Introduction
An independent judiciary is necessary for a making a democracy successful. Judiciary is considered as guardian of constitution. Under article 13 it has been conferred the power of judicial review through which it can strike down any legislative, administrative and executive action which is violative of part III of constitution.
Further Article 50 of the Indian constitution provides for separation of judiciary from executive. But the independence of judiciary ultimately depends upon other organs of state.
In India the issue of independence of judiciary is a subject of heated national debate.
Meaning of Independence of Judiciary
Simply stated independence of judiciary means that:
- The other organs of the government, the executive and legislature must not restrain the functioning of the judiciary in such a way that it is unable to do justice.
- The other organs of the government should not interfere with the decision of the judiciary.
- Judges must be able to perform their functions without fear or favour.
Independence of the judiciary does not means arbitrariness or absence of accountability. It is accountable to the Constitution and to the people of the country. What it means is independence of the judiciary from the executive and the legislature.
The independence of the judiciary does not mean just the creation of an autonomous institution free from the control and influence of the executive and the legislature. The underlying purpose of the independence of the judiciary is that judges must be able to decide a dispute before them according to law, uninfluenced by any other factor. For that reason the independence of the judiciary is the independence of each and every judge.
Need of Judicial Independence
In any society, disputes are bound to arise. All such disputes must be settled by an independent body in accordance with the principle of rule of law. The idea of rule of law implies that all individuals are subjected to the same law. Thus principal role of the judiciary is to protect rule of law and ensure supremacy of law.
It safeguards rights of the individual, settles disputes in accordance with the law and ensures that democracy does not give way to individual or group dictatorship. In order to be able to do all this, it is necessary that the judiciary is independent of any political pressures.
Historical Aspect
The first political philosopher, who propounded the idea of an independent judiciary, was Montesquieu, the famous French philosopher. He believed in the theory of separation of powers of the three branches of the Government- Legislature, Executive and Judiciary.
The fathers of the American Constitution were very much impressed by his theory. They, therefore, established an independent judiciary in their country. In U.K., however, the Parliament is supreme. The judiciary, there, has not been separated from the legislature.
The concept of independence of judiciary took time to grow in England. Before 1701, judges held their office during the pleasure of crown and like any other crown servant they could be dismissed by the king at will. The judges were thus subservient to the executive. This subservience naturally led the judges to favour the royal family.
The judiciary in the U.K. is not competent to declare a law passed by their respective legislatures as unconstitutional. But in the U.S.A. and India, the judiciary has been vested with the power of judicial review. They can hold a law passed by the legislature as unconstitutional and strike it down. In India, the Supreme Court strikes down a law only if it violates the basic structure of the Constitution.
Constitutional Provisions
Independence of judiciary and rule of law are the basic features of the Constitution and cannot be abrogated even by constitutional amendments as observed by the Hon’ble Supreme Court in S.P. Gupta v Union of India[1]
The Indian Constitution specifically directs the state “to separate the judiciary from the executive” under Article 50.
For funding and some administrative purposes, the subordinate courts are subject to regulation by the respective States, but they are basically under the supervision of the High Courts. The High Courts are basically under the regulative powers of the Union, subject to some involvement of the States in the appointment of judges and other staff and in the finances. The Supreme Court is exclusively under the regulative powers of the Union.
The unitary character of the judiciary is not an accident but rather a conscious and deliberate act of the constitution makers for whom a single integrated judiciary and uniformity of law were essential for the maintenance of the unity of the country and of uniform standards of judicial behavior and independence.
Elaborated provisions are in place for ensuring the independent position of the Judges of the Supreme Court and the High Courts.
- Firstly, the judges of the Supreme Court and the High Courts have to take an oath before entering once that they will faithfully perform their duties without fear, favour, affection, ill-will, and defend the constitution of India and the laws. Recognition of the doctrine of constitutional sovereignty is implicit in this oath.
- Secondly, the process of appointment of judges also ensures the independence of judiciary in India. The judges of the Supreme Court and the High Courts are appointed by the President. The constitution of India has made it obligatory on the President to make the appointments in consultation with the highest judicial authorities. He, of course, takes advice of the Cabinet. The constitution also prescribes necessary qualifications for such appointments. The constitution tries to make the appointments unbiased by political considerations.
- Thirdly, the Constitution provides for the Security of Tenure of Judges. The judges of the Supreme Court and the High Courts serve “during good behavior” and not during the pleasure of the President, as is the case with other high Government officials. They cannot be arbitrarily removed by the President.
They may be removed from office only through impeachment. A Judge can be removed on the ground of proved misbehavior or incapacity on a report by both Houses of the Parliament supported by a special majority.
- Fourthly, the salaries and allowances of judges are charged upon the Consolidated Fund of India. Further, the salaries and allowances of Judges of Supreme court and High courts cannot be reduced during their tenure, except during a financial emergency under Article 360 of the Constitution.
- Fifthly, the activities of the Judges cannot be discussed by the executive or the legislature, except in case of their removal.
- Sixth, the retirement age is 65 years for Supreme Court judges and 62 years for High court judges. Such long tenure enables the judges to function impartially and independently.
History of the conflicts between the executive and judiciary in India
The long-existing conflicting between the executive and the judiciary has been common since 1950. If we look at the history many judicial pronouncements have inserted the seedling of confrontation between the judiciary and the executive.
The first tussle between the executive and judiciary goes back to 1951 when the government brought the prevailing Zamindari System to an end through legislation passed by the parliament. The Provision was challenged in Kameshwar Singh vs. State of Bihar where Patna High Court held the Bihar Land Reforms Act unconstitutional as it violated Article 14 of the Constitution of India. Several other petitions challenged under Article 31 that provided the property right.
The Nehru Government provided immunity to the act by introducing First Constitutional Amendment 1951. The amendment introduced the Ninth Schedule through Article 31B insulating the Act from any kind of judicial scrutiny.
- Shankari Prasad Singh vs. Union of India[3] (1951)
In the case of Shankari Prasad, the problem was raised whether the 1st Amendment Act, 1951 pursuing to curtail the right to property was constitutionally invalid or not. The petitioner’s argument was against the legitimacy of the Act was that Article 13(2) prohibited enactment of any law abrogating a fundamental right.
The court, however, excluded this argument saying that the word ‘law’ referred in Article 13 did contain only ‘legislative law’, that is the law made by the legislature normally, not the ‘constituent law’ i.e. a law prepared to amend the constitution.
- Golaknath, I.C v State of Punjab (1967)[4]
The Supreme Court had given its most hard-hitting judgement. In the Golaknath case, CJI Subba Rao led the majority view by 6 to 5 in stating that Parliament was not competent to amend the fundamental rights in the Constitution and that Article 368 only provided the procedure for amendment.
Parliament had no power to alter any of the provisions of Part III of the Constitution so as to take away or curtail any of the Fundamental Rights protected therein. The Supreme Court held that in the framework of Article 13 of the constitution the law contains the amendments of the constitution
This was a severe blow to Parliament as well as the government. But CJI Subba Rao was getting ready for another one. In an extremely controversial move, about three months before his retirement and soon after the Golaknath judgement he resigned, only to announce his candidature for the post of President of India and to contest as the joint candidate of the opposition against Dr. Zakir Hussain.
RESULTS
- These moves had sown the seeds of a confrontation setting off a chain of events which had far-reaching consequences. This judgement had placed the government in a tight corner as it suddenly found itself ill-equipped to fulfil its political programmes which required constitutional amendments. .
- Accordingly, came bank nationalization in 1969. Again, there was stiff opposition but Morarji Desai was left with no option and had to resign. The Finance Secretary also had to be shifted to Ministry of Agriculture.
Parliament was to meet from 21 July 1969 for the monsoon session but two days before that, the ordinance on Bank Nationalisation was promulgated on 19 July 1969, a Saturday. With nationalisation of commercial banks having deposits of over Rs 50 crore, Mrs. Gandhi had once again assumed the initiative and occupied centre-stage.
- Immediately after the ordinance, a writ was filed in the Supreme Court, where it was heard by a Constitutional bench of eleven judges in RC Cooper v. UOI[5]. This was the second major case and a test for the government before the Supreme Court. Hackles were raised once again on either side as the government’s ordinance was pronounced invalid.
Mrs Gandhi took it as an affront and gave a political twist to show that the big business was on one side and she was with the common man and was not being allowed to introduce reforms for the downtrodden.
24th Constitutional Amendment in 1971
To get over the judgment of the Supreme Court in Golaknath case, the 24th Constitution Amendment Act was enacted in 1971. The 24th Amendment made alterations to Art. 13 and 368:
- A fresh clause was added to article 13: “(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.”
- Alterations were made to article 368:
- The article was given a new contiguous heading: “Power of Parliament to amend the Constitution and procedure therefore.”
- A fresh clause was added as clause (I): “(I) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power alter by way of addition, variation or rescind any provision of this Constitution in accord with the procedure laid down in this article.
- A new clause was added as clause (3): “(3) Nothing in article 13 shall apply to any amendment under this article.”
26th Constitutional Amendment, 1971
SERIES OF EVENTS BEHIND ABOLITION OF PRIVY PURSES
Prior to 15 August 1947, the rulers of states were Sovereign, though their sovereignty was subject to the paramountcy of the British Crown.
That paramountcy lapsed on 15 August 1947 as a result of the Indian Independence Act. Consequently, these rulers became absolute Sovereigns. After their merger with India the rulers of those Sates were left with no powers. They had only such rights and privileges as were recognised or created under the Covenants and those embodied in the Constitution.
The Government moved in the Lok Sabha on 2 September 1970, the Constitution (26th) Amendment Bill, 1970 to delete certain provisions of the Constitution relating to the guarantees given to the Rulers about their privy purses as well as privileges. That bill was passed in the Lok Sabha, but it failed to get the requisite majority in the Rajya Sabha.
The same evening the Union Cabinet met and decided to advise the President to withdraw the recognition of rulers so that the privy purses and privileges guaranteed to them may be abolished. On the same night, the President purporting to act under Cl. (22) of Article 366 of the Constitution, signed at his camp in Hyderabad.
After obtaining his signatures, the documents were flown back to Delhi the same night and the impugned orders issued on 6 September 1970. On the strength of these orders, the Government of India asserted that all rulers in India had been de-recognised and consequently none of them was entitled to any rights and privileges.
The Apex Court took up this matter, where a special bench of 11 judges was constituted for its hearing H. H. Maharajadhiraja Madhav Rao vs. Union Of India [6].The judgement pronounced by 10 judges read: “ In accordance with the opinion of the majority, the Petitions are allowed and writs will issue declaration that the orders made by the President on September 6, 1970, challenged here, were illegal and on that account inoperative and the petitioners will be entitled to all their pre-existing rights and privileges including the right to privy purses.”
RESULTS
- The judgement in the Privy Purses case provided the signal to Mrs. Gandhi to dissolve the fourth Lok Sabha and go in for a mid-term poll, which she won on a hugely populist platform.
- Taking forward the reforms programme which had been hit by the Supreme Court, she got enacted the Constitution’s 26th Amendment on 28 Dec 1971 which nullified this judgement and omitted Articles 291, 362 and inserted Article 363A and amended 366 (22) withdrawing the recognition of Rulers of Princely States and abolishing their Privy Purses.
Later through the 28th Constitutional amendment of 29 August 1972, privileges of ICS officers were also abolished.
- At the retirement of the CJI Sikri, supersession of judges took place with AN Ray superseding three senior-most judges of the Supreme Court (JJ Shelat, Hegde and Grover). Incidentally, Ray was the only judge to support the Government in the Privy Purses case.
Thus, it may be observed that in this confrontation, Parliament repeatedly trumped the judgments of the Supreme Court.
Kesavananda Bharati vs. State of Kerala (1973)[7]
The constitutional legitimacy of the 24th amendment, along with the 25th and 29th Amendments, was confronted before the Supreme Court in Kesavananda Bharati case in 1973.
The Supreme Court overturned its earlier ruling in Golaknath’s case and sustained the validity of 24th Amendment, Parliament’s power to alter the Constitution. But in the same case the Court framed the doctrine of ‘basic features or structure of the Constitution’. It was a judicially advanced doctrine and the Supreme Court did not describe the ‘basic structure’.
The court held that the parliament’s power of altering the constitution was always subject to implied restrictions. The phrase ‘basic structure’ continued delightfully unclear and has become subject to judicial interpretation. Obviously, the judgment of this case expressively increased the court’s authority of judicial review.
Worsening of confrontation between the Judiciary and the Executive
When Allahabad HC judge Justice Jagmohan Lal Sinha, acting on a petition filed by Raj Narain, set aside Indira Gandhi’s election to the Lok Sabha from Rae Bareli. Gandhi reacted to the judgment of June 12, 1975 by imposing Emergency.
In another case, popularly known as ADM Jabalpur Case, the Supreme Court, in a 4:1 judgment, upheld governments’ unrestricted use of powers during Emergency. While Justices A N Ray, P N Bhagwati, Y V Chandrachud and M H Beg were part of the majority ruling, the lone dissenter, Justice K R Khanna, was superseded by Justice M H Beg to be Chief Justice in 1976.
Even the Janata Party government faced the ire of the Supreme Court in Maneka Gandhi vs Union of India case in 1978[8]. The Janata Party administration had impounded her passport on the grounds of “in public interest”, which was challenged. The majority ruling of the Supreme Court declared that the right to travel abroad was part of right of personal liberty under Article 21 and government can’t arbitrarily impound the passport as it violated right to equality under Article 14.
These conflicts continue to even present times.
Ways forward
The clashes between the judiciary and the executive can be reduced by cooperation and maintaining a separation line while exercising its powers. Both wings of the State should escape overstepping into powers of one another. Following ways can reduce clashes.
- Balance of powers
The power must be proportionately distributed between legislature, executive and judiciary. Each wing is given the power of doing specific functions without creating disturbances by crossing the demarcation line as provided by the constitution of India.
- Separation of power
Each organ of state has been given different powers by constitution. There is no strict separation and there may be some overlapping of functions but an organ must not unnecessarily interfere in functioning of other organ. There is system of checks and balances which prevents any organ from becoming authoritarian.
Once, Justice Markandey Katju while deciding on a matter in Supreme Court said the judges to adhere with self-restraint as excessive interference of the judiciary is improper. He further added that unless the action is violative of some statute or shockingly arbitrary, the decisions of the administration should not be embarrassed by the excessive interference of the Judiciary. Hence, both wings of the State should prevent from interfering in each other’s domain.
- Mutual cooperation in work
The judiciary and the executive must work together with cooperation for the achievement of the constitutional goal. The greed of power acquiring may hamper the functioning of the state. The domains need to work together for the establishment of a welfare and developed state.
Conclusion
The judiciary and the executive are the two domains of the state which have their conflicts for a long time. These domains need to work on a compromise basis to uphold the constitutional scheme (Separation of powers). The excessive interference of the Judiciary will create trouble for the executive to govern the state. Similarly, the executive should not undermine the power of the judiciary.
[1] AIR 1982 SC 149.
[2] AIR 1952 SC 252
[3] 1951 AIR 458
[4] 1967 AIR 1643
[5] 1970 AIR 564
[6] 1971 AIR 530
[7] AIR 1973 SC 1461
[8] 1978 AIR 597
The article is authored by Bhoomi Patel, she is 4th year B.A. LL.B (hons) students in School of law, D.A.V.V.