This is an excerpt from Justice R Pandian’s Judgement in Supreme Court Advocate on Record Association v. Union of India (1993).
Our Constitution is a radiant vibrant organism and under the banner of Sovereign, Socialist, Secular, Democratic Republic, steadily grows spreading the fragrance of its glorious objectives of securing to all citizens: Justice, Social Economic and Political.
For securing the above cherished objectives equally to all citizens irrespective of their religion, race, caste, sex place of birth and the socio-economic chronic inequalities and disadvantages, the Constitution having very high expectations from the judiciary, has placed great and tremendous responsibility, assigned a very important role and conferred jurisdiction of the widest amplitude on the Supreme Court and High Courts, and for ensuring the principle of the ‘Rule of Law’ which in the words of Bhagwati, J (as the learned Chief Justice then was) “runs through the entire fabric of the Constitution.”
To say differently, it is the cardinal principle of the Constitution that an independent judiciary is the most essential characteristic of a free society like ours.
View of Framers of Constitution
Having regard to the importance of this concept the framers of our Constitution having before them the views of the Federal Court and of the High Court have said in a memorandum:
We have assumed that it is recognised on all hands that the independence and integrity of the judiciary in a democratic system of government is of the highest importance and interest not only to the judges but to the citizens at large who may have to seek redress in the last resort in courts of law against any illegal acts or the high-handed exercise of power by the executive…
in making the following proposals and suggestions, the paramount importance of securing the fearless functioning of an independence and efficient judiciary has been steadily kept in view.[1]
Words of Justice Krishna Iyer
In this context, we may make it clear by borrowing the inimitable words of Justice Krishna Iyer,
“Independence of the Judiciary is not genuflexion, nor is it opposition of Government”[2] and at one point of time Justice Krishna Iyer characterised this concept as a “Constitutional Religion”.
Indisputably, this concept of independence of judiciary which is inextricably linked and connected with the constitutional process related to the functioning of judiciary is a “fixed-star” in our constitutional consultation and its voice centers round the philosophy of the Constitution.
The basic postulate of this concept is to have a more effective judicial system with its full vigour and vitality so as to secure and strengthen the imperative confidence of the people in the administration of justice. It is only with the object of successfully achieving this principle and salvaging much of the problems concerning the present judicial system, it is inter-alia, contended that in the matter of appointment of Judges to the High Courts and Supreme Court ‘primacy’ to the opinion of the CJI which is only a facet of this concept, should be accorded so that the independence of judiciary is firmly secured and protected and the hyperbolic executive intrusion to impose its own selectee on the superior judiciary is effectively controlled and curbed.
Independence of judiciary is the ‘cardinal feature’
Regarding the significance of this principle, Chandrachud, J. (as the learned Chief Justice then was) in Union of India v. Sankal Chand Himatlal Sheth and Anr. (1978) 1 SCR 423 said that the independence of judiciary is the ‘cardinal feature’ and observed that the judiciary which is to act as a bastion of the rights and freedom of the people is given certain constitutional guarantees to safeguard the independence of judiciary.
Bhagwati, J (as the learned Chief Justice then was) who led on behalf of the minority observed in the same judgment i.e. Union of India v. Sankal Chand Himatlal Sheth and Anr. (supra) observed:
“… the independence of judiciary is a fighting faith of our Constitution. Fearless justice is a cardinal creed of our founding document.... Justice, as pointed out by this Court in Shamsher Singh v. State of Punjab (1975) 1 SCR 814 : AIR 1974 SC 2192, can become “fearless and free only if institutional immunity and autonomy are guaranteed.”
Again Bhagwati, J in Gupta’s case has said in paras 223- 224 as follows:
“The concept of independence of 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.
… … … … 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 that it is a much wider concept which takes within its weep, independence from many other pressures and prejudices.
.. … … … 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 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.
Fazal Ali, J in his judgment in Gupta’s case in para 320 has held:
“.. that independence of judiciary is doubtless a basic structure of the Constitution but the said concept of independence has to beconfined within the four corners of the Constitution and cannot be beyond the Constitution.
Tulzapurkar, J. in para 634 of his judgment in Gupta’s case has pointed out:
Such a literal construction is difficult to accept because no provision of the Constitution can be interpreted in a manner which will be in conflict with any of the basic features of the Constitution and the cardinal principle of independence of judiciary is one such basic feature; therefore, the construction to be put on the phrase in the article must be consistent with the said principle.
Venkataramih, J. (as the learned Chief Justice then was) in the same case did not go so far but observed that it is “one of the central values on which our Constitution is based.”[3]
There is plethora of judicial pronouncements on this concept, but we think that it is not necessary to recapitulate all those decisions and swell this judgment, except saying that to have an independent judiciary to meet all challenges, unbending before all authorities and to uphold the imperatives of the Constitution at all times, thereby preserving the judicial integrity, the person to the elevated to the judiciary must be possessed with the highest reputation for independence, uncommitted to any prior interest, loyalty and obligation and prepared under all circumstances or eventuality to pay price, bear any burden and to meet any hardship and always weded only to the principles of the Constitution and ‘Rule of Law’.
If the selectee bears a particular stamp for the purpose of changing the cause of decisions bowing to the diktat of his appointing authority, then the independence of judiciary cannot be secured notwithstanding the guaranteed tenure of office, rights and privileges, safeguards, conditions of service and immunity. Though it is illogical to spin out a new principle that the key note is not the Judge but the judiciary especially when it is accepted in the same breath that an erroneous appointment of an unsuitable persons is bound to produce irreparable damage to the faith of the community in the administration of justice and to inflict serious injury to the public interest and that the necessity for maintaining independence of judiciary is to ensure a fair and effective administration of justice. Further, if this prized concept is injured or maimed even from inside by self-infliction, the invaluable judicial independence will be devalued and debased.
The above fallacious principle receives a fitting reply from the 14th Report of the Law Commission 73 in which the following opinion of a High Court Judge is quoted:
If the State Ministry (Minister in the State Government) continues to have a powerful voice in the matter, in my opinion, in ten years’ time, or so, when the last of Judges appointed under the old system will have disappeared, the independence of the judiciary will have disappeared and the High Courts will be filled with Judges who owe their appointments to politicians.
Shri M.C. Setalvad, who was a most distinguished jurist and Attorney General and known for his impeccable integrity and sturdy independence and who presided over the 14th Law Commission had painfully stated in his Report that the Commission, during its visits to all the High Court Centres, heard ‘bitter and revealing criticism about the appointment of Judges’ and that ‘the almost universal chorus of comment is that the selections are unsatisfactory and that they have been inducted by executive influence.
Mr. Ram Jethamalani, senior counsel after pointing out certain infirmities in Gupta’s case to demonstrate the baneful effects on public welfare of a practice of appointment, sanctified by it forcibly stated that the creed of judicial independence in our constitutional religion and the executive continue to imperil this basic tenet and quoted the word of Krishna Iyer, J. form the judgment in Sankal Chand (supra) reading “This Court must ‘do or die'”.
Reference
Supreme Court Advocate on Record Association v. Union of India (1993)
[1] Vide The Framing of India’s Constitution Volume IB Page 196 by B. Shiva Rao.
[2] Vide Mainstream – November 22, 1980
[3] Vide para 1051. See also (1) Union of India v. J.P. Mitter (1971) 3 SCR 483 : AIR 1971 SC 1093 Sub-Committee on Judicial Accountability v. Union of India (supra) and (3) Shri Kumar Padmaprasad v. Union of India (1992) 2 SCC 428 : 1992 AIR SCW 1093.