Chief Justice S. H. Kapadia on Wednesday cautioned the government against trampling upon the independence of the judiciary while legislating to make judges accountable.
‘Judicial accountability should be balanced w
ith judicial independence,’Kapadia said in his address at a function organised by the Supreme Court Bar Association on the occasion of the 66th Independence Day.
‘It should not happen that in making judiciary accountable, the principle of judicial independence is abridged,’he said, adding that the Indian constitution provides checks and balances, which protect ‘the decisional independence, thus, the decisional authority of the judicial branch’. ‘Therefore, proper comparative constitutional, jurisprudential principles have got to be kept in mind before tinkering with the delicate balance provided for under the Indian constitution,’he said.
Each of the three pillars of state under the constitution is ‘duty bound to not disturb the structural checks and balances which are specifically provided in the constitution’, he stressed.
Each organ of the state was duty bound not to disturb the separation of powers as the written constitution limits the scope for discretion, the chief justice said.
Calling for restraint in legislative overreach, he said: ‘We are not afraid of being accountable’. But he added that while making judges accountable, judicial independence should not be lost.
Asking why the constitution provided for institutional independence of the judiciary, Kapadia said: ‘Institutional independence of the judiciary reflects a deeper commitment to the separation of power amongst three organs of government.”All these considerations have to be taken into account if the government or the Parliament wants to enact laws which may touch alt145 the institutional independencealt39as well as alt145 the decisional independencealt39of the judiciary,’he added.
He called for detailed studies and wide- ranging consultation, including with judicial luminaries, before any tinkering was done with the constitution.
‘Please donalt39t suffocate justice,’Kapadia said, describing justice as the oxygen of democracy.
He said transparency and accountability are necessary for all the three branches of the state, but decisional independence is the key concept.
Advising judges of the apex and high courts that they should avoid judicial over- reach, Kapadia said the rights of institutions also needed to be respected.
He told the judges that ‘legality and legitimacy’go together and if there was any encroachment into the sphere of other organs of the state, then the ‘legitimacy of the judicial review will be obliterated’. Asking the judges to be more careful while writing judgments, Kapadia said they should keep the text of the constitution and the constitutional assembly debates in mind.