STUDY ON INDEPENDENCE

EMPRICAL NATURE
AND POLITICAL
OF JUDICIARY
JUDICIAL PR0CESS IN INDIA
OF

DOCTRINAL RESEARCH PAPER IS SUBMITED TO G.M.LAW

(A NON UNIVERSITY TOWARDSTHE
cOLLEGE,PURI AFFILIATED TO M.S LAW
PARTIAL FULFILMENT OF LLM)

2021-2022 18

SUBMITTED BY:

AASTHA PRAJNA PATRA

ROLL NO. -2111121001

2nd SEMESTER LLM

UDAN
LAW UN

AVERS
CUTTAc ODISHA

DER THESUPERVISION &GUIDANCE OF:

Dr.S.D.MOHARANA

1
DECLARATION

hereby declare thhat this project entitled "AN EMPRICAL STUDY ON

Ido JUDICIARY &POLUTICAL NATURE OF JUDICIAL
INDEPENDENCE OF
PROCE SS"is arecord of bonafide research carried out by me under the
supervisionand guidance of Principal Dr.S.D.Moharana ,facultyyofof Law,
Law
Gangadhar Mohapatra Law College,Puri in the partial fulfillment of
project report to be
submitted for the Mandatory Course "RESEARCH
TRAINING AND METHODS OF LEGAL WRITING".
Ifurtherdeclare that this study has not previously formed the basis for
the award of any degree,diploma or other similar title of recognition
This is my originalwork and has not been presented earlier in this
manner. This information is purely of academic interest and passion
over the subject.
An error oromission that might have occurred is totally un-intentional
and unfortunate and l expressapology for the same.

Date: (282022

AASTHA PRAJNA PATRA

ROLL NO2111121001

2
 GUIDE CERTIFICATE
certifythatthe Project Report entitled "AN EMPRICAL STUDY
Thisisto
INNDEPENDENCE OF JUDICIARY AND POLITICAL NATURE OF JUDICIAL
ON
PROCESS ININDIA" being submitted by AASTHA PRAJNA PATRA bearing
Roll Number:2111121001lin the partial fulfillment of the requirement
of the bona fide work carried out at G.M.LAW
fortheaward
cOLLEGE,PURI under my supervision.

(Dr.S.D.MOHARANA)
Guide

Date: 12.2022
Puri

3
 ACKNOWLEDGENENT
deemit my
proud priviledged to express my indebtedness and sincere
I
thanksto
allthose who have in various ways helped me in completion
w
project would not have been areality.
ofthis
extremelythankful to my Guide and also the Principal of the
lam
college Dr.S.D.MOHARANA for believing in me and supporting me to
project.
do this challenging

(AASTHAPRAJNA PATRA)
ROLL NO. 2111121001
-nd SEMESTER OF LLM

4
TABLES OF CONTENTS

TITLE PAGE
SL NO. NO.
ABSTRACT
INTRODUCTION
MEANING AND 10
3 DEFINITION OF
JUDICIAL PROCESS
RESEARCH 13
QUESTIONS
SIGNIFICANCEOF 13
5
STUDY
THE PROBLEMS OF 15
THE STUDY
OBJECTIVES OF THE 16
STUDY
HYPOTHESIS 16
METHODOLOGY 17

10 NEED FOR 17
INDEPENDENCE OF
THE JUDICIARY
11 COMPONENTS OF 18
THE JUDICIARY
11.1 INTERNATIONAL 18
PROVISION
11.2 INDEPENDENCE OF 21
JUDICIARY IN INDIA
12
RELEVANT
PROVISION 26
RELATING
TOJUDICIAL PROCESS
5
 IN COSTITUTION OF
INDIA
CASE LAWS 28
13
RECENT CASE LAWS 31
13.1
DATA 33
14 DESCRIPTIVE STATICS 34
14.1 EMPRICIAL STRATEGY 41
15
SPECIFICATION 41
15.1

15.2
LOGARITHMIC 42
TRANSFORMATION.
HETEROSKEDASTICITY
AND OUTLETS
16
CONCLUDING 43
REMARKS
17
REFERENCE 44

18
ANNEXURE 45

6
 ABSTRACT
Importanceofindependence of the judiciary is very important facct
democracy, ike our country. Indepedence of judiciary can be
of
achicved by prohibiting interference from the Governmnent (i.e.
legislature and exccutivc).In a democratic set up only an impartial
andindependencc judiciary can protect the rights of person and
sociCty.
Itis a well-known fact that the independence of the judiciary is the
basic can provide justice without fear or favour. Therefore it is
importantthat all the judicial system (i.e. Supreme Court, High
CRurt and District Court/ Lower Court) should be allowed to
perform its function without any pressure. In a democratic country
ike 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 t. And the question is how these
two objects can be secured".
The Indian Constitution though it does not accept the strict
doctrine of separation of powers vouches for an independent
judiciary both at the national leveland in the States. It is
astonishing that whereas the Constitution took precautions to
protect the respective heads of the Executive and the Legislature
and its members with clear enactment of provisions conferring
mmunities and privileges upon them and of safeguarding their
dignity and honor in due proportions it took no similar steps to
7
 protectthe members of judiciary and to Vouchsafe the
status and
dignity of their but seemingly obvious. It is a constitutional
to aspire, to secure justice, social, economic and political, to paradox
the
citizens without securing the infallibility of the
justice. However, the independence of judiciary dispensers
is
of
guaranteed by the Constitution by sufficiently
providing security of tenure and
fixed salary for the judges of the Supreme Court and High 342
Courts. Butin fact the independence of
judiciary is being affected
the factors like. inadequate salary and pension,
temptation of
weemployment in a high government job after retirement ad-hoc
appointments and the interference of the
executive in the
appointments and transfer of judges.
Keywords: Independence, Judiciary,
Constitution.

1.INTRODUCTION:
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. Therefore it is important
that all the judicial system (i.e. Supreme Court, High Court and
District Court/ Lower Court) should be allowed to perform its
function without any pressure. In ademocratic country like India
Judiciary is custodian of rights of citizens. Therefore the framers of
the Indian Constitution at the timeof framing of our constitution
were concerned about the kind of judiciary our country should
This concern of the members of the constituent assembly was
Tesponded by Dr. B.R. Ambedkar in the following words:
 "There can be no difference of opinion in the House that our
judiciary mustbe bothindependent of the executive and
must can
be competentin it. And the question is how these two objects also
be secured". Now a prominent question 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 itself competent. The answer to this question
lies in the very basic understanding that so as to securethe
stability and prosperity
prosperity of the society, the framers at that time
understood that such a society could be created only by
guaranteeingthefundamental rights and the independence of the
guardand enforce those fundamental rights. Also in a
judiciary toguard
country like India, the independence of the judiciary is of utmost
inortance in upholding the pillars of the democratic system hence
ensuring a free society. lt 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. Ruleof law that is
responsible for good governance of the country can be secured
through unbiased judiciary .The doctrine of Separation of Powers
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. 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 itself. An independent judiciary supports the base of
theoretically
doctrine of separation of powers to a large extent. It is for
the judiciary as
very easy to talk about the independence of constitution but these
in our
which the provisions are provided for
our constitution can only
provisions introduced by the framers of major task
towards the independence of the judiciary. The of the
uate functioning
lies in creating a favourable environment for the
 judiciaryin which allthe 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
beguarded againstthe changing economic, political and social
senario,

2.MEANING &DEFINITION OF
PROCESS: JUDICIAL
Judicial Means:

Relating to administration of justice or the function of a judge.

Process Means

Coriesof actions directed to some end or

of changes and to handle according to a continuous action or series
routine procedure.
JUDICI L PROCESS MEANS:

Judicial And Process read together means

everything done by judge
in the process of delivery of justice. It basically
studyof is" to "ought" of the law. confines itself to the
Judicialprocess is basically "whole complex phenomenon of court
working"
By now we have understood what is
Judicial Process. Now we move
forward see what is the perspective of various Legends in the
to
of law in this regard. Anything said about the field
term is incomplete n
this area of law without talking about
Benjamin Cardoz0.

10
 The Nature of the Judicial Process, Benjamin Cardozo, who later
In on the Supreme
Court of America, accepted the fact that
served
makelaw. However, he stated that:
judgesdo
"He (the judge) legislates only between gaps. He fills the open
spaces in the law. How far he may go without
travelling
beyond the walls of the interstices cannot be staked out for
him on a chart. He must earn it for himself as he gains the
learn
sense of fitness and proportion that comes with years of
habitudein the performance of an art."
Cardozo, J. further states that justice, accordingto law means:
"The judge, even when he is free, is still not wholly free. He is
not to innovate at pleasure. He is not a
knight-errant roaming
at will in pursuit of his own ideal of beauty or of goodness. He
is to draw his inspiration from consecrated principles. He is
not to vield to spasmodic sentiment, to vague and
unregulated
benevolence. He is to exercise a discretion informed by
tradition, methodized by analogy, disciplined by system, and
subordinated to 'the primordial necessity of order in the social
ife'. Wide enough in all conscience is the field of discretion
that remains.

9 Jackson, J.
"we are final, not because we are intallible, we are infallible
because
we are final,"

W. Freidmann said

"Justice is an irrational concept".

Legal Maxim
Justice delayed is justice denied.
Ine case lands in a court and is brought to a
logical end and when
he justice is delivered judges adopt various
methods to deliver
Justice arnd lay down several principles for expeditious delivery of

11
 justice. Judges follow certain methods but over time many Supreme
court has also laid down certain principles which are followed by
lowerjudiciary.
In modem democracies, Sate is a protector of the public's rights
and ibertics and provides justice through its third pillar i.e.
judiciary. Therefore, judiciary is the main source of judicial process
and it is thc life
and blood of justice. This
"orrective justice" of law. It demands the integral
is based on
sTstem.Judicial proccss is important weaponuniformity in the legal
and paramount norn
justicefor strengtheningthe uniform
of legal integrals.
mhe common law countries like England recognized
as rule of practice rather than rule of law,
judicial pr0cess
rement in the hierarchicalbecause
is essential requirement rule of practice
system of the Courts,
This system demands the uniformity in the legal
nrocess should be followed by the Courts because integals. Judicial
it marks the path
of justice.
In Indian Context Hon'ble Former CJI of
India, A.M. Ahmadi said:
".....to understand judicial Process in
India we must
understand why the nature of the judicial process in India has
undergone a metamorphosis; the reasons
underlying the
expansion of the scope of judicial review and the
such a response; and the need for, and factual legitimacy of
has reality of, what
euphemistically been called "judicial legislation".
H. L. A. Hart also accepted the
judicial process as binding and
authoritative force on lower Courts under the rule of recognition. He
asserts that Acts of Parliament, and
decisions, have the force of law because presumably also judicial
Judges,
private citizens recognize that primary rules are to be officials and
identified by
reference to certain criteria, one of which is the enactment by the
legislature makes law, and another of which would state that
Certain parts of certain judicial pronouncements bind other CourtS
n the Court's hierarchy. In this way Hart recognized the
Judicial

12
 precedent as process of the Court is binding in
urts on the same manner as legislation.
nature on the lower
3.RESEARCHQUESTIONS:
This rescarch paper focuses and tries to answer the following
question:

1. What is the significance of the study?

). What is the need of importance of judiciary?
3. What are the components of
4 What are the independence
provisions ensure for the
of judiciary?
judiciary? independence of
5 What are the relevant case laws
independence of judiciary? related to the provisions of
6. Draw the graph and
table which gives the
pending cases filed by senior citizen proportion of
7. Draw the graph and
table
pending cases filed by women. which gives the proportion of
8. Draw the graph and table
which gives the proportion of
pending cases for over 10 years.
9. Draw the graph and
table which gives the proportion of
pending cases which are criminals.
The above research made a
in answering the above spot significant and considerable effort
heighted question.

4.Significance of the Study :

$ Independence of judiciary is a cardinal principle of our
Constitution. It is, therefore, absolutely essential that the
Judiciary must be free from executive pressure or inluence
which has been secured by making elaborate provisions n ie
constitution with details, the independence of judiciarypressure
is not
limited only to the independence from the executive within its
or 5 influence it is a wider concept which takes
13
 role of the judiciary has changed
fundamental rights and that of finding
of a "sentinel of the qui vive" to
that
fromgenuineness of the nexus between the impugned law
the
andthe Directive Principles it seeks to incorporate. The non-
emanating from Art. 13 (2) as regards the
doctrinal approach thus become mush diluted in view of the
has
role of judiciary approach towards Directive Principles SO
political
new
necessary for the
establishment of the egalitarian society in
that the court-packing threat was not
India. Also the factPresident
carried out by Roosevelt did not prOve the
independence of the American judiciary and on the contrary
court because
the President had his way without packing the consistently
his threat worked and ever since the judiciary has
ent aloof from economic laws and regulatory measures.

5.The Problem:
o Of late, out of the three organs in the State Judiciary is
regarded as of utmost importance. There is enormous
criticism regarding the functioning of Legislature and
Executive. There are innumerable reports regarding
high level of corruption that is prevailing in the above
mentioned organs. It is only Judiciary which is regarded
as most efficient body. The common man generally
looks to the judiciary for his relief and amelioration of
the weaker sections of the community. In fact the
judiciary had played a vital role in developing the
jurisprudence in various 10 fields of law. The public
interest litigation is a unique contribution of the
judiciary. Through the technique of PIL, we were able to
develop the environmental, humnan rights, juvenile
justice etc. This would be possible only when The the
judiciary is totally independent and separate.
and only
judicial appointments should be transparent
selected and apponted
the best candidates should be
a number of
there are appointment
as judges. In as much as
criticisms and controversies in regard to the subject
judicial officers and corruption in judiciary
15
 It has many learlessnesS of other power
centers, economicand political and freedom from prejudices
acquircd and nourished by the class to which judges
The independence of judiciary and the stream of public belong.
must remain pure and unsullied. justice

< The basic freedoms neither become

showpicces" in France
"mere
nor "ornamental
teasing
Bhagwati J.5 The framers of our constitution also illusion of
debated
whether "the judiciary should be given the additional power
estion the law on the 5 to
Minerva Mills Ltd. V.
AIR 1980 SC 1789 7 ground that they Union of India
fundamental principles" 6 but they' did not thinkviolate
it prudent
Dr. Ambedkar pointed out that "I do not see
how five
gentlemen sitting in the Federal or Supreme Court be
determine which law is good and which law is trusted bad.7
sThe role of judiciary in relation to
expressed in State of Madras v. V. G.Fundamental
Row8 it
Rights as
is submitted
that we have progressed a long way from
1952 when such a
view accepted as correct and now the concept of fundamental
rights has to conform to the
society so that now the Directive socio-economic needs of the
gradually absorbed as the reasonable principles are being
fundamental rights as adumbrated by Bhagwati,restrictions J. in
of
Mills Ltd v Union of India9 and Wantan Rao v.Minerva
Union
oflndia. 10 The sentimental duty of the judiciary has become
relaxed. Thus, the claim that. without independence of
judiciary Fundamental and Human Rights will be reduced to
ornamental pieces is denied because there are countries where
such rights plentifully exist without the judiciary having to
play the role of umpire.

* In India the judiciary is committed under Art. 12 read mtn

Art.37 to effectuate Directive Principles which have no
reasonable restrictions of
becomne more or less the reasonable
14
 assumes great importance and the problem requires in
depth analysis and study.

7.0bjectives of the Study:

The object of this study is to
critically analyze and examine
whether the interference of the legislature
matter of appointments of judges affects theand executive in the
judiciary.
To examine the
independence of
historical evolution of judicial system and the
Constitutional provisions relating to
judiciary.
To make a
independence of
comparison
the appointment of various
of judges in other provisions available for
To critically countries.
need for theanalyze the role of Supreme Court towards the
appointment
To suggest any
of independence
judges. of judiciary
with regard to
improvements
observations of the research on the basis of findings and
scholar.

8.HYPOTHESIS:
The
the Indian system of judicial
experience
exigencies of our own foreign independence
of the legal systems and
is
based partly upon
judiciary has not been system. But inthe concept of partly on the
of justice. As observedmaintained
from independence
its fullest form in our
of
statutory the system
constitutionalthe provisions,
enactmentsto and judicial decisions,
mostly responsible the
judiciary. Based on maintain the concept of state action is
hypothesis is formulated the
as preliminary
follows:
independence
examination initial
the
of
The
concept of
maintained in its Independence of
fullest spirit Judiciary has not been
Constitution. and courage of Indian

16
 (i) The excessive intrusion of cxeCutive and legislature is
imparing and completely overlanning the basic concept of
independence of judiciary.
n The independence of judiciary emerged as the basic
structure towards achieving justice and equality, but it
fails to achieve its obiect in its true spirit.

9.Methodology
In the preparation of the thesis an analytical-cum histoncal
approach has been applied. The historical approach is. appe
trace out the institutions in the ancient times. The analyucal
method is applied to critically evaluate the organization and
functioning of the institutions existing at the present day. ln
addition, the research scholar had also emploved comparative-cum
critical method in order to test the hypothesis by taking nto
account the provisions prevailing in the. analogous constitutions in
other countries.

10.NEED FOR THE INDEPENDENCE OF

THE JUDICIARY:
The basicneed for the independence of the judiciary rests upon the
following points:
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.

17
 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 unbja sed ie. free from any pressure
irom any organs like executive. If the judiciary 1s 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.

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.

11.COMPONENTS OF 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.

11.1 International Provisions:

18
 Basic Principles on the Independence of the Judiciary adopted by
the Seventh United Nations Congress on the Prevention of Crime
and the Treatment of Offenders held at Milan from 26 August to 6
September 1985 and endorsed by General Assembly resolutions
40/32 of 29 November 1985 and 40/146 of 13 December 1985. The
principle of independence of the judiciary has been laid down in
various human rights instruments. including the Universal
Declaration of Human Rights (Article 10) and the International
Covenant on Civil and Political Rights (Article 14). There are also a
number of UN standards, in particular the Basic Principles on the
Independence of the Judiciary endorsed by the United Nations
General Assembly in 1985 and the Bangalore Principles of Judicial
Conduct of 2002. Within the European framework, the right to an
independent and impartial tribunal is guaranteed by Article 6of the
European Convention on Human Rights (ECHR). Apart from the
ECHR, there exist a number of more detailed texts, among them the
Council of Europe Recommendation on Judges: Independence,
Efficiency and Responsibilities adopted by the Committee of
Ministers in 2010.

In the broader OSCE region, participating States have committed

themselves to ensuring the independence of the judiciary in the
Copenhagen Document (1990), the Moscow Document (1991) and
the Istanbul Document (1999).
These Commitments were recalled and specified in the Brussels
Declaration on Criminal Justice Systems and in the Ministerial
Council's Brussels Decision on Organized Crime. At the Ministerial
Council meeting in Helsinki in 2008, OSCE participating States
were encouraged to enhance their efforts to strengthen this aspect
of the rule of law. The OSCE/ODIHR's Kyiv Recommendations on
Judicial Independence in Eastern Europe, South Caucasus and
Central Asia were elaborated against the background of the above
mentioned international standards .The Charter of the United
Nations, UDHR, ICCPR and ICCSER, Organisation and
Administration of Justice in every Country etc. formulated following
basic principles, to assist Member States in their task of securing
and promoting the independence of the judiciary should be taken
into account and respected by Governments within the framework
19
of their national legislation and practice and be brought
attention of judges, lawyers, members of the executive and the
legislature and the public in general.
The principles have been formulated principally with professional
judges in mind, but they apply equally, as appropriate, to lay
judges, where they exist:
shall be guaranteed by the
The independence of the judiciary the
Constitution or the laW of
State and enshrined in the
other
country. It is the duty of all governmental and
institutions to respect and observe the independence of the
judiciary. impartially, on
The judiciary shall decide matters before themlaw, without any
the basis of facts and in accordance with the
restrictions, improper influences, inducements, pressures,
threats or interferences, direct or indirect, fron any quarter or
for any reason.
issues of a judicial
The judiciary shall have jurisdiction over all whether an
nature and shall have exclusive authority to decide
competence as
issue submitted for its decision is within its
defined by law. unwarranted
4There shall not be be any inappropriate or
judicial
interference with the judicial process, nor shall principle is
decisions by the courts be subject to revision.toThis
mitigation or
without prejudice to judicial review or imposed
commutation by competent authorities of sentences
the law.
by the judiciary, in accordance with ordinary courts or
Everyone shall have the right to be tried by Tribunals that
tribunals using established legal procedures.
do not use the duly established procedures of the legal process
belonging to
shall not be created to displace the jurisdiction
tribunals.
the ordinary courts or judicial judiciary entitles and
The principle of the independence of the proceedings are
requires the judiciary to ensure that judicial the parties are
conducted fairly and that the rights of
respected.

20
 + It is the duty of each Member State to provide
adequate
resources to enable the judiciary to properly pertorm
functions. its

Above mentioned points are the International provisions for

maintaining the independence of judiciary at International level.

11.2THE INDEPENDENCE OF THE

JUDICIARY IN INDIA
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
control.
be a separate judicial service free from executive

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

Constitution the Executive have no power to appoint Judge,
of
however it requires the consultation of the Chief Justice
Supremne Court and High Courts in the appointment of the
21
 judges of the Supreme Court and High Courts.
Under the
provision of the Constitution President shall appoint
Judges after the consultation with the judicial the
while in case of appointment of the Chief Justiceauthorities,
of
President shall consult such Judges of Supreme Court andlndia,
the
High Court's as he deems necessary and for the
appointment
of other judges President must consult with the CJI.
the appointment of the chief .Justice of the High Similarly
Court are
made after the consultation of the Chief Justice of India and
the Governor of the State concerned, while the
appointment or
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 security of the tenure. Once
appointed, they continue to remain in offce 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. Aresolution
has also to be accepted to that effect by a majority of total
membership of each House of Parliament and also by a
majority of no less than two third of the members of the house
present and voting. Procedure is so complicated that there has
been no case of the removal of a Judge of Supreme Court or
High Court under this provision.

+ Salaries and Alowances: 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
22
 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 emergenGy.

+ Powers and Jurisdichion 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
Conter power to issue directions, orders or writs 1or 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 shallhave
the power to punish for contempt of itself. Likewise, Art. 215
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lays down that every High Court shall have the power to
punish for contempt of itself.

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

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

Fators affeching the Independence of Judiciary in India: Though

Our Constitution guarantees absolute independence of
judiciary but in recent years certain disturbing facts have been
shown in matter of the appointment of Judges. Recently,
Justice Markandey Katju, a former judge of the Supreme
Court alleged that three former Chief Justices of India made
"improper compromises under political pressure in confirming
the appointment of a judge they knew to be corrupt. Justice
Katju claimed that One judge was given an additional term by
Justice Lahoti himself under political pressure from a
Congress Minister. Justice Katju alleges that the judge in
question was close to an ally of the ruling United Progressive
Alliance (UPA) government and this led to Justice Lahoti being
pressured into granting the extension. Justice Katju further
alleged that the same judge was granted an extension by
Justice Lahoti's successor, Justice Y.K. Sabharwal, and was
made a permanent judge by his successor, Justice K.G.
BalakrishnanJudges are appointed by Executive in
consultation with the legal expert.
A. In the Judges transfer Case (S. P. Gupta v. Union of Indial),
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
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 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. The
transfer of Judges can be challenged only on the ground of
mala fide and irrelevant considerations that means when
constitutional functionaries expressed adverse opinion
against the transfer or against the appointment. 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 tree and independent. Thus. the Cout itself submitted
to subordination of Executive, which is dangerous tor
judiciary.

B.In S.P. Gupta v. Union of India2 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 India3 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. However, prevailing the trend of appointing
the retired Judges in various capacities is likely to pose
threat to independence of Judiciary.
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