs President Obama’s vision of righting the wrong! No moment is too late. The Court has competence, ability and wisdom. It is not in criticism that it should be asked to act but in a deeply positive belief that our institutions of political and democratic engagement will change the course of history by access to justice as an act of truth and reconciliation.
65. Justice and the Rule of law, through a deeply conscientious Judiciary unmindful of irrelevant considerations, will heal denials and suffering. This is the moment when one remembers:
“Where the mind is without fear and the head is held high; Where knowledge is free; Where the world has not been broken up into fragments by narrow domestic walls; Where words come out from the depth of truth; Where tireless striving stretches its arms towards perfection; Where the clear stream of reason has not lost its way into the dreary desert sand of dead habit; Where the mind is led forward by thee into ever-widening thought and action— Into that heaven of freedom, my Father, let my country awake. This is my prayer to thee, my lord—strike, strike at the root of penury in my heart. Give me the strength lightly to bear my joys and sorrows. Give me the strength to make my love fruitful in service. Give me the strength never to disown the poor or bend my knees before insolent might. Give me the strength to raise my mind high above daily trifles. And give me the strength to surrender my strength to thy will with love.”
66. Given the youth of the Indian republic in the world’s family of nations, the endurance of its constitution and its constant striving are – in my view – sources of great optimism. In that same time of seventy years, our neighbour, Pakistan has seen at least three constitutions. One of these was suspended for several years. Despite several threats to its existence, the Constitution of India has survived. Indeed the judiciary of Pakistan has made great strides too including Public Interest Litigation. Much of this owed to inspiration from all great participants in Judiciary. If the people continue to fight for constitutional ideals, and continue to demand better, I am hopeful that the future will bring us closer to a more perfect Union.
67. Last year, the UK celebrated 100 years since some women were granted the right to vote in Parliamentary elections, and all women were granted the right to stand for Parliament. That paved the way for this year’s celebration of 100 years since the Sex Disqualification (Removal) Act 1919 gave women the right to join those professions which had previously been denied to them, particularly the law, and to hold public office, including judicial office. Brenda Hale traced the history after reading a wonderful new book, Women’s Legal Landmarks, edited by Erika Rackley and Rosemary Auchmuty.
68. Judicial independence is a sine qua non of democratic constitutionalism. Despite widespread consensus on the importance of having an independent judiciary, debates about the meaning of judicial independence persist in the literature. For scholars interested in comparative constitutional law, the uncertainty surrounding the definition of judicial independence is particularly vexing and raises several challenging questions: is there a universal set of conditions necessary for judicial independence? Or are there perhaps several models of a judicial independence? One issue that arises from these various questions is whether it is possible to develop a taxonomy of judicial independence.
69. One observer remarks, “[J]udicial independence has become like freedom: everyone wants it but no one knows quite what it looks like.” For scholars interested in comparative constitutional law, the uncertainty surrounding the meaning of judicial independence is particularly vexing and raises several challenging questions. Is there a universal set of conditions necessary for judicial independence? Or are there perhaps several models of judicial independence? If there are several models, must a state establish at least a core set of guarantees before it can be said to have an independent judiciary? Exploring them has taken on greater urgency as the newly democratising countries of the Middle East and North Africa begin to struggle with the difficult question of constitutional reform, but since even in established countries like India, it is work in progress because the Rule of Law can slide downwards.
70. ‘Judicial independence’, says one jurist, is the “life blood of constitutionalism in democratic societies.” To start judicial independence is not a state of affairs, but an outcome that flows from a constitution based upon the separation of powers; it is a ‘checks and balances’ device against the executive and legislative branches. In other words the Executive must function at all times under the letter capturing the ethos of the Constitution. Similarly the legislative branches. These require an attitude of vigilance, demanding explanations for incursion into human freedoms, irrespective of the detention being in political theatre. The Courts must not forget that even when a documentary authorisation was available, brave Judges of High Courts upheld liberty. The importance of history, its components, and the value of freedom as a negator of oppression are constitutional arteries which flow in the heart and conscience of the Judiciary.
71. Secondly, it concerns the ability of judges to adjudicate without bias; to be independent, therefore, means that judges are the ‘authors of their own opinions’ and that each decision should only represent an impartial adjudication bereft of personal preferences.
72. To satisfy the insignia of independence, there must be:
i) ‘institutional independence’,
ii) ‘decisional independence’,
iii) ‘counter-majoritarian independence’,
iv) ‘law-making independence’,
v) ‘structural independence’,
vi) ‘individual independence’,
vii) ‘collective independence’,
viii) ‘personal independence’, and
ix) ‘external’ and ‘internal independence’.
73. In fact, the rule of law and constitutional governance consist of the above. It is not enough for Judges to believe that they are separate from other organs - the arm’s length perception is an important component of public credibility. The deprivation of liberty, and extreme conditions under COVID-19 call for reparatory justice, a sub-text of Gandhiji’s Social Justice. In such matters the Executive must be enlightened by the Constitution alone because its voice speaks to all one and alike. The identity safeguarded by the Constitution cannot be divided or classified any further unless for affirmative action.
74. Individual judges themselves must be able to make decisions that are not coloured by personal values, biases and inclinations as well as the contingent situation that individual happens to be in.
75. Indian Polity can certainly be addressed. With optimism we must engage in a dialogue, because historical blunders take just moments, however intractably small, but history has more objective determinations of performance of Institutions. The Supreme Court of India, notwithstanding carping criticisms of many, is a Court of talent and ability—there is no reason to disbelieve that if assisted capably, they will act primarily as special vehicles of constitutional redress. That hope is as necessary as Victor Frankl’s search for Meaning.