Judicial Independence Can Be Sustained Only When Incumbents Are Assured Fair Service Conditions, Security Of Tenure : Supreme Court

If "impartiality" is the soul of the judiciary, "independence" is the lifeblood of the judiciary, remarked the Supreme Court in its judgment in Tribunals case.

The bench headed by Justice L. Nageswara Rao observed that security of tenure and of service are core components of independence of the judiciary. The court added that any incursion into the judicial domain by the other two wings of the Government would be unconstitutional. Justice Hemant Gupta dissented from the majority of Justice Nageswara Rao and Ravindra Bhat on the point of validity of the amendments brought by the Tribunals Reforms Ordinance 2021.

The majority observed that the fundamental right to equality before law and equal protection of laws guaranteed by Article 14 of the Constitution,  includes a right to have the person's rights adjudicated by a forum which exercises judicial power in an impartial and independent manner.

The court made these observations while holding that Section 184(11) of Finance Act, 2017, prescribing tenure of four years is contrary to the principles of separation of powers, independence of judiciary, rule of law and Article 14 of the Constitution of India. 

The main contention in the writ petition filed by Madras Bar Association was that Sections 12 and 13 of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 and Sections 184 and 186 (2) of the Finance Act, 2017 as amended by the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 is ultra vires Articles 14, 21 and 50 of the Constitution of India inasmuch as these are violative of the principles of separation of powers and independence of judiciary, apart from being contrary to the principles laid down in this regard, by the Supreme Court. Also, the Attorney General had made a submission that  there is no single provision which expressly articulates independence of the judiciary. Therefore, the court cannot direct the length of tenure or other eligibility conditions which are in the domain of the executive, (which, as a co-equal organ of governance) is exclusively entitled to prescribe criteria for selection of tribunal members.

Justice Rao, in his judgment, quotes the views of Alexander Hamilton, Dr. B.R. Ambedkar and Granville Austin the idea of independence of judiciary.  On Article 50 of the Constitution, he observed thus:

"Article 50 of the Constitution of India provides that the State shall take steps to separate the judiciary from the executive in the public services of the State. The concept of separation of judiciary from executive cannot be confined only to the subordinate judiciary, totally discarding the higher judiciary. If such a narrow and pedantic or syllogistic approach is made and a constricted construction is given, it would lead to an anomalous position that the Constitution does not emphasise the separation of higher judiciary from the executive. Article 50, occurring in a chapter described by Granville Austin as "the conscience of the Constitution" in his work titled 'The Indian Constitution: Cornerstone of a Nation', underlines the importance given by the Constitution makers to immunize the judiciary from any form of executive control or interference."

The judge observed that an independent judiciary is the most essential characteristic of a free society and the judiciary which is to act as a bastion of the rights and freedom of the people. An independent and efficient judicial system has been recognised as a part of the basic structure of our Constitution, he added. Some of the observations made in this regard are reproduced below.

Without independence, impartiality cannot thrive

29. Impartiality, independence, fairness and reasonableness in decision-making are the hallmarks of the judiciary. If "impartiality" is the soul of the judiciary, "independence" is the lifeblood of the judiciary. Without independence, impartiality cannot thrive. Independence is not the freedom for Judges to do what they like. It is the independence of judicial thought. It is the freedom from interference and pressures which provides the judicial atmosphere where he can work with absolute commitment to the cause of justice and constitutional values. It is also the discipline in life, habits and outlook that enables a Judge to be impartial. Its existence depends however not only on philosophical, ethical or moral aspects but also upon several mundane things—security in tenure, freedom from ordinary monetary worries, freedom from influences and pressures within (from others in the judiciary) and without (from the executive). The independence of an individual Judge, that is, decisional independence; and independence of the judiciary as an institution or an organ of the State, that is, functional independence are the broad concepts of the principle of independence of the judiciary/ tribunal.

Important attributes of institutional independence.

30. Individual independence has various facets which include security of tenure, procedure for renewal, terms and conditions of service like salary, allowances, etc. which should be fair and just and which should be protected and not varied to his/her disadvantage after appointment. Independence of the institution refers to sufficient degree of separation from other branches of the Government, especially when the branch is a litigant or one of the parties before the tribunal. Functional independence would include method of selection and qualifications prescribed, as independence begins with appointment of persons of calibre, ability and integrity. Protection from interference and independence from the executive pressure, fearlessness from other power centres — economic and political, and freedom from prejudices acquired and nurtured by the class to which the adjudicator belongs, are important attributes of institutional independence.

Independence of courts from the executive and the legislature is fundamental to the rule of law and one of the basic tenets of the Indian Constitution.

32. The constitutional mandate is that the legislature should adhere to the principles laid down in Part IV of the Constitution of India while enacting legislations. No provision shall be made in legislative acts which would have the tendency of making inroads into the judicial sphere. Any such encroachment by the legislature would amount to violating the principles of separation of powers, judicial independence and the rule of law. Independence of courts from the executive and the legislature is fundamental to the rule of law and one of the basic tenets of the Indian Constitution. Separation of powers between the three organs, i.e., the legislature, the executive and the judiciary, is a consequence of the principles of equality as enshrined in Article 14 of the Constitution. Any incursion into the judicial domain by the other two wings of the Government would, thus, be unconstitutional.

Security of tenure and conditions of service are core components of independence of the judiciary

Independence of the judiciary can be sustained only when the incumbents are assured of fair and reasonable conditions of service, which include adequate renumeration and security of tenure. Therefore, the first proviso to Section 184(1) is in violation of the doctrine of separation of powers as the judgment of this Court in MBAIII has been frustrated by an impermissible legislative override. Resultantly, the first proviso to Section 184 (1) is declared as unconstitutional as it is violative of Article 14 of the Constitution.

Independence of the judiciary and separation of powers are not vague concepts

Justice Bhat, in his concurring opinion disapproved the argument that independence of the judiciary and separation of powers are vague concepts based on which Parliamentary re-enactment cannot be invalidated. He observed that, in matters of independence of the judiciary or arrangement of courts or tribunals, the court would apply a searching scrutiny standard in its judicial review to ensure that the new body, court, tribunal, commission or authority created to adjudicate (between citizens and government agencies or departments, citizens and citizens, or citizens and corporate entities) are efficient, efficacious and inspire public confidence.

"It is therefore, too late in the day to contend that infringement by a statute, of the concept of independence of the judiciary - a basic or essential feature of the constitution, which is manifested in its diverse provisions, cannot be attacked, as it is not evident in a specific Article of the Constitution.", Justice Bhat observed.

Divesting of judicial office by legislative fiat directly affects the independence of the judiciary.

The judge added that the curtailment of tenure to five years, of some members of tribunals, who were entitled to continue in office in terms of the pre-existing enactments (upto the age of 62 years etc.) is arbitrary

"Apart from the fact that the Union wishes to curtail their tenure despite the finality of directions of this court in Roger Mathew and MBA-III, there is no conceivable rationale. Nor has any overriding public interest been espoused as a justification for this. The divesting of judicial office by legislative fiat, in this court's opinion, directly affects the independence of the judiciary. It also amounts to naked discrimination, because all other members of the same tribunals would enjoy longer tenure, in terms of the pre-existing conditions of service, which prevailed at the time of their appointment.", the judge said.

Constitution does not permit the courts to direct, advise or sermonize other organs of the State in the spheres reserved for them: Justice Hemant Gupta

Justice Hemant Gupta, in his dissenting opinion noted that the Legislature, Judiciary and Executive have separate and distinct roles and they must act within their own jurisdiction and not trespass into the jurisdiction of others.

"By segregating the powers and functions of the three institutions, the Constitution ensures such a structure where the institutions function as per their own institutional strength. Secondly, it also creates a system of checks and balances as the Constitution provides a degree of latitude for interference by each branch into the functions and tasks performed by another branch. . The Constitution does not permit the courts to direct, advise or sermonize other organs of the State in the spheres reserved for them, provided the legislature or executive does not transgress its constitutional limits or statutory conditions. Independence and adherence to constitutional accountability and limits while exercising the power of judicial review gives constitutional legitimacy to the court decisions. This is the essence of the power and function of judicial review that strengthens and promotes the rule of law"., the judge said

Though transgression of constitutional limitations and intrusion into the judicial power by the legislature is violative of the principle of separation of powers, the rule of law and of Article 14 of the Constitution of India, but it is equally true that judiciary in exercise of power of judicial review cannot direct legislature to frame any law in a particular manner, Justice Gupta observed.

Also from the judgment:

Tribunals Reforms Ordinance : Supreme Court Strikes Down Provisions Fixing Term Of Members As 4 Years

'Excludes Young Successful Advocates; Arbitrary & Discriminatory' : Supreme Court Strikes Down Minimum Age Limit Of 50 Years For Appointment As Tribu

Fill Up Vacancies In Tribunals Without Delay: Supreme Court Directs Centre

Case: Madras Bar Association vs. Union of India [WPC 502 of 2021]
Coram: Justices L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat
Citation: LL 2021 SC 296

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