INDEPENDENCE OF JUDICIARY : MYTH OR REALITY

MAHARISHI DAYANAND UNIVERSITY, ROHTAK

ESTD. 1985

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ABOUT PARTICIPANT :

 NAME OF PARTICIPANT : Anjuman Jangra

 CLASS OF PARTICIPANT : III Year V Semester

 ROLL NO. OF PARTICIPANT : 306

 COURSE : B.A.L.L.B (Hons.) 5 Year Course

 NAME OF DEPARTMENT : Faculty of Law

ABOUT COMPETITION :

 MEDIUM OF TOPIC : English

 NAME OF TOPIC : Independence of Judiciary : Myth or Reality

 TOTAL PAGES :

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 INDEPENDENCE OF JUDICIARY : MYTH OR REALITY

“The bedrock of our democracy is the rule of law and that means we have to have an
independent judiciary, judges who can make decisions independent of the political winds
that are blowing.”

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INTRODUCTION

India is the example of dependence over 300 years. In the history of long journey for freedom,
India was being exploitated by foreigner powers. The rights of the Indians were never regarded
even during the English administration. After the advent of East India Company till 15 August
1947, English rule introduced the concept of judiciary and made several improvements in the
course of time. The injustice caused by the courts established during English Rule can be well
explained by the cases of Cossijurrah and Raja Nand Kumar. During the atrocity of the
English rule on the rights of Indians, the thirst of independent judiciary was felt but was not
satisfied. India got independence after long struggle and sacrifices of several freedom fighters.
After getting independence on 15 August 1947, India enacted its own Constitution on 26
November 1949 which came into force on 26 January 1950. After the Constitution of India came
into force, the framer of Indian Constitution constituted India into Soverign, Socialist, Secular,
Democratic, Republic and secured Justice, Liberty, Equality, Fraternity, Unity and Integrity to all
of citizens of India. Thus, the Constitution of India has established a Rule of Law and set the idea
of noble concept of Equality, Justice and Liberty. Without making the judiciary independent, the
Justice, Liberty and Equality cannot be secured.The independent Judiciary can only be a
watchdog of Fundamental Rights guaranteed under Part- III of our Constitution.

As the framework of Indian Constitution is based on democratic mechanism, our judiciary is the
guardian of noble ideals established by our Constitution. Democratic mechanism depends upon
the Rule of Law and Rule of Law requires such a judiciary which is free from political pressure.
Hence, the independence of judiciary is the prime necessity for achieving the goals contained in
the supreme document called The Constitution of India

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 INDEPENDENCE OF JUDICIARY : MYTH OR REALITY

MEANING OF INDEPENDENCE OF JUDICIARY

As we know that the independence of judiciary is sine qua non of rule of law and democratic
atmosphere, the independence of judiciary means –

 The other organs of government must not restrain the functioning of judiciary in such a
way that it is unable to do justice.
 The other organs of government should not refrain with the decision making power of the
judiciary.
 Judges must be able to perform their functions without any fear or favour from any
external agency.

Impartiality is also the the basic character of independence. The security of the tenure of the
judges, salaries and emoluments, ability and competency of judges are also the components to
secure the independence of judiciary but we should not confuse independence and
accountability. The arbitrariness and absence of accountability is poison for killing the
independency of judiciary. Our judicial system is organic and grows like a body. As body needs
oxygen to grow, in the same way independence of judiciary needs accountability.

Montesque’s theory of separation of powers cannot be applied technically in a democratic

system. Each organ must be accountable to each other for the smooth running of democratic
mechanism. In real sense, independence of judiciary does not mean an autonomous body free
from all types of control of the executive or legislature of the state. In true sense, Independence
of judiciary depends upon the freedom of judges to decide the matter without any fear with no
pressure from external agency.

NEED OF INDEPENDENCE OF JUDICIARY

The judiciary is the connective pillar between rights of citizens and powers of state. It is only the
judiciary which is competent to secure the rights of the citizens. While enjoying the rights and
exercising the powers, the emergence of disputes is sine qua non. When disputes arise between
the states, their settlement by the third eye is necessary. The two eyes of a person cannot see
different things at the same time. So, it is the judiciary which can settle the disputes arising
between the Centre & States and b/w Citizens & States. All persons are subject to same rule of
law whether they are poor or rich, man or woman, or forward or backward.
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Independent Judiciary safeguards the the rights of the individuals, settles disputes in accordance
with the law and ensures that democracy does not give way to individual or group dictatorship.
Thus, in order to achieve all these goals, it is necessary that the judiciary is independent of all the
external agencies.

HISTORICAL PROSPECTIVE OF INDEPENDENCE OF JUDICIARY

Montesque was the first french political philosopher who gave the idea of separation of powers.
He suggested that the three organs of the government must be separated from each other. His
idea was adopted by the Constitution of USA and its judiciary was made independent. In UK,
judicial pattern is not of like USA. The House of Lords is supreme. In UK, judiciary is not
competent to declare a law passed by the legislature to be unconstitutional. In USA and India,
judiciary is vested with the power of judicial review.

OBJECTIVE OF INDEPENDENCE OF JUDICIARY

Independence of judiciary is sine qua non of democracy. In democratic system, the powers of
the State are divided into three organs-Executive, Legislature, Judiciary. Legislature is vested
with the power of enacting laws. Executive ensures the implementation of laws. Judiciary is
vested with the power to keep a vigilance over the functioning of the above said two organs in
accordance with the commands of the Constitution. Our Constitution does not recognize the rule
of Montesque in strict sense. Our Constitution distributes the powers and functions among the
three organs. The Supreme Court and High Courts has/have power to examine the constitutional
validity of the laws enacted by the Legislature

INDEPENDENCE OF JUDICIARY : A REALITY

In India, the is no express provision regarding independence of judiciary but is embedded in the
letters of various provisions of the constitution. In S.P. Gupta v/s Union of India (AIR 1982
SC), it was observed by the hon’ble SC that independence of judiciary and rule of law are the
basic features of the constitution and it cannot be abrogated even by constitutional Amendment.

After the study of various provisions of our Constitution, it is derived that independence of
judiciary is the spirit of the constitution and must be saluted by the other organs of the
government. Supreme Court is the guardian of the constitution. In order to maintain the

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supremacy of the Constitution, there must be an independent and impartial judiciary. The
Supreme Court is the final interpretor of our Constitution. The Supreme Court is vested with four
kinds of jurisdiction i.e., Original, Appellate, Advisory and Writ. Article 129 of our Constitution
declares Supreme Court as A Court of Record. The Supreme Court is vested with the power to
enforce Fundamental Rights guaranteed under Part-III by issuing various writs.

Article 136 of our Constitution gives a very wide power to Supreme Court to give special leave
to appeal from the judgements passed by the lower courts.

Article 141 of the Constitution provides that the decisions of Supreme Court shall be binding on
all the courts in India.

Several provisions which ensures independence of judiciary are as under :

1) Security of Tenure : The judges of the Supreme Court and High Courts cannot be
removed from their office except by the procedure of impeachment.
2) Salary of Judges fixed : The salaries and allowances of the judges of Supreme Court and
High Courts are fixed by our Constitution and are charged on the Consolidated Fund of
India.
3) Enlargement of Jurisdiction of Supreme Court and High Courts : Article 138 of
Constitution makes provision regarding enlargement of Jurisdiction of Supreme Court .
Article 238 of our Constitution makes sure that jurisdiction of High Courts be extended.
Thus, it is clear that parliament has no right to curtail the jurisdiction of High Courts and
Supreme Court.
4) No discussion to take place in legislature about conduct of judges : Article 121 of the
Constitution ensures that no discussion would take place in legislature regarding conduct
of judges of High Courts and Supreme Court.
5) Punishment for contempt of courts : Article 129 and 215 of our Constitution makes
provision regarding punishment for contempt of Supreme Court
6) Article 50 of our Constitution provides for separation of Judiciary from Executive in
public services of State.

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7) Another point which highlights independence of judiciary is that judges of High Courts
and Supreme Court cannot practice in any other court after their retirement. The
same is provided by Articles 220 and 124(7) respectively.

Thus, the position of Supreme Court is very strong and its independency is guaranteed by the
Indian Constitution.

INDEPENDENCE OF JUDICIARY : A MYTH

However, independence of judiciary is secured but there are some jurists who hold the opinion
that such independency is not free.

Article 124(2) of our Constitution vests the legal power of appointment of judges of Supreme
Court in the hands of President.

In Judges Transfer Case [S.P. Gupta v/s Union of India (AIR 1982 SC)] the Supreme Court
interpreted the word “consultation” liberally and held that executive is not bound by such
consultation. Executive is free to appoint judges of Supreme Court and transfer the judges from
one High Court to other. Hence, the Supreme Court has itself destroyed the independence of
judiciary.

Subsequently (Supreme Court Advocates-on-record v/s Union of India) is a case which

overruled the decision of Judges Transfer Case. In this Case, the Supreme Court held that the
opinion of Chief Justice in the appointment of judges of higher judiciary is binding on the
President. Executive (President) is not free to act on its wish. By this decision, political influence
is omitted.

In the history, we have seen the dispute between executive and judiciary. Raj Narayan v/s State
of Uttar Pradesh (AIR 1975 SCR 333) is the instance of such conflict. Now-a-days, the
independency of judiciary is at stake. Some actions of government and judges put it at peril.
Some examples of interference of government which are likely to affect independence of
judiciary are as under :-

 Appointment of retd. Chief Justice of India Ranjan Gogoi as member of Rajya Sabha.
 In 1991, retd. Justice Raghunath Mishra was appointed as member of Rajya Sabha.

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 Justice P.Sathashivam was appointed as Governer of Kerala.

 Justice M.C. Chagla was appointed as an Ambassador in USA Embassy and later on,
as Minister of Education in Nehru’s Government.
 Justice M.Hidayatullah was appointed as Vice President of India in 1970.
 Behrul Islam was a member of parliament from Rajya Sabha. Then, he was appointed
as judge of Supreme Court and again became member of Rajya Sabha.

It is submitted that such a behavior must be stopped in order to maintain the independency of
judiciary. The duty of judges is pious and it must be exercised only to secure the end of justice
with fair play.

CONCLUSION

From the perusal of above definition, it is crystal clear that the Supreme Court is the guardian of
the Constitution of India and is responsible for securing the Fundamental Rights contained in
Part-III of our Constitution. The judges of Supreme Court must abstain from receiving post-
retiral benefit from government. Inspite of some defects in independency of judiciary, its reality
cannot be denied. From the enforcement of Constitution from 26 January 1950 to till date, we
have experienced that our judiciary has acted independently without any political pressure.
Judicial Activism has become the peculiar feature of democracy. Judicial Activism has played a
clinching role in our democracy. The judiciary has been substantially acting for securing the end
of justice whether we may take the example of cases of Menaka Gandhi v/s Union of India or
the case of Keshavananda Bharati v/s State of Kerala. The independency of judiciary cannot be
secured only by enacting laws and making provisions regarding it in Constitution. It may
positively be secured by the behavior of judges and their devotion to big document called “The
Constitution of India”.

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