Is The Judiciary Really Independent? Harsh Truth: NO!

Posted on September 29, 2011 in Society

By Ankit Jain:

The Constitution of India separates out the functions of the Legislative (the Parliament), the Executive (the Union Cabinet) and the Judiciary (the Supreme Court) and has called for independency of the three from each other. But is it actually so? Legislative and Executive go hand-on-hand, but is the Judiciary free from the clutches of the formers? It’s definitely not.

One might remember having read in high school Civics that the President of India is just a nominal head and acts on the advice of the Union Cabinet, except for some discretionary powers. This system clearly suggests that any decision taken by the President is actually decided by the Union Cabinet and not the President him/herself. Any appointments done by the President is based on the recommendation by the group of ministers. In fact, the very appointment of the Presidential candidate is done by the political parties depending on the majority of votes in the Parliament and the State Assemblies. Thus, how can the President take any decision without the influence of the Executive?

The CBI (Central Bureau of Investigation) indirectly constitutes a major part of our judiciary system. Its task is to take up cases of serious nature and work towards steady disposal of the same. The CBI, through its works in the past many years has proved its efficiency and authenticity. They work unbiased in any case they take up. But the paradox is that which case is to be handled by CBI is decided by the government and the parliament. If there is a case of a serious nature levied against any MP or a cabinet minister, the government is reluctant to hand over the case to the CBI, and gradually the case dies out. If there is an ongoing case against any minister’s close aid, the minister uses his full power to suppress the case by influencing the CBI inspectors and authorities.

The CAG (Comptroller and Auditor General) of India is another authority which is supposed to work independent of the executive and legislature, but even his appointment depends on the cabinet’s discretion. The audit reports submitted by him are to be clarified and approved by the government before being presented to the citizens. This is the reason none of the CAGs (till a couple of year back) presented any scam report in any of the government’s activities.

The Justices of the Supreme Court and High Courts are considered perhaps the only breed of non-corrupt people in the entire country. The power to appoint the Chief Justice of India, other Justices of the Supreme Court, and those of the High Courts lies with the President, and thus indirectly with the Central government. How can we expect the justices to function properly and with full efficiency with so much of corrupt pressure on their heads? Is Justice Soumitra Sen (the first judge to have been impeached by the Upper House of the Parliament) himself to be blamed for being non-corrupt? Our law requires the judges to be non-corrupt, but allows the executive and the legislature to be corrupt for a certain period of time (till the blame is proved through long procedures in courts), is it what the Constitution aims for?

Let’s also discuss about the administrative services and the police services hand-in-hand. The posting and transfer of IAS, IPS, IFS officers are all at the disposal of the Central/State government. If the District Commissioner or the Superintendent of Police of a particular district tries to curb the illegal activities of the local MLA/MP, he is immediately given transfer orders to some remote place. When they are close to solving a criminal case involving those whom the ministers patron, they are transferred elsewhere or refused promotion. The new officer who comes is on good terms with the latter, and thus the case is drowned. This is what happened during and just after the 2002 Godhra riots in Gujarat. Where is the logic for letting corrupt people have discretionary powers and utilizing them all for enhancing personal benefits rather than working for the society? Isn’t this the misuse of such powers given to the legislative and the executive by the Constitution?

It is now for us to think: Is the judiciary completely independent of the executive and the legislative bodies the way we are taught in high schools?