The judiciary: safeguarding Human Rights[2021]

Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests. This is the crux of separation of the three branched of the government. It keeps the judicial system free from the complex politics of the legislative and executive branches, ensuring that the people’s rights are never hindered by an individual group’s decision. The simple fact that an independent judicial system can maintain the delicate balance that keeps power-hungry politicians in check is crucial to the functioning of a government that truly is ‘for the people’. It curbs the authoritarian instincts of certain politicians. Even if the President accepts a law passed duly by the legislative branch, it can be repealed by the Supreme Court  if it is against the basic structure of the constitution and any citizen of India can approach the Supreme Court directly to repeal the unconstitutional laws made by the legislative or executive. For example, esteemed jurist and illustrious advocate Nani Palkhivala from Bombay, and the seven judges on the majority bench in Keshavantha Bharathi Case agreed that the Parliament has the authority to amend any clause of the constitution if the amendment does not violate the Basic Structure of the Constitution. This judgement in 1973 paved the way for the 39^th Amendment Act, that placed the election of the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha beyond the scrutiny of the Indian courts, to be struck down by the judiciary in 1975. This helped us learn that politicians must never be given absolute power and the courts must have the power to challenge any unlawful behaviour on the part of the legislative and executive branches.

This covers the judiciary keeping our leaders in check, but what can the people do? The Constitution grants us the right to freedom of expression, and the people’s voices should be heard. Public interest litigation (PIL) gives a wider description to the right to equality, life, and personality, which is guaranteed under part III of The Constitution of India. These cases are filed to help people who are not directly involved in a case bring matters of public interest to the court. It also functions as an effective instrument for changes in the society or social welfare. Through public interest litigation, any public or person can seek remedy on behalf of the oppressed class by introducing a PIL. In a case concerning sewage workers, the bench clarified that it was necessary to erase the impression on some that the superior courts, by entertaining PIL petitions for the poor who could not seek protection of their rights, exceeded the unwritten boundaries of their jurisdiction. The judges said it was the duty of the judiciary to protect the rights of every citizen and ensure that all lived with dignity. This is the true spirit of our judicial system, justice, and a voice for all, on an equal platform – and only when everyone is completely equal in the eyes of law, can our country progress.

To help ensure the people face an unbiased bench, a collegium of senior judges are consulted by the President before he/she appoints a judge. This is done to ensure that the leader in power does not stack the country’s highest courts full of judges that will favour them in cases. While this system makes sure that no bias infiltrates the judiciary, it also ensures that if a candidate is deemed unsuitable by the nation’s highest judges they will not be appointed. In other countries, there may be cases when a widely panned candidate who may have committed a crime, can still be appointed by the leader in charge. Our system works towards having unbiased benches that represent people’s differing interests to ensure our people are tried fairly because as a Dutch proverb goes, “The best cause requires a good pleader.”

Another way India has tried to reduce bias in her courts is by abolishing juries. When India was still under British rule, several Europeans were acquitted of crimes based on their race. A study by Elisabeth Klosky argues that many ‘perverse verdicts’ were delivered by white juries in trial of “European British subjects” charged with murder, assault, confinement of Indians. Also, in several eastern nations, it is considered perilous to but a person’s fate in the hands-on untrained laymen serving on a jury. These “peers of the accused” are responsible for listening to a dispute, evaluating the evidence presented, deciding on the facts, and deciding in accordance with the rules of law and their questionable abilities have left many feeling dissatisfied in these nations.

Our independent judiciary is working towards ensuring everyone may be assured of a free and fair trial – a Constitutional right. The underlying philosophy as to why each person must be granted a fair trial is that it upholds a robust system that steers the state away from anarchy. If even one person were to be imprisoned or executed extrajudicially, it would instantly imply the decay of democracy. If we give a government the power to handle cases extrajudicially, there will be no end to it and people will be controlled by terror. Due to their fear of unconstitutional punishment, people will stop expressing their opinions about the governance of their country and there will be a veritable suspension of human rights. So, to keep away from a dangerous situation like this, we grant everyone a fair trial. But how does this work in practice? Zooming out from India, arguably the most important example of a fair trial is the Nuremberg trials. It saw the end of the regime that caused the Holocaust, and it was the first time in history where an international court sentenced people to prison and to death. It would set the foundation for the ICJ (International Court of Justice) and the universal declaration of human rights. Over the course of World War 2, it became apparent that Germany committed atrocities on a massive scale. The night raids, the forced deportations, the mass genocide. There was only one question to be answered – how do you punish acts this evil? To end the monstrous violence, it was decided that the perpetrators would be tried in front of international judges. Justice through persecution. The perpetrators of the second world war would be dealt a fairness and justice that they had destroyed in Germany. No nation wanted to consent to simply killing thousands, regardless of whether they committed any crimes or not. We have thus settled on a judicial system that helps exonerate those who are innocent, and fairly punish those who are guilty, and I firmly believe that this is the way to put a stop to what seemed like a never-ending loop of systemic violence.

While the points explain why our judicial system seems perfect in theory, it may not always be so in practice. So let us look at some of the cracks in this seemingly impenetrable system.