To be or not to be independent: the existential crisis in Judiciary

No previous crisis besetting the house of justice has been dire enough to draw the longest serving puisne judges of the Supreme Court  — four respected, cautious and traditionalist judges with long and distinguished legal careers — into an unprecedented public press conference in which they appealed to the people to save judicial independence, democracy and the nation. Clearly, the judicial system is in its worst crisis ever.

At its core, the current crisis is about independence of the judiciary. And there is good reason for concern. We first heard from the four judges that chief justices of India are channeling sensitive cases to preferred benches in violation of well established conventions. We have seen a sustained string of shock legal victories for top leaders of the ruling party and the Hindutva movement. We saw an unconvincing decision shutting down an investigation into the death of a judge who was handling a sensitive case involving a powerful political leader.

There has been a “re-balancing” of social justice laws in favour of the accused in line with widely expressed demand of sections of public opinion associated with the ruling dispensation. We have seen a judiciary unduly patient and deferential about government responses to personnel decisions in violation of mandatory standards laid down by the Supreme Court (including on the transfer of Justice KM Joseph, and later, on his elevation to the Supreme Court).  There are also allegations of corruption at the highest level.

What is the nature of this crisis?

It is important first to distinguish independence of the judiciary from adjudicatory independence. The principle that an adjudicator should be independent of  the parties and disinterested in the outcome is a feature of all human institutions of dispute settlement from time immemorial.  It applies to all courts and judges as well.

Independence of the judiciary, on the other hand,  is, a political principle. It is a principle that deals with the unique conundrum of a State official sitting in judgment in a dispute in which the State may be a party (as it is in the vast majority of cases) or may have an interest (as it does at least from a policy point of view in most cases). It also deals with the enormous disparity in power between the common litigant and the State. In these circumstances, to safeguard the confidence of non State litigants and the general public in the justice system, the State mandates standards of judicial conduct to ensure that judicial decisions are free from the influence of the State. Independence of the judiciary is not a privilege to the judge to decide as he pleases.  It is an obligation imposed on the judge to be independent of the interest of the State in the adjudication. Since independence of the judiciary is at the end of the day a state of mind of the judge, it can only be protected and preserved where there are adequate provisions for litigants or members of the public to freely question the perceived bias of the judge in favour of the State. Where democracy is weak and judges are less open to questioning and accountability, independence of the judiciary is bound to be weak.

An independent judiciary is the child of democratic political struggle.  No polity other than a democracy has need or space for an independent judiciary — whether theocratic, feudal, communist or capitalist (in capitalism, beyond the zealous protection and promotion of private property). An independent judiciary is actually a threat to them. Traditionally, the power to adjudicate and punish was an undifferentiated part of a totalitarian mass of tyrannical power vested in a monarch. Revolts against tyranny fragmented the singular power of the monarch, culled out from it judicial power (the potent power to adjudicate and punish), forced the monarch to divest it, turned it on its head and made it a tool to limit, check, fragment and de-concentrate the absolute power of the sovereign. As legal and political imagination, this was conceptual genius.

It is this democratic vision of resistance against power — and it alone —that creates an independent judicial institution to check and limit coercive power.  The independent judiciary is the institutionalisation of resistance against power. The role of an independent judiciary therefore is to resist the encroachments of the powerful against the rights of the powerless. A judiciary that encroaches on the rights of the powerless on behalf of the powerful is not, and cannot be, independent.

The slightest weakening of democracy will unleash the quest of the executive to vanquish and subjugate the judiciary. Alexander Hamilton famously remarked in his Federalist Papers that the judicial branch is most vulnerable to subjugation by the other two branches. It is the weakest of the three branches, possessing neither purse nor sword. Hamilton also warned of the grave danger to liberty of the citizen when the judicial branch loses its independence from the other two branches.

How do we respond to the crisis?

First and foremost, we need to revitalise democracy. Liberty and equality are the warp and the weft of democracy. Socialism and secularism are the looms that weave liberty and equality into the fabric of democracy. All these political imaginations are integrally inter-linked. They hang together, or they all die.

The current crisis of doubt — justified or not — about the health of the  independence of our judiciary is irrefutable evidence that the ingredients that create and sustain independence of the judiciary — equality, freedom, socialism, secularism and democracy — are feeble in our country. Without all of them being robust, we will not have an environment in which common citizens will be able to question the most powerful judges to ensure that they are exercising their powers independent of the State. Political parties, civil society and public opinion will therefore have to continue to work hard to build our nascent and still very fragile democracy if independence of the judiciary is to be sustained and strengthened.

Second, the internal culture of the judiciary should be democratised so that the poorest and most marginalised litigants are able freely to ask the most powerful judge in the country to convince him that he is independent of the State. Justice DA Desai, then Chairman of the Law Commission of India, a former judge of the Supreme Court and a highly influential judge in his time, said in a 1986 discussion in the 117th Report of the Law Commission nearly 40 years after independence, “The Indian judicial system is admittedly colonial in origin and imported in structure. Without even a semblance of change in the last four decades since independence in its mode, method of work, designations, language, approach, method of resolving disputes, it has all the trappings of the system established by the foreign rulers.” A further three decades have passed since Justice Desai’s observations without, to borrow his phrase, ‘even a semblance of change’ in the judiciary.  Unless the judiciary is democratised, the environment in courts still under a feudal and colonial culture will never allow “lordships” to be questioned. This democratic failure in the culture and working of courts is a grave threat to Independence of the judiciary.

This generation of judges must realise that if they convert the judiciary into a lapdog institution of the State, history will not forgive them. We have every expectation to the contrary — that they will secure and safeguard the Constitution and our liberties and ensure that there will be no similar occasion in future in which there is reason for anyone in this country to doubt — rightly or wrongly — the independence of the judiciary as an institution.