BY SOLI SORABJEE IN THE INDIAN EXPRESS
Solemn discourses on judicial independence focus primarily on judges deciding cases without any external pressure or influence from the executive. There are however other obstacles to exercise of judicial independence, internal ones. Judges are human beings, not disembodied spirits living in a celestial mansion. As the great US Justice Benjamin Cardozo reminds us “the great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by”. We must realistically realise that the individual tone of the mind, the colour of past experience and its intensity, the socio-economic and political background of the judge are bound to play a role in the decision-making process. Chief Justice Patanjali Shastri frankly acknowledged that “it is inevitable that the so-called social philosophy and the scale of values of the judges should play an important part”.
Exercise of judicial independence lies in a conscientious effort to neutralise the effect of these personal factors in decision-making. A classic instance is the dissent of Justice Vivian Bose who in a case relating to preventive detention said, “It is perhaps ironical that I should struggle to uphold these freedoms in favour of a class of persons who, if rumour is to be accredited and if the list of their activities furnished to us is a true guide, would be the first to destroy them if they but had the power. But I cannot allow personal predilections to sway my judgment of the Constitution.”
Besides any discussion of judicial independence must deal with the aspect of judicial accountability. They are two sides of the same coin and both are pre-requisites to the rule of law.