[This is the keynote address by India’s former Chief Justice P. N. Bhagwathie titled “Democracy and the Rule of Law” presented at the seminar Provisions in the Draft Constitution and Independence of the Judiciary organized by the Vigil Lanka Movment and the Asian Legal Resource Centre [ALRC] in Colombo, Sri Lanka, from 10 to 11 May 1997.]
There are a few institutions which are vital to the mainte-nance 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.
Naturally, public power becomes an instrumentality for the achievement of these purposes, and inevitably, there is a vast increase in the frequency with which ordinary citizens directly encounter the wielders of power. It is this dramatically increased numbers of encounters that sets the task of the rule of law in a welfare society.
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. Sir Winston Churchill, while stressing the need for an independent judiciary, observed:
“The principle of complete independence of the judiciary from the executive is the foundation of many things in our island life. . . . The judge has not only to do justice between man and man. He also – and this is one of the most important functions considered incomprehensible in some large parts of the world – has to do justice between the citizens and the State. He has to ensure that the administration conforms with the law and to adjudicate upon the legality of the exercise by the executive of its power.”
I may point out that even under ancient Hindu law an independence of character, great learning in the various branches of law and impartiality were the essential qualities which must be possessed by a person occupying judicial office. One of the verses in our ancient scriptures says that a judge must possess the following qualities:
“He should be learned, sagacious, eloquent, dispassionate, impartial; he should be a guardian to the weak, a terror to the wicked; his heart should cover nothing, his mind be intent on nothing but equity and truth.”
Pandit Nehru, while speaking about the judges of the Supreme Court in the Constituent Assembly which framed the Indian Constitution, observed:
“It is important that these judges should be not only first-rate but should be acknowledged to be first-rate in the country and of the highest integrity – if necessary, people who can stand up against the executive and whoever may come in their way.”
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 favour and no extraneous considerations should motivate their decisions.
The concept has thus been explained by a distinguished writer in the following words:
“The rendering of an honest unbiased opinion, based on the law and the fact, is far from simple; it is one of the most difficult tasks which can be imposed on fallible man. It demands wisdom as well as knowledge, conscience as well as insight, a sense of balance and proportion and if not absolute freedom from bias and prejudice at least the ability to detect and discount such failings, so that they do not becloud the fairness of the judgment.
“It is evident that the ordinary political environment is unable to provide the proper incentive which will call for these qualities, nor will it permit these qualities to be exercised without a large measure of interference which will deprive them of the great part of their value.
“The judiciary in short must be given a special sphere clearly separated from that of the legislative and executive. They must, to accomplish this separation, be given the privileges which are not vouch-safe to other branches of the government; and they must be protected against political, economic and other influence which would disturb that detachment and impartiality which are indispensable prerequisites for the proper performance of their function. It is those unusual factors which create the condition known as independence of the judiciary.’’
The definition of “independence of the judiciary” evolved by the International Commission of Jurists in 1981 and formulated in Article 2 of the Siracusa Draft Principles (see CIJL Bulletin 8) contains some of the essentials of the concept:
“Independence of the judiciary means . . . (1) that every judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without any improper influence, inducements or pressures, direct or indirect, from any quarter or for any reason. . . .”
The concept of “independence of the judiciary” was also discussed in the 19th biennial conference of the International Bar Association held in New Delhi in October 1982. In that conference, the “Draft Minimum Standards of Judicial Independence” contained in Dr. Shimon Shetreet’s paper were finally adopted as the “Delhi Minimum Standards” of judicial independence.
Dr. Shetreet stated that the modern concept of judicial independence cannot be confined to individual judges and to their substantive and personal independence but must also include the collective independence of the judiciary as an institution.
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. Moreover, accountability can be “enforced” through discussion only after the appointment is made and it is a fait accompli.
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 favour of judicial appointment. If they are so favoured 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 favour 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 favour 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.
We in India have therefore tried to qualify the power of the executive to appoint a judge by making it mandatory for the government to consult the chief justice of India in the matter of appointment of judges of the Supreme Court, the chief justice of the High Court and the chief justice of India in the matter of appointment of High Court judges.
It is, of course, consultation and not concurrence, but the Supreme Court of India has held that consultation must be effective consultation where all relevant facts are disclosed and reasons discussed. Even this requirement of consultation, however, has unfortunately not proved effective.
It is true that the executive has – so far – not made a single appointment which is not approved by the chief justice of India, but there have been instances where persons recommended by the chief justice of India have not been appointed judges – his recommendations having been turned down.
Some lawyers and jurists take the view that the recommendations made by the chief justice of India must be binding on the government, which would mean that the power of appointment would be effectively vested in the chief justice of India. I do not agree with this view, however.
In the first place, there is no country in the world where the chief justice has been given the power to appoint superior court judges. Secondly, the chief justice is not elected himself, and therefore, he does not represent the people and is not accountable to them. Thirdly, no such power should be vested exclusively in one individual, howsoever high he may be.
Power can be misused or abused by anyone, whether he or she be the president or the prime minister or the chief justice, but even the procedure adopted in India of vesting the power of appointment in government, to be exercised in consultation with the chief justice of India, has not worked well, and it has failed to eliminate political interference in appointments.
The power of appointment, therefore, must be vested in a Judicial Service Commission composed of judges, lawyers and law academics of eminence presided over by the chief justice where the executive should also have representation, and this Judicial Service Commission should recommend a name which must be accepted by the government. That alone would ensure the appointment of persons with ability and integrity and eschew political interference.
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.
In India, there is a foolproof procedure to guarantee the security of tenure, for a judge can be removed only by an address by both houses of Parliament to the president, passed by a special majority and on the grounds of proved misbehaviour or incapacity. And it is only if a judge is found guilty of misbehaviour or incapacity by a tribunal constituted, not by the executive, but by the chief justice of India and consisting of sitting members of the Supreme Court judiciary chosen by a chief judge, that a resolution can be passed by both Houses of Parliament for the removal of the judge and, moreover, only by a special majority. Thus, the security of tenure is fully ensured to a judge.
The executive should have no power to suspend a judge of a superior court as it is power which can be abused. Principles 17 to 20 of the Basic Principles on the Independence of the Judiciary restrict the power of suspension and should be fully implemented on the national level.
No judge should be removed except for proved misbehaviour or incapacity and only after a disciplinary inquiry by his peers who are chosen by the chief justice or president of the Supreme Court and not by the executive. This procedure should also not be allowed to be set in motion unless a resolution is passed by Parliament by a special majority at the instance of a sizeable number of members.
The other factor which may tend to impair the independence of the judiciary is the transfer of judges by the executive. Transfer can be a potent weapon of oppression or retaliation, and to vest the power of transfer in the executive would be to give the executive power to control the judiciary. The executive can transfer a judge from one place to another and by doing so not only punish him but also convey a message to other judges that if they do not behave they too will be subject to transfer.
The power of transfer may be necessary in the public interest, but it should never be vested in the executive. There must be a Judicial Service Commission which alone should have the power to effect the transfer of judges. In India, the power to transfer High Court judges is conferred on the government. It is a power exercisable in consultation with the chief justice of India; but even so, it has been abused when the chief justice of India has been weak or submissive.
I would not vest this power even in the chief justice or the president of the Supreme Court because even he or she may abuse this power or misuse it – sometimes deliberately, sometimes out of misinformation and sometimes out of ignorance. I would not trust any single individual with power.
Power must be broad-based; it must be shared so that with several minds contributing to the decision the possibility of its abuse or misuse may be eliminated.
There are further pressures and obstacles which are not as apparent. One of them is preventing a judge from travelling outside his country to accept the hospitality of any organization, be it a university, an international organization or even the International Commission of Jurists (ICJ), without obtaining the permission of the executive.
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.
It is also necessary to have proper and adequate training programmes and seminars for the judiciary so that the judges realize the value of independence. It is a quality which must be injected into their minds. Periodic seminars can serve a very useful purpose of bringing judges in a country together where they can discuss the pressures and obstacles which each of them face and how they can be overcome.
The unity of judges is most essential for securing the independence of the judiciary. If the judges are united, no executive on earth can bring them down. I will give you only one example from my country. When the first chief justice of India died, there was a proposal to make the chief justice of Bombay the next chief justice of India, and the proposal was backed by the attorney general, but the judges as a whole intimated to the prime minister that if this happened all the judges would resign. The result was that no such appointment was made.
Even in Malaysia, if all the judges had stood together, Salch Abbas could never have been removed. Every effort, therefore, must be made to periodically bring judges together in a common conclave and strengthen in their minds the resolve to maintain judicial independence and, if necessary, to fight against any onslaught on it.
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.
Of course, the budget is discussed and voted on in the legislature, and theoretically, the elected representatives of the people can appreciate the needs of the judiciary and vote for an adequate budgetary allocation. As a matter of practical reality, however, in most countries, it is the executive which controls the legislature.
In India, the chief justice of India has power to alter the headings under which budgetary allocations are made so long as he remains within the budgetary allocation, but the chief justice of the High Court has no such power. If he wants to spend the budgetary allocation made under “salaries” on furniture, he cannot do so without the approval of the executive. Moreover, more judges cannot be appointed, even if it might be imperatively necessary to do so.
The result is that a backlog of cases piles up; cases take years and years to be disposed of; and the credibility of the judicial institution is affected. Once the credibility and the respect for the institution goes, this has an adverse impact on the independence of the judiciary as an institution.
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 judgements 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 judgement 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.
It is essential in a country governed by the rule of law that every decision must be made under the rule of law and not under the pressure of one group or another or under threat of adverse criticism by irresponsible journalists or ill-intentioned politicians; and if a judge is to be in fear of personal criticism by political or pressure groups or journalists while deciding a case, it would most certainly undermine the independence of the judiciary.
Unfortunately, this is what is happening in some countries, and those who indulge in such improper or intemperate and even sometimes vitriolic criticisms or attacks on judges little realize what incalculable damage they are doing to the institution of the judiciary. One other question which has great relevance to the independence of the judiciary is whether judges should accept any government assignment after retirement. Opinion is divided on this question.
One view is that after retirement the talent of a judge should be utilized in the service of the nation, and there is no reason why the nation should be deprived of the benefit of the learning and experience of a retired judge.
The other view is that the desire of getting an assignment after retirement may affect the independence and impartiality of a judge, particularly during the latter part of his judicial tenure. He may try, consciously or unconsciously, to be on the right side of the government in cases coming before him.
It is a difficult question as to which view is correct. Perhaps it is not possible to give a definite answer to this question. Much depends on the strength of character of the individual judge.
It is also necessary to point out that in some countries, particularly India, appointments of chief justices of High Courts are made on an acting basis, and they continue as acting chief justices for months. This is a pernicious practice detrimental to the independence of the judiciary because the acting chief justice would always be in a state of suspense, not knowing whether he would be confirmed or not and depending on the executive for his confirmation.
There is one other aspect of the judiciary that needs to be profiled more clearly. The public, spurred on by the media and political images, often thinks of judges as either single individuals or an assemblage of persons. Yet this image obscures an essential truth, and the denial of that truth obscures further insights.
The essential truth is that 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 defence 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 defence of the independence of the judiciary.