Chief Justice of India Ranjan Gogoi Wednesday said that it was the duty of the judiciary to stand upto populist forces when the executive and legislature get swept away in the wave of populism.
Addressing Chief Justices and judges from member countries of the Shanghai Cooperation Organisation (SCO), Gogoi said: “In the journey of a Nation, when the legislative and executive wings get swept away from their duties and goals under the Constitution by waves of populism, it is for the Judiciary to rise and stand up to the populist forces and protect the Constitutional ethos”.
Apparently referring to criticism that this amounts to judicial activism, the CJI added “to some critics and naysayers, this situation presents a case for hoisting the classical counter-narrative – unelected judges, acting under the Constitutional mandate, get to overturn the acts of the elected majority. However, it is for us to recollect that such situations across the world have heaped tremendous pressure on the Judicial organs, and it is no surprise that in some jurisdictions Judiciary too has succumbed to populist forces.”
The CJI sought to stress that it was for the judiciary to rise to the occasion. “This is also an area that requires judiciary to prepare itself, to strengthen itself about such populist onslaughts on the independence of the Institution. The human agency, through which justice is sought to be administered, has to be adequately secured and fortified in ordinary times, so that it is sufficiently equipped to deal with such forces of populism in extraordinary times, lest they overrun the judicial edifice too. This would be our strongest case for strengthening the independence of judiciary,” he said.
Underlining the importance of independence of judiciary, he said: “Whatever be the political system of governance, people across nations aspire for a free and independent judicial system to serve them.”
The CJI said that “if a judicial system fails to enjoy public confidence, its deliverables would never constitute ‘justice’.
The CJI also said that “independence of judiciary as an institution is different from independence of judges as the fountainheads of justice”.
“Proponents who call for a strong and independent judiciary would assert that in the absence of institutional independence of judiciary, independent functioning of Judges cannot be assured and similarly, without strong and independent Judges, the ‘institutional independence’ of the ‘Judiciary’ would be a misnomer and futile,” he said.
Listing some of the measures to secure the independence of the judges as well as judiciary, CJI Gogoi said: “Non-political appointments, security of tenure and rigorous procedure for removal, securing the reputation of and remuneration and immunities for the Judges, in-house accountability procedures, and implementation of code of judges’ conduct.”
Elaborating, he said that “strengthening of Institutions works best when they are strengthened from within and not when strength is sought to be infused from an external source”.
“Strength that evolves from inside, touches the character and core of the Institution; in contrast, an external source could only lend ‘support’ to the Institution. Such external support would rarely strengthen the core of the Institution. That apart, independence of judiciary is not a one-time pill-it is a ‘state of affairs’ that has to remain constant, in the face of continuous and recurrent waves of onslaught aimed at disturbing such ‘state’. It is also an aspiration that the stakeholders and leaders of the judicial organ must constantly seek out and defend,” he said.
Besides this, “judiciary also needs to work on securing its independence in financial matters”, he said adding “the control of revenues and on expenditure essentially vests with Governments, however such control is more often than not seen to be exercised as a tool of arm-twisting.”
“There is an apparent lack of understanding globally that, by the dint of their Constitutional role, the Judicial organs essentially act like buffers and pressure valves, standing between the State agencies and the restive populace, absorbing all the heat and dust thrown up by the cycle of governance, or a lack thereof. This lack of understanding, coupled with the fact that Judiciary does not pander to any constituency, translates into low budgetary support for the Judiciary—including for its infrastructure and human resource components,” he said.
“It would not be surprising if data would reflect that nations which support and invest heavily in developing a strong judicial infrastructure, with sufficient financial resources and powers, would be nations with more stable governments and administrations,” he added.
The CJI also lauded the separation of powers between the executive and judiciary in India and said “if one goes for a more nuanced scrutiny it becomes obvious that except for some outliers, in almost all other cases, the executive in India has historically shown deference to the judiciary in the appointment of judges to the Higher judiciary”.