Lara Jesani

| @ | June 11,2018

[dropcap]A[/dropcap]t a time when we are surrounded by a raging debate on the independence of judiciary in India, it is pertinent that this discussion includes a clear understanding of the need for an independent and impartial judiciary and the fair and just administration of justice. An independent and impartial judiciary is a guarantee to the litigants of equality in the eyes of the law and equal protection of the law. It is a promise of fair trial and is non-negotiable in a democracy.

Globally, it is not just understood as a human rights concept, but as the core value of Rule of Law. Independence of judiciary is an age-old concept, which finds its roots in the doctrine of the Separation of Powers. In the Indian context, where the systems of Constitutional and Parliamentary sovereignty are blended, it translates into employing safeguards not only through constitutional provisions, but also protecting judges from control and influence of any external factors and guarding the judiciary from changes in political scenario. While international law and standards on judicial independence have played a significant role in shaping the law in India, Indian jurists have also played an active role in the development of these international standards.

Separation of powers: Origins

The international standards of judicial independence envision not only the independence of the judicial institutions, but also the independence of the judges. The fundamental basis behind the requirement of separation of powers are three-fold — firstly, those who govern and those who are governed are all subject to the same laws; secondly, disputes between people and with the government are required to be resolved fairly and impartially by an independent judiciary; and lastly, rule of law involves the effective protection of human rights.

In 1945, under the Charter of the United Nations (UN), the peoples of the world affirmed their determination to establish conditions under which justice and respect for the obligations arising from the treaties and other sources of international law could be maintained. This was to meet the ends of achieving international co-operation in promoting and encouraging respect for human rights and fundamental freedoms without any discrimination. Under Article 10 of the Universal Declaration of Human Rights (UDHR), 1948, everyone is entitled to full equality to a fair and public hearing by an independent and impartial tribunal. The UDHR influenced several legal regimes, including in India, and has now gained the stature of accepted norms of international customary law. The Indian Constitution, which was adopted in 1950, imbibed values and protections to ensure a judiciary independent of executive control and influence.

There was a wave of international recognition for the requirement of an independent judiciary to uphold Rule of Law, which resulted in several international conferences and collective efforts of jurists to further the discourse. In 1959, at the International Congress of Jurists held in New Delhi, the various facets of Rule of Law in a free society were deliberated. The International Commission of Jurists (ICJ) — an international non-governmental organization formed of eminent jurists from several countries — released a report holding that an independent judiciary and a strong bar are indispensible requisites of society under the Rule of Law. At the time, the President of ICJ was the former judge of the Supreme Court of India, Vivian Bose, who is considered by many to be one of the founders of judicial activism in India.

International Bill of Rights

In the International Covenant on Civil and Political Rights (ICCPR), 1966, the right of people to be treated equally before the courts and tribunals and to fair and public hearing before a competent, independent and impartial tribunal established by law, is recognised under Article 14. Similarly, the International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966, guarantees the protections of these values. These three documents — UDHR, ICCPR (together with its two Option Protocols) and ICESR — comprise what is known as the “International Bill of Rights”.

While these were the foundational documents recognising the role an independent judiciary plays in upholding the rule of law, several subsequent treatises and covenants imbibed these values. However, there was a need to evolve effective mechanisms and procedures to translate this understanding into action, especially in the domestic context by the member states.

Basic Principles on the Independence of Judiciary

In 1985, the Basic Principles on the Independence of Judiciary were adopted by the 7th United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan. This document was influenced by the “Singhvi Draft Declaration” prepared by Dr L M Singhvi of India, who was appointed as Special Rapporteur by the UN Sub Commission on Prevention of Discrimination and Protection of Minorities, to study matters relating to the independence and impartiality of the Judiciary, Jurors, Assessors and of the independence of lawyers and to formulate his recommendations.

The Basic Principles on the Independence of Judiciary provide that the independence of judiciary be guaranteed by the state and be enshrined in the Constitution or some other legislative instrument, and that the executive be required to observe the same. It requires the judiciary to decide matters with impartiality, free from restrictions, improper influences, pressures, threats, interference — direct or indirect — from any quarter or for any reason. It articulates several provisions and procedures with respect to autonomy, resources, appointment, conditions of service and tenure, removal etc. to ensure that independence of judiciary is achieved in letter and spirit, and to guarantee fair trial and protect rights of the litigants.

On the basis of several studies and reports prepared on the independence of judiciary under the mandate of the UN Sub Commission, the Sub Commission recommended the need for a monitoring mechanism to follow up the question of the independence and impartiality of the judiciary, particularly with regard to judges and lawyers, as well as court officers, and the nature of problems liable to attack this independence and impartiality. In 1994, the Commission on Human Rights, in resolution 1994/41, noting both the increasing frequency of attacks on the independence of judges, lawyers and court officials and the link which exists between the weakening of safeguards for the judiciary and lawyers and the gravity and frequency of violations of human rights, decided to appoint for a period of three years, a Special Rapporteur on the independence of judges and lawyers. The mandate of the Special Rapporteur has been extended from time to time and currently Mr Diego García-Sayán holds the position.

Indian contribution to chiseling the principles

Regional bodies also contributed to international standards on judicial independence. During the 6th Conference of Chief Justices of Asia-Pacific region in 1995, where India participated, the Beijing Statement of Principles on the Independence of the Judiciary in the LAWASIA (Law Association of Asia and the Pacific. Founded in 1966, it is the oldest regional association of jurists in the Asian-Pacific region) region was adopted. The Beijing Statement was thereafter amended at the meeting held in Manila in 1997. The statement declared to represent “minimum standards necessary to be observed in order to maintain the independence and effective functioning of the judiciary” and drew heavily from the earlier formulated principles on independence of judiciary. Pursuant to this, the Restatement of Values of Judicial Life was adopted by the Chief Justices Conference of India in 1999. This document has since not been updated or brought in the form of legislation, but operates as guidelines on judicial ethics in India.

One of the most comprehensive set of international principles on judicial independence emerged by way of the Bangalore Principles of Judicial Conduct and came from the recognition of judicial ethics. Pursuant to deliberations in several conferences on developing the concept of judicial integrity and formulating universally acceptable standards consistent with the principle of judicial independence, the Bangalore Principles of Judicial Conduct were drafted at a meeting of Judicial Group on Strengthening Judicial Integrity, held in Bangalore, India in 2001. Chief Justice of Y Bhaskar Rao of Karnataka was part of the first meeting at the United Nations Office in Vienna in the year 2000 of the Judicial Group on Strengthening Judicial Integrity (which came to be known as the Judicial Integrity Group), which led these discussions and drew reference from the then existing domestic, regional and international principles on judicial independence and ethics. The Bangalore Principles were later revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, in 2002 following an extensive consultation process with involvement of Chief Justices and senior judges from several countries.

The Bangalore Principles provide six core values of Judicial Conduct – Independence, Impartiality, Integrity, Propriety, Equality & Competence, and finally, Diligence. National judiciaries are required to take effective measures to provide mechanisms to implement these principles. In 2007, the Judicial Integrity Group prepared a commentary on the Bangalore Principles to facilitate better understanding of the judicial ethics amongst the Member States. Since the emergence of the Bangalore Principles, the member states were invited time and again to encourage judiciaries in their countries to take into consideration the Bangalore Principles of Judicial Conduct while reviewing or developing rules with respect to the professional and ethical conduct of the members of the judiciary.

Is India letting down its jurists?

However, in spite of well-established international principles on judicial independence in the development of which Indian jurists have taken a lead role, India has shown great reluctance to implement these principles on the home front to facilitate transparency, tackle corruption and make the judiciary accountable. Currently, there are no rules and procedures in place in India for independent investigation and adjudication of complaints against judges. While attempts have been made in the past to introduce a complaints mechanism and bring about transparency in appointments through legislation, the efforts have been largely half hearted.

In his Annual Report, presented at the 35th Session of the Human Rights Council in 2017, the UN Special Rapporteur on the independence of judges and lawyers has while restating several established principles by reports of earlier Special Rapporteur, listed judicial corruption as a special area of concern. Placing reliance on the United Nations Convention against Corruption, the 2017 report states “interferences, pressures and threats constitute significant risks to the independence of judges, which make them particularly vulnerable to corruption.”

The United Nations Convention against Corruption, which has been ratified by India in 2011, provides under Article 11 that each State party shall, in accordance with the fundamental principles of its legal system and without prejudice to judicial independence, take measures to strengthen integrity and to prevent opportunities for corruption among members of the judiciary. Such measures include rules with respect to the conduct of members of the judiciary. It is significant to note that not all cases from India regarding the loss of independence of judges, prosecution and lawyers are being reported to the UN Special Rapporteur.

While India’s past credentials for maintaining some level of independence in higher judiciary has held in good stead, even once achieved, the continuation of judicial independence is not a matter of course. What we are facing today is an example of how political, economic and social changes can have an adverse effect on the independence of judiciary. The influence and control of the executive is being felt at all levels of judiciary, and especially in the higher judiciary by way of judicial appointments, elevations, transfers, assignment of cases, disciplinary actions against dissenting judges, apart from direct instances of corruption and influence. Together with the easing up of laws through new legislations and loss of independence of the media, it has put Indian democracy at threat. The trends we are witnessing today are not only dangerous, but have the potential to subvert the principles of Indian democracy altogether.

Encroaching executive and other threats

Illegitimate political influence on judges take different forms, some are clearly illegal (bribes, blackmail, threats, violence/murder), while other forms of undue influence stem from the ways in which relations between the judiciary and other arms of government are organised, or reflect a legal culture where judges are expected to defer to political authorities.

Referring to the legendary US Supreme Court judge, Felix Frankfurter, former Chief Justice of India (CJI) R M Lodha recently said at a meeting held in New Delhi, “perhaps no aspect of the ‘administrative side’ that is vested in the chief justice is more important than the duty to assign the writing of the court’s opinion.” It is at this very first stage of assignment of cases in the highest court of the country, that we have lost the value of fairness. And it is in this critical time and context that brave efforts are being made to make the higher judiciary accountable by demanding for transparency in judicial proceedings through live video streaming, suspension of the powers of the CJI as “master of the roster”, assignment of cases through collegiums, investigations into judicial corruption and demanding exercise of the power of judicial review.

What we urgently require is unrelenting proactive efforts of the legal community, an active judiciary, vigilant civil society and independent institutions to promote rule of law and ensure independence and impartiality of judiciary, not only to meet the international standards on judicial independence but to prevent our judiciary from losing even the independence and credibility it had achieved in the past.

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