Judiciary, executive and legislature are ‘related actors’: CJI

New Delhi Chief Justice of India (CJI) Sanjiv Khanna on Tuesday took on the criticism sometimes levelled against the judiciary of being unelected and yet enjoying significant power by saying that the Constitution insulates it against “ebbs and flows” of the electoral process and allows it to decide cases free from external pressures and in public interest.

In his maiden public speech after taking over as the head of the judiciary on November 11, CJI Khanna addressed his views on the occasion of Constitution Day in a gathering including Prime Minister Narendra Modi, sitting and former judges of the Supreme Court, Union law minister Arjun Ram Meghwal, attorney general R Venkataramani, Bar Council of India chairman Manan Kumar MIshra, and president of the Supreme Court bar association (SCBA) Kapil Sibal, among others.

“Sometimes critics question, how can an unelected judiciary justify its significant power in a democracy,” Khanna said, adding that, for some, courts in India are among the most powerful in the world, while for others, “we are straying from our constitutional duties, sometimes by failing to challenge the status quo or in resisting the transient, popular mandate of the electorate”.

Basing his response on the Constitution, he said, “The Constitution, by design, insulates the judiciary from the ebbs and flows of the electoral process. This ensures that its decisions are unbiased, without any affection or ill-will, free from external pressures, and guided solely by the Constitution and the laws.” He imagined how it would be if judges were to campaign for votes, solicit views and decisions from the public, and make promises about future judgments.

At the same time, the CJI clarified that judicial independence does not put it beyond reproach. “As judges, perspectives and critique matter, because our foremost duty is towards the public and secondly being open and transparent is the biggest strength of the judiciary,” he said. Opening the judiciary to scrutiny helps identify and work towards eliminating “systemic inefficiencies and bottlenecks” and in the process, become more efficient, accountable and citizen centric, the CJI added.

He stressed that the judiciary and other branches of the government need to operate with a degree of separation and autonomy, yet be interdependent and reciprocal in many regards. “When properly understood, judicial independence serves not as a high wall but as a bridge catalysing the flourishing of the Constitution, fundamental rights and the governance framework,” the CJI said.

He explained that the judiciary, executive and legislature do not operate as “satellites” in independent orbits. Instead, he described them as “related actors”. “Each branch must honour its constitutionally assigned distinct role by nurturing inter-institutional equilibrium,” he said.

Justice Khanna, while he was not yet CJI, upheld the integrity of the electronic voting machines (EVMs) and granted interim bail to Aam Aadmi Party (AAP) convener Arvind Kejriwal, giving him time to campaign during the Lok Sabha elections.

He was also part of the benches that upheld the abrogation of Article 370 in Jammu & Kashmir and the unanimous verdict of five judges striking down the electoral bonds scheme as unconstitutional.

“Every judgment we render is a zero-sum game; it inevitably creates winners and losers, inviting celebration from some and criticism from others. It is this duality that invites scrutiny into the functioning of the courts...The judiciary, becomes the arena where the ideals of our republic are continually tested, refined, reaffirmed or moulded,” he said.

The CJI addressed certain “areas of concern”, with a “staggering” number of cases flowing each year into courts. With over 45 million cases pending in the district courts and over 6 million cases in the high courts, the CJI said, “these numbers reflect a challenge, and yet – they represent the deep trust citizens place in our courts as the ultimate arbiters of justice.”

But even with such a huge inflow of cases, he shared data to show that the case clearance, or disposal rate – a key metric of judicial productivity -- has crossed 101% this year for district courts and 97% in the Supreme Court. Further, even on the front of release of undertrials, with a limited strength of 19,213 judges and judicial officers in district courts, till November 24, over 538,000 prisoners were released as against 529,000 new admissions. However, legislative intervention may be necessary to give a push to plea bargaining, compounding of offences, and probation, he said.

Justices Bhushan R Gavai, the most senior judge after CJI, in his welcome speech said that the Constitution has been the protector and catalyst for social change, guaranteeing citizens’ rights and ensuring that the voices of all, especially the most vulnerable, are heard and respected.

In a separate speech, justice Surya Kant – the second most senior puisne judge of the top court, said that we exist due to the Constitution and stands out as the most remarkable legacy bestowed on us by the visionary drafters of the Constituent Assembly who crafted this “unparalleled” framework of rights and laws.