Political Insularity Is Critical To Independence Of Judiciary : Justice BV Nagarathna

Justice BV Nagarathna, Judge of the Supreme Court, in a recent public lecture, spoke about the importance of political insularity in ensuring judicial independence.

"Political insularity is critical to the independence of the judiciary," she said while delivering the Justice Natarajan Centenary Memorial Lecture at Chennai on November 16.

"Insularity relates to the notion that Courts must not become grounds for realization of political aims. Insularity is believed to result, inter alia, from granting security of tenure to judges and providing significant checks and balances in their appointment," she explained.  The judicial role must be detached from the interests of the political system or the concerns of powerful social groups. The role must solely be to regulate the legality of state acts, ensure justice and determine the general constitutional and legal values.

Justice Nagarathna defined judicial independence as the degree to which a judge decides cases consistent with his/her own interpretation of the law, sometimes, in opposition to what others think or desire in like matters.  It is the degree to which judges actually decide cases in accordance with their own determination of facts, evidence and the law, free from coercion, blandishments or interference from other organs of government, or other citizens. The concept of judicial independence is closely intertwined with the doctrine of separation of powers and the supremacy of the law.

"Judicial independence and supremacy of the law work together to guarantee that the rule of law will not be eroded by the political pressures in existence at any particular point in time. Insulating judges from political influence advances the same objective. Both these concepts are therefore important underpinnings to the rule of law which we cannot afford to take for granted," Justice Nagarathna said.

Judicial independence not a shield for judicial misbehaviour

At the same time, she added that judicial independence should not be allowed to become "a shield for judicial misbehaviour or incompetence." Judicial independence is merely the other side of the coin from judicial accountability. The two are not at war with each other but rather are complements.

The judge stated that the extent of independence of the judiciary relates back to the independence, impartiality and integrity of the persons holding judicial office.

"It is therefore, all important that meritorious judges are appointed, who have the pulse of the Indian society and the Country in their hearts and the rule of law in their mind, while seeking to render justice. It is the personality of the judges that will determine in the truest sense, the extent of judicial independence and autonomy," she said.

"In my view, independent exercise of judicial power is not only a judge's prerogative but also a judge's duty. It is therefore important that judges decide true to their own appreciation of the law and their conscience, unfettered by the views of another. It is ultimately conviction, courage and independence of Judges which decide matters before a court of law. From the aspect of judicial independence within the court system, separate opinions or dissenting opinions must be seen as an expression of mutual independence of the judges, i.e., independence of a judge from other judges. This is independence of the judiciary in its most enlightened form," Justice Nagarathna stated.

Courts not employing political power while exercising judicial review

In her lecture, she elaborated on the powers of the Courts to review legislative and executive actions which violate fundamental rights and the Constitution. The judiciary is the bulwark against abuse of power by the Executive.

She debunked the criticism that judicial review cannot be exercised over a democratically elected government enjoying a popular majority. As the first point against this view, she said :  "The process of democracy in my view is meant also to refine and elevate public opinion from all angles and viewpoints. There cannot be only one public opinion applicable to all. Ultimately, democracy is also about arriving at a consensus by taking the best from a variety of ideas and opinions that emerge at a particular point of time. Therefore, in a true democracy, there cannot be scuttling of divergent opinion or thought nor a curb on ideas which may appear contrarian."

Further, she highlighted that without the judicial protection of equality and liberty, democracy will fail. "And while majorities have a right to work their mistaken wills anyway, that right is not untrammeled: it is the Judiciary, therefore, which determines the limits of that right. In fact, the legitimacy of the courts comes precisely from the fact that courts act without reference to popular sentiment and by doing so, they address injustices which majoritarian institutions are fundamentally incapable of addressing," she said.

"It is pertinent to acknowledge that when courts exercise judicial review they are not legislating or employing political power. They are applying the elementary principle of law that the acts of an agent in excess of his authority do not bind his principal: the agent being the state, the principal being the people, and the authority as defined and detailed in the Constitution. Judges in such instances have no choice but to enforce the Constitution as the law of highest obligation," Justice Nagarathna said..