It was the best of times. It was the worst of times. It was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to heaven, we were all going direct the other way”.

‘Tale of Two Cities’ by Charles Dickens.

Since the inception of this constitution there has been a constant tussle between the judiciary and the other branches of the government for supremacy which never seems to end. New issues arise and the old one’s resurface as we go into the depth of the matter, but a permanent solution for the same seems to be a distant reality.

The latest case where the same issue has resurfaced is the case of Shamnad Basheer v. Union of India where in the case regarding the setup of the Intellectual Property Appellate Board (IPAB) the Honorable Madras High Court has again looked into the matter and has delivered a judgment which shall strengthen the stand of the judiciary in matters related to the independence of the judiciary and the principle of separation of power which has been declared as the essential feature of the basic structure doctrine.

Two basic issues emerge out of this judgment-
1.) Whether Judicial and legal expertise help in maintaining the independence of judiciary

2.) Whether sections 85 (2)(b) and 85 (3) violate the basic structure doctrine .

Both these questions have been dealt in detain by the Hon’ble high court and both of them have been answered in affirmative.

India has the oldest judiciary in the world, and no other judicial system has a more ancient or exalted pedigree. Ancient India had the highest standard in antiquity as regards the ability, learning, integrity, impartiality, and independence of the judiciary, and these standards have not been surpassed till today, that (in the words of one of the greatest jurists of ancient India, Katyayana) “the Judges were independent and subject only to law”, that the fundamental duty of the Court was to do justice without fear or favour.

Time and again the Supreme Court has given the definition of independence of judiciary. In the case of Union of India v. R. Gandhi, President, Madras Bar Association the Supreme Court clearly laid down the principle of the independence of the judiciary in the following words-

“Independence is not the freedom for judges to do whatever they like. It is the freedom of judicial thought. It is the freedom from interference and pressures which provide the judicial atmosphere where he can work with absolute commitment for the cause of absolute justice and constitutional values.”

Therefore the Hon’ble Supreme Court clearly pointed out that anybody performing a judicial function i.e. the function of adjudication needs to have complete independence from any external source so as to avoid the vices of bias and arbitrariness.

Also we need to consider that with independence comes accountability. Even in this regard there exists a sharp difference between the judiciary and the other organs of the government.

Expectation of independence and impartiality is much higher from the judiciary than any other organ. Deciding the cases before them in expeditious and fair manner and giving reasoned orders is another aspect of such accountability. Judiciary should not feel that adhering to the standards of accountability is inimical to its independence. The strength of any judicial institution must depend on the standards of accountability that it sets. So the judiciary and the other branches of the government cannot be equated on the same set standards and a degree of difference has to be maintained between the two.

The concept of separation of powers has been adhered to in the Indian Constitution like the constitution of America but it has been realised that unlike the latter it has been seen that this rigidity in the form of impermeable entities is not possible. Therefore, functionally the constitutional provisions are premised on the principle of checks and balances. In William Marbury v. James Madison [(1803) 2 Law Ed 69: 1 Cranch 138], the U.S Supreme Court offered a new dimension to the doctrine of Separation of Powers.

The framers of the Indian Constitution did not recognize the doctrine of separation of powers in a rigid sense. Unlike the American Constitution, this doctrine has not been strictly applied in the Indian Constitution. It cannot be explicitly seen but can be witnessed through the differentiation made in the discharge of functions by the different branches of the government in the Constitution. But no scope for confusion has been left by the supreme court while interpreting the same and thus the Indian System is not totally alien to the concept.

The case of  Ram Jawaya v. State of Punjab [A.I.R. 1955 S.C. 549] clearly elucidates this principle. Chief Justice Mukherjea in the instant case said:

It can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way

Therefore though the Indian Constitution does not vest judicial power in the hands of the judiciary as has been noted in the case of Indira Gandhi v. Raj Narain still in  a broad sense there exists a clear distinction between the roles which have to be performed by the 3 organs of the government.

The next thing which the court pointed out in this judgment was that each court is a tribunal and thus to every tribunal to which the judicial functions are being transferred should also be a judicial tribunal.

Therefore what naturally flows out of it is the conclusion that the powers, immunities and status given to it should be akin to that of a court.

Now if we consider in depth the concept of separation of power, we would basically arrive at three broad perspectives-

  1. That the same persons should not form part of more than one of the three organs of government.
  2. That one organ of government should not control or interfere with the work of another.
  3. That one organ of government should not exercise the functions of another.

Therefore a tribunal created for the purpose of adjudication of disputes should restrict itself to the same and should thus have the same nature and should function in the same manner as that of a judicial court.

Now taking into consideration the impugned sections of the present act into consideration which read out as follows-

85 (2) A person shall not be qualified for appointment as the Vice-Chairman unless he-

(b) has been a member of the Indian Legal Service and has held a post in Grade I of that Service or any higher post for at least five years.

(3) A person shall not be qualified for appointment as Judicial Member, unless he—-

(a) has been a member of the Indian Legal Service and has held the post in Grade I of that Service for at least three years; or

Now as we all are aware of the fact that India follows the Westminster system for which the supreme court has categorically stated that-

The ‘Basic Structure’ stands violated if while enacting a legislation for the transfer of judicial functions to a body, parliament does not ensure that the newly created tribunal is not in conformity with the salient characteristics and standards of a judicial court.

Thus what the court lays down through this judgment is the fact that while creating a body which can perform judicial functions the standard should be as per the court itself and thus the members who shall be the members of such a tribunal or court should also have judicial training and expertise as they are specialists in this field i.e. the field of adjudication.

Let’s a take a very small analogy to understand the point- If X a former footballer is appointed as the coach of a football club XYZ he shall perform a better function as a coach as compared to any other person who was associated to the administration of any other football club.

In the same manner the court arrived at this conclusion keeping in mind the fact that a judicially trained person can truly fit into the job of adjudication as compared to any other individual, whether that be a former civil servant or even a lawyer who is qualified to become only a technical member and not a judicial member in this case.

We also have to adhere to the principles specifically laid down in this regard. For example under article 50 wherein it is expected out of the state to maintain a separation between the executive and the judiciary.

 The framers of our Constitution drafted it so meticulously that it provides for an independent and impartial Judiciary as the interpreter of the Constitution and as custodian of the rights of the citizens through the process of judicial review. This mandates the judiciary to interpret the laws.

Thus judicial thought is what ensures the independence of the judiciary and thus only a judicially trained mind which is accustomed to maintain total neutrality and has never faced any sort of outside interference can be bestowed upon with the task of adjudicating matters in the judicial capacity.