Is the Indian Judiciary Independent Anymore: A Critical Analysis

Is the Indian Judiciary Independent Anymore

Indian Judiciary

It was former Chief Justice I Rajan Gogoi’s sabbatical that he heard 18 court decisions when it came to challenges to the laws governing quasi-judicial cases. In just one year of making such a statement, Ranjan Gogoi has been nominated for the Rajya Sabha. This is not the first time in the history of Indian courts that a retired justice has been awarded post-retirement benefits, but as Justice Madan Lokor said in a recent article, numerous past mistakes do not justify this decision. Are In the last year of his tenure, Justice Gogoi was involved in a number of important decisions, including the Ram Janmabhoomi case and the Raphael Dale. For the first time in history, the acting chief justice was charged with sexual harassment. There are a number of recent incidents that have shaken the confidence of citizens in the judiciary, including the selection of emergency cases in the midst of lockdowns and the legitimate view of the judiciary on blatant violations of fundamental rights in the state of Jammu and Kashmir. In the recent past, the independence of the judiciary has been repeatedly challenged and this third pillar of democracy has been stunned every time.

Independence of the judiciary

Unlike the United States, the Constitution of India does not follow the principle of separation of powers, but in many cases it has been reiterated that the independence of the judiciary is a fundamental part of the Constitution. In order for the judiciary to be independent and impartial in order to fulfill its constitutional objectives, judges need to be able to act independently, reasonably and fairly without any fear or favor. The judiciary stands between the citizen and the state against the misuse or abuse of power by the administration. Therefore, it is imperative that the judiciary be free from executive pressure or influence as provided for in various provisions of the Constitution.

Freedom is limited not only by executive pressure or influence, but also by other pressures and prejudices. Many economic or political aspects are fearless of other power centers. Impartiality, independence, fairness and fairness are the hallmarks of the judiciary. If “impartiality” is the soul of the judiciary, then “freedom” is the lifeblood. Neutrality cannot flourish without freedom. This is freedom of judicial thought. It is freedom from interference and pressure that provides a judicial environment where the judge can work with absolute commitment to the cause of justice and constitutional values. However, its existence depends not only on philosophical, moral or ethical aspects but also on security in the era, freedom from common financial worries, freedom from influences and pressures (by others in the judiciary) and without (unshakable) (Executive). The independence of the judiciary is part of its infrastructure. The constitutional ethics of an independent judiciary cannot be allowed to be undermined by direct or indirect official interference in the impartial administration of justice or by unannounced interference by the executive.

Example of appointment of former judges after retirement

Justice Ranjan Gogoi is not the first Chief Justice to accept post-retirement benefits from the government. Justice Ranganath Mishra retired from the post of Chief Justice in 1991, was appointed Chairman of the National Human Rights Commission and was later sent to the Rajya Sabha on a ticket of the Indian National Congress a few years later. Justice P Satyasam was appointed Governor of Kerala in 2014 after retiring from the first government of the Bharatiya Janata Party (BJP). Chief Justice of the Bombay High Court Justice MC Chagla was appointed Ambassador to the United States, then High Commissioner to the United Kingdom and then Minister of Education in the Nehru government and then Foreign Affairs. Justice M. Hidayatullah retired from the post of Chief Justice in 1970 and was elected Vice President of India. Justice Bihar-ul-Islam was a Member of Parliament from the Rajya Sabha, then he became a Judge of the Supreme Court and then a Member of the Rajya Sabha again.

After retirement appointments in other countries

In the United States, judges have a lifetime. Therefore, the question of appointments does not arise after retirement. This is to provide job security to judges so that they can work in accordance with the law and be free from any kind of fear. In the United States, even the president cannot reduce the remuneration of federal judges. This is to exclude executive and legislative interference.

In the UK, the situation is similar to in India, but in contrast, there is no law barring them from holding any position after completing their services. Many retired judges become cross-bench peers. In fact, the current Convener is also the retired Chief Justice of England and Wales.

Suggestions for maintaining trust in the judiciary

A specific cooling-off period should be implemented, which needs to be completed before any public office can be restored. This will ensure that there was no political or administrative involvement in the judge’s decision-making. In my opinion, the cooling-off period should be at least 10 years to ensure that the two conditions of the Lok Sabha are met, which will reduce the chances of external interference.

The remuneration of judges in India is much lower than in other countries, due to the fact that after retirement, all judges engage in some form of activity for financial gain, some in the private sector and some in the public sphere. ۔ Increasing judges’ salaries and pensions can reduce their involvement in the financial sector, but it is not a reliable solution because there is no end to greed.

Critical analysis of post-retirement appointments and reductions

Former Chief Justice of India Ranjan Gogoi was nominated for the Rajya Sabha less than six months after his retirement. In the last year of his tenure, he was involved in many important decisions, including the Raphael Dale case, the Ayodhya case and the Assam NRC case, which were directly linked to the then BJP-led government and more importantly That is, all decisions were made. The way the government wanted. Former Chief Justice IP Sathasium was appointed Governor of Kerala within six months of his retirement. He was the leader of the bench which dismissed the second First Information Report (FIR) against Amit Shah in the fake encounter Sohrabuddin Sheikh case. These appointments call into question the independence of the judiciary as well as its credibility. The question still remains whether the nomination was made because of his reputation or as a favor to the government.

This is nothing new and should not be included in any political party, but in the past there have been many incidents under the Congress government when Ranganath Mishra and MC. Chagla did the same. These mistakes were made in the past and now these appointments are not justified.

There have been instances in the past where MPs have become judges.

Due to the lockdown, the Supreme Court decided to hear only urgent cases. In the midst of this catastrophe, where millions of migrant workers are stranded in their workplaces without jobs, money and resources, the government has appealed to the stranded workers to return to their homes immediately. Not found On the other hand, the Supreme Court heard the petition filed by journalist Arnab Goswami, who is considered close to the BJP government, the next day to quash the FIR. Is this the justice that the judiciary is trying to deliver?

The report of the investigation into the sexual harassment complaint against the Chief Justice was also not made public with reference to Indira Jessing v. Supreme Court. The decision was taken by the bench on the basis of a report which was not disclosed to anyone. This is a clear violation of the principle of natural justice. The report on which the allegations were denied was also not shown to the accused.

Internet services have been shut down in the state of Jammu and Kashmir for about 66 months. The Supreme Court gave utmost importance to this matter. About 12.5 million people have been without functional internet for about 6 months. They were completely cut off from the rest of the world.

To draw conclusions

The Constitution of India provides justice to all. Members of the judiciary are administrators of justice. Efforts are made to ensure an independent and impartial administration of justice for judges so that they can administer justice to their citizens in accordance with the law. The duty of judges is considered to be extremely prudent, so the Constitution provides for the independence of the judiciary so that it can be impartial, fair, reasonable, free from any fear or support in upholding constitutional objectives. The problem begins when other organs, the legislature and the executive, begin to interfere. External interference not only destroys the piety of the profession, but also deprives individuals of their rights.

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