'Independence Of Judiciary Is Not Just A Principle But A Moral Imperative': Justice Hima Kohli

“Independence of the judiciary is not just a principle but a moral imperative. The relevance of an independent judiciary cannot be overstated especially in a country like India which is not just a ‘Democratic Republic’ but has been described in the Constitution, as a ‘Sovereign, Socialist and Secular, Democratic Republic’,” Supreme Court Judge, Justice Hima Kohli said, while addressing the Symposium on ‘Independent Judiciary: Critical for a Vibrant Democracy’ organized by FICCI in collaboration with Bharat Chamber of Commerce, and in association with the Indian Council on Arbitration, on March 04, 2023.

While highlighting the judiciary’s role as the conscious keeper of the Constitution, and stressing that its independence is pivotal for the smooth governance of a democratic system, Justice Kohli traced the evolution of a truly ‘independent’ judiciary over the years, even in the midst of diverse challenges thrown towards it.

She noted that it was as society evolved, and conflicts arose amongst its constituents that the need for an independent, impartial and competent body for conflict resolution that would enable peaceful co-existence, was found to be essential. Justice Kohli also noted that there are two facets to independent judiciary, namely, ‘institutional independence’, referring to the judicial institution being independent as a collective whole or a unit, and ‘individual independence’ referring to the independence of Judges in deciding matters in accordance with their assessment of the facts and understanding of the law, without any improper influence, inducement, or direct or indirect pressure.

“The judiciary's function of providing checks and balances on other branches of the State is decisive in preventing concentration of power in any one branch. By upholding the Rule of law and ensuring that the government operates within the remit of its authority, the judiciary promotes stability and effectiveness of democratic institutions. It also protects citizens from arbitrary exercise of power and ensures that their rights and freedom are respected and upheld. Absent the judiciary's role of maintaining checks and balances, democratic institutions would be vulnerable to corruption, abuse of power and erosion of the trust of the citizen in the government. The role of the Courts in upholding the Rule of law and providing checks and balances on other wings of the State makes the Judiciary a critical pillar of democracy,” Justice Kohli emphasized.

She added that judicial independence was not just a facet of the fundamental rights of citizens, and also not one that was simply limited to its constitutional status or financial and administrative autonomy, but an essential condition for maintaining a vibrant democratic social order. She observed that an independent judiciary also dependent on the integrity and impartiality of an individual Judge. “Judges must remain free from any political, personal, or extraneous influences that may compromise their independence or impartiality. Guided by the principles of justice, fairness and impartiality, they are expected to be honest to their oath and ensure that justice is dispensed without fear or favour, affection or ill will,” Justice Kohli remarked.

Noting that this very aspect of independence of judiciary had been put to a severe test during the time of Emergency, Justice Kohli appreciated that even during such testing times, there were still some judges in the Supreme Court and at least nine High Courts, who had shown remarkable courage and independence, and had stood up to the government's attempts to erode judicial autonomy and protected fundamental rights of the citizens.

Citing the example of Justice H.R. Khanna’s dissent in ADM Jabalpur v. Shivkant Shukla (1976), popularly known as the Habeas Corpus case, Justice Kohli noted how it stood out as a ‘shining example’ of judicial independence and integrity. “Though the period of Emergency was a low phase in India's democratic history, it demonstrated the resilience of the Indian judiciary and the importance of an independent judiciary in protecting the citizens' fundamental rights and upholding Constitutional values and morality. Much water has flown under the bridge since then and the hard lessons learnt during that time, have strengthened the independence of the Judiciary that has become more transparent and accountable,” Justice Kohli quipped.

In this vein, Justice Kohli added that as recently as on March 2, 2023, a 5-Judge Bench of the Apex Court had observed in Anoop Baranwal v. Union of India and Ors (2023), that “Democracy can succeed only in so far as all stakeholders uncompromisingly work at it……. The essential hallmark of a genuine democracy is the transformation of the ‘Ruled’ into a citizenry clothed with rights which in the case of the Indian Constitution also consist of Fundamental Rights, which are also being freely exercised……”, thus further testifying the importance of an independent judiciary for a vibrant democracy.

Stressing on the role played by the Media as a ‘watchdog’ for the other branches of the State, and in holding them accountable for their actions, Justice Kohli also commented upon the media’s role in helping to foster a vibrant and open democracy. “While the media's role in promoting democracy is essential, the Judiciary's role in upholding the Rule of law remains critical,” Justice Kohli noted.

She went on to add, “The importance of reporting proceedings held in open Court has been emphasised as these cases provide vital information about the activities of the Executive and Legislature. It is for this reason that Constitution Bench matters are being live streamed so that the public is made aware of how matters of importance are dealt with and of the Court’s process and procedure”. Justice Kohli also took note however, that in some instances, proceedings may have to be held in-camera, and open court may not be the most ideal in such circumstances.

Justice Kohli thus pointed out how independence of the judiciary was not just a legal principle but a fundamental pillar of a vibrant democracy.

Before concluding, she reminded that it was imperative for all the three pillars of the State work in parallel and not in tandem, in order to strengthen the democratic system.

“This itself will preserve the independence of the Judiciary and protect its autonomy and impartiality. It is equally essential to recognize the judiciary's role in the constitutional dialogue as it acts like a safety value for fostering our democratic values. The judiciary must be allowed to interpret the Constitution and make decisions based solely on the Constitution and the Laws. It is this interpretation that offers a guarantee for the Constitution to remain a living document that keeps on evolving over time, while remaining rooted in its fundamental values and principles. Therefore, having a robust constitutional dialogue in India, where all the branches of the State engage in a meaningful conversation with each other and at the same time, respect each other's independence and the respective delineated roles, is the best thing for a vibrant Democracy,” Justice Kohli added.