Historically speaking, India’s Constitution as we all know was born out of its glorious victory and struggle for freedom. The judiciary was made to be the guardian of the Constitution to help bring about a social revolution in the country. The Indian Judiciary and its Judges have always valued, upheld and maintained the judicial freedom and have fiercely spoken their minds without fear or favour, falling in line with their constitutional role.
To quote Thomal Sowell “An independent judiciary does not mean judges independent of the Constitution from which they derive their power or independent of the laws that they are sworn to uphold.” As often quoted and reiterated, judicial independence is nothing but a dual concept. It speaks of freedom from external influences as well as an independent approach by the individual judge.
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Indian Judges have shown a remarkable history of being ferociously independent in their thoughts and actions. One such fine example in Indian History would be that of Hon’ble Justice Radhabinod Pal, who unflinchingly displayed the voice of justice by being the only one out of 11 allied Justices to give a dissenting judgment for Japan’s top wartime leaders at the post-World War II International Military Tribunal for the Far East also known as the Tokyo trials.
Post World War-II, Justice Pal was appointed as a judge, merely to fortify the Asian presence and for lack of diversity on the bench of the International Military Tribunal for the Far East, set up by the Allied powers to try the Japanese leaders for war crimes. The other 10 allied judges were from the US, Canada, Britain, France, the Netherlands, Australia, New Zealand, the Soviet Union, China and the Philippines. His appointment came after the trial proceedings had started and the Hon’ble justice resolutely stood by his principles and refused to give in to any pressure he might have faced from his fellow judges on the bench.
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The Tribunal found all the 25 defendants guilty and sentenced Seven accused persons to death, 16 accused persons to life imprisonment, and two were sentenced to 20 years and seven years in prison, respectively. Regardless of it, when the majority of the brethren took a different view, it did not deter Justice Pal from taking an independent stand even if his was the sole voice.
He held that each and every accused must be found not guilty of any charges in the indictment and should be acquitted of all those charges. In his judgement, Justice Pal questioned the very moral right of the allied powers to condemn the Japanese imperialism whereas large parts of the world had been colonies of British and other Western powers for two centuries or more.
With expressing his dissent, Justice Pal had exhibited true strength and fairness while exercising and acting in judicial capacity. He boldly observed in his dissent that “as a judicial tribunal, the judges cannot behave in any manner which may justify the feeling that the setting up of a tribunal was only for the attainment of an objective which was essentially political though cloaked by a judicial appearance.”
His dissent was so powerful that it was banned from being published. The ban on the publication of Justice Pal’s 1,235-page dissent came to be lifted and the dissent was later openly illustrated by the Japanese nationalists after the American occupation of Japan ended in 1952, upon Tokyo signing the San Francisco Peace Treaty and accepted the Tokyo trials’ verdict.
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Furthermore, it was Justice Pal who pointed out and described the atomic bombings of Hiroshima and Nagasaki in Japan by the United States as the worst atrocities of the war, comparable with Nazi crimes.
After the war-crimes trial, Justice Pal was elected to the United Nations’ International Law Commission, wherein he served from 1958 to 1966. Amongst his many contributions during the British rule in India, Justice Pal was one of the key persons who drafted of the Indian Income Tax Act of 1922.
Therefore, an independent judiciary is reflective of an efficient Judiciary, and essential to this is the public faith in this institution, which becomes the ultimate guarantor for the resilience and longevity of justice.
