You are on page 1of 8

Independency Of Judiciary

Posted On April 24, 2012 by &filed under Legal Articles.

The question was been asked by the framers of our Indian constitution that what would be the
status of your judicial System would be and this was the answer given Dr. B.R. Ambedkar in
the following words:
There can be no difference of opinion in the House that our judiciary must be both
independent of the executive and must also be competent in itself. And the question is how
these two objects can be secured(1)
Then the question comes into our mind that what made the framers of our constitution to
make the judicial system independent and make it self sufficient in itself. The answer to this
question lies in the very basic understanding that so as to secure the stability and prosperity of
the society, the framers at that time understood that such a society could be created only by
guaranteeing the fundamental rights and the independence of the judiciary to guard and
enforce those fundamental rights. Also in a country like India, the independence of the
judiciary is of utmost importance in upholding the pillars of the democratic system hence
ensuring a free society. It is so because it is a known fact that the independence of judiciary is
the basic requirement for ensuring that there is a free and fair society under the rule of law.
Rule of Law that is responsible for good governance of the country can be done through
unbiased judiciary.
The doctrine of Separation of Powers which was brought together to have a check or make
boundaries for the functioning of all the three organs of the country i.e.: Executive,
Legislature and the Judiciary. It provides the judiciary to act as a guardian for the protection
of law and it also act as body that checks that Legislature and Executive are working within
their limits and they are not interfering in the functioning of each other and the task given to
the judiciary to supervise the doctrine of separation of powers cannot be carried on in true
spirit if the judiciary is not independent in itself. An independent judiciary supports the base
of doctrine of separation of powers to a large extent.
It is easy to talk about the independence of the judiciary as the provisions are been provided
in our constitution but these provisions introduced by the framers of our constitution can only
be initiated towards making of the judiciary independent. The huge task lies in creating a free
environment for the proper functioning of the judiciary in which all the other organs function
in a harmonies way such that the independence of the judiciary can be achieved in the real
sense. The independence of the judiciary has also to be guarded against the changing
economic, political and social scenario.
In the words of Churchill: Our aim is not to make our judges wealthy men, but to satisfy
their needs and to maintain a modest and a dignified way of life suited to the gravity, and
indeed, the majesty, of the duties they discharge.
The meaning of the independence of the judiciary is still not completely clear after many
years of its existence. Our constitution by the way of the Articles just talks about the

independence of judiciary but it is no where defined what actually is meant by independence

of judiciary.
The primary talk on the independence of the judiciary is based on the doctrine of separation
of powers which holds its existence from several years. The doctrine of separation of powers
talks of the independence of the judiciary as an institution from the executive and the
The other meaning of judicial independence can be hatched out by looking at the writings of
the scholars who have done research in this field. Scholars have followed the constituent
mechanism (i.e. what constitutes the judiciary) to define the independence of the judiciary.
Scholars tried to define judiciary by propounding the independence of the judges which
constitutes judiciary. Therefore the independence of the judiciary is the independence of the
exercise of the functions by the judges in an unbiased manner i.e. free from any external
So the meaning of independence of the judiciary can be understood as the independence of
the institution of the judiciary and also the independence of the judges which forms the part
of the judiciary.
Some scholars in their work tried to explain the words Independence and Judiciary
separately, and said that the judiciary is the organ of the government not forming a part of
the executive or the legislative, which is not subject to personal, substantive and collective
control, and which performs the primary function of adjudication.
The final outcome them can be derived is that the independence of the judiciary as an
institution and the independence of the individual judges both have to go hand in hand as the
independence of the judiciary as an institution is not possible without the independence of the
individual judges and is the institution of the judiciary is not independent, there is no question
of the independence of the individual judges.
Independence of Judiciary is sine guenon of democracy. In a democratic polity, thesupreme
power of state is shared among the three principle organs constitutionalfunctionaries namely
the constitutional task assigned to the Judiciary is no way less thanthat of other functionaries
legislature and executive. Indeed it is the role of the Judiciaryto carry out the constitutional
message and it is its responsibility to keep a vigilant watchover the functioning of democracy
in accordance with the dictates, directives, andimperative commands of the constitution by
checking excessive authority of other constitutional functionaries beyond the ken of
constitution. So the Judiciary has to act asthe sentinel sine qua vive . Our Constitution does
not strictly adhered to the doctrine ofseparation of powers but it does provide for distribution
of power to ensure that oneorgan of the govt. does not trench on the constitutional powers of
other organs. Thedistribution of powers concept assumes the existence of judicial system free
fromexternal as well as internal presses. Under our constitution the Judiciary has been
assignedthe onerous task of safeguarding the fundamental rights of our citizens and
upholding theRule of Law. Since the courts are entrusted the duty to uphold the constitution
and thelaws, it very often comes in conflict with the state when it dries to enforce orders
byexacting obedience. Therefore, the need for an independent t and impartial
Judiciarymanned by persons of sterling quality and character, underling courage and
determinationand resolution impartiality and independence who would dispose justice
without fear, ill will or affection. Justice without fear or fervor, ill will or affection, is the

cordial creed of our constitution and a solemn assurance of every Judge to the people ofthis
great country.
Secondly, the Judiciary, which is a repartee but equal branch of the state, to transform
thestatus quo into a new human order in which justice, social, economic and political
willinform all institutions of national life and there will be quality of status and
opportunityfor all. The Judiciary has therefore a socio- economic distinction and creative
function. The Judiciary cannot remain a mere bystander or spectator but it must become an
active participant in the judicial process ready to use law in the service of social justice
through a pro-active goal oriented approach. But this cannot be achieved unless we have
judicial cadres who share the fighting faith of the constitution and are imbued with
constitutional values.
The basic need for the independence of the judiciary rests upon the following points:
To check the functioning of the organs: Judiciary acts as a watchdog by ensuring that all
the organs of the state function within their respective areas and according to the provisions
of the constitution. Judiciary acts as a guardian of the constitution and also aids in securing
the doctrine of separation of powers.
Interpreting the provisions of the constitution: It was well known to the framers of the
constitution that in future the ambiguity will arise with the provisions of the constitution so
they ensured that the judiciary must be independent and self-competent to interpret the
provision of the constitution in such a way to clear the ambiguity but such an interpretation
must be unbiased i.e. free from any pressure from any organs like executive. If the judiciary
is not independent, the other organs may pressurize the judiciary to interpret the provision of
the constitution according to them. Judiciary is given the job to interpret the constitution
according to the constitutional philosophy and the constitutional norms.
Disputes referred to the judiciary: It is expected of the Judiciary to deliver judicial justice
and not partial or committed justice. By committed justice we mean to say that when a judge
emphasizes on a particular aspect while giving justice and not considering all the aspects
involved in a particular situation. Similarly judiciary must act in an unbiased manner.
CONSTITUTIONAL PROVISIONS Which Provide Judicial Independency
Many provisions are provided in our constitution to ensure the independence of the judiciary.
The constitutional provisions are discussed below:
Appointment of the Judges
The procedure of appointment of the Chief Justice and other judges has created a lot of
controversy because it is the key aspect of the independence of the judiciary. Art 124
specifies that the Chief Justice is appointed by the president after consulting with the judges
of the Supreme Court and the high courts. Further, that while appointing other judges, the CJ
must be consulted. Thus, the constitution clearly tried to prevent the executive from having
complete discretionary powers in the appointment of the judges.
Until 1973, the senior most judge of the Supreme Court was appointed as the Chief Justice.
However, this convention was broken when Justice AN Ray was appointed as the CJ by
passing 3 more senior judges. This was seen as a blatant assault on the independence of the

judiciary. The govt. pleaded that the word consult does not mean that the president is bound
by the advice. He is free to make his own decision.
In 1977, in the case of Union of India vs Sankalchand Seth , which was related to the transfer
of a Judge from one high court to another under art 222, SC held that the President has the
right to differ from the advice provided by the consultants.
Judges Transfer Case 1
In the case of S P Gupta vs Union of India SC unanimously agreed with the meaning of the
word consultation as determined in the Sankalchands case. It further held that the only
ground on which the decision of the govt. can be challenged is that it is based on mala fide
and irrelevant consideration. In doing so, it substantially reduced its own power in appointing
the judges and gave control to the executive.
Judges Transfer Case 2
this matter was raised again in the case of SC Advocates on Record Association vs Union of
India . In this case, the SC overruled the decision of the S P Gupta case and held that in the
matter of appointment of judges of high courts and Supreme Court, the CJ should have the
primacy and the appointment of the CJ should be based on seniority. It further held that the
CJ must consult his two senior most judges and the recommendation must be made only if
there is a consensus among them.
Judges Transfer Case 3
A controversies arose again when the CJ recommended the names for appointment without
consulting with other judges in 1999. The president sought advice from the SC (re
Presidential Reference 1999) and a 9 member bench held that an advice given by the CJ
without proper consultation with other judges is not binding on the govt.
As of now, due to the decision in Judges Transfer Case 2, the appointment of the judges in SC
and High Courts are fairly free from executive control. This is an important factor that
ensures the independence of the judiciary.
Security of Tenure:The judges of the Supreme Court and High Courts have been given the
security of the tenure. Once appointed, they continue to remain in office till they reach the
age of retirement which is 65 years in the case of judges of Supreme Court Art. 124(2)
124. Establishment and constitution of Supreme Court.
(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under
his hand and seal after consultation with such of the Judges of the Supreme Court and of the
High Courts in the States as the President may deem necessary for the purpose and shall hold
office until he attains the age of sixty-five years:
In the case of High Courts judges the age is 62 as per Art. 217(1)
217. Appointment and conditions of the office of a Judge of a High Court.
(1) Every Judge of a High Court shall be appointed by the President by warrant under his
hand and seal after consultation with the Chief Justice of India, the Governor of the State,
and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of
the High Court, and shall hold office, in the case of an additional or acting Judge, as provided
in article 224, and in any other case, until he attains the age of sixty-two years

They cannot be removed from the office except by an order of the President and that too on
the ground of proven misbehavior and incapacity. A resolution has also to be accepted to that
effect by a majority of total membership of each House of Parliament and also by a majority
of no less than two third of the members of the house present and voting. Procedure is so
complicated that there has been no case of the removal of a Judge of Supreme Court or High
Court under this provision.
Salaries and Allowances: The salaries and allowances of the judges is also a factor which
makes the judges independent as their salaries and allowances are fixed and are not subject to
a vote of the legislature. They are charged on the Consolidated Fund of India in case of
Supreme Court judges and the Consolidated Fund of state in the case of High Court judges.
Their emoluments cannot be altered to their disadvantage (Art. 125(2))
125. Salaries, etc., of Judges
(1) There shall be paid to the Judges of the Supreme Court such salaries as may be
determined by Parliament by law and, until provision in that behalf is so made, such salaries
as are specified in the Second Schedule.
(2) Every Judge shall be entitled to such privileges and allowances and to such rights in
respect of leave of absence and pension as may from time to time be determined by or under
law made by Parliament and, until so determined, to such privileges, allowances and rights as
are specified in the Second Schedule:
Provided that neither the privileges nor the allowances of a Judge nor his rights in respect of
leave of absence or pension shall be varied to his disadvantage after his appointment.
Powers and Jurisdiction of Supreme Court: Parliament can only add to the powers and
jurisdiction of the Supreme Court but cannot curtail them. In the civil cases, Parliament may
change the pecuniary limit for the appeals to the Supreme Court. Parliament may enhance the
appellate jurisdiction of the Supreme Court. It may confer the supplementary powers on the
Supreme Court to enable it work more effectively. It may confer power to issue directions,
orders or writs for any purpose other than those mentioned in Art. 32. Powers of the Supreme
Court cannot be taken away.
The jurisdiction and powers of the Supreme Court are quite wide. The Supreme Court has a
threefold jurisdiction.
Original Jurisdiction
The Supreme Court has originally jurisdiction i.e. cases which can originate with the
Supreme Court alone over disputes between (a) the Government of India and one or more
states (b) the Government of India and any stat and states on one side and one or more state
on the other (c) two or more states. No other court in India shall have the power to entertain
any such suit. Thus the Supreme Court is a Federal Court.
However this jurisdiction does not extend to disputes arising out of treaty or agreement which
is an operation and excludes such jurisdiction. The Supreme Courts may also be excluded in
some other matter, inter-state disputes, matters referred to the Finance Commission,
adjustment or certain expenses as between the Union and the States. Furthermore, ordinary
commercial matters do not fall in this category. Most scholars include in the original
jurisdiction the power of the Supreme Court to decide disputes regarding Fundamental

Rights. It is original in the sense that the aggrieved party has the right to directly move the
Supreme Court by pressing a petition. However some constitutional experts opine that the
writ jurisdiction of the Supreme Court should be treated separately as the dispute in such
cases is not between the units of the Union but an aggrieved individual and the Government.
Appellate Jurisdiction
The Supreme Court is the highest Court appeal from all courts in India. It hears appeals in (i)
cases involving interpretation of the constitution- civil, Criminal or otherwise (Article 132)
(ii) Civil cases irrespective of any constitutional issue (Article. 133) (iii) Criminal matters
irrespective of any constitutional issue (134). Besides the Supreme Court may grant special
leave to appeal in certain cases under article136.
In constitutional matters an appeal can be made if the High Court certifies that the cases
involves a substantial question of law or general importance or that in its opinion the question
needs to be decided by the Supreme Court.
In criminal cases an appeal lays the Supreme Court if the High Court certifies that the case is
fit for appeal. But an appeal can be made without the certificate of a High Court if the High
Court has in an appeal reversed an order of acquittal of the accused and sentenced him to
death or where the High Court has withdrawn a case from the lower court, conducted the trail
itself and awarded the accused the death sentence and more than 10 years imprisonment.
The right of the Supreme Court to entertain appeal by Special leave in any cause or matter
determined by any court or tribunal is unlimited. The exercise of the power is left entirely to
the discretion of the Supreme Court. However the power is clearly to be exercised only under
exceptional circumstances where substantial question of law or general public interest is
involved, where grave injustice has been done or where a tribunal has exceeded its
jurisdiction or has run counter to nature justice.
Advisory Jurisdiction
The Supreme Court renders advice on any question of law or fact of public importance as
may be referred to it for consideration by the President. These are no litigation involved and
the opinion given by the Supreme Court is not to be considered as a judgment. The advice is
not binding on the President who may or not accept it. The main use of this provision is to
enable the Government to get an authoritative opinion as to the legal validity of a matter
before action is taken upon it. The court however is bound to give its opinions on matters
relating to disputes arising out of a treaty or agreement entered into before the
commencement of the constitution.
Other powers
Article 129 declares the Supreme Court as a court of record thus its proceedings are recorded
for perpetual verification and testimony its records are admitted in evidence and cannot be
questioned in any court of law and it has the power to punish by fine and imprisonment any
person guilty of contempt or its authority.
ii) The decision of the Supreme Court is binding on all courts within the territory of India.
However the Supreme Court is not bound by its earlier decision it can come to a different
decision if it is convinced that it had made an error or harmed public interest.
iii) The Supreme Court can make rules regarding the practice and procedure of the court with
the approval of the President.

iv) The Supreme Court can appoint its officers and servants in consultation with the UPSC
and determine their conditions of service in consultation with the President. The Supreme
Court can recommend to the President the removal of the Chairman and members of the
UPSC. Under Article 139-A the Supreme Court may transfer to itself cases from one and
more High Courts it these involve question of law or of great significance. The Supreme
Court may transfer cases from one High Court to another in the interests of Justice.
No discussion on conduct of Judge in State Legislature / Parliament: Art. 211 provide that
there shall be no discussion in the legislature of the state with respect to the conduct of any
judge of Supreme Court or of a High Court in the discharge of his duties. A similar provision
is made in Art. 121 which lay down that no discussion shall take place in Parliament with
respect to the conduct of the judge of Supreme Court or High Court in the discharge of his
duties except upon a motion for presenting an address to the President praying for the
removal of the judge.
Power to punish for contempt: Both the Supreme Court and the High Court have the power to
punish any person for their contempt. Art. 129 provides that the Supreme Court shall have the
power to punish for contempt of itself. Likewise, Art. 215 lays down that every High Court
shall have the power to punish for contempt of itself.
Separation of the Judiciary from the Executive: Art. 50 contains one of the Directive
Principles of State Policy and lays down that the state shall take steps to separate the judiciary
from the executive in the public services of the state. The object behind the Directive
Principle is to secure the independence of the judiciary from the executive. Art.50 says that
there shall be a separate judicial service free from executive control.
Art 124(7) Prohibition on practicing before any court:
Art 124 prohibits a retired judge of a SC or a High Court from appearing and pleading before
any court or tribunal.
I conclude my project on saying that according to me Independence of judiciary is important
for the purpose of fair justice. There should be no interference by the legislature or the
executive, in the proceedings of the judiciary so that it may take a judgment that seems
reasonably fair. In case of intervention, there may be an element of bias on the part of the
judges in taking a fair decision. It is difficult to suggest any other way to make the Indian
courts more self reliant and keep them away from the influence of the other two organs.
But I would like to support my project by saying that it has a independent status in our
country as per the following points:
1) In the time when India got independence and the Supreme Court has given many judgment
against the government of the time from 1950 to the late 1980 and most of them were
regarded as an landmark judgment in our judicial system and it is till date regarded as the
base of Indian Judicial System.
According to Land reform (early confrontation)
After some of the courts overturned state laws redistributing land from zamindar (landlord)
estates on the grounds that the laws violated the zamindar fundamental rights, the Parliament
of India passed the First Amendment to the Constitution in 1951 followed by the Fourth
Amendment in 1955 to protect its authority to implement land redistribution. The Supreme

Court countered these amendments in 1967 when it ruled in Golaknath v. State of Punjab that
Parliament did not have the power to abrogate fundamental rights, including the provisions
on private property.
Other laws deemed unconstitutional
On 1 February 1970, the Supreme Court invalidated the government-sponsored Bank
Nationalization Bill that had been passed by Parliament in August 1969.
The Supreme Court also rejected as unconstitutional a presidential order of 7 September 1970
that abolished the titles, privileges, and privy purses of the former rulers of Indias old
princely states.
The Court ruled that the basic structure of the constitution cannot be altered for convenience.
On 24 April 1973, the Supreme Court responded to the parliamentary offensive by ruling in
KeshavanandaBharti v. The State of Kerala that although these amendments were
constitutional, the court still reserved for itself the discretion to reject any constitutional
amendments passed by Parliament by declaring that the amendments cannot change the
constitutions basic structure, a decision piloted through by Chief Justice Sikri.
Emergency and Government of India: The independence of judiciary was severely
curtailed on account of powerful central government ruled by Indian National Congress. This
was during the Indian Emergency (1975-1977) of Indira Gandhi. The constitutional rights of
imprisoned persons were restricted under Preventive detention laws passed by the parliament.
In the case of Shiva Kant Shukla Additional District Magistrate of Jabalpur v. Shiv Kant
Shukla, popularly known as the Habeas Corpus case, a bench of five seniormost judges of
Supreme Court ruled in favour of states right for unrestricted powers of detention during
emergency. During the emergency period, the government also passed the 39th amendment,
which sought to limit judicial review for the election of the Prime Minister; only a body
constituted by Parliament could review this election. The court tamely agreed with this
curtailment (1975), despite the earlier Keshavananda decision. Subsequently, the parliament,
with most opposition members in jail during the emergency, passed the 42nd Amendment
which prevented any court from reviewing any amendment to the constitution with the
exception of procedural issues concerning ratification. A few years after the emergency,
however, the Supreme Court rejected theabsoluteness of the 42nd amendment and reaffirmed
its power of judicial review in the case of Minerva Mills Ltd. & Ors. Etc. Etc vs Union of
India & Ors .From the above cases and the points dealt in them it has shown that how hard it
was for the judiciary to maintain its independent status and how much the parliament tries to
take away the powers of the Supreme Court especially at the time of Indira Gandhi when she
was the Prime Minister. The above mentioned are my view.But in the current time there is a
debate going on whether in India is Judiciary really independent in nature because many of
them say it is partly independent the people who differ from the Independency of judiciary
say that on the base that is appointment of the judges and in the later part that the parliament
has the power to appoint the retired Judge of SC in any position as a chairman or head of a
commission this way the judge may have influence on giving the judgment.