An independent judiciary

Courts are often seen only as umpires in private disputes, but the judiciary also performs political functions. The Supreme Court of India is among the most powerful courts in the world and has, since 1950, interpreted and protected the Constitution.

Why an independent judiciary? Disputes arise between individuals, groups and the government, and must be settled by an independent body according to the rule of law: everyone, rich or poor, man or woman, of any caste, is subject to the same law. The judiciary protects the rule of law and the supremacy of law, safeguards individual rights, settles disputes by law, and ensures democracy does not give way to individual or group dictatorship. For this, it must be free of political pressure.

What independence means: the executive and legislature must not obstruct the judiciary so that it cannot do justice; they must not interfere with its decisions; and judges must be able to act without fear or favour. Independence does not mean arbitrariness or lack of accountability: the judiciary is accountable to the Constitution, to democratic traditions and to the people.

How the Constitution protects independence:

• The legislature is not involved in appointing judges, to keep party politics out. Judges must be experienced lawyers or well versed in law; political loyalty should not count.
• Fixed tenure: judges hold office until retirement age, and can be removed only in exceptional cases through a very difficult procedure.
• Financial independence: judges' salaries and allowances are not subject to the legislature's approval.
• Judges' actions and decisions are protected from personal criticism; the court can punish contempt of court. Parliament cannot discuss judges' conduct except during proceedings to remove a judge.

Appointment of judges has always involved politics, because judges' philosophies shape how the Constitution is interpreted.

• For the Chief Justice of India (CJI), a convention developed of appointing the senior-most Supreme Court judge. It was broken twice: in 1973, A.N. Ray was appointed over three senior judges, and later M.H. Beg was appointed over H.R. Khanna.
• Other Supreme Court and High Court judges are appointed by the President after 'consulting' the CJI. Between 1982 and 1998 the Supreme Court repeatedly considered what this meant, moving from purely consultative, to binding, to a new procedure: the CJI should recommend names in consultation with the four senior-most judges, the principle of collegiality (the 'collegium'). So both the senior judges and the Council of Ministers play important roles, with the judges' group carrying greater weight.

Removal of judges. A Supreme Court or High Court judge can be removed only for proven misbehaviour or incapacity, by a motion passed by a special majority in both Houses of Parliament. So removal needs broad consensus. Note the balance: the executive plays a key role in appointment, the legislature in removal.

• Only one such case has come before Parliament: in 1991 a motion was moved to remove Justice V. Ramaswami, accused of misusing public funds as Chief Justice of a High Court; an inquiry committee of judges found him guilty, but the motion failed to obtain the required special majority.
• Example (new): a judge who rules against the government in a major case cannot have her salary cut or be transferred out of spite, and cannot be removed unless both Houses agree by special majority that she misbehaved; that is what lets her rule without fear.