Chief Justice of India Ranjan Gogoi while addressing Chief Justices and judges from member countries of the Shanghai Cooperation Organisation (SCO) on Wednesday said that it was the duty of the judiciary to stand upto populist forces when the executive and legislature get swept away in the wave of populism.
“In the journey of a nation, when the legislative and executive wings get swept away from their duties and goals under the Constitution by waves of populism, it is for the Judiciary to rise and stand up to the populist forces and protect the Constitutional ethos,” CJI Gogoi said.
Apparently referring to criticism that this amounts to judicial activism, CJI Ranjan Gogoi added, “To some critics and naysayers, this situation presents a case for hoisting the classical counter-narrative unelected judges, acting under the Constitutional mandate, get to overturn the acts of the elected majority. However, it is for us to recollect that such situations across the world have heaped tremendous pressure on the Judicial organs, and it is no surprise that in some jurisdictions Judiciary too has succumbed to populist forces.”
CJI Gogoi sought to stress that it was for the judiciary to rise to the occasion.
“This is also an area that requires judiciary to prepare itself, to strengthen itself about such populist onslaughts on the independence of the Institution,” he said.
“The human agency, through which justice is sought to be administered, has to be adequately secured and fortified in ordinary times, so that it is sufficiently equipped to deal with such forces of populism in extraordinary times, lest they overrun the judicial edifice too. This would be our strongest case for strengthening the independence of judiciary,” he further added.
Underlining the importance of independence of judiciary, the CJI said, “Whatever be the political system of governance, people across nations aspire for a free and independent judicial system to serve them.”
“If a judicial system fails to enjoy public confidence, its deliverables would never constitute justice. Independence of judiciary as an institution is different from independence of judges as the fountainheads of justice,” CJI Ranjan Gogoi added.
“Proponents who call for a strong and independent judiciary would assert that in the absence of institutional independence of judiciary, independent functioning of Judges cannot be assured and similarly, without strong and independent Judges, the institutional independence of the Judiciary would be a misnomer and futile,” he said.
Listing some of the measures to secure the independence of the judges as well as judiciary, the CJI said, “Non-political appointments, security of tenure and rigorous procedure for removal, securing the reputation of and remuneration and immunities for the Judges, in-house accountability procedures, and implementation of code of judges conduct.”
CJI Ranjan Gogoi also lauded the separation of powers between the executive and judiciary in India.
“If one goes for a more nuanced scrutiny it becomes obvious that except for some outliers, in almost all other cases, the executive in India has historically shown deference to the judiciary in the appointment of judges to the Higher judiciary,” he said.