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VOLUME 30 | JUNE, 2022 ISSN 2456-9704
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INDEPENDENCE OF 1.1 MEANING
JUDICIARY
The term ‘independence’ is not defined in
the Indian constitution. An independent
By Vaishali Yadav
judiciary isnecessary to maintain a balance
From Shambhunath Institute Of Law
between private and societal interests. An
independent judicial system was
“The bedrock of our democracy is the rule
considered as a necessary for the proper
of law and that means we have to have an
operation of democracy in this approach.
independent judiciary, judges who can
After years of existence, the notion of
make decisions independent of the political
judicial independence remains unclear.
winds thatare blowing”
Our constitution only mentions judicial
-Caroline Kennedy
independence in passing, but it never
defines what that means. The primary
The feature of judicial independence was
discussion of judicial independence is
adopted from the United States. A
founded on the theory of separation of
functioning democratic system requires an
powers, which has been in place for
independent judiciary. An independent
numerous years. The doctrine of separation
judiciary is required for a functioning
of powers refers to the judiciary's
democratic system. Only an impartial and
independence from the administration and
independent judiciary can ensure that
legislative as an institution. As a result,
individual rights are protected and that
judicial independence encompasses both
justice is administered without fear or
the institution of the judiciary and the
favour. As we know India is a democratic
independence of the judges who make up
country, means that the Govt. has to be by
the judiciary.
the people, for the people and of the
people. The preamble of the Indian
So the independence of judiciary can be
constitution expresses a strong
understood as the independence of the
commitment to the object of justice. The
institution of the judiciary & also the
judiciary is the protector of the constitution
independence of the judges which forms a
and, as such, it may have to strike down
part of the judiciary
executive, administrative and legislative
acts of the centre and the states. The
independence of the judiciary is usually It is commonly referred to as shorthand for
guaranteed by the constitution, but it can the judiciary's independence from the
also be guaranteed through laws, executive and legislative arms of
agreements, and norms and practices. government. "Judicial independence"
Although judicial independence is a means that each judge is free to make
relatively new idea, it is universally decisions based on his assessment of the
acknowledged as a feature of a liberal facts and his understanding of the law,
democratic society. without undue influence, inducements, or
pressure, direct or indirect, from any
source or for any cause.
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VOLUME 30 | JUNE, 2022 ISSN 2456-9704
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In the case of SP Gupta v Union of India1 the constitution & also aids in securing the
the court held that the judges should be doctrine of separation of powers.
fearless & should uphold the principle of
rule of law. Thus it is the basis of the 2.2 JUDICIAL INDEPENDENCE IN
concept of independence of the judiciary. INDIA
In the Hon’ble Supreme Court’s case Bachan The concept of judicial independence was,
Singh v. State of Punjab2, Justice Bhagwati like many others, originated in England.
emphasized the doctrine of rule of law, The judiciary's role is to make fair and
stating that while a democratic legislature is neutral decisions in accordance with their
required to make laws, its power should not oath of office and their own sense of
be unchecked, and that there should be an justice, without being influenced in any
independent judicial system to protect way. It has already been established that
citizens from the excess of the legislative and the Indian constitution does not provide
executive powers. for absolute separation of powers.
The judicial branch's primary function is to
1. DESCRIPTION protect the constitution. The Hon’ble
Supreme Court of India has ruled that "the
In the federal system like India, the constitutional scheme aims at securing an
authority should be free from any kind of independent judiciary, which is the
external pressures so that it will prove to bulwark of democracy. The objective of
be an effective mechanism in judicial independence is to maintain a fair
maintaining law and order in the society. democracy. The judiciary has been
The Indian judicial system being an assigned to uphold the Rule of Law and
important organ of the government must safeguard the fundamental rights of our
have independence of judiciary for its citizens. In the case of S.R. Bommai3 the
proper functioning. So there felt a basic apex court laid down guidelines for
need for the independence of judiciary, dismissal of a state government in lieu of
reason for which is written below. conducting the test of majority.
2.1 NEED OF INDEPENDENCE OF 2.3 CONSTITUTIONAL PROVISIONS
JUDICIARY RELATED TO THE INDEPENDENCE
OF JUDICIARY-
To check the functioning of the organs Many provisions are provided in our
Judiciary acts as a watchdog by ensuring constitution to ensure the independence of
that all the organs of the state function the judiciary. They are as follows-
within their respective jurisdiction &
according to the provisions of the 2.3.1 Appointment of judges-(before
constitution. Judiciary acts as a guardian of 99th amendment): The judges of the SC
1 3
AIR 1982 SC 149 S.R. Bommai v. Union Of India , AIR 1994 SC
2
AIR 1989 SC 898 1918
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were appointed by the President. The CJI 2.3.5 Powers & jurisdiction of Supreme
of the SC was appointed by the President Court: Parliament can only add to the
with the consultation of such judges of the powers & jurisdiction of the SC but cannot
SC & the HC as he deemed necessary for curtail them. In the civil cases, Parliament
the purpose. But in appointing other may change the pecuniary limit for the
judges, the president would always consult appeals to the SC. Parliament may enhance
the CJI. the appellate jurisdiction of the SC. It may
confer the supplementary powers on the
2.3.2 Transfer of judges: Art. 222 of the SC to enables it work effectively. It may
constitution provide the transfer of judges confer power to issue directions, orders or
from one HC to another. The same writs for any purpose other than those
procedure is also followed even for the mentioned in Art. 32 powers of the SC
transfer of the CJ. The president has power cannot be taken away & making judiciary
to transfer the judges from one HC to independent.
another. This transfer must be made only
after consulting the CJ. 2.3.6 Security of Tenure: The judges of
the SC and HC have been given the
2.3.3 Removal of judges: Art. 124(4) of security of the tenure. Once appointed,
the constitution provide the removal of the they continue to remain in office till they
judges. A judge of the SC shall not be reach the age of retirement which is 65
removed from his office except by an order years in the case of judges of SC [Art.
of the President passed after an address by 124(2)] and 62 years in the case of the
each House of Parliament supported by a judges of the HC [Art. 217(1)]. They
majority of the total membership of that cannot be removed from the office except
House& by a majority of not less than two- by an order of the President & that too on
thirds of the members of that house present the ground of proven misbehavior &
& voting has been presented to the incapacity. A resolution has also to be
President in same session for such removal accepted to that effect by a majority of no
on the ground of proved misbehavior or less than two third of the members ofthe
incapacity. house present & voting procedure is so
complicated that there has been no case of
2.3.4 Salaries & Allowances: The salaries the removal of a judge of SC or HC under
& allowances of the judges is also a factor the provision.
which makes the judges independent as
their salaries & allowances are fixed & are 2.3.7 Power to punish for contempt: The
not subject to a vote of the legislature. They constitutional provisions for the SC & the
are changed on the consolidation fund of HC under Articles 129 and 215 being the
India in case of SC judges & the court of record have the power to punish
consolidated fund of state in the case of for its own or for the contempt of
High court judges. Their emoluments subordinate courts. Other subordinate
cannot be altered to their disadvantage courts do not have the power to punish for
except in the event of grave financial its contempt but it may.
emergency.
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2.3.8 Separation of the judiciary from the declared unconstitutional. This confirmed
Executive: Art. 50, a Directive Principles of the doctrine of separation of powers'
State Policies, lays down that the state shall relaxation even further.
take steps to separate the judiciary from the
Executive in the public services of the state. 2. DISCUSSION
The object behind the Directive Principle is
to secure the independence of the judiciary 3.1 Comparative Study of Independence of
from the executive. Art. 50 lays down that Judiciary in UK, USA & India
there shall be a separate judiciary free from
executive control Dr. Bhim Rao Ambedkar, the chairman of
Constituent Assembly, expressed that the
2.4 DOCTRINE OF SEPARATION OF judiciary should be independent of the
POWER IN INDIA executive and competent in itself. Nehru
felt: “Judges should befirst class and seen
The theory of Doctrine of Separation of to be first class”. Independence is a
Power was first propounded in 1747 by a bulwark of rule of law. For the
French scholar Montesquie4. He applicability of law equally to all citizens
attempted to draw strict lines of difference in the country, then it is important that the
between the powers of the Executive, the judges should be independent in applying
Legislature, and the Judiciary. In Indian law and rendering judicial decisions.
terms, the doctrine of separationof powers Judges can be subject to threats and
The Indian constitution establishes a pressures from litigants, including
functional separation of state organs. society’s criminal element. Independence
Article 50 states that the state must take of judiciary is a recognized principle
steps to separate the executive from the adopted by most of the democratic
judiciary. This is to ensure the judiciary's countries.6
independence. The validity of
Parliamentary proceedings is guaranteed 3.1.1 United Kingdom
by Articles 122 and 212, and the
legislatures cannot be called into doubt in The concept first originated in UK. There
any court. This protects legislatures against was a long struggle between the parliament
judicial intervention based on procedural and monarchy to control judiciary. In the
irregularities. 17th century, the parliament passed a
settlement Act, which stated that the tenure
In the leading case Keshavnanda Bharti of the judges would be subject to good
5
Case , it was decided that any amendment behavior and their removal after an
that tampered with the fundamental address to both houses of parliament.
features of the constitution would be
4 5
https://blog- Keshwanand bharti v. State of Kerala & Anr, 1970
ipleadersin.cdn.ampproject.org/v/s/blog.ipleaders.i SC 135.
6
n/independence-indian-judiciary-demonstrated- Arora Shaila, Independence of Judiciary, 4 (2)
relevant-rulings (Last Visited May 09, 2022, IJLMH, 714-720, (2021)
08.26PM)
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3.1.2 United State of America Article 124 mean concurrence, the
In the 1985, attempt for independence was Hon’ble Supreme Court overruled this
seen. Basic Principles on the Independence and denied saying that Consultation
of Judiciary states “The judiciary shall does not mean concurrence. The
decide matters before them… without any President was not bound to make a
restrictions, improper influence, decision based on the consultation of
inducement, pressures, threats or the Hon’ble Supreme Court.
interference, direct or indirect, from any • Another important point in the
quarter or for any reason”. discussion, in this case, was the part
where the Hon’ble Supreme Court
3.1.3 India decided that a High Court Judge can be
transferred to any other high court of a
Before independence, judges were state even against his will.
appointed by the Crown, but they were yet
independent from it. After independence, 3.1.3.2 Second judges case, 19938
this principle became a part of the basic
structure of the constitution, which cannot • Another petition was filed in 1993 by
be amended. But before focusing on the the Supreme Court Advocates on
concept of independence of judiciary, we RecordAssociation (SCARA).
will discuss on the need of independence of • In this case, the Supreme Court
judiciary. Before discussing the need of overruled its earlier verdict and
judicial independence it is necessary to changed the meaning of consultation to
discuss the scheme of Indian judicial concurrence. Thus binding the
system. President of India with the
consultations of the Chief justice of
3.1.3.1 First Judges Case, 19827
India.
• A petition was filed in 1982 in the SC of • This resulted in the birth of the
India. Collegiums System.
• This case is known as the S.P. Gupta Case 3.1.3.3 Third Judges Case, 19989
or First Judges case.
• In the year 1998, the presidential
• The Hon’ble Supreme Court discussed reference to the Hon’ble Supreme
2 major points during the proceedings Court was issued questioning the
of this case meaning of the word consultation in
• When asked the Hon’ble Supreme Articles 124, 217, and 222 of the
Court of India whether the word Constitution.
consultation in the constitutional • The chief justice won’t be the only one
7 8
S.P. Gupta v. President of India and Ors., AIR 1982 Supreme Court Advocates on Record Association v.
SC 149. Union of India, 1993 SCC 441
9
In Re Special reference case AIR 1999 SC 1
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as a part of the consultation process. constitution by compromising the judiciary’s
Consultation would include collegiums independence. The majority verdict the CJI
of four senior-most judges of the has the power to appoint & transfer judges.
Hon’ble Supreme Court. Even if two of The CJI needs to consult only two senior
the judges are against the opinion, the most judges during the time of appointment
CJI will not recommend it to the
government.10 3.3 The Current system of appointment of
Hon’ble Supreme Court judges
3.2 National Judicial Appointments
Commission • In judicial appointments, it is
obligatory for the President to take into
The National Judicial Appointments account the opinion of the CJI.
Commission, hereafter referred as NJAC, • The opinion of the CJI is binding on the
proposed to make the appointment of HC & Government. The opinion of the CJI
SC & chief justice more transparent. They must be formed after due consultation
will be selected by the commission, whose with a collegiums of at least four
members will be drawn from the judiciary, senior-most judges of the Hon’ble
legislature & civil society. NJAC proposed to Supreme Court.
replace the collegiums, with The Constitution
(Ninety-ninth Amendment) Act, 2014. Even if two judges give an adverse opinion,
Articles 124A, 124B and 124C were added to then he should not send the recommendation
the constitution to make the NJAC valid. to the Government
Articles 124 A & 124B defined the NJAC, its
members & their duties, while Art. 124C 3. CONCLUSION
empowers parliament to make laws in the
future to regulate the procedures for the The independence of the judiciary as is clear
appointment of judges11. from the above discussion hold a prominent
A bench of nine judges bench was position as far as the institution of judiciary is
constituted in the case of Supreme Court concerned. It is also clear from the historical
Advocates- on-Record Association v. overview that judicial independence has
Union of India12. The main question that faced many obstacles in the past especially in
was to be decided was, ‘whether the relation to the appointment and the transfer of
independence of judiciary is basic feature of judges. Courts have always tried to uphold
the constitution?’ In this case writ petition the independence of judiciary and have
was filed before the SC which questioned the always said that the independence of the
constitutionality of the 99th Amendment Act judiciary is a basic feature of the
& the NJAC Act. The petition accused that Constitution. Courts have said so because the
the NJAC violated the basic structure of the independence of judiciary isthe pre-requisite
10 12
Jain M.P., Indian Constitutional Law, 400, 401, 2016 5 SCC 1
402, 8th ed. 2018, Lexis Nexis
11
Pandey J.N., Constitutional Law of India,
552,553,554, 56 ed., 2019, Central Law Agency
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for the smooth functioning of the
Constitution. The various judgments have
ensured the independence of judiciary so far
and it has been given top most priority. It is
recommended that there should be
transparency in the appointment as well as
transfer of the judges. Also, we do not need
to form new laws for the Independence of
judiciary; we need to form a system where
judges will feel safe while delivering
impartial judgments. It is the need of time we
need to make sure or judicial system stays
independent & judges should feel safe & free
while giving judgments. According to my
view it is very bad to say that day by day the
most important organ i.e. judiciary which is
the only ray of hope for justice for a common
citizen is being manipulated.
*****
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