On the occasion of the Independence day, Hon’ble Chief Justice of India Shri. S. H. Kapadia spoke his mind on a variety of issues. In particular, he cautioned the Government that the drafting of laws today was not satisfactory and suggested that they keep this in mind before making any changes in the constitutional scheme of things.
“The purpose of today’s address is to highlight the importance of what is called as “the decisional independence” and “the institutional independence” of the Judicial branch under the Constitution of India.
Over the last six decades, the Supreme Court has rendered several landmark judgments on Fundamental Rights, very few landmark judgments have been delivered on the constitutional structure provided for under the Indian Constitution, distribution of legislative powers, provisions dealing with relationship between the Centre and the States, Establishment and Constitution of Supreme Court [Article 124], impeachment [Article 124(4)].
The Indian Constitution is more than a written text. A superficial reading of selected provisions of the written constitution, without more, may be misleading, It is necessary to make a more profound investigation of the underlying principles animating the whole of the Constitution, including the principles of federalism, democracy, constitutionalism and rule of law. These principles must inform our overall appreciation of the constitutional rights and obligations not only of citizens, but also of the three branches of Government including, the judiciary under the highest legal Code of the country, namely, Constitution of India. Our democratic institutions accommodate a continuous process of discussion and evolution, which is reflected in the constitutional right of each participant in the federation to initiate constitutional change. However, each of the three participants, under the Indian Constitution, is duty bound not to disturb the structural checks and balances which are specifically provided for in the Constitution, which happens to be a written detailed Constitution of 395 Articles.
Transparency and accountability have got to be there for all the three branches. However, qua Judicial branch, “the decisional independence” is the key concept. Under the provisions of the Indian Constitution, checks and balances are provided for which protect “the decisional independence” and, thus, the decisional authority of the Judicial branch. Therefore, proper comparative constitutional jurisprudential principles have got to be kept in mind before tinkering with this delicate balance provided for under the Indian Constitution. Why has the Constitution provided for “institutional independence” of the Judicial branch? Institutional independence of the judiciary reflects a deeper commitment to the separation of powers amongst the three organs of Government. However, it inheres in adjudication under the Constitution, because the rights protected by the document are rights against the State. All these considerations have to be taken into account if the Government or the Parliament wants to enact laws which may touch “the institutional independence” as well “the decisional independence“. Our Constitution is not only concerned with the rights of Individuals, Groups and Governments but also with the structure and the Legitimacy of our Governing Institutions. Judicial independence consists not only of Institutional Independence but also of Decisional Independence and therefore it should not happen that in making the Judiciary accountable the principle of judicial independence is abridged. As a note of caution, drafting of laws today is not satisfactory. This caution is required to be kept in mind before making any changes in the constitutional scheme of things.
“Justice is like oxygen. There is no reason to notice it if you have it in abundance, as we do today. However, as you constrict the flow it becomes more and more important until a point is reached where nothing else matters at all.”
By Justice Spigelman, former Chief Justice of Supreme Court of NSW, Australia”.
*Speech delivered by Hon’ble Shri. S. H. Kapadia, Chief Justice of India, on the ocassion of the Independence Day on 15.08.2012