Independence of Judiciary
Context:
- It is necessary to alter the judiciary’s collegium structure, which controls the nomination and removal of Supreme Court and High Court judges.
- While rejecting the NJAC proposal, the Supreme Court stated that the Indian constitution must include a separate judiciary from the executive branch.
- By acting as a check on Parliament and defining the limits of its authority, the judiciary has the responsibility of preserving the legitimacy of the government.
- Swami Kesavananda Bharati, the head of the Kerala-based Edneer Matha, petitioned the Supreme Court in 1970 in accordance with Article 26 of the Constitution to reject efforts made by the Kerala government to restrict the Matha’s capacity to manage its property.
- After three years, the Supreme Court described the fundamental structure of the Constitution with a vote of 7–6 in favour, highlighting the restrictions on Parliament’s ability to amend the Constitution, particularly its core values and structure.
- During the Emergency, a new slate of judges served on the Supreme Court.
- One such instance was when the president replaced three justices with more experience by appointing AN Ray as chief justice. One of the judges that disagreed with the Kesavananda ruling was him.
- He presided over a 13-judge panel that reconsidered the landmark decision despite the fact that no review petition had actually been filed. Instead, only an oral request was used to begin the review, which was against the law and led to the chief justice quickly dissolving the bench.
- Despite a committed judiciary at the Center, the basic structure notion barely survived. The crucial choice made by India helped tip the scales in favour of democracy over dictatorship.
What defences have been made recently in support of the appointment and relocation of judges:
- A recent disagreement between the Center and the court over the interpretation of Articles 124 (2) and 217 (1) of the Constitution.
- The president may only nominate a justice to the Supreme Court in line with Article 124(2) and after consulting with the relevant Supreme Court justices, including the chief justice, and state high courts.
- Similar to this, before the president appoints a judge to a high court, Article 217 (1) of the Indian Constitution requires consultation with the Chief Justice of India, the state governor, and the top justice.
- A collegium system for choosing judges was formed as a result of judicial interpretation in the cases SP Gupta v. Union of India (1981), Supreme Court Advocates-on Record Association v. Union of India (Second Judges case) (1993), and Article 143(1) v. Unknown (Third Judges Opinion) (1998).
- The Centre can currently accept or reject recommendations from the Collegium System, however if a suggestion was made twice, the government was obligated to accept it.
- As a result of the Centre’s refusal to implement the Collegium’s recommendations, this consensus has now given way to a deadlock.
- This long-running conflict between the independent judiciary and the hegemonic Centre resulted in roughly 381 vacant judgeships in the high courts as of August 2022. (out of a total of 34 vacancies).
- 5,342 seats out of the total 24,631 seats in the lower court, or 20% of its capacity, are empty.
- Such vacancies will likely have an impact on the judiciary’s effectiveness, particularly in the high courts of Bombay, Punjab & Haryana, Calcutta, Patna, and Rajasthan (with about four crore cases pending, as of August 2022).
Additional adjustments to the judicial system are still necessary while protecting its independence:
- The Collegium system may still be used, but a secretariat may be given the power to choose and nominate candidates for justices rather than the Executive. There were just three women and two SC judges in the Supreme Court as of December 2022. Current judges, members of bar associations, attorneys and laypeople may all work for the secretariat. More racial and cultural diversity in the courts should be supported.
- A new Court of Appeal must be established: It is unquestionably required to establish a new Court of Appeal in addition to choosing judges (refer PIL by V Vasanthakumar).
- Since the Supreme Court was never intended to be a regular court of appeal against rulings by high courts, it shouldn’t be considering bail requests (Bihar Legal Society v. Chief Justice of India, 1986).
- We should create a Supreme Court of Appeal with locations in significant metro areas, according to the Law Commission’s recommendation.
- The Supreme Court should create a Constitutional Court, which would eliminate about 50 of the cases that are currently pending there.
Setting a 65-year retirement age for SC and HC judges with a grace period:
- Additionally, we must work to establish a set retirement age, say 65, for judges, whether they are on the Supreme Court or at the level of the high courts. Judges should not be considered for government positions until they have had some time to reflect after retiring.
Conclusion:
- Judicial independence is still essential to India’s democracy. A reliable and moral selection process for judges is necessary for preserving judicial independence.
- Any nomination must guarantee judicial accountability and separate the judiciary, on a structural and personal level, from other governmental agencies.
- Such a judicial system must be unaffected by political ideologies, internal hierarchies, and external social pressure. While making this argument, we shouldn’t push for a separate judiciary.
