Before venturing to write further, I owe a confession. None of the writings below are my original and are drawn upon various sources. Although to my disappointment, it has been my firm belief that after Chanakya we never had a single original political thinker born in the country.
So much so, we have not even been able to draft a quality legislation post independence, that could withstand the test of time. As an example I would like to cite Companies Act, 2013 that was legislated after lots of deliberations and considerations, notified in August 2013, required to be amended to some extent in 2015. It still required another wave of amendments in 2016 and the list of amendments itself resulted in a voluminous compendium. This speaks loudly about our legislative capabilities.
Jurists and authors of repute have found two aspects of "Judicial Independence":
1. Freedom from bias; and
2. Freedom from external control.
1. Freedom from bias has been highlighted as follows:
"the independence of the judiciary is something which is precious to every single member of the community. You must be able to go into court and know that the person sitting in judgment is neutral – not on one side or the other – coldly applying the law that applies to your case."
2. Freedom from External Control has been
Now considering how the Supreme Court of India has approached Independence of Judiciary, the following questions arise in my mind.
A mind that fears reduction of salary or alteration of conditions of service, is by implication bound to be enticed by offers of post retirement employment. Viewed in this context, if fear of reduction of salary of judges or altering conditions of their service tends to create fear in the minds of their lordships and thereby amounts to impinging upon "Independence of Judiciary", the obverse must also be true.
Seeking to tempt the judges by post retirement appointments to various tribunals and commissions must necessarily amount to State attempt to influence "free conscience" of their lordships. This too must be held to be contrary to the principle of "Independence of Judiciary".
So much so, we have not even been able to draft a quality legislation post independence, that could withstand the test of time. As an example I would like to cite Companies Act, 2013 that was legislated after lots of deliberations and considerations, notified in August 2013, required to be amended to some extent in 2015. It still required another wave of amendments in 2016 and the list of amendments itself resulted in a voluminous compendium. This speaks loudly about our legislative capabilities.
Jurists and authors of repute have found two aspects of "Judicial Independence":
1. Freedom from bias; and
2. Freedom from external control.
1. Freedom from bias has been highlighted as follows:
"the independence of the judiciary is something which is precious to every single member of the community. You must be able to go into court and know that the person sitting in judgment is neutral – not on one side or the other – coldly applying the law that applies to your case."
[Sixth Report of the House of Lords Select Committee on the Constitution, Relations Between the Executive, the Judiciary and Parliament (2007 HL 151)]
2. Freedom from External Control has been
Now considering how the Supreme Court of India has approached Independence of Judiciary, the following questions arise in my mind.
A mind that fears reduction of salary or alteration of conditions of service, is by implication bound to be enticed by offers of post retirement employment. Viewed in this context, if fear of reduction of salary of judges or altering conditions of their service tends to create fear in the minds of their lordships and thereby amounts to impinging upon "Independence of Judiciary", the obverse must also be true.
Seeking to tempt the judges by post retirement appointments to various tribunals and commissions must necessarily amount to State attempt to influence "free conscience" of their lordships. This too must be held to be contrary to the principle of "Independence of Judiciary".
What if the highest court of a country (not necessarily India) rules
that fear of retirement affects the free conscience of the judges and
tantamounts to impinging upon "Independence of Judiciary".
What course would be left with the Executive and the Legislature except confrontation with Judiciary?
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