This article explores the importance of judicial independence in ensuring democracy and the rule of law. It cites Chief Justice D.Y. Chandrachud's views on the subject, emphasizing the need for both institutional autonomy and judges' freedom from external pressures. The article discusses historical and contemporary challenges to judicial independence, including governmental interference and public opinion. It also highlights constitutional safeguards and factors contributing to its erosion, such as post-retirement appointments and legislative actions.

Introduction:
"An independent judiciary does not merely mean the insulation of the institution from the executive and the legislature branches but also the independence of individual judges in the performance of their roles as judges. The art of judging must be free of social and political pressure and from the inherent biases which human beings hold," - CJI D.Y Chandrachud

A robust democratic system relies on a judiciary that remains independent and impartial. This judiciary serves as a bulwark for the people's rights, ensuring equitable and unbiased justice free from external influence or coercion. Additionally, it acts as a guardian of the constitution, empowered to annul any actions taken by the executive, administration, or legislature, both at the national level and within individual states. Judicial independence stands as a cornerstone for upholding the rule of law. Within a federal framework, the judiciary assumes the role of the ultimate authority, tasked with curbing any exercise of absolute, whimsical, or arbitrary power. Legislative decisions, driven by majority will, are subject to judicial scrutiny. Through vigilant oversight, the judiciary safeguards human rights and curtails potential oppression by the majority. This dynamic establishes a system of checks and balances, ensuring that the actions and decisions of the legislative and executive branches are kept in check by judicial rulings

Has Judicial Independence Suffered An Erosion?

In Marbury v. Madison,[i] Chief Justice Marshall held that the court has the authority to evaluate the law enacted by the legislature, can hence be credited for giving birth to the concept of judicial review. However, a lot of academics have criticized this idea for a variety of reasons, including judicial authoritarianism, excessive dependence on judges, being undemocratic, and being a barrier to a strong democracy.

A letter written to honorable CJI of India by retired judges of High court and Supreme court on 14th of April, 2024 states that � "It has come to our notice that these elements, motivated by narrow political interests and personal gains, are striving to erode the public's confidence in our judicial system. Their methods are manifold and insidious, with clear attempts to sway judicial processes by casting aspersions on the integrity of our courts and judges. Such actions not only disrespect the sanctity of our judiciary but also pose a direct challenge to the principles of fairness and impartiality that Judges, as guardians of the law, have sworn to uphold".[ii]

The sense of fear shows that there persists a threat to the judiciary, the very foundation of the rule of law and natural justice. It undermines the belief in the existence of a sanctuary where one can seek protection for their rights and well-being, shielded from exploitation and the tyranny of those who disregard rights without detection. The judiciary, likened to a tree with justice as its trunk, faith as its branches, and judicial independence as its roots, faces inevitable destruction if its foundational elements are compromised, endangering not only the institution itself but also those who rely on its protection.

Now the question arises: Who wields the axe, and what material is it crafted from? Does it originate from the same tree, or are external influences at play, or perhaps both?

Reaching consensus on each facet may not be a great deal, as each contributes to the overall detriment. The term "elements," as mentioned by judges, can be likened to the wood of the axe, wielded by those who, driven by personal gain or other motives, compromise the integrity of this vital pillar. Occasionally, external pressures coerce them to act contrary to their intentions.

While the Constitution grants protection and autonomy to the judiciary, it begs the question: are the provisions outlined in the constitution comprehensive enough to safeguard judicial independence? Regardless of the extent of authority vested, if one's will contradict principles and personal gain takes precedence, how will they wield that power � to illuminate or extinguish the light?

Constitutional Provisions Ensuring The Independence Of Judiciary

The Constitution of India enshrines several measures aimed at ensuring the independence of the judiciary. Firstly, Article 50 emphasizes the separation of the judiciary from the executive branch, advocating for a distinct judicial service free from executive control to safeguard judicial independence. Secondly, the appointment of judges is regulated by Article 124(2), which mandates consultation with judicial authorities, including the Chief Justice, and prevents the executive from unilaterally appointing judges, thereby reinforcing judicial autonomy.

Additionally, judges of the Supreme Court and High Courts enjoy security of tenure until retirement, protected from arbitrary removal except in cases of proven misbehavior or incapacity, which entails a complex removal process involving presidential and parliamentary approval. Moreover, their salaries and allowances are fixed and charged on separate funds, ensuring financial independence. The powers and jurisdiction of the Supreme Court are inviolable, with Parliament only able to expand but not diminish them, further buttressing judicial autonomy.

Furthermore, provisions such as Article 211 and 121 prevent discussions in state legislatures and Parliament, respectively, regarding the conduct of judges except under specific conditions, shielding judicial integrity. Both the Supreme Court and High Courts possess the authority to punish contempt, reinforcing respect for the judiciary. Lastly, Article 124(7) prohibits retired Supreme Court judges from practicing before any court in India, preventing conflicts of interest. Overall, these constitutional provisions collectively uphold the independence and integrity of the judiciary in India.

Factors That Led To Such Erosion

One contributing factor that enables such erosion is the government's practice of appointing judges to different roles post-retirement. While utilizing the expertise of retired judges for judicial duties and enhancing the legal system for public benefit may be valid, it is concerning and inappropriate if a Supreme Court judge anticipates government employment after retirement. Such aspirations could lead to the perception that the judge lacks complete impartiality, especially in cases involving the government as a party, which is undesirable and casts doubt on the integrity of the judiciary.

The XIVth Law Commission Report[iii] advised against judicial officers taking up executive roles that could compromise their independence or involve them in advising the executive on matters they might later adjudicate upon. This recommendation was highlighted when former Chief Justice of India, Ranjan Gogoi[iv], was appointed to the Rajya Sabha post his tenure as CJI. Recently, High Court judge Abhijit Gangopadhyay, joined a political party[v].

Similar instances have been observed in the past; for instance, Justice Ranganath Mishra[vi] resigned as CJI in 1991 only to later become Chairman of the National Human Rights Commission. Similarly, Justice M. Hidayatullah[vii], who retired as Chief Justice of India in 1970, later served as the Vice President of India. Sometimes judicial officers are appointed to post like those of Legal Remembrances etc., under the Executive with the consent of the High Court. These appointments affect the judicial functioning in the country.

Further, Legislative actions also encroach upon the traditional powers of the judiciary, such as limiting judicial review or granting excessive authority to the executive branch, can weaken judicial independence. Most known example of this factor is the enactment of 'The Muslim Women (Protection of right on divorce) Act ,1986 which negated the judgement of the apex court in the case of Mohd. Ahmad Khan v Shah Bano Begum[viii] in which it was held that muslim divorced wife is entitled to be maintenance even beyond the period of Iddat by her husband if she remains unmarried. However, Section 3[1] of the said act provides for the right of divorced women to a reasonable and fair amount of maintenanace for herself only during the period of Iddat.

In recent times, significant controversy has arisen regarding the appointment of judges, a perennial subject of debate due to its profound implications for judicial autonomy. The 99th Constitutional amendment which provided for the constitution of National Judicial Appointment Commission (NJAC) for appointing judges of the Supreme Court and High courts sparked considerable concern as it posed a potential threat to the independence of the judiciary. Consequently, the Supreme Court held this amendment unconstitutional on the basis of its potential to undermine judicial independence.

Moreover, Fear of public opinion is also one of such factors affecting independence of judiciary. In November 2022,[ix] DY Chandrachud expressed concern about a prevalent 'sense of fear' among district judges, suggesting that they might be targeted for granting bail in heinous offences. He emphasized the necessity of tackling this apprehension, warning that failure to do so would significantly weaken trial courts, rendering them ineffectual, and could also impair the functionality of higher courts due to the larger number of pending bail applications. Despite the principle that Bail is rule and jail is exception, this norm is not consistently upheld in practice. Courts, particularly trial courts, exhibit reluctance in granting bail, leading to a situation where three-quarters of detainees remain undertrial.

Conclusion:
The independence of the judiciary as is clear from the above discussion hold a prominent position as far as the institution of judiciary is concerned. It is clear from the historical overview that judicial independence has faced many obstacles in the past especially in relation to the appointment and the transfer of judges. Courts have always tried to uphold the independence of judiciary and have always said that the independence of the judiciary is a basic feature of the Constitution. Courts have said so because the independence of judiciary is the pre-requisite for the smooth functioning of the Constitution and for a realization of a democratic society, based on the rule of law.

According to Lord Acton "Power tends to corrupt, and absolute power corrupts absolutely[x]". Whenever there is a mention of the independence of the judiciary, there is always a concern about the latent dangers of the judicial independence and there arises the importance of "Judicial Accountability". Judicial accountability refers to the responsibility of judges and the judiciary to act in accordance with the law and to be answerable for their actions. It encompasses various aspects, including transparency in judicial processes, adherence to legal standards and ethical principles, and mechanisms for holding judges accountable for any misconduct or incompetence. Judicial accountability is essential for maintaining public trust in the legal system and ensuring the fair and impartial administration of justice.

In order for freedom from external influence to be ensured, the law should provide sanctions against outside actors seeking to influence judges in any manner. The final outcome of the above discussion is that the importance of the independence of the judiciary was long ago realized by the framers of the constitution which has been accepted by the courts by marking it as the basic feature of the constitution. It is well known law has to change so as to meet to the needs of the changing society. Similarly judicial independence has to be seen with the changing dimension of the society. Judicial Accountability and Judicial Independence have to work hand in hand to ensure the real purpose of setting up of the institution of judiciary

References:

1. Marbury v. Madison, https://www.britannica.com/event/Marbury-v-Madison/Impact
2. In a letter to CJI Chandrachud, former judges raise concern about attempts to 'undermine judiciary' https://indianexpress.com/article/india/retired-judges-write-to-cji-against-attempts-to-undermine-judiciary-9270824/
3. Report 14, Ist LAW COMMISSION, Reforms of Judicial Administration https://lawcommissionofindia.nic.in/report_first/
4. In Unprecedented Move, Modi Government Sends Former CJI Ranjan Gogoi to Rajya Sabha, The Wire Staff https://thewire.in/law/cji-ranjan-gogoi-rajya-sabha-nomination
5. 'From the bench to the BJP: The Kolkata judge who has joined politics' https://frontline.thehindu.com/news/kolkata-high-court-judge-abhijit-gangopadhyay-resigns-to-join-bjp/article67939000.ece
6. Former CJI Ranganath Mishra appointed National Human Rights Commission chairman https://www.indiatoday.in/magazine/signposts/story/19931031-former-cji-ranganath-mishra-appointed-national-human-rights-commission-chairman-811748-1993-10-3
7. Mohammad Hidayatullah: Former Chief Justice of India https://www.tutorialspoint.com/mohammad-hidayatullah-former-chief-justice-of-india
8. Mohd. Ahmad Khan v Shah Bano Begum, AIR 1985 SC 945.
9. https://scroll.in/latest/1064598/need-to-thoroughly-evaluate-why-district-judges-are-not-following-bail-is-rule-principle-says-cji
10. https://www.acton.org/research/lord-acton-quote-archive