INDEPENDENCE OF JUDICIARY

INTRODUCTION
Importance of independence of the judiciary is very essential aspect of
democracy, like our country. Independence of judiciary can be completed
via prohibiting interference from the Government (i.e. legislature and
executive).In a democratic set up solely an unbiased and independence
judiciary can defend the rights of individual and can supply justice except
worry or favour. Therefore it is essential that all the judicial device (i.e.
Supreme Court, High Court and District Court/ Lower Court) need to be
allowed to function its characteristic except any pressure. In a democratic u
. s . a . like India judiciary is custodian of rights of citizens. Therefore the
framers of the Indian Constitution at the time of framing of our charter had
been involved about the variety of judiciary our USA must have.
This situation of the individuals of the constituent meeting used to
be replied through Dr. B.R. Ambedkar in the following words:
“There can be
no distinction of opinion in the House that our judiciary need
to be each impartial of the executive
and ought to additionally be equipped in it. And the question is how these
two objects can be secured”.

Now an outstanding query arises at first occasion in our minds is that what

made the framers of our charter to be so tons involved about offering the
separate entity to the judiciary and making itself competent. The reply to
this query lies in the very primary grasp that so as
to invulnerable the balance and prosperity of the society, the framers at
that time understood that such a society ought to be created solely by
means of guaranteeing the necessary rights and the independence
of the judiciary to defend and put in force these imperative rights.

(AN INDEPENDENT COLONIAL JUDICIARY)

COMPONENTS – THE INDEPENDENCE
OF THE JUDICIARY
The components of the independence of the judiciary refers to some of the
requisite terms and conditions which are so necessary that if they are
absent, the independence of the judiciary also cannot exist. It is very
difficult to lay down certain set conditions as law is dynamic in itself and of
the changing economic, political and social scenario.

International Provisions:
1) The independence of the judiciary shall be guaranteed by the State
and enshrined in the Constitution or the law of the country. It is
the duty of all governmental and other institutions to respect and
observe the independence of the judiciary.

2) The judiciary shall decide matters before them impartially, on the

basis of facts and in accordance with the law, without any
restrictions, improper influences, inducements, pressures, threats
or interferences, direct or indirect, from any quarter or for any
reason.

3) The judiciary shall have jurisdiction over all issues of a judicial

nature and shall have exclusive authority to decide whether an
issue submitted for its decision is within its competence as
defined by law.

4) There shall not be any inappropriate or unwarranted interference

with the judicial process, nor shall judicial decisions by the courts
be subject to revision. This principle is without prejudice to
judicial review or to mitigation or commutation by competent
authorities of sentences imposed by the judiciary, in accordance
with the law.

5) Everyone shall have the right to be tried by ordinary courts or

tribunals using established legal procedures. Tribunals that do not
use the duly established procedures of the legal process shall not
 be created to displace the jurisdiction belonging to the ordinary
courts or judicial tribunals.

6) The principle of the independence of the judiciary entitles and

requires the judiciary to ensure that judicial proceedings are
conducted fairly and that the rights of the parties are respected.

7) It is the duty of each Member State to provide adequate resources

to enable the judiciary to properly perform its functions.

(JUDICIAL INDEPENDENCE : THE

CONTEMPORARY DEBATE)
NEED FOR THE INDEPENDENCE OF
THE JUDICIARY
The basic need for the independence of the judiciary rests upon the
following points:

1)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.

2) 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.
3) 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.

PRINCIPLES ENSURING THE

INDEPENDENCE OF JUDICIARY
Separation of the Judiciary from the Executive: Art. 50 carries one of the
Directive Principles of State Policy
and lays down that the country shall take steps to separate the judiciary
from the govt in the public offerings of the
state. The object behind  the Directive Principle is to  the independence of
the judiciary from the executive. Art. 50 says that there shall be a separate
judicial service free from govt control.

Appointment of Judges: According to Article 124(2) of our Constitution

the Executive have no power to appoint Judge, however it requires the
consultation of the Chief Justice of Supreme Court and High Courts in the
appointment of the judges of the Supreme Court and High Courts. Under
the provision of the Constitution President shall appoint the Judges after
the consultation with the judicial authorities, while in case of appointment
of the Chief Justice of India, President shall consult such Judges of Supreme
Court and the High Court’s as he deems necessary and for the appointment
of other judges President must consult with the CJI. Similarly the
appointment of the chief Justice of the High Court are made after the
consultation of the Chief Justice of India and the Governor of the State
concerned, while the appointment of the other judges of High Court’s are
made with the consultation of the Chief justice of the Concerning High
Court. Therefore it can be said that Executive have no exclusive discretion
in matter of the appointment of Judges, thus Constitution ensures the
independence of the judiciary.

Security of Tenure: The judges of the Supreme Court and High Courts
have been given the safety of the tenure. Once appointed,
they proceed to continue to be in workplace until they attain the age of
retirement which is sixty five years in the case of judges of Supreme Court
(Art. 124(2)) and sixty two years in the case of judges of the High Courts
(Art. 217(1)). They can't be eliminated from
the workplace besides through an order of the President and that too on
the floor of verified misbehaviour and incapacity.
A decision has additionally to be widely wide-spread to that impact with
the aid of a majority of complete membership of every House of Parliament
and additionally through a majority of no much less than two 0.33 of
the individuals of the residence current and voting. Procedure is
so difficult that there has been no case of the elimination of a Judge of
Supreme Court or High Court underneath this provision.

Salaries and allowances : The salaries and allowances of the judges

is additionally a thing which makes the judges
independent as their salaries and allowances are constant and are now
not situation 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 country in
the case of High Court judges. Their emoluments can't be altered to
their downside (Art. 125(2)) barring in the
event of grave economic emergency.

Powers and Jurisdiction of Supreme Court: Parliament can solely add to

the powers and jurisdiction of the
Supreme Court however can't curtail them. In the civil cases,
Parliament can also exchange the pecuniary restrict for the appeals
to the Supreme Court. Parliament might also beautify the appellate
jurisdiction of the Supreme Court. It might also confer the
supplementary powers on the Supreme Court to allow it
work extra effectively. It might also confer energy to issue
directions, orders or writs for any cause different than these noted in Art.
32. Powers of the Supreme Court
cannot be taken away and making judiciary independent.

No dialogue on habits of Judge in State Legislature / Parliament: Art.

211 supply that there shall be no
discussion in the legislature of the country with appreciate to the habits of
any decide of Supreme Court or of a High
Court in the discharge of his duties. A comparable provision is made in Art.
121 which lay down that no dialogue shall
take vicinity in Parliament with admire to the behavior of the decide of
Supreme Court or High Court in the discharge of
his obligations without upon a action for offering an tackle to the President
praying for the elimination 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
provide that the Supreme Court shall have the power to punish for
contempt of itself.

Prohibition of Retired Judges to Practice: Article 124 (7) of the

Constitution prohibits a retired Judge of the Supreme Court to plead or
appear before any Court or Judicial Authority in India.

Supreme Court: The Constitutional

Scheme:
The Supreme Court as the highest court of the country came into existence
on the 26th January 1950, i.e. the date of commencement of the
Constitution. Under the Constitution, the Supreme Court is the highest
court of civil and criminal appeal and is also vested with original and
advisory jurisdiction. In view of its importance to the working of
constitutional system, the Constitution itself has specified the jurisdiction
and powers of the Supreme Court. Parliament is given the power to enlarge
its jurisdiction or confer special jurisdiction. The salient features of its
jurisdiction and powers are: 1. Original jurisdiction for enforcement of
fundamental rights under Article 32. Under this Article any person (even
non-citizens) can directly approach the highest court, to seek enforcement
of any of the fundamental rights guaranteed under the Constitution. Art. 32
finds its place in the Chapter on Fundamental Rights — and is hence itself a
fundamental right. 2. Exclusive jurisdiction to decide Centre-State and
inter-State disputes.4 3. Appellate jurisdiction against judgements of High
Courts on certificate by the High Court in any case involving substantial
question of law relating to interpretation of the provisions of the
Constitution5 and in any matter involving a substantial question of law.6 4.
Appellate jurisdiction against judgement in any criminal matter in which
the High Court has reversed an order of acquittal into one of conviction and
has imposed death sentence, or the High Court has withdrawn a case for
trial and imposed death sentence or certified that the case is a fit one to
appeal to the Supreme Court.7 5. Appeal against any judgement, decree,
determination, sentence or order of any court or tribunal (final or
interlocutory).8 6. Power to transfer cases pending in one High Court to
another or to withdraw cases involving similar questions and pending in
more than one High Court and decide on such cases itself.9 7. Advisory
jurisdiction to furnish opinion on important questions of law or fact on a
reference by the President.10 Articles 138 and 139 empower Parliament to
make laws enlarging the jurisdiction of the Supreme Court. Art. 141
provides that the law declared by the Supreme Court shall be binding on all
courts within the territory of India. Art. 144 provides that all the civil and
judicial authorities in India shall act in support of the Supreme Court. An
analysis of the provisions referred to above indicates that under the
scheme of Constitution the Supreme Court is constituted to function: 1. As
the protector of the fundamental rights and liberties of the individuals in
exercise of its original as well as appellate jurisdiction. 2. As the ultimate
authority to interpret and enforce the provisions of the Constitution and
the laws. 3. Final court of appeal in all matters constitutional, civil, criminal,
revenue, etc., against decisions and orders of all courts and tribunals in the
country. 4. The sole tribunal to decide Centre-State and inter-State
disputes; 5. To give opinions in an advisory capacity on important
questions of law or fact on reference by the President. Thus the Supreme
Court occupies a most vital and exalted position under the constitutional
set-up, entrusted with the power to interpret and finally decide on all
matters and disputes pertaining to the state, its various organs and the
people of India. Further, its decision is binding on all courts throughout
India.

High Courts: The Constitutional

Scheme
The High Court established for each state or groups of states, in relation to
that territory, constitutes the highest Court of Civil and Criminal Appeal,
review and revision. The Court is also invested with original jurisdiction to
issue prerogative writs for enforcement of rights given to individuals under
the Constitution and the laws. Under the Government of India Act 1935, the
Constitution and organisation of the High Courts was vested in the
provincial legislature. However, a change was brought about in the
Constitution of India. The framers of the Constitution felt that the
constitution and organisation of the High Court ought not to be allotted to
the State Assemblies in the interest of uniformity. Hence, not only the
legislative subject of the Constitution and organisation was included in the
Union List, the provision for appointment of the judges of the High Court,
and their conditions of service were also laid down in the Constitution
itself. Under Art. 216, the President of India is the authority for appointing
the Chief Justice and judges of all High Courts. As regards jurisdiction and
powers, certain jurisdiction and powers considered vital for rule of law
were conferred on the High Courts by the Constitutional itself. These are,
powers to punish for contempt,11 the writ jurisdiction,12 supervisory
jurisdiction over subordinate courts and tribunal of the concerned State,13
power to withdraw cases from the subordinate courts involving
interpretation of the constitution,14 administrative control over the staff of
the High Court15 and subordinate judiciary.

BIBLIOGRAPHY
An Independent colonial judiciary by Abhinav Chandrachud,(2015)

Judicial Independence : A contemporary debate by Shimon shetreet

(1985)

Wikipedia ( Independent Judiciary )

CONCLUSION
Judges have the ultimate responsibility for decisions regarding freedoms,
rights and duties of natural and legal persons within their jurisdiction. The
independence of each individual judge safeguards every person’s right to
have their case decided solely on the basis of the law, the evidence and
facts, without any improper influence. A well-functioning, efficient and
independent judiciary is an essential requirement for a fair, consistent and
neutral administration of justice. Consequently, judicial independence is an
indispensable element of the right to due process, the rule of law and
democracy. The independence of the judiciary as is clear from the above
discussion hold a prominent position as far as the institution of judiciary is
concerned. It is clear from the historical overview that judicial
independence has faced many obstacles in the past specially in relation to
the appointment and the transfer of judges. Courts have always tried to
uphold the independence of judiciary and have always said that the
independence of the judiciary is a basic feature of the Constitution.