lawyers in India

Independence of Judiciary - Some Latent Dangers

Written by: Vatsala Kak - I am a student of Symbiosis Law School, studying in fifth year BBA LLB.
Legal Profession
Legal Service
  • The Constitution has tried to insulate the Judiciary from outside influence both from the Executive and the legislature. Independence of the judiciary constitutes the foundation on which rests the edifice of Democratic Polity1. The general concept of Judicial Independence is that a judge should be free from any pressure from the government or any one else as to how to decide any particular case; for that reason, a judges salary is not dependent on the Executive decision and his conditions of service are secured and not to be varied at the whim of the Executives.

    Thing have changed in the recent past, particularly in the last 20 years. There has been a great upsurge in crime and criminal litigation, and equally in the number of civil disputes. So to say, there is unmanageable docket explosion in every court. To meet this challenge there has to be a large increase in the number of judges, court, court staffs and other infrastructure. But no such increase has been made. Even in the existing courts, the working conditions in most of them are unsatisfactory. The courts do not have financial independence, since finance falls under the Executive control. The judges are not provided with the up-to-date statutes or law books. They are generally under the mercy of lawyers to provide copies of the decisions or enactments relied during the course of arguments. The judges are not given proper training either at the induction level or periodical refresher courses.

    Commenting on the similar conditions in the British Justice System which existed at one time, Lord Devlin opined:
    If our business methods were as antiquated as our legal system, we would have become a bankrupt nation long back.

    These deficiencies are indeed, subtle threat to the Independence of Judicial System.

    The independence of legal system depends upon the manner in which the system is operated, and how judges are provided for:
    ...The service conditions of the Judges should not be linked to those of the Executive and the service conditions of the judges have to be revised to meet the special needs of the judicial service... The Judicial Officers throughout the country perform the work of the same nature and, therefore, their service conditions have to be uniformed and it should be examined by separate Commission and the State should not make a grievance if their service conditions are improved.……. The exertion involved in the duties of the judge cannot be compared with the duties of other services and the judicial service by its very nature stand on a different footing and should be treated as such. 2

    The Judiciary's reliance upon Government for periodic increase in remuneration entails an obvious potential for impairment of judicial independence.

    As the Chief Justice of Australia has noted:
    Those who control the purse strings will always have some capacity to influence the actions of those who are dependent upon the content of the purse... There can be no doubt that executive government control over judicial salary fixation is always at least an incipient threat to judicial independence.3

    As a Canadian Judge puts it more bluntly:
    When you are reduced to begging for a decent salary, how can you be truly independent?4
    The devastating effects of inadequate remuneration of the judges in the long run can only lead to worsening morale and eroding commitment to service. The losers are, however, not the judges in the ultimate analysis, rather it is the public. The public have to go before the courts for critical decisions in cases effecting law and order, cases that affect their civil and legal rights, involving their lives and liberties, their welfare. Public cannot afford to entrust such cases in the hands of dissatisfied judges.

    Senator Henry Clay during the debate in the House of Representatives warned:
    The labourer is worthy of his hire; and if you do not give him the wages of honesty, it is to be apprehended the wages of corruption may, in the process of time, come to be sought.5

    Therefore, improving the service conditions of our judges is not in the interest of the judges alone, but in the interest of the sound and efficient administration of justice as well.

    If Judges have to live in mean houses, wear cheap clothes.... not only would their work suffer by reason of their mental discomfort but the present high estimation in which the judiciary is everywhere held would also suffer. If the members of the judiciary are not regarded with respect, their impartiality will, such is human nature, come to be doubted...6

    In the words of Churchill:
    Our aim is not to make our judges wealthy men, but to satisfy their needs and to maintain a modest and a dignified way of life suited to the gravity, and indeed, the majesty, of the duties they discharge.

    In the Commentary 'Justice for Judges: The road blocks on the path to Judicial Compensation Reform' by Kristen A. Holt:
    'In 2005, Chief justice John G. Roberts, Jr. warned that, Our system of justice suffers as the real salary of the judges continues to decline, if Congress give judges a raise of 30% tomorrow, judges would after adjusting for inflation be making about what judges made in 1969. Between 1990-2005, 92 judges…left the bench and 59 of them step down to enter the private practice of law.

    These developments are disturbing in light of dramatically increasing case loads and constantly rising cost of living. Through United States Constitution's Compensation Clause, salaries are guaranteed to all judges under Article III, which shall not be diminished during their continuance of office. For over 30 years, judicial compensation has been inherently unreliable. This financial uncertainty directly relates to a steady stream of attrition of capable Judges from the bench. The loss of judges is having a deleterious impact on the fabric of our Judiciary. As qualified an experienced judge's leave, current judges overextend themselves to bear an increasing number of complex cases until replacements are found. As a result, not only is there a problem of retention, but there is a decreasing pool of capable individuals willing to be considered for judgeships. Moreover, concerns exist regarding the number of applicants for federal judgeships, as well as the quality of those individuals. The fiscal reality of current judicial compensation threatens this diversity because only economically well situated lawyers can afford to accept an appointment as Judges. Anecdotal evidence suggests that part of the judicial compensation grid lock problem relates to a basic political reality. Members of Congress must run for re-election every 2 or 6 years and, therefore, are continually fundraising and campaigning. In contrast, federal judges receive life time appointments and a generous retirement package.

    Therefore, members of Congress may hesitate to approve any judicial compensation plan, whether temporary or long term, to increase judicial salaries to a level above their own. This political reality may call for more creative solutions to the judicial compensation dilemma. Article III, Section 1 of the U.S. Constitution establishes that the judges, both of the Supreme and Inferior Courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. Alexander Hamilton emphasized the proper balance of power between the legislative and judicial branches of government, stating that in the general course of human nature, a power over a man's subsistence amounts to a power over his will. He asserted that in order to specifically protect the vulnerability of the judiciary, next to permanency in office, nothing can contribute more to the independence of the judges, than a fixed provision for their support. Thus, the framers acknowledge the importance of an independent judiciary in structure of United States Government while further recognizing that in order to preserve judicial independence, it would be imperative to preserve a secure means of financial support for judges.

    The other aspect relates to the public criticism regarding the functioning of judiciary. The public criticism includes among others, the delay in disposal of cases; unsatisfactory judgments and creeping corruptions in some quarters. The judiciary cannot afford to be indifferent to these criticisms. The cost of providing justice is like other calls on the public revenues. All persons and departments who utilize the public revenue are accountable to the public. The judges cannot be an exception to this recognized principle. They are equally accountable for their acts and omissions both on the Bench and off the Bench. It is therefore, necessary for the judges, individually and collectively, to ensure that no criticism is leveled against them or against the system.

    Misbehavior by any judge, whether it takes place on the Bench or off the Bench, undermines public confidence in the administration of justice and also damage public respect for the law of the land, if nothing is seen to be done about it, the damage goes unrepaired.7

    According to a new Transparency International report: Corruption undermines judicial systems worldwide, released on 25/05/07, the majority of people in nearly all Southeast European countries consider their judicial and legal systems corrupt. When courts are corrupted by the greed or political expediency, the scales of justice are tipped, and ordinary people suffer. Judicial corruption means the voice of the innocent goes unheard, while the guilty act with impunity.8 In its Global Corruption Report 2007: Corruption in Judicial Systems, TI distinguishes two categories of judicial corruption: political interference by the legislative or executive branch and bribery. According to a survey conducted between June and September 2006, the group said that the majority of respondents in 33 of the 62 countries polled described their national judiciary and legal system as corrupt.

    The report also stated that of the 8,263 people who had been in contact with the judicial system recently. More than one in ten had paid a bribe. The situation appears to be worst in Paraguay, where nearly 90% of the respondents have described their judiciary and legal system as corrupt. With less than 10% of Danes perceiving their judiciary as corrupt, Denmark is the cleanest of the 62 countries. In the SEE region, the percentage of people describing their country's judicial and legal system as corrupt ranges between 54% in Greece and slightly over 80% in Macedonia, which is 4th on the list. About 78% of Croats consider their judiciary to be corrupt, placing the country 7th on the list. Bulgaria is 9th, Turkey is 16th and Albania is 26th. Next comes Romania, then Serbia as 29th and Greece is 31st. Within the region, Kosovo is the only territory where fewer than 50% of the respondents described the judiciary and legal system as corrupt.

    It also stated that while 23% of people in North America and 19% of those living in EU or other Western European nations had contact with the judiciary in the past year, the figure for the SEE countries for the period was only 9%. However, 9% of those who had contact with the judiciary reportedly paid a bribe. In North America and in the EU and in other Western European nations only 2% and 1%, respectively, paid bribes. TI offers a number of recommendations to improve judicial independence and combat corruption. These includes judicial appointments made by the independent panels, making judges' appointments based on merits, and making salaries in the sector reflect magistrates' experience and performance. Furthermore, judges should receive limited immunity for actions related to judicial duties and allegations against them should be rigorously investigated by an independent panel.

    Former Chief Justice of Supreme Court, J.S. Verma said regarding the accountability of the judges, There is no point is saying that there is no corruption in the judiciary. No one is going to say it much less accepted. One cannot go on sweeping it under the carpet and not accept it to show.…… When moral sanction doesn't work, then legal sanction is required.

    Citing the example of Shiv Prasad Sinha, a judge of Allahabad High Court, he said, There were allegations against him and the finding was that some judgments of his appeared to be made for extraneous considerations…. At a meeting of the Supreme Court on May 7th, 1997 two resolutions were adopted. One, that the Chief Justice should devise an 'in-house procedure' for enforcing accountability. And two, all judges should declare their assets. The 'in- house procedure' is also stuck now because there is no mode of enforcement. Justice Verma said that accountability of judiciary is key to its independence. Judicial independence means independence from your own infirmities. Latent dangers are more lethal. Unless you have fearless and independent judges, judicial independence is a myth….. If in a court of 20 there are 2 judges whose integrity for good reason is doubtful, I think it is a very serious threat. In a recent decision, the Supreme Court has reiterated the high standard of moral and ethical behaviour expected from a judge, and the desirability of a suitable 'in-house procedure' to maintain discipline among judges by self-regulation.9

    'In most present-day Western political systems the authority of governmental institutions is no longer self-evident. The role of modern judiciaries has substantially changed over the years; its bearing and weight as a law maker has increased vis--vis the administration and the legislature due to the growing complexity of society. The original legitimization of judicial action lies in the independent role of judge as an arbiter operating under the rule of law, judging conflicts, supervising and reviewing state actions, this new judiciary is activist, with new responsibilities in the field of law making and even policy making. New judiciaries like this, partly performing on the political platform, can no longer be totally shielded by judicial independence from public control and public accountability. If we want the rule of law values to be effective in a new setting, new forms of control and accountability for the judiciary may be warranted. Transparency, openness, a more efficient delivery of justice, and new forms of interaction between politics and judiciary are the modern buzzwords in debates on the accountability and legitimacy of non-elected organizations.

    Hard accountability for the judiciary entails that judges can only be scrutinized and held answerable indirectly for their professional functioning. This method traditionally is aloof in order not to compromise judicial independence. These methods of accountability evidently provide legitimacy to judicial authority. Soft accountability, on the other hand, is not indirect, but deals with the openness and representation of the judiciary in a more direct way. This type of accountability demands procedural transparency, representation and sensitivity as regards different interests and needs of a changing social environment as Gar Yein Ng in her recent Utretcht PhD thesis, puts it'10

    A basic postulate of the rule of law is that 'justice should not only be done but it must also be seen to be done'… Credibility in the functioning of the justice delivery system and the reasonable perception of the affected parties are relevant considerations to ensure the continuance of public confidence in the credibility and impartiality of the judiciary. This is necessary not only for doing justice but also for ensuring that justice is seen to be done.11 The review of all the Judicial Officers at the age of 50, 55 and 60 years for compulsory retirement by the procedure prescribed by the respective Service Rules should be undertaken regularly. There should be continuing Committee of Senior Judges of the High Court headed by the Chief justice for this purpose of review. it is incumbent for each occupant of every high office to be constantly aware that the power invested in the high office he holds is meant to be exercised in public interest and only for public good, and that it is not meant to be used for any personal benefit or merely to elevate the personal status of the current holder of that office. Constant awareness of the nature of this power and the purpose for which it is meant would prevent situations leading to clash of egos and the resultant fall out is detrimental to public interest.12

    According to the Charter of the United Nations the peoples of the world affirm, inter-alia, their determination to establish conditions under which justice can be maintained to achieve International Co-operation in promoting and encouraging respect for human rights and fundamental freedoms with out any discrimination. Where as Universal Declaration of human Rights enshrines in particular the principles of equality before the law, of the presumption of innocence and of the right to a fair and public hearing by a competent, independent and impartial tribunal established by law. International Covenant on Economic and Cultural Rights and on Civil and Political Rights both guarantee the exercise of those rights, and in addition, the Covenant on Civil and Political Rights further guarantees the right to be tried without undue delay. The sixth United Nations Congress on Prevention of Crime and the Treatment of Offenders, by its resolution 16, called upon the Committee on Crime Prevention and Control to include among its priorities the elaboration of guidelines relating to the independence of judges and the selection, professional training and the status of judges and the prosecutors.

    It is, therefore, appropriate that consideration be first given to the role of judges in relation to the system of justice and to the importance of their selection, training and conduct.

    1. S.P Gupta v. Union Of India: 1981 supp SC 87,408
    2. All India Judges' Association Case: AIR 1992 SC 165
    3. Report of the Remuneration Tribunal of Common Wealth of Australia, 1997, p.33
    4. Judge Francois- Beaudoil, President of the Conference des judges due Qucboc
    5. The Annals of Congress Report March, 1861
    6. Lord Chancellor's office, by Robert Stevense, p.121
    7. Jackson's Machinery of Justice by J.R Spencer: 8th Ed., p. 369-370
    8. Transparency International, RFE/RL, BBC,Balkan Investigative Reporting Network, Sofia News Agency,
    9. C. Ravichandran Iyer v. Justice A.M.Bhattacharjee
    10. Judicial Tranparency furthering public accountability for new judiciaries: Wim Voermans
    11. P.K.Ghosh v. J.G.Rajput
    12. State of Assam v. P.C. Mishra

    About The Author:
    Vatsala Kak - I am a student of Symbiosis Law School, studying in fifth year BBA LLB. I have done my schooling partly from Harayana and partly from Delhi. In future, I plan to join a law firm to learn more about my field and gain some experience.

    The author can be reached at: [email protected] / Print This Article

    How To Submit Your Article:

    Follow the Procedure Below To Submit Your Articles

    Submit your Article by using our online form Click here
    Note* we only accept Original Articles, we will not accept Articles Already Published in other websites.
    For Further Details Contact: [email protected]

    Divorce by Mutual Consent in Delhi/NCR

    Mutual DivorceRight Away Call us at Ph no: 9650499965

    File Your Copyright - Right Now!

    Copyright Registration
    Online Copyright Registration in India
    Call us at: 9891244487 / or email at: [email protected]