INTRODUCTION

The concept of independence of judiciary has its roots rooted deep into the past. The stream of
judicial independence originates from the concept of doctrine of separation of powers. In its
primitive form it means independence of judiciary from legislature and executive, but if we look
into its branches extends to independence of the judges in exercising of their functions too. In
such a case there is not much that is achieved. Judicial independence does not only mean
creation of an autonomous institution liberated from influence of the legislature and the
executive. Instead its spirit lies in ability of judges to decide disputes at hand, according to the
law, uneclipsed from external or internal forces as well as private or partisan interests.
Availability of such independence to the judge only as members of an institution or irrespective
of it is an important element while determining and understanding the meaning of judicial
independence.

The concept of judicial independence varies in its interpretation from depending on the
jurisdiction in context of which it is being discussed. But at the same time this does not change
the fact that it is in turn the cornerstone of law upon which the ethos of democracy rests. Judicial
independence is thus a relative concept which should be conceived only in relation to other
institutional actors.

The independence and legitimacy of the judiciary and efficient administration of justice is
contingent upon the appointment of qualified and independent judges, Courts are nothing but
empty institutions and without an iota of doubt, can contribute to the rule of law only if they
composed of qualified, legitimate and independent judges.

Entrusting the courts with the duty to enforce the fundamental rights of the citizens and uphold
the constitution and the laws, often results in conflict with the state functionaries, thus,
amplifying the significance of an independent and impartial Judicial system manned by persons
of sterling quality, character and competence, encapsulating courage, grit, resolution, impartiality
and independence ready to deliver justice to the needy without fear fervor, ill will or prejudice.
 OBJECTIVES AND RESEARCH ISSUES

The paper is an attempt towards explain the concept and the significance of the independence of
the judiciary in a modern democratic society. The paper seeks to analyze not only the historical
aspects of the same but also the varied classes in to which the judicial independence can be
classified into and whether the independence in one facet is enough to ensure independence in
entirety. The paper further analyses the concept in relation to other benchmarked jurisdictions
and the shortcomings as well as stellar highlights of the same.

The main object of the paper is to analyze the current ordeals compromising the concept of
judicial independence and the factors leading to it, and to what extent does the same damages the
ethos of democracy.

At the end the paper revels the current situation of the autonomy of the judiciary in light with the
prevailing situation of pandemic and seeks to suggest measures for bolstering the same in
relation to the individual judges accepting lucrative “deals” from the private as well as political
outfits which intern is tempering with the spirit of independence of judiciary.
 COMPARATIVE THEORATICAL UNDERSTANDING

Judicial independence is sine gue non of democracy. Democracy in its purest spirit entails that,
the supreme power of state should be apportioned among the three paramount organs, i.e. the
executive, the legislature and the judiciary which in a way creates a system of checks and
balances, ensuring no organ transgresses its authority, constitutional task assigned to the
Judiciary is no way less than that of other two organs, Instead the function and the responsibility
of the Judiciary extends to not only enforcement of the constitutional mandate dictates,
directives, and imperative commands but at the same time to act as a watch dog with respect to
the functioning of democracy thus, the Judiciary has to act as the sentinel sine qua vive1.

Despite a strong constitutional framework enlisting and safeguarding judicial independence,

judicial independence to a great deal is contingent upon as to the executive respecting such
independence. The judicial independence in sync with “UN Basic principles2 are comprised of
the 3 core components which are as follows:

 Impartiality of judgment and the absence of improper influences of any kind

 Exclusive authority of the judiciary over its competence, and
 Absence of any inappropriate or unwarranted interference in the judicial process.”

impartiality, integrity, propriety, equality, and competence and diligence, are core elements of
judicial independence as identified by Bangalore Principles of Judicial Conduct (2002), endorsed
by the UN Commission on Human Rights at its 59th Session in Geneva (2003).

1
UOI v. Sankalchand Himatlal Sheth (1997) 4 SCC 193 at 212.
2
United Nations Basic Principles on the Independence of the Judiciary, endorsed by the General Assembly in 1985
Types of independence:

Apart from the traditional forms of independence as perceived from century, i.e. independence
from the influence of the other organs of the democracy and external sources judicial
independence has more to it than just what, meets the eye.

One distinction exists in form of de jure and de facto independence as highlighted by Ríos-
Figueroa and Staton3. De jure independence exists in form of formally laid out mandates with an
intent to prevent eclipsing of judges from forces either outside or inside the judicial system, on
the other hand de facto independence is behavioral in nature reflects the sovereignty of the judge
while taking a decision on a matter at hand, while the former type of independence can be
observed and measured in conjecture with the yardstick laid out, the latter is almost impossible to
be quantified considering its highly subjective nature.

Another classification can be on the basis of the forces i.e. external and internal independence 4.
The former is widely contingent upon the appointment of the judges, while the latter is
understood with respect to the assignment of a case to a judge.

Another distinction has been made by courts and scholars in form of formal and substantive
independence. Formal independence speaks of the autonomy of the judge in relation to the body
constituting the court in which they serve, which further gets fortified by independence in its
substantive form which is characterized by neutral nature of the judge considering the issue at
hand5. Substantive independence is colored with the ability of a judge to act autonomously and
neutrally in case before them.

The perception of the judicial independence exists, both in respect of the independence of the
institution as a whole as well as in respect of the individual judges. It is this holistic nature which
seeks to fulfill the spirit of the democracy, if either of these facets of judicial independence are
missing the ethos of judicial independence will get hampered. For example if independence is
guaranteed only at the former lever, in isolation to the individual level this may lead to the judges

3
Ríos-Figueroa, J, and Staton, JK, ‘An Evaluation of Cross-National Measures of Judicial Independence’ (2012) 30
The Journal of Law, Economics, and Organization 104.
4
Venice Commission ‘External and Internal Aspects of the Independence of the Judiciary: Report by Mr Guido
Neppi Modona’ (10 July 2012) CDL(2012)049
5
Shetreet, S, Judges on Trial: a Study of the Appointment and Accountability of the English Judiciary (North
Holland 1976).
becoming nothing but mere puppets of the leadership. At the same time judicial independence
only at an individual level, entailing freedom to a judge to pursue its individual preferences, will
invite abuse thus undermining the uniformity and solidity of the law. A stellar reflection of this
principle is evident in the, Japanese judicial system wherein administrative bureaucracy
controlled by the chief justice of the Supreme Court of Japan exercises oversight over the lower
court judges.

Key Features of Judicial Independence in a Comparative Perspective

Indian scenario Constitutional provisions:

Indian Constitution does not lays out a strict adherence to the doctrine of separation of powers in
express terms instead it provides for distribution of power to curtail the transgression of powers
by one organ into the constitutional powers of others, this distribution of power provides a
perfect habitat to a judicial system liberated from external as well as internal forces. Indian
Judiciary has been bestowed with the herculean and onerous task of preservation and
enforcement of the fundamental rights of the citizens, thus preserving the spirit of democracy.

The question of judicial independence was very much on the minds of the members of
Constituent Assembly, thus numerous provisions were made ensuring the same. Independence of
the judiciary from the other organs have been a demand of the constitutional makers before
independence. The concentration of all power under a single umbrella under the, colonial rule
reflected arbitrariness6. Constitution of India specifically directs the state under Article 50 to
separate the judiciary from the executive in the public services of the state. The said article has
been relied upon by the Hon’ble Supreme Court in support of separation of power at all levels,
from the lowest court to the Supreme Court, said article 7 has been relied upon by the court in
solidifying the role of the Chief Justice of India in the appointing the judges of the Supreme
Court and High Court, and in the transfer of the latter, but According to Seervai article is
inapplicable to higher judiciary as it speaks of the separation of judiciary from the only in

6
Law Commission of India, Reforms of the Judicial Administration (vol 2 Report No. 14, September 1958) 851-
852.
7
Supreme Court Advocates-on-Record Association v Union of India, AIR 1994 SC 268
context of the Public Services of the State as Supreme Court and the High Courts are public
offices and not service8. Seervai based his argument upon reliance to Vol.2, Chapter 41 of the
14th Law Commission Report which said that:

“Under the Criminal Procedure Code and other relevant statutes, the functions of a magistrate
fall into three broad categories, namely,- (a) functions which are ‗police‘ functions in their
nature, e.g. the handling of unlawful assemblies; (b) functions of an administrative character,
e.g. issue of licenses for fire arms, and similar functions, and (c) functions which are
essentially judicial, e.g. the trial of criminal cases. These functions were, till the introduction
of the scheme, all performed by the Collector of the district and by a number of magistrates
subordinate to and controlled by him”9

Seervai‘s argument does not holds resolve in this regard as our legal expressions and conceptions
are derived from the English system and the judiciary at all levels is treated as public service
even in England.

The Federal nature of government comprising of the Union and the States as distinct powers and
organs is enshrined in the Indian Constitution. There is a demarcation with respect to legislature
and executives, but there is no demarcation with respect to a separate judiciary 10 .Judicial system
in India is structured in a pyramidal form comprising lower or subordinate courts at the bottom,
the High Courts in the middle, and the Supreme Court at the apex. For, the subordinate courts are
subject to regulation by the respective States with respect to funding and administrative aspects,
but are under the overall supervision of the High Courts11. Union, and to some extent the States
exercise regulative powers over High Courts in relation to the appointment of judges, other staff
and the finances. Union exercises exclusive regulative powers over the Supreme Court 12. This
conscious and deliberate act of the Constitution makers in granting the unitary character to the
judiciary was done with an objective of ensuring uniformity of law, maintenance of the unity of
the country and uniformity of standards of judicial behavior and independence.
8
Singh (n 66) 385
9
Law Commission of India, Reforms of the Judicial Administration (vol 2 Report No. 14, September 1958) 851-852
10
Although the Constitution includes the Supreme Court of India in a part dealing with the Union (entitled ―The
Union Judiciary‖) and includes the High Courts and subordinate courts in the part dealing with the States. The
Constitution does not make a clear division between the Union and the State judiciary as it does with respect to the
other two organs of the State. No court is designated the Union or the State court.
11
Constitution of India, Arts 233-35
12
Constitution of India, Article 146, sch VII
Independence in relation to the appointment of judges.

Entrusting the courts with the duty to enforce the fundamental rights of the citizens and uphold
the constitution and the laws, often results in conflict with the state functionaries, thus,
amplifying the significance of an independent and impartial Judicial system manned by persons
of sterling quality, character and competence, encapsulating courage, grit, resolution, impartiality
and independence ready to deliver justice to the needy without fear fervor, ill will or prejudice.

Supreme Court

Only an Indian citizen who has been a judge of one or more High Courts for at least five years,
or has been an advocate of one or more High Courts for at least ten years, or is a distinguished
jurist in the opinion of the President, can be a judge of the Supreme Court 13. The Judges of the
apex court are appointed by the President on the recommendation of judicial collegium
consisting of five senior most judges of the Supreme Court head by the Chief Justice of India
under Article 124(2)14. Security of tenure is guaranteed to every judge. Removal of the judge of
the Supreme Court or of a High Court can be done only on the ground of proven misbehavior or
incapacity by President’s order passed by majority of the total membership and a majority of
not less than two-thirds of the members present and voting in each House of Parliament in
the same session for such removal 15. Salary and other allowances and privileges specified in the
Constitution, are subject to only upward, revision by Parliament 16. Judges of the Supreme Court
are prohibited from pleading or acting in any court or before any authority in India after
retirement17

13
Constitution of India, Article 124 (3).
14
Constitution of India, Article 124(2)
15
Constitution of India, Arts 124(2) (b), Article 124 (4) and (5)
16
Constitution of India, Article 125 and schedule II; Supreme Court Judges (Conditions of Service) Act, 1958.
Article 125 had to be amended by the Constitutional (54th Amendment) Act, 1986 because the original Article 125
did not provide for upward revision of salary. During a financial emergency the salaries of the judges may, however,
be reduced. See Article 360 (4) (b).
17
Constitution of India, Article 124(7).
The High Courts.

Only a citizen of India who has held a judicial office for at least ten years or who has been an
advocate for ten years can be appointed as a judge 18. The President in consultation with the Chief
Justice of India, the Governor of the State, and the Chief Justice of the High Court appoints the
Judges of the High Court16419. Judges hold office until the age of sixty-two years until they
resign or are removed or appointed to the Supreme Court 20 They hold office during good
behavior. There exists a prohibition on the Judges of the High Court in terms of pleading or
acting in any court or before any authority except the Supreme Court or a High Court in which
they have not served21. The salaries, allowances, and other rights and privileges of the High
Court judges are also specified in the Constitution and are subject to only upward variation by
Parliament22

The Subordinate Courts

Only a person who is in the legal service of the Union or of the State or has been an advocate for
at least seven years, and is recommended by the High Court can be appointed a district judge.
The district judge is appointed by Governor of a State, in consultation with the High Court of
that State23. Governor makes appointments to judicial service of the State below the rank of
district judge in accordance with the rules made after consultation with the State Public Service
Commission and the High Court24.The control of district courts and courts below them, including
the posting, promotion, and grant to leave to members of the judicial service vests in the High
Court.

18
Constitution of India, Article 217(2).
19
Constitution of India, Article 217(1).After 1993, the judges of the High court are appointed by the collegiums
system established by the Supreme court of India in the case of Supreme Court Advocate-on- Record Association v
Union of India, AIR 1993 SC and In re Presidential Reference case, AIR 1996 SC
20
Constitution of India, Article 217(1) & proviso. The age of retirement was raised from 60 to 62 years by the
Constitutional (15th Amendment) Act, 1963
21
Constitution of India, Article 220.
22
Constitution of India, Article 221. Amended by the Constitutional (54th Amendment) Act, 1986 to provide for
upward revision.
23
Constitution of India, Article 233 (1).
24
Constitution of India, Article 234.
 JUDICIAL APPROACH

In the celebrated decision of the Supreme Court in S.P. Gupta Vs Union of India25, the
Constitution Bench of the Supreme Court held that;

“Judges should be of stern stuff and tough fibre, unbending before power, economic or political,
and they must uphold the core principle of the rule of law which says Be you ever so high, the
law is above you. This is the principle of independence of the judiciary which is vital for the
establishment of real participatory democracy, maintenance of the rule of law as a dynamic
concept and delivery of social justice to the vulnerable sections of the community. It is this
principle of independence of the judiciary which we roust keep in mind while interpreting the
relevant provisions of the Constitution.”

In year 1993, another Constitution Bench in the Second Judges Appointment Case26 held that:

“Independence of Judiciary is the sine qua non of democracy. So long as the Judiciary remains
truly distinct from both the Legislature and the Executive, the general power of the people can
never be endangered from any quarters. Montesquieu in his book Spirit of Laws observed there
is no liberty, if the power of judging be not separated from the legislative and the Executive
powers”.

The basic structure doctrine was first asserted by the Keshvananda bharti case27 in 1973 and later
reaffirmed in Minerva mills vs Union of India28 (1980). Under the basic structure doctrine, the
court has the power to invalidate constitutional amendments that violate the basic structure or
basic features of the Indian Constitution. Based on previous decisions, jurists have suggested that
secularism, democracy, the rule of law, federalism, equality and judicial independence are all
basic features of the Indian Constitution, though this is still contested terrain and not necessarily
an exhaustive list of features.

25
S.P. Gupta Vs Union of India, 1982 (2) SCC 831
26
Supreme Court Advocates-on-Record Association & Anr. Vs Union of India declared 1303 of 1987
27
Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461
28
Minerva mills vs Union of India AIR 1980 SC 1789, 1981
 CRITICAL ANALYSIS

The Indian Constitution, in contrast to its American counterpart, does not follow the doctrine of
Separation of Powers in its strict sense, but independence of the judiciary has been regarded as
the basic structure of the constitution time and time again. Judicial independence and impartiality
in relation to the constitutional goals, requires the Judges to act fairly, reasonably, free of any
fear and favor. The judiciary stands between the citizen and the State as a firewall ready to
neutralize any threat posed by the misuse or abuse of power by the executive to the fundamental
rights of the citizens of India. Thus considering the herculean responsibility bestowed upon it , it
is paramount for the judiciary to be autonomous from pressure or influence of executive.

Concerns often arise about the influence of the executive or general ‘political motivations’ in the
appointment process of judges. The influence exerted by interest groups in judicial selection is
particularly prevalent in the US. This was the case for the Supreme Court nomination of Judge
Robert Heron Bork in 1987, where the interest groups influenced the outcome of the Senate’s
vote. However, the executive should not pack a court with its own political sympathizers.

As pointed out before the independence has to be seen not only from the lens of the only
executive pressure or influence, but also from any other pressure and prejudices. If “impartiality”
is the soul of the judiciary, “independence” is its lifeblood. One cannot thrive without the other.
It is the autonomous nature of the judiciary which provides the judicial heaven where a judge can
work with utmost commitment in sync with constitutional values. Judicial independence is
contingent upon, not only the philosophical, ethical or moral aspects but other factors namely
security in tenure, financial security, freedom from influences and pressures.

Factors affecting Independence

Security of Tenure

Security of tenure can be observed in relation to the appointment of the judges either for life as
prevalent in USA or until a specific retirement age or amount of years on the bench as prevalent
in India. Tenure security removes the sword of dismissal on account of unpopular decision or
decisions contrary to the will of the executive or prevailing political forces, looming over the
neck of the judges and empowers them to act in accordance to what they believe is right under
the law. This further prevents the Judges from seeking the opportunity have to win favor with the
executive after their tenure has ended.

In this aspect the constitution of the USA creates a water tight provision in Article III allowing
federal judges to hold their positions ‘during good Behaviour’. Thus judges in states effectively
have lifetime appointments, as long as they satisfy the ethical, legal and competence standards of
their judicial office.

Remuneration and Financial Independence

Another important component of judicial independence is financial independence. Eradication of

the temptation to take bribes or favor is another reason as to why the judges are compensated
generously world over, with the provision of only upward revision of their pay scale in the
Indian Constitution. Financial interest of a judge in a case before them, not only demands
revelation of the same by the judge concerned but also requires the judge to recuse themselves
from hearing such a case. German Basic Law guarantees adequate remuneration for judges that
is fixed by law29. In order to prevent temptations arising out of financial insecurity It is
important that the state allocates sufficient financial and other resources to the judiciary.

Extensive control of the executive on the judiciary’s budget as prevalent in USA keeps judges
worrying about their financial independence. Such a power of executive inflicting de facto pay
cuts on judges may arguably threaten the independence of the judiciary.

Recent Indian ordeals raising eyebrow with respect to the judicial independence

Recent nomination to Rajya Sabha of the the former Chief Justice of India, Ranjan Gogoi after
less than 6 months of his retirement, in the after math of his involvement in crucial judgments
including the Rafale Deal case30, the Ayodhya case31 and the Assam NRC case32, which were
directly resulting out of the present BJP led government more importantly all the judgments
being ruled the way that the government preferred. Furthermore, the appointment of former CJI
P. Sathasivam as Governor of Kerala within 6 months of his retirement after he lead the bench
dismissing the second First Information Report (FIR) in Sohrabuddin Sheikh case against Amit
Shah in a fake encounter. Not only just question but also answer the very question as to whether
the judiciary is really independent in India? The question whether these appointments were made
because of the credibility or as a favor can be answered by anyone with reasonable prudence.
This conduct as portrayed by the political outfits and press institution as a young aspect is not
new, but there have been many such incidents in the past under congress regime when Rangnath
Mishra and M.C. Chagla did the same thing.

Nemo iudex in re sua the rule against bias which lays out that a person cannot be a judge in its
own case, in order to eradicate possibility of judicial bias was again hindered when, report of the
investigation of a sexual harassment complaint against the CJI was not even made public citing
Indra Jaising Vs. Supreme Court which in my view is a clear infringement of the principle of
natural justice. And the tyranny does not ends here the person accused in the said case i.e. Chief
Justice Ranjan gogoi headed the bench which delivered the verdict in the case .
29
Seibert-Fohr, A, ‘Constitutional Guarantees of the Independence of the German Judiciary’ in Wolfrum, R, and
Riedel, E, (eds), Recent Trends in German and European Constitutional Law (Springer 2006) 267
30
Manohar Lal Sharma v. Narendra Damodardas Modi WP (Crl.) 225/2018; RP (Crl.) 46/2019
31
M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors SCC OnLine 1440, decided on 09.11.2019
32
Assam Sanmilita Mahasangha & Ors vs Union Of India & Ors
State of Jammu and Kashmir for nearly 6 months suffered from the absence of Internet services
thus Depriving Around 12.5 people of functional internet and hampering the business and
livelihood of the general public, on a petition being filed on this issue the Hon’ble Supreme
court procrastinated this matter of utmost importance.

Amid the catastrophe inflicted due to the outbreak of covid-19 virus worldwide the Supreme
Court decided to hear only urgent cases taking into account the social distancing during the
scenario where tens of millions of migrant workers were stranded without basic necessities of
food the Supreme Court heard the petition filed 33 by journalist Arnab Goswani close aid of the
present government, for quashing of an FIR’s instead of the petition filed by Jagdeep Chokkar
for the return of those stranded workers.

Furthermore the The Hon’ble Supreme court’s judgement in the long drawn Babri mosque
demolition case, wherein the court acquitted all accused all affiliated to BJP and affiliated outfits
stating the demolition as the act of god, further eclipses the belief of independence of udiciary
and paints an institution which is religiously followed in other country merely as a puppet of the
overpowering executive holding overwhelming majority which is nothing but the travesty of the
justice.

33
Arnab Ranjan Goswami v. Union of India & Ors 130 of 2020
 CONCLUSION AND SUGGESTIONS

Members of the Judiciary are entrusted with the unfillable responsibility of being the
administrators of justice which in the long run ensures to keep the spirit of democracy alive and
ensures public confidence in the institution called “judiciary”. The independence of the judiciary
cannot be ensured in isolation of the independence of the subjects constituting it i.e. the judges
who strive to ensure free and impartial administration of justice in order to provide its citizens
fairness in application of law. Judges are entrusted with a very pious duty of regulating the
democracy for ensuring the same the constitution has provided for independence of in order for
it to remain impartial while serving constitutional goals and thus act reasonably, fairly and free
of any prejudice.

The controversy initiates when other organs start to meddle with the sanctity of the institution.
These alien forces not only poison the pool of piousness but also strike at the faith of the general
public in the sanctity or purity of the institution, thus shaking the foundation of the democracy.
This has been the case in India from the date when the nation assumed independence the
independence of the judiciary has been talked highly and has been presented in a rosy frame, but
right from then regime of congress lead by Indira Gandhi imposing emergency to the current
regime of BJP led by Hon’ble prime minister Narendra Modi, the independence of judiciary has
just been a dead letter concept, the only difference that has been is merely of the highlighting of
the same, which in the modern era fueled with social media has become a rampant feature.

Recently we have seen retired judges taking money milking positions in the regime in power and
surprisingly those have been the same individuals who have delivered important judgements in
the recent past that even in the favor of the majority regime, which is a very worrisome but a
harsh reality. The prerogative of the courts in hearing needless petition to the comfort of the
allies of the political outfits in force while turning a blind eye towards the needy goes on to
reflect that the judiciary has become nothing but puppet controlled by the overpowering
executive holding thumping majority, crusading at its own political will.

There is no way of ensuring the independence of the institution like judiciary without making a
formidable and iron clad guide governing the conduct of the judges concerning their behavior
post their retirement, which can include an aspect of cooling off period of 5 years or more thus
preventing a retired judge from accepting any political or related roles in the current serving
regime, this will to a large extent remove the possibility of judges getting lured with political
offers and in long run bolster the “concept” of judicial independence.

Furthermore another effort could be made towards providing the financial security to judges by
increasing their pay scale which comparable to other jurisdictions of the world is relatively low
considering the caseload handled by the Indian judges, but this may or may not put a curb on the
current malpractices as the greed has no limit.