PIOOM/CIJL PIOOM/CIJL The Judi The Judiciary in India PIOOM The Judiciary in India Determinants of its Independence and Impartiality Mamta Kachwaha ISBN 90-76400-01-6 © p io o m , 1998 c/o LISWO, Leiden University Wassenaarseweg 52, 2333 AK Leiden, the Netherlands Phone: +31-71-527 3861, fax: +31-71-527 3788/3619 © Centre for the Independence of Judges and Lawyers, 1998 P.O. Box 216, 81A, avenue de Chatelaine, CH-1219 Chatelaine/Geneva, Switzerland Phone: +41-22-979 3800, fax: +41-22-979 3801 No part of this book may be reproduced in any form by print, photoprint, microfilm or any other means without the prior written permission from the publisher. Table of Contents Acknowledgements iii Preface v Foreword vii 1 The Indian Polity and Historical Perspective 1 Geographical Context 1 Historical Perspective 3 Historical Perspective of the Indian Judicial System 5 Conclusion 8 2 The Constitution and the Judiciary — an Overview 11 Provisions Regarding Judiciary in the Constitution 11 Supreme Court: The Constitutional Scheme 12 Indian Federation and the Judicial System 14 Executive 15 Union and State Legislatures 17 3 Selection, Appointment and Transfer of Judges 21 Historical Evolution of the Method of Appointment of Judges to the Superior Judiciary in India 21 Provision Relating to Appointment and Removal of Judges in Higher Judiciary . 22 Law Declared by the Supreme Court on Appointment and Transfer of Judges 25 Significance of the Aforesaid Judgement in Light of the Past Experience 27 Description of Courts Comprising Lower Judiciary and Appointment and Selection of Judges thereto 31 Conclusion 33 4 Arrears in the Courts 35 Extent of the Problem 35 Causes of Delay 38 Delay in Trial Courts 39 Delay in High Courts/Supreme Court 40 Other Causes of Delay 44 Recommendations 46 Judicial Credibility, Judicial Discipline and the Media 59 Judicial Corruption 59 Judicial Corruption and the Role of the Bar 60 The V Ramaswamy Case 61 Checks on the Lower Judiciary 68 The Phenomena of the Relative — Judge Nexus 69 Judicial Discipline 70 Media and Judiciary 72 Conclusion 80 Judicial Power and Judicialisation of Political Issues 83 The Constitutional Perspective 83 Approach of the Indian Courts in the Exercise of Judicial Review 84 Emergency and Judiciary 85 Supreme Court and Judiciary in General — in the Post Emergency Era 86 The Phenomenon of Social Action Litigation or Public Interest Litigation in the Indian Courts 88 PIL and Environment Cases 95 Judicial Activism — Some Viewpoints 97 Judicialisation of Politics 98 Enforcement of Judicial Decisions 100 Conclusion 104 Human Rights & Social Justice 109 Human Rights, Social Justice and Constitutional Setting 109 Causes & Perpetrators of Human Rights Violations 112 Victims of Human Rights Violations 114 Victims of Armed Conflict 118 Some Laws which Create Conditions for Violation of Human Rights 118 National Human Rights Commission 121 Human Rights and Judicial Process 123 Human Rights Groups and Human Rights Movement 129 An Emerging Perspective of Human Rights in India 130 Conclusion 130 Summary 133 Bibliography 137 Acknowledgements This report is a result of an assignment fromLISWO/PIOOM, Faculty of Social Science, Leiden University, the Netherlands. The writing of this report has coincided with path breaking advances by the judiciary in the field of judicial activism. During this period an enormous rol has been played by the judiciary in national affairs. The report had to be updated frequently to keep with the times, and I have taken care to see that no significant development during this period is overlooked in the report. I am deeply indebted to Dr. J.W.A. Bakker, the Project Coordinator, who rendered invaluable assistance and guidance to me. A special thanks is also due to Ms Pawan Sharma for her assistance in furnishing research material, used in the report. I would like to thank my husband, Sumeet Kachwaha (advocate) who guided and also ceaslessly motivated me to accomplish this task. I would also like to acknowledge Mr Fali Nariman, Chairman of the Executive Committee of the International Commission of Jurists for his comments. Furthermore I would like to thank Ms Wendy Rogers and Mw Maria van Ballegoy for the editing of the manuscript. Lastly, I would like to thank thePIOOM Foundation of Leiden University for having given me the opportunity to write this report, which has been a fulfilling journey. For the sake of convenience throughout the report masculine gendre has been used and the same should be taken to include the feminine and neutral genders, wherever applica­ ble. Mamta Kachwaha Advocat 1/6 Shanti Niketan New Delhi 110 021 India Preface The Indian judiciary has been widely praised for its independence. The firm stance India’s courts have taken in upholding the values enshrined in its detailed and eloquent Constitution is universally recognised. The manner in which the Supreme Court of India stood up to the Executive during the political corruption cases that engulfed India during the last few years, is simply exemplary. It is also exemplary how it seriously took up the concerns of the underprivileged. Operating in one of the world’s most populous nations, it made serious efforts to turn access to justice into a reality and provide individuals with the tools to exercise their rights more effectively. Early on, judges in India understood that they should not take a textual approach to law; rather they should think of its impact on individuals. These virtues have not been absolute however. The political conflicts in certain regions, notably Kashmir and Punjab, have placed the judiciary in these states in a controversial position. Many doubt that the structures of justice created for such territories can achieve justice. The popularity of the courts in the stable regions has also been affected by problems in delay and backlog. The work condiditions of judges are not always adequate. These problems have had an impact on how the public perceives the judiciary and relate to it. The Centre for the Independence of Judges and Lawyers (CIJL) is pleased to co-publish with PIOOM this study on the independence of the judiciary in India. Careful and well- researched, the study outlines not only the positive angles, but also highlights the areas where attention and improvement are needed. TheCDL is pleased to cooperate with PIOOM on this project. The project, entitledDeterminants of the Independence and Impartiality of the Judiciary, involved country research on four countries: Burkina Faso, the Philippines, Sri Lanka and India. The reports on the Philippines and Burkina Faso were already published and we are pleased that the report on India is now released. The role of the Geneva-basedCIJL has been in providing advice and guidance on the international legal aspects of the study. TheCDL also submitted the work to the scrutiny of a highly qualified legal expert in India. We are pleased that it was endorsed. The CUL defines questions of judicial independence and the role of lawyers in legal terms. It looks at these values through the prism of the 1985 UN Basic Principles on the Independence of the Judiciary and the 1990 UN Basic Principles on the Role of Lawyers. PIOOM insisted on adding an anthropological and sociological aproach. We hope the reader will agree that this interdisciplinary approach adds value to the understanding of this topic. Mona Rishmawi CIJL Director June 1998 Foreword The relation of the judiciary to human rights is fundamental. The respect for the various human rights and fundamental freedoms that are specified in authoritative international texts, depends to a significant degree on the quality of the judiciary and the judicial process. The Universal Declaration of Human Rights emphasizes that every human being has the right to ‘equality before the law’, ‘presumption of innocence’ and ‘the right to a fair and public hearing by a competent, independent and impartial tribunal established by law’.1 These rights and freedoms are also guaranteed and further specified by the International Covenant on Civil and Political Rights (ICCPR), in particular through the Covenant’s important additional underlining of the right of everyone ‘to be tried without undue delay’.2 In other words, according to authoritative instructive instruments from United Nations bodies, the protection of human rights is closely linked to the functioning of a fair, legitimate and effective justice system. A competent, independent and impartial judiciary forms a central aspect of such a fair and effective legal system. The relevance of an independent, impartial and competent judiciary, however, is not restricted to the specific rights mentioned above. The role of the judiciary is important in relation to all human rights, since the judiciary is ultimately the instrument from which human rights victims can seek redress for injustices they have suffered, particularly if other channels of seeking such redress have failed. This importance is indicated by Article 8 of the Universal Declaration and Article 2.3 of theICCPR. Both of these imply that factors influencing the fairness and effectiveness of the justice system — and particu­ larly the independence, impartiality and competence of judges — also significantly influence respect for, and promotion of, human rights in a country. The importance of an independent, impartial and competent judiciary has been underlined by various authoritative texts from UN bodies. The most important of these are the United Nations Basic Principles on the Independence of the Judiciary, which were endorsed by the UN General Assembly in 1985, and the Procedures for the Effective Implementation of the Basic Principles on the Independence of the Judiciary, which were endorsed by the General Assembly in 1989.3 Articles 7,10 and 11, of the Universal Declaration of Human Rights are particularly important in this respect. Article 14 of the International Covenant on Civil and Political Rights is particularly relevant.