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Business News›Opinion›ET Commentary›Why Constitution framers envisaged a
judiciary free from legislature and executive pressures



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WHY CONSTITUTION FRAMERS ENVISAGED A JUDICIARY FREE FROM LEGISLATURE AND
EXECUTIVE PRESSURES

SECTIONS
Why Constitution framers envisaged a judiciary free from legislature and
executive pressures
ET CONTRIBUTORSLast Updated: Nov 25, 2024, 11:22:00 PM IST
Synopsis


THE AUTHORS OF THE CONSTITUTION WERE CONVINCED THAT THE POWER OF JUDICIAL REVIEW
IS AN INTEGRAL ASPECT OF JUDICIAL INDEPENDENCE. AT THE SAME TIME, THEY WANTED TO
ENSURE THAT THE JUDICIARY SHOULD NOT TRESPASS INTO THE TERRAIN OF THE
LEGISLATURE AND EXECUTIVE, AND UNDERMINE THEIR AUTHORITY AND POWER. ALLADI
KRISHNASWAMY AYYAR, A DRAFTING COMMITTEE MEMBER, NOTED, 'WHILE THERE CAN BE NO
TWO OPINIONS ON THE NEED FOR THE MAINTENANCE OF JUDICIAL INDEPENDENCE, BOTH FOR
THE SAFEGUARDING OF INDIVIDUAL LIBERTY AND THE PROPER WORKING OF THE
CONSTITUTION, IT IS ALSO NECESSARY TO KEEP IN VIEW ONE IMPORTANT PRINCIPLE. THE
DOCTRINE OF INDEPENDENCE IS NOT TO BE RAISED TO THE LEVEL OF DOGMA SO AS TO
ENABLE THE JUDICIARY TO FUNCTION AS A KIND OF SUPER-LEGISLATURE OR
SUPER-EXECUTIVE....'

We, the protected


C RAJ KUMAR

The writer is founding vice-chancellor, OP Jindal Global University, Haryana

As India celebrates the 75th anniversary of the adoption of the Constitution
today, it's more pertinent than ever to remember that the framers of our
Constitution wanted to ensure that the three wings of the government -
legislature, executive and judiciary - function in their respective domains with
a sufficient degree of autonomy.

Constitution Day, also being National Law Day, we must especially not lose sight
of the fact that the Constitution assigns the judiciary the power to interpret
its provisions and adjudicate matters arising out of the exercise of powers by
the different wings of the government - essentially to be independent.



The framers envisaged a judiciary free from legislature and executive pressures
and influence. Accordingly, the Constitution has extensive provisions relating
to the appointment and removal of judges, including their qualifications,
conditions and procedures. These are critical for the judges' independence.



The authors of the Constitution were convinced that the power of judicial review
is an integral aspect of judicial independence. At the same time, they wanted to
ensure that the judiciary should not trespass into the terrain of the
legislature and executive, and undermine their authority and power. Alladi
Krishnaswamy Ayyar, a drafting committee member, noted, 'While there can be no
two opinions on the need for the maintenance of judicial independence, both for
the safeguarding of individual liberty and the proper working of the
Constitution, it is also necessary to keep in view one important principle. The
doctrine of independence is not to be raised to the level of dogma so as to
enable the judiciary to function as a kind of super-legislature or
super-executive....'

Several judicial pronouncements have established a new jurisprudence for
appointing judges, resulting in a collegium-based process led by CJI and a few
senior judges. The current process of appointing judges has come under scrutiny
and criticism for want of transparency regarding the collegium's criteria.
Judicial independence is fortified by provisions guaranteeing judges' tenure and
removal. High court and Supreme Court judges can be dismissed only through a
parliamentary impeachment process, which calls for procedural transparency and
more robust protection of the tenure of judges.


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The Constitution provides safeguards against risks of external influence. One
avenue of external influence could be the judiciary's financial dependence on
GoI. Article 146(2) of the Constitution states, 'The administrative expenses of
the Supreme Court, including all salaries, allowances and pensions payable to or
in respect of the officers and servants of the court, shall be charged upon the
Consolidated Fund of India, and any fees or other moneys taken by the Court
shall form part of that Fund.' The strategy of putting detailed provisions
relating to enforcement of judicial decisions in the Constitution is centred on
the importance of the judiciary. The Constitution empowers the judiciary to
command the state's resources to implement its judgments, including the law
enforcement machinery.



The history of judicial independence in India over the last 75 years records
persistent efforts to safeguard constitutional values. International
developments over the years have also prioritised judicial independence:



 * International Bar Association Minimum Standards of Judicial Independence
   (1982).
   
 * UN Basic Principles on the Independence of Judiciary (1985).
   
 * International Commission of Jurists' International Principles on the
   Independence and Accountability of Judges, Lawyers and Prosecutors (2004).
   
 * In July 2006, the UN Economic and Social Council (Ecosoc) adopted a
   resolution recognising the 'Bangalore Principles of Judicial Conduct' as
   representing a further development of, and as being complementary to, the
   1985 UN Basic Principles on the Independence of the Judiciary.
   
 * UN Human Rights Council resolution of July 17, 2020, on 'Independence and
   impartiality of the judiciary, jurors, assessors and the independence of
   lawyers'.


International law and international principles have, indeed, influenced our
national constitutional law. This Constitution Day is an occasion for renewed
and fortified commitment to protect the independence of the judiciary, enabling
that institution to live up to the highest standards for delivering justice.



(Disclaimer: The opinions expressed in this column are that of the writer. The
facts and opinions expressed here do not reflect the views of
www.economictimes.com.)



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Copyright © 2024 Bennett, Coleman & Co. Ltd. All rights reserved. For reprint
rights: Times Syndication Service



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