INDEPENDENCE OF JUDICIARY UNDER INDIAN CONSTITUTION

Raunak Bagade1

The framers of the Indian Constitution at the time of framing of our constitution were concerned
about the kind of judiciary our country should have. This concern of the members of the constituent
assembly was responded by 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“.

The question that arises at first instance in our minds is that what made the framers of our
constitution to be so much concerned about providing the separate entity to the judiciary and
making it self-competent. 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. 2 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 a well-known fact that the independence of the judiciary is the basic requisite for ensuring a
free and fair society under the rule of law. Rule of law that is responsible for good governance of
the country can be secured through unbiased judiciary.3

The doctrine of Separation of Powers4 which was brought into existence to draw upon the
boundaries for the functioning of all the three organs of the state: Legislature, Executive and the
Judiciary, provides for a responsibility to the judiciary to act as a watchdog and to check whether
the executive and the legislature are functioning within their limits under the constitution and not
interfering in each other’s functioning.5 This 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

1
Law Officer, Marketing Division, Indian Oil Corporation Limited
2
Higher Judicial Appointments in India – The Dilemma and the Hope: Trusting the
Wisdom of the Generations, NUALS L.J. Vol. 8, 2014
3
Judicial Independence in Transition, Springer Science & Business Media, 25-Apr-2012
4
Speech of the Chief Justice on “Separation of Powers Doctrine – Roles of the Legislature, Executive and
Judiciary”, Available at indiacode.nic.in/mjr/Speech%20CJ.doc
5
Ibid
itself. An independent judiciary supports the base of doctrine of separation of powers to a large
extent.

It is theoretically very easy to talk about the independence of the judiciary as for which the
provisions are provided for in our constitution but these provisions introduced by the framers of
our constitution can only initiate towards the independence of the judiciary.6 The major task lies
in creating a favorable environment for the functioning of the judiciary in which all the other state
organs functions in cooperation so that the independence of the judiciary can be achieved
practically. The independence of the judiciary has also to be guarded against the changing
economic, political and social scenario.7

The constitution of India adopts diverse devices to ensure the independence of the judiciary in
keeping with both the doctrines of constitutional and Parliamentary sovereignty. Elaborated
provision are in place for ensuring the independent position of the Judges of the Supreme Court
and the High Courts.8

Firstly, the judges of the Supreme Court and the High Courts have to take an oath before entering
office that they will faithfully perform their duties without fear, favour, affection, ill-will, and
defend the constitution of India and the laws. Recognition of the doctrine of constitutional
sovereignty is implicit in this oath.

Secondly, the process of appointment of judges also ensures the independence of judiciary in India.
The judges of the Supreme Court and the High Courts are appointed by the President. The
constitution of India has made it obligatory on the President to make the appointments in
consultation with the highest judicial authorities. He of course takes advice of the Cabinet. The
constitution also prescribes necessary qualifications for such appointments. The constitution tries
to make the appointments unbiased by political considerations.

Thirdly, the Constitution provides for the security of tenure of Judges. The judges of the Supreme
Court and the High Court’s serve “during good behavior” and not during the pleasure of the
President, as is the case with other high Government officials. They cannot be arbitrarily removed

6
The Dynamics of Judicial Independence, Springer
7
Available at http://mulnivasiorganiser.bamcef.org/?p=482 (last accessed on 26/7/2017)
8
Available at https://www.importantindia.com/2146/independence-of-judiciary-in-indian-constitution/ (last
accessed on 26/7/2017)
by the President. They may be removed from office only through impeachment. A Judge can be
removed on the ground of proved misbehavior or incapacity on a report by both Houses of
Parliament supported by a special majority.

Fourthly, their salaries and allowances are charged upon the Consolidated Fund of India. Further,
the salaries and allowances of Judges of Supreme court and High courts cannot be reduced during
their tenure, except during a financial emergency under Article 360 of the constitution.

Fifthly, the activities of the Judges cannot be discussed by the executive or the legislature, except
in case of removal of them.

Sixth, the retirement age is 65 years for Supreme Court judges and 62 years for High court judges.
Such long tenure enable the judges to function impartially and independently.

Seventh, a retired Supreme Court judge cannot practice engage in legal practice in any court in
India. However, a retired High court judge can practice law in a state other than the state in which
he served as a High Court judge. These restrictions ensure that a retired judge is not able to
influence the decision of the courts.9

Methods to Secure Independence of Judiciary: Sincere efforts have been made to secure the
independence of judiciary through the following methods10:

(a) High Qualifications: Politics in the appointment of judges has been avoided by prescribing
high minimum qualifications for such assignments in the Constitution itself. An aspirant
for such an important office must have been a judge of a High Court, at least for five years
or must an advocate of a High Court be at least for ten years, or be a distinguished jurist.11
(b) As already mentioned, every judge is paid a high salary to maintain his status and dignity.
As per Act of 1986, the Chief Justice was to draw Rs. 10,000 p.m. and the other judges
were paid Rs. 9,000 p.m. However in the recent past, the salaries of Judges of the Supreme
Court were raised to Rs. 30,000 p.m. and that of Chief Justice Rs. 33,000 p.m. Their salaries
have been further hiked in view of such hikes of other top officers of the Government as

9
The Culture of Judicial Independence: Conceptual Foundations and
Practical Challenges, Martinus Nijhoff Publishers
10
Shayonee Dasgupta & Sakshi Agarwal, Judicial Accountability and Independence: Exploring The Limits Of
Judicial Power, available at https://www.scribd.com/document/110403923/judicial-accountability-and-independece
11
Ibid
 per 6th Pay Commission report and cabinets’ generosity to hike the salaries of the top
executives viz., President, Vice- President and Governor etc. as well. Three-fold hike in
case of judges (Rs. 90,000) and 1, 00,000 p.m. in case of Chief Justice. In addition, they
enjoy free residential accommodation and many other perks. During their term of office,
their salaries and allowances cannot be altered to their disadvantage, except in grave
financial emergency. The administrative expenses of the Court are charged on the
Consolidated Fund. Evidently, their salaries and allowances compare favorably with those
of judges in other courts of the world.12

(c) Security of Tenure: The Judges of the Supreme Court enjoy security of tenure. They are
not removable from office except by an order of the President and that also only on the
ground of proved misbehavior or incapacity, supported by a resolution adopted by a
majority of total membership of each House and also by a majority of not less than 2/3 of
the members of that House present and voting.
(d) Lengthy Tenure: Although the Constitution does not provide for life tenure, the existing
provision of 65 years, in effect amounts to nearly the same. A retiring age of 65 is, by
Indian standard, very high, considering the average span of life in India and also the
average fitness of persons for work in old age. Moreover, a retired judge according to
Article 128, may be reappointed a judge by the Chief Justice of India, with the consent of
the President. Hence, if a judge is hale and hearty, sound in mind as well as in body, capable
of rendering service, for a few years more, he can be easily accommodated. Longevity of
tenure keeps him immune from temptation to amass fortunes for the old age.
(e) Oath to Work Fearlessly: Before assumption of office, the judges have to take an oath to
perform their duties fearlessly and to uphold the Constitution. The ruling party committed
to a particular ideology expects the judges to read the writing on the wall and act
accordingly. The supersession of three judges and appointment of a junior judge as Chief
Justice raised the issue. Ex-Chief Justice S.M. Sikri was of the view that commitment to
the philosophy of the ruling party, is not the part of the oath administered to a judge. Hence
such commitment should not be expected of him.

12
Ibid
 (f) No Practice after Retirement: A retired judge of the Court is prohibited from practising law
before any Court of authority within the territory of India. The Constitution, however,
permits the appointment of a retired judge for a specialized form of work by the
Government, for instance for conducting enquiries and special investigations. Das
Commission for conducting enquiry against Sardar P.S. Kairon, ex-late Chief Minister of
Punjab is an example of such enquiries assigned to a judge.13
(g) Control over Establishment: The Court is fully authorized to have its own establishment
and have complete control over it. It was, however, thought that in the absence of such a
provision, the Court’s independence becomes illusory. If for promotion, the establishment
is to look to other quarters, it is likely to affect the independence of the judiciary. Hence,
all appointments of officers and servants of the Supreme Court are made by the Chief
Justice and the judges of the Supreme Court whom he may direct for the purpose. Their
conditions of service also are determined by the Supreme Court.14
(h) Immunities: The actions and decisions of the judges in their official capacity are immune
from criticism. They may, however, be subject to critical academic analysis. In order to
maintain the dignity of the Court and to protect it from malicious criticism, the Court has
been empowered to initiate contempt proceedings against any alleged offender and take
appropriate action. The Court is, also authorized to stop any act that might prejudicially
affect its arriving at an impartial and independent decision.15

CONCLUSION

There is a saying that “‘Power tends to corrupt, and absolute power corrupts absolutely”16

- Lord Acton

Whenever there is a mention of the independence of the judiciary, there is always a concern about
the latent dangers of the judicial independence and there arises the importance of “Judicial
Accountability”. The importance of the independence of the judiciary was long ago realized by the

13
Ibid
14
Ibid
15
Ibid
16
Available at https://acton.org/research/lord-acton-quote-archive (last accessed on 26/7/2017)
framers of the constitution which has been accepted by the courts by marking it as the basic feature
of the constitution. It is well known law has to change so as to meet to the needs of the changing
society. Similarly judicial independence has to be seen with the changing dimension of the society.
Judicial Accountability and Judicial Independence have to work hand in hand to ensure the real
purpose of setting up of the institution of judiciary.