ASSIGNMENT
TOPIC- INDEPENDENCE OF JUDICIARY
SUBJECT – COMPARATIVE PUBLIC LAW / SYSTEM OF
GOVERNANCE MLA1010
ASSIGNMENT SUBMITTED TO LAW DEPARTMENT
SHRI RAMSWROOP MEMORIAL UNIVERSITY
For the Partial Fulfilment of the Requirement in
LL.M. (CORPORATE AND COMMERCIAL LAW)
UNDER GUIDANCE OF : SUBMITTED BY:
DR. AMBUJ MISHRA PRAJJWAL PANDEY
202410301020059
ACKNOWLEDGEMENT
In preparation of my assignment, I had to take the help
and guidance of some respected persons, who deserve
my deepest gratitude. As the completion of this
assignment gave me much pleasure, I would like to
show my gratitude towards DR. AMBUJ MISHRA ,
Course instructor, on SRMU for giving me
a good guidelines for assignment throughout numerous
consultations. I would also like to expand my gratitude
to all those who have directly and indirectly guided me
in writing this assignment.
Many people, especially my classmates have made
valuable comment suggestions on my paper which gave
me an inspiration to improve the quality of the
assignment.
CONTENTS
• Introduction
• Independence Of Judiciary In India
• Indian constitution and judiciary
• Independence of judiciary and
selection of judges
• Conclusion
What is meant by the independence of
the judiciary?
Montesquieu, the famed French philosopher, was the first political
philosopher to advocate for an independent court. He believed in
the separation of powers principle, which states that the three parts
of government—legislature, executive, and judiciary—each have
their own set of powers. His thesis wowed the founding fathers of
the United States of America.
With the adoption of the Act of Settlement in England and Wales in
1701, the essential principle of judicial independence was born. By
providing that High Court Judges and Lords Justices of Appeal
keep office during good behaviour, this act explicitly recognised the
principles of judicial tenure security. Before a judge could be
dismissed, appropriate and official processes had to be in place.
However, the judiciary in the United States and India has been
given the authority of judicial review. They have the power to
declare legislation approved by the legislature unlawful and
overturn it. In India, a statute is only struck down by the Supreme
Court if it breaches the constitution’s core framework.
Independence Of Judiciary In India
The independence of the judiciary must be evaluated within the
framework of the Indian Constitution, not as an a priori idea. The
goal is to guarantee that adjudication is free of external or
governmental restrictions and that the independence of the
judiciary is limited to the adjudicatory powers of courts or tribunals
under the Indian Constitution. The Indian Constitution uniquely
gives the judiciary a dignified and vital role.
The independence of the judiciary is imbibed in the letters of
numerous articles of the Constitution of India, although there is no
stated provision in the constitution. As the Hon’ble Supreme Court
stated in S.P. Gupta v Union of India: AIR 1982 SC 149, the
constitution’s core elements of judiciary independence and the rule
of law cannot be repealed even by constitutional modifications.
Indian constitution and judiciary
The Indian Constitution is the supreme law of the nation, upon
which all other laws are based and to which they must adhere. It is
the source of all governmental powers and their various organs,
and they must be used following the criteria and limitations outlined
in it. The constitution establishes a parliamentary system of
government in which the administration and legislature are not
strictly separated, but there is a clear distinction between them and
the judiciary. The Indian Constitution mandates the government to
“separate the judiciary from the executive in the state’s public
services.”
In accord with both the ideas of constitutional and Parliamentary
sovereignty, India’s constitution uses a variety of mechanisms to
protect the independence of the judiciary. Judges of the Supreme
Court and the High Courts have extensive provisions in place to
ensure their independence.
While entering the Supreme Court and the High Courts, judges
must swear that they would faithfully do their responsibilities
without fear, favour, love, or ill-will and that they will protect India’s
constitution and laws. This pledge implicitly recognises the notion
of constitutional sovereignty.
Independence of judiciary and selection
of judges
In India, the procedure of appointing judges also protects the
independence of the judiciary. The President appoints the justices
of the Supreme Court and the High Courts. The President of India
is required under the Indian constitution to make appointments in
conjunction with the highest judicial authorities. Of course, he
listens to the Cabinet’s suggestions. The constitution also specifies
the criteria required for such positions.
The Tenure of Judges is guaranteed under the constitution. Judges
in the Supreme Court and the High Courts serve “during good
conduct,” not at the President’s pleasure, as other high-ranking
government officials do. They are not subject to the President’s
whims. They can only be removed from office if they are
impeached. On a report by both Houses of Parliament backed by
a special majority, a judge can be dismissed for proven misconduct
or incompetence.
Judges’ salaries and allowances are paid from the Indian
Consolidated Fund. Furthermore, even in a financial emergency,
Judges of the Supreme Court and High Courts cannot have their
salaries and allowances lowered during their term. Supreme Court
justices must retire at 65, whereas High Court judges must retire at
62. Judges with such long tenure can work impartially and
independently.
Conclusion
The constitution stipulates the existence of the independence of
the judiciary. For the sake of fair justice, the judiciary’s
independence is critical. The legislative and the administration
should not interfere with the judiciary’s operations for it to render a
ruling that seems to be reasonable. There may be an element of
prejudice on the part of the judges in making a fair judgement in
the instance of intervention. Other than that, it’s challenging to think
of a method to make Indian courts more self-sufficient and keep
them out of the influence of the other two institutions.
