The Hindu Business Line : Judicial independence in the US

JUDICIAL independence at risk in the US, of all places on earth! Can it at all be within the realms of possibility? If some sensation-monger says it, you can dismiss it as unthinkable. But when the US Supreme Court Chief Justice William H. Rehnquist says it, you cannot but listen. And this has been his recurrent theme in the past also. He has been warning about erosion of the independence of federal judiciary time and again, and has now formally included it in the annual report for 2004 on the functioning of courts.

Under the Constitutional scheme of separation of powers in the US, each of the three branches of the Government — the executive, the legislative and the judiciary — enjoy co-equal, co-ordinate and independent status within its own domain, and it is barred from encroaching in any way on the powers and rights of the other two.

However, the display of resentment by both the executive and the legislative branches towards some of the reverses they had to suffer due to adverse judgments is not a new phenomenon. Almost every President makes overt or covert efforts to pack the federal and apex courts with persons whom he considers compatible and congenial in regard to furthering his policies, and the relevant Committee of the Congress too subjects the nominees to thorough grilling to rule out any tendencies it considers objectionable. To the chagrin of both the President and the Congress of the day, it is often found that once the nominees begin wearing judicial robes, they assert their independence in no uncertain terms.

Of late, the Congress, as the Chief Justice put it, in "an unwarranted and ill-considered effort to intimidate individual judges" has been threatening to impeach judges who are lenient in sentencing or give unpalatable decisions. It has gone so far as to curtail the federal courts' jurisdiction to admit constitutional challenges to certain kinds of government action. How the Congress will react to the report is not known.

Incidentally, India too can greatly benefit from a similar salutary practice of the Supreme Court Chief Justice placing before the people every year a transparent account of the working of the judiciary with reference to the deficiencies and obstacles militating against a better performance.

B. S. Raghavan

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