INDEPENDENCE OF JUDICIARY

Importance of independence of the judiciary is very important facet of democracy, like our
country. Independence of judiciary can be achieved by prohibiting interference from the
Government (i.e. legislature and executive). In a democratic set up only an impartial and
independence judiciary can protect the rights of person and can provide justice without fear
or favour. In a democratic country like India judiciary is custodian of rights of citizens.
Therefore 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 it. And the question is how these
two objects can be secured”.

The people of a nation may lose confidence in the Executive, or the Legislature but it will be
an evil day if they lose their confidence in its judiciary. The judiciary is the guardian of
human rights and civil liberties. The judiciary contributes vitally in the preservation of peace
and order by settling disputes between the State and Citizens and among citizens which leads
to a harmonious and integrated social existence. The quantum of its contribution, however,
largely depends upon the willingness of the people to present their problems before it and to
honour its decisions. Equity, Justice and good Conscience is an accepted principle of judicial
functioning in almost every legal system. The judicial institutions i.e., the Courts are not only
Courts of law, they are also the Courts of justice.

The basic principles ensuring the independence of the judiciary should be set out in the
constitution. Judges are subject only to the law and their decisions should not be revised
outside the appeals procedure. All decisions regarding the appointment and the professional
career of judges should be based on merit, by means of the application of objective criteria.
The evaluation of judges should never be based on the content of their decisions and, in
particular, acquittals should in no way be considered as a sign of failure.

Following provisions are given in our constitution to ensure the independence of the
judiciary:
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.

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.

In the Judges transfer Case (S. P. Gupta v. Union of India), the Apex Court submitted to
dominance of Executive in matter of transfer of Judges. The Court has held that the
expression “consultation” did not mean concurrence and executive was not bound by the
advice given by the Judges. The Central Government is not bound to follow the advice by
legal expert. The word “consultation” used under Article 124 (2) stands same meaning as the
word “consultation” used under Article 212 and 222 of the Constitution. Thus, the
appointment of the Judges of the Supreme Court and the transfer of the high Court Judges
have solely been vested in Executive from whose dominance the judiciary is expected to be
free and independent.

In S.P. Gupta v. Union of India case Justice P. N. Bhagwati had suggested for constitution
of Judicial Commission to deal with the appointment of Judges of Supreme Court and also
transfer of High Court Judges.

However, the Supreme Court in Landmark Judgment S. C. Advocates on Records

Association v. Union of India has held that the opinion of Chief Justice of India must be
given the greatest weight in the selection of Judges of Supreme Court and High Courts and in
the transfer of Judges of Judges of High Courts. The Court said that selection should make as
a result of participatory consultative process. It means the dominance of Executive is reduced
and to certain extent political influence is eliminated. The Court further said that, No
appointment of Judges to the Supreme Court and any High Court can be made without
conformity with the opinion of the Chief Justice of India. However the criterion of the
appointment of the Chief Justice of India shall be seniority. This judgement of the Supreme
Court would last for a long time in ensuring the impartiality and independence of Judiciary
which is one of the basic structures of our Constitution.

Recently, Legislature also enacted National Judicial Appointments Commission (NJAC)

which was the proposed body which would have been responsible for the appointment and
transfer of judges to the higher judiciary in India. The Commission was established by
amending the Constitution of India through the ninety-ninth constitution amendment with the
Constitution (Ninety-Ninth Amendment) Act, 2014 or 99th Constitutional Amendment Act-
2014. The NJAC would have replaced the collegium system for the appointment of judges as
invoked by the Supreme court via judicial fiat by a new system. On 16 October 2015, the
Constitution Bench of Supreme Court by 4:1 Majority upheld the collegium system and
struck down the NJAC as unconstitutional after hearing the petitions filed by several persons
and bodies with Supreme Court Advocates on Record Association (SCARA) being the first
and lead petitioner thereby ensuring the independence of Judiciary in its entirely.

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)) and
62 years in the case of judges of the High Courts (Art. 217(1)). 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.

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)) except in the event of
grave financial emergency.
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 and making judiciary independent.

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 provide 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.

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.

Conclusion

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.
Lord Acton say’s that, “Power tends to corrupt, and absolute power corrupts absolutely”.

The final outcome of the above discussion is that the importance of the independence of the
judiciary was long ago realized by the 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.