You Are In: USINFO > Products > Democracy Dialogues > Independent Courts

Words of Freedom

Excerpts From India's Former Chief Justice P.N. Bhagwati, 1997

P.N. Bhagwati (©AP/WWP)

There are a few institutions which are vital to the maintenance of democracy and the rule of law. They constitute the life breath of the democratic way of life and the supremacy of law. Drain away this life breath, and democracy will perish, the rule of law will end.

Inevitably authoritarianism will take their place. History shows that the first step which a ruler takes when he assumes authoritarian power is to impair the integrity and independence of these institutions.

The judiciary is one such institution on which rests the noble edifice of democracy and the rule of law. It is to the judiciary that is entrusted the task of keeping every organ of the State within the limits of power conferred upon it by the Constitution and the laws and, thereby, making the rule of law meaningful and effective. Most countries have a written constitution which provides the structure allocating and regulating power relations amongst the different organs of the State. The Constitution confers power on the various organs of the State and also lays down the limits within which such power may be exercised.

It is not enough merely to place limitations on the power of the various organs of the State, but it is also necessary to ensure that these limitations are observed and there is no abuse or misuse or excess of power. I would use the provocative phrase "state lawlessness" to describe the situation where there is abuse or misuse or excess of power by the State or its officers or, in other words, where the State or its officers act outside the Constitution on the laws, and thereby, the rule of law is violated. This is fortunately not the general pathology of a modern State, but sometimes aberrations do occur, and there is a violation by the State or its officers of the rights of the individual or the meta-collective rights of classes of people by the abuse or misuse of power or by action outside the scope of the law.

This "state lawlessness" has to be curbed and controlled by the judiciary. This is the essence of the rule of law, and it goes to the roots of constitutionalism. It is the solemn function of the judiciary to ensure that no constitutional or legal functionary or authority acts beyond the limits of its power nor that there be any abuse or misuse of power.

This function becomes all the more important and essential in a modern welfare state where there is a vast increase in the range and detail of government regulation of privately owned property or enterprise. There is the direct furnishing of services by government to individual members of the community, and there is increasing government ownership and operation of industries and businesses, which at an earlier time would have been operated for profit by private hands. …

It should be the goal of the rule of law that these multifarious and diverse encounters are fair, just and free from arbitrariness, and it is, therefore, necessary to structure and regulate the power of the executive so as to prevent its abuse or misuse or arbitrary application or exercise.

It is for this purpose, with a view to enabling the judiciary to carry out this important and delicate task, that the power of judicial review has been conferred on the judiciary. By exercising this power of judicial review, the judiciary seeks to protect the citizen against violations of his constitutional or legal rights.

The judiciary stands between the citizen and the State as a bulwark against executive excesses of misuse or abuse of power or the transgression of constitutional or legal limitations by the executive as well as the legislature.

There are also certain human rights which need affirmative state action for their enforcement; and where the State fails to do so, the judiciary has to step in and compel such affirmative state action in order to make these human rights effective.

It is, therefore, absolutely essential that the judiciary must be totally free from executive pressure or influence and must be fiercely independent. Independence, of course, is a quality which must come from within the heart. It must be a quality which is part of the very fabric of the judge’s existence; but even so, judges must not be exposed to executive threats, inducements or blandishments and must remain absolutely independent and fearless.

It is for this reason that in almost all the countries which have adopted the democratic form of government, great importance is attached to the independence of the judiciary….

…If independence of the judiciary is such a basic requirement for the survival of democracy based on the rule of law, the question arises: What do we mean by independence of the judiciary? It is not easy to analyze the essentials which go towards building such independence and impartiality. The term is multiconceptual, having different ingredients and components.

What may be regarded as independence of the judiciary in a socialistic State may be totally different from what may be regarded as independence of the judiciary in a Western democracy. Broadly speaking, however, I can safely assert that independence of the judiciary means that the judges should be independent in deciding the case before them, exclusive on the basis of merit without fear or favor and no extraneous considerations should motivate their decisions…

…Thus, conceptually, as well as from the point of view of practical reality, the independence of the judiciary comprises two basic postulates, viz., "independence of the judiciary as an institutionalized organ" and "independence of the individual judges," and no judiciary can be said to be independent unless these two essentials are present.

The power of appointment of judges to the superior courts is also a large power; and to my mind, at least in Third World countries, vesting it exclusively in the executive is likely to undermine the independence of the judiciary. It is, of course, true that in most of the democratic countries this power is given to the executive because the executive is accountable for its actions to the people through Parliament.

But in effect and substance, this accountability has ceased to exist because in many countries, instead of the legislative controlling the executive, it is the executive which controls the legislative and the legislative check has disappeared.

Furthermore, if the power of appointment is vested solely in the hands of the executive, it is not unlikely that those aspiring for judicial appointments might lobby with the executive with a view to seeking favor of judicial appointment. If they are so favored by appointment on the bench, they would then carry with them a sense of obligation to the executive and unconsciously, if not deliberately, be inclined to support the executive in the adjudicatory process.

The position would be the same where the power of giving promotion is vested exclusively in the executive; for in that event, the judge seeking promotion may be predisposed in favor of the executive which has the power to promote him. Of course, instances are not unknown where judges appointed by the executive have shown themselves to be made of sterner stuff and have not hesitated to decide a case against the executive.

But with ordinary mortals, which the majority of judges are, the possibility cannot be ruled out that they may be subtly influenced in favor of the executive where there is a dispute between the citizen and the State. Public confidence in the independence and impartiality of the judiciary would then be impaired.

It is also possible that political considerations may influence the decision to appoint or promote a particular candidate as a judge and in the process the best person may not get selected, thus, affecting the quality of the judiciary. …

…Another important factor that has considerable bearing on the independence of the judiciary is security of tenure.

Of course, I must make it clear, even if repetitious, that independence is a quality that must come from within the breast of the judge. Lord Coke had no security of tenure, and yet he was independent and fearless and had the courage to defy the king. Judges, however, are human beings with the frailties and failings which common people have, and their independence and impartiality in cases where the government is a party are likely to be affected by the fear of losing their jobs.

Security of tenure, therefore, is essential. The tenure of judges cannot be made dependent on the mere pressure of the government. It must be secured against executive and legislative action, and that is why in most constitutions we find provisions guaranteeing the security of tenure to judges…

…The salaries of judges are also inadequate in many countries which makes it very difficult to persuade the members of the bar to accept appointments on the bench. Consequently, the best lawyers are not available for appointment as judges, and quality suffers. The quality and independence of the judiciary is also affected….

Another factor which impairs the independence of the judiciary is the dependence of the judiciary on the executive for resources. The judiciary has no power of the purse. It has to act within the allocation of funds made to it in the annual budget. It cannot spend a cent more even if it is necessary for streamlining the machinery of justice and improving its performance.

If the judiciary wants to introduce modern science and technology in the functioning of the court system or to expand its facilities or to appoint more judges with a view to expediting the disposal of cases, it cannot do so unless the necessary funds are made available by the executive. The executive can twist the arm of the judiciary if the judiciary does not behave to its liking or if the chief justice is too independent and does not fall in line with the executive on sensitive issues, such as the appointment of judges…

…Apart from the ordinarily recognized sources of danger to the independence of the judiciary, there is another source of danger which is often not perceived as such, and it is for that reason much more dangerous than the other sources. This source of danger lies in unjust and improper criticism of the judges for the judgments which they deliver.

There is a pernicious tendency on the part of some to attack judges if the decision does not go the way they want or if it is not in accordance with their views. Of course, there is nothing wrong in critically evaluating the judgment given by a judge because, as observed by Lord Atkin, justice is not a cloistered virtue and she must be allowed to suffer the criticism and respectful, though outspoken, comments of ordinary men and women. But improper or intemperate criticism of judges stemming from dissatisfaction with their decisions constitutes a serious inroad into the independence of the judiciary and, whatever may be the form or shape which such criticism takes, it has the inevitable effect of eroding the independence of the judiciary.

Each attack on a judge for a decision given by him or her is an attack on the independence of the judiciary because it represents an attempt on the part of those who indulge in such criticism to coerce judicial conformity with their own preconceptions and, thereby, influence the decision making process…

…The judiciary is an institution. Its business as an institution of governance is larger than the individual profile of a judge. It is important to reflect on the constituent elements of the institution. This institution consists of the bar and the judges. While judges maintain our personal integrity, it is the bar that fiercely maintains the independence of the judiciary as an institution.

The bar has a vital role to play in safeguarding judicial independence. The legal profession must raise its will and fight in defense of the independence of the judiciary.

It is not enough merely to lay down principles for the independence of the judiciary. These principles have to be implemented, and strategies must be devised for that purpose.

I think it is essential that these principles be disseminated amongst lawyers, judges and the people and they must be made aware of these principles and any violations of these principles must be exposed and brought to the notice of the lawyers, judges and public so that strong public opinion can be created in defense of the independence of the judiciary.