A RELATIVE STUDY OF THE INDEPENDENCE OF JUDICIARY IN AUSTRALIA

AND INDIA

ABSTRACT
India and Australia, both have the rule of law as a strong feature of constitutionalism. In both
countries, the appellate jurisdiction is integrated. The Supreme Court is not confined
substantially to federal constitutional and legal issues and orders. The general nature of the
courts’ jurisdiction has influenced the character and self-perception of the final national court
and the techniques of reasoning and argumentation. Although there is a separation of powers
in the Australian and Indian Constitutions, between the Executive, Legislature, and judiciary
respectively. The judiciary is the government branch that is concerned with the administration
of justice. The independence of the Judiciary is one of the pillars on which the rule of law
stands. In legitimate speech Independence of Judiciary mean the force of maintaining without
dread or favor, the Rule of Law, individual flexibility and freedom, uniformity under the
watchful eye of the law, and unbiased and successful legal command over authoritative and
chief activities of the Government. Thus the Judicial organ of the State ought to be in a place
of subjection to another organ or branch. In this sense the Independence of the Judiciary
relies upon the force of the Courts and permits it to be practiced without leader impedance.
The Judiciary must be liberated from the control and subjection of the leader just as the
governing body. In this manner, Judges ought to be autonomous and liberated from any
limitations, instigation, impact, pressure, dangers immediate or circuitous from the chief and
law-making body. This paper aims to analyze Judiciary's independence as envisaged by the
framers of the constitution by various constitutional provisions and also as interpreted by
Judicial pronouncements.

Keywords- judiciary, law, government, independence, administration

INTRODUCTION
The idea of the Independence of the Judiciary is of current beginning and acknowledged as a
corridor characteristic of a liberal majority rule state. However, the term freedom has not
been characterized in the Constitution of India nor the General Clauses Act. Consequently,
for an appropriate cognizance of the importance of the term autonomy, it is vital, first to
analyze its etymological and word reference significance and afterward its lawful meaning. In
an exacting sense, freedom implies the nonappearance of outside control or backing. All in
all, it connotes something that it isn't subject to or constrained by some other organization or
authority. Not just Judges should be autonomous and liberated from their associates and
bosses in the release of their legal capacities. They should be free to legal capacities. They
should be allowed to release their obligations and capacities without let or hindrance.
However, the idea of freedom is relative and is for the most part applied in its usage terms.
Thus the obligation of a Judge to protect and lawful standards frames the establishment and
the genuine reasoning for legal freedom. An Independent Judiciary is a sine qua none of a
dynamic vote-based framework just a fair-minded and Independent Judiciary can remain as a
defense for the assurance of the privileges of the people and meet out impartial equity
without dread or favor. The Judiciary is the defender of the Constitution and, accordingly, it
might need to strike down leader, managerial and administrative demonstrations of the
central government and the States. For the Rule of Law to win, Judicial freedom is of prime
need. Legal freedom implies that courts uphold the law and resolve debates regardless of the
force and inclinations of the gatherings showing up before them (La Porta et al, 2004). Its
hypothetical precursors are followed by the Enlightenment and its application by and by dates
to the US Constitution. Legal freedom is an imperative piece of law and order. Law and order
necessitate that laws apply similarly to both customary residents and public authorities and
that they secure the freedoms of people against the force of the state in both the political and
financial circles. In this regard law and order and legal autonomy are inseparably connected
with liberal popular government. The writing on the point is colossal and cuts across various
disciplines including law, financial aspects, governmental issues, and human science. It is
beyond the realm of possibilities to expect to do equity to this grant in the bounds of the
current article; rather its point is to introduce a rundown of the principal issues. To start with,
it thinks about the reasoning of legal autonomy and the firmly related legal survey. Second, it
takes a gander at the institutional courses of action for legal autonomy. Third, it thinks about
how autonomous courts are demonstrated in the system decision structure. Fourth, it talks
about some proof of the impacts of legal freedom on financial factors of interest. These issues
are systematically treated as discrete however are best perceived according to one another.
Judicial freedom and related ideas An autonomous legal authority is important to determine
questions and keep up with law and order which are requirements for the working of a market
economy and a free society. By and large, two gatherings in question might resolve their
disparities by battling savagely against one another or by requesting that an outsider mediate.
Understanding that battling might bring about genuine failure (obliteration of life and
property), they might request that an outsider arbitrate and consent to submit to its decision.
They will just do as such, in any case, in case they are sensibly certain that the mediating
party is an impartial and unprejudiced official. Debates might arise between private
substances (residents, organizations r different associations); between private elements and
the state which among different cases is consistently a defendant in instances of financial
guideline and criminal demonstrations; and between various state associations (local
government, neighborhood specialists, nationalized businesses, and other public law bodies).
Judges with the ability to give restricting decisions should then be protected from the danger
of defilement and terrorizing by both private disputants and the arms of the state.
Notwithstanding, the actual demonstration of alluding to g a debate to an arbiter produces
another contention: When the question resolver announces a victor and a washout, his
authenticity might be promoting the breakdown of the mediation cycle and its advantages.
The explanation is that a decision that obliges gatherings to act with a certain goal in mind
(make explicit moves, pay harms, fines, sentenced to jail) makes a two–against–one
circumstance (champ and judge against the failure), which is detested by the washout. To
beat such issues authorities base their decisions on for the most part acknowledged standards
of equity and direct as communicated in proper laws and casual standards and embrace the
way of talking of regularizing support. The two–against–one issue is much more articulated
in situations where the state is one of the disputants. Firmly identified with legal freedom, is
the capacity of legal audit of strategy, where courts might inspect and thusly approve or
cancel laws and strategy measures, passed by the assembly and instituted by the presidential
part of the government, for their similarity with the constitution or other pertinent resolutions
(like presentations of essential privileges), and have been established by the specified
strategies (Stone Sweet 2002). Like wise to administering in questions between private
gatherings, legal audit of strategy is trivial except if the exploring judge is autonomous of the
public authority. Two further related ideas are those of legal activism and legal caution.

REVIEW OF LITERATURE
1. THE JUDICIARY AND THE PUBLIC: JUDICIAL PERCEPTIONS, Kathy Mack,
Sharyn Roach Anleu, and Jordan Tutton, The relationship among the judiciary, public
attitudes, public confidence, and the institutional authority of courts in a democracy is
complex. It is frequently asserted that courts depend on public confidence for the
effectiveness and, indeed, legitimacy of judicial authority. Drawing on national
interviews and surveys with Australian judicial officers, this article considers the
judiciary’s views about the nature and prevalence of public attitudes. It investigates
 individual judicial and institutional responses to perceived public criticism and
commentary and considers activities aimed at affirmatively promoting improved
public knowledge of courts and judicial work. Understanding the judiciary’s
perceptions and attitudes generates important insights into the nature and limits of
communication between courts and the public.
2. JUDICIAL INDEPENDENCE FROM THE EXECUTIVE: A FIRST-PRINCIPLES
REVIEW OF THE AUSTRALIAN CASES, REBECCA ANANIAN-WELSH AND
GEORGE WILLIAMS - This article develops a first principles' conception of
judicial independence. It does so by way of synthesizing the large volume of domestic
and international materials that describe the idea. It then analyses the extent to which
Australian judges have realized the concept through constitutional and other legal
development. The article establishes the very significant steps taken by Australian
judges to assert their independence from the executive, but equally, it also identifies
some important gaps. Means of remedying these gaps are discussed, including
through the further development of constitutional principles and other non-judicial
means. Judicial independence is a central pillar of Australia’s constitutional system.
Courts themselves play a pivotal role in maintaining this, and recent years have seen a
surge in cases and significant and rapid developments in the area. These
developments have advanced and reinforced protections for judicial independence,
particularly concerning the independence of judges and courts from the executive
branch. In this article, we consider how the judiciary has asserted its independence
from the executive through an examination of the case-law of federal, state, and
territory courts, and assess whether these cases have fully realized the principle.
3. Independence of The Judiciary: A Constitutional Response Dinesh Singh Chauhan,
Advocate — High Court of Judicature, Jammu. Independence of the Judiciary is
indispensable in a democratic system of governance. Since the establishment of the
democratic form of Governments in the world, there is a worldwide debate on the
issue that the Judiciary should be independent of any type of pressures and pulls i.e.,
from within and outside. The Independence of the Judiciary got added importance in
the countries having Written Constitutions. Under the Written Constitution, the
Government has been conferred with wide powers required for the running of the
Government. But where the Constitutions contain the welfare philosophy there the
Government has to make policies for the socio-economic development of the people.
In such type of functioning, Government may at times abuse political power. An
 Independent Judiciary is required to maintain a balance between the interests of
individuals and society. In this way, an independent judicial system was considered
the sine qua non for the smooth functioning of democracy. And all leading
democracies of the world emphasize this need time and again. Initially, there was a
demand for institutional independence. Now the trend is towards the independence of
individual Judges. The genesis of institutional independence we found in the theory of
separation of powers stress functional independence. But the independence of
individual Judges depends on the provisions of the Constitution about their
appointment, conditions of service, transfers, benefits, and security of tenure.
4. Chief Justice of Australia, JUDICIAL INDEPENDENCE THE AUSTRALIAN
JUDICIAL CONFERENCE UNIVERSITY HOUSE, AUSTRALIAN NATIONAL
UNIVERSITY CANBERRA The Hon Sir Gerard Brennan, AC KBE, 2 November
1996- I should like to take as a theme for these remarks the first object of the
Australian Judicial Conference. It is stated in these terms: "in the public interest to
ensure the maintenance of a strong and independent judiciary as the third arm of
government in Australia". To your ears and mine, and perhaps to the ears of many of
our fellow Australians, that seems a fairly bland statement of a desirable and non-
contentious object. And so it is. But the implications for our society are profound.
Judicial independence does not exist to serve the judiciary, nor to serve the interests
of the other two branches of government. It exists to serve and protect not the
governors but the governed. But, you may ask, if that is so, why do we see so much
ill-informed criticism of the judiciary? There are many answers to this question, but it
cannot be doubted that one answer is this: there is a lack of awareness of the extent to
which the peace and order of our society depend upon the maintenance of a strong
and independent judiciary as the third arm of government. The subject which you
have chosen for this symposium belongs primarily in the public domain, not in legal
corridors or academic halls. It is of chief concern to the public rather than to the
judiciary or the legal profession. Of course, it is right that the techniques of
maintaining a strong and independent judiciary should be discussed by those with
primary responsibility for the task, but the discussion should be followed by giving an
account of those techniques to the public. And that would be a task worthy of the
mettle of the Australian Judicial Conference. The reason why judicial independence is
of such public importance is that a free society exists only so long as it is governed by
the rule of law — the rule which binds the governors and the governed, administered
 impartially and treating equally all those who seek its remedies or against whom its
remedies are sought. However vaguely it may be perceived, however, articulated may
be the thought, there is an aspiration in the hearts of all men and women for the rule
of law. That aspiration depends for its fulfillment on the competent and impartial
application of the law by judges. To discharge that responsibility, judges must be and
be seen to be, independent. We have become accustomed to the notion that judicial
independence includes independence from the dictates of the Executive Government.
Lord Coke's denial of the King's right to judge cases and the provisions of the Act of
Settlement are landmarks in the development of that notion. But modern decisions are
so varied and important that independence must be predicated of any influence that
might tend, or be thought reasonably to tend, to a want of impartiality in decision-
making. Independence of the Executive Government is central to the notion but it is
no longer the only independence that is relevant.
5. The Role of the Judiciary, QUEENSLAND PARLIAMENT, As a British colony,
Australia adopted England’s legal codes and principles. Therefore, we operate under
the Westminster system which embraces the doctrine of the Separation of Powers.
The judiciary is one of the three branches of government, the other two being the
parliament or the Legislature and the Executive government, which is made up of the
Governor, the Premier, and Ministers. The role of parliament is to make the laws, the
Executive government carries out and enforces the laws, and the judiciary applies the
laws in individual cases. Each branch of government has its powers and authority and
each branch exercises some power over the other two branches, but no single arm has
more authority than another. Two safeguards exist to protect the independence of
judges and magistrates: the way they are appointed and their system of tenure. The
Governor-in-Council – that is, the Governor in consultation with government
ministers — on the advice of the Attorney-General appoints judges and magistrates,
who have constitutionally guaranteed tenure. This means that unless they choose to
retire earlier, judges continue in office until they are 70 and magistrates until they are
65. They can only be removed from office by the Governor if the Parliament accepts a
duly constituted tribunal’s finding of proven misbehavior or incapacity. Judges and
magistrates cannot be removed from office simply because a government disagrees
with their rulings.
6. Jelie-Anne Kennedy and Anthony Ashton Tarr, The Judiciary in Contemporary
Society: Australia, 25 Case W. Res. J. Int'l L. 251 (1993) Available at:
 https://scholarlycommons.law.case.edu/jil/vol25/iss2/12 James Crawford observes:'
Central to the Constitution and the operation of a court system is the judiciary: in a
real sense, the judge is the court. How judges are appointed, how their independence
is maintained, how and on what grounds they can be removed, and what other (non-
judicial) functions they can properly perform are thus important questions. In
Australia, the appointment of judges is, by constitution or statute, universally the
responsibility of the executive branch. The federal government handles all such
matters relating to the High Court, the Federal Court, the Family Court, and other
federal judicial bodies. State governments exercise similar authority over the state
supreme courts, district and magistrates' courts. All appointments are formally made
by the Governor-General, or the Governor, in Council.
7. Tigadi, Rohan (2012), studied “Judocracy v. Independence of the Judiciary” where
the article is based on “the recent review petition filed in the Supreme Court in the
matter of Supreme Court Advocates-On-Record Association v. Union of India which
brought the present collegium system of appointments of judges into being. This
system of appointing the Supreme Court and High Court judges has come under
severe criticism due to the opaqueness of the system. The author is of the firm belief
that this method of appointment was never envisioned by our Constitutional ancestors
and suggested a suitable alternative to remedy the present situation.
8. Agrawal, Pankhuri, (2011) studied “Judicial Independence and Accountability: Given
the Case of J. Soumitra Sen” in which “Judiciary is deemed to be an image of
blindfolded justice holding balanced scales embodying the idea of impartiality and
fair set up in it. Understanding the importance of “Judicial independence” to maintain
the ‘image’ of the judiciary and the rationality of judicial accountability has become
an issue for debate today and further deliberate on the formulation of various laws in
this arena. In the procedure of selection, appointment, and transfer of judges many
questions are being raised about their honesty before, during, and after their tenure.
To find out the flaws in the impeachment procedure, appointment procedure, and the
much-awaited Judicial Standards and Accountability Bill 2010 and insights taken
from the Constitution Review 90 Commission Report of 2002. Since judges are
‘Justice deliverers’, the level of the trust reposed in them by the common citizens is
quite high. It became a mandatory responsibility of them to maintain it. To answer the
questions triggered by a recent case of J. Soumitra Sen: Is the judiciary holding the
same value, as it had earlier? Is the judiciary abusing its privilege of judicial
 independence? Is the judiciary responsible and can it be held accountable? Hence,
there is an urgent need for efficient laws to be formulated and effective complaint
mechanism to be triggered to avoid the occurrence of these unfortunate cases.”
9. Stephenson, Mathew, studied “Court of Public Opinion: Government Accountability
and Judicial Independence” in a model characterized by separation of powers and
judicial dependence on government and information voters and government and
political accountability. The voters force the government to cede powers over the
legislative decisions of the judiciary. The public uses its ability “to hold the elected
branches of government accountable to enforce a judicial veto when judicial
opposition to legislation provides more reliable information to voters than government
support for legislation does”. The model provides theoretical justification and
suggests that judicial decision is costly for elected representatives. The model
demonstrates the pattern of judicial politics, rubber-stamping the government decision
and the government passing the buck back to court arises the equilibria in framework
From the above studies, it could be concluded that judiciary in India and all across the
world has a hairline difference. Accountability is the core of the system in federal
countries with a strict code of conduct, self-enforced legal and ethical rules, proper
management of public funds and assets, and effective use of resources. In India, the
judiciary has had no accountability up till now. In India, the Court extended its part in
the domain of rights and administration, affirming the ability to nullify established
revisions under the essential structure convention, control legal arrangements, and
represent in the ranges of natural strategy, observing, and researching government
debasement, and advancing discretionary straightforwardness and responsibility. The
public has demonstrated disappointment, both during the stage of executive and
judiciary hold in appointments.
10. Geyh, Charles, G., (2006) studied “Judicial Independence, Judicial Accountability,
and the Role of Constitutional Norms in Congressional Regulation of the Courts” in
which the author seeks to explain “why some incursions on judicial autonomy are
deemed acceptable and others are not. Part I defined judicial independence in a way
that not only accommodates but necessitates an approach that is political and
developmental in its orientation: the contours of judicial independence are delineated
less by the court-made doctrine than by informal norms or customs that Congress has
gradually come to respect over time. Part II chronicled the development of customary
independence through the cyclical attacks on the courts that punctuate phases in the
 relationship between the federal courts and the political branches in ways that justify
their use. Part III discussed how fights to control the courts are easier for Congress to
win in the appointments arena, where independence norms have not constrained
Congressional behavior as they have in other contexts. As the opportunities to control
the courts via impeachment, defiance, court-packing, jurisdiction-stripping, and
budget-slashing have diminished with the ascendance of customary independence, the
appointments process has emerged as the one remaining avenue for Congress to exert
control over judicial decision-making. The dawning realization that a politicized
appointments process now stands alone as a viable device for promoting prospective
judicial decision-making accountability, ongoing efforts to de-politicize the
appointments process are likely to be fruitless and undesirable.”
11. Collett, Teresa, Stanton, (2009) studied “Judicial Independence and Accountability in
an Age of Unconstitutional Constitutional Amendments” in which the appointment of
American judges is one of a war zone in the modern culture, mainly because of legal
involvement in argumentative matters for example “abortion, pornography, the death
penalty, racial discrimination, the role of religion in public life, and the definition of
marriage”. Thus, the systematized bar and numerous legal leaders sternly advise that
legal autonomy is “in jeopardy,” while social conformists alert that judicial
accountability is lessened or absent and the “end of democracy” has reached or is
quickly forthcoming. There have been several arguments on the relative value and
relationship of legal autonomy and accountability since the commencement of this
country. While this is a significantly interesting and important argument, a reason to
join that discussion directly. To investigate the effect of an inexorably legitimate
contention, there can be an “unconstitutional constitutional amendment” on legal
autonomy and accountability. The first section gives a review of the distinctive
procedures for revising a constitution. The second section discussed technical analysis
of constitutional revisions, while substantive analysis was studied in the third
segment. The two segments investigated the issues identified with the legal survey.
Consequently, decided that judicial review of the procedural consistency of the
revision procedure, while that functional analysis should be restricted to post-passage
cases.
12. Peerenboom, Randall (2008) studied “Judicial Accountability and Judicial
Independence: An Empirical Study of Individual Case Supervision” in which the
article investigated the pressure between legal freedom and legal responsibility in
 China, by looking at the growth, benefits, and drawbacks of management of ultimate
court decisions by individuals' congresses, the procuracy and the courts themselves.
With a systematic empirical study, significant changes required, wiping out individual
case supervision (ICS) now would prevent justice from claiming many individuals
consistently. The politics of whether to remove or improve ICS and if so how to
represent the troubles of China's legitimate change project, why changes in
developing nations often fail, and why changes in light of transplants of foreign
models neglect to flourish.
13. Law, David S., (2010), studied “Judicial Independence” in which “the International
Encyclopaedia of Political Science, explains why the concept of "judicial
independence" has demonstrated famously hard to characterize. It gaged the term
employed, discussed the factors to design a definition that is intelligible and familiar
of contrasts between courts in various nations. Judicial independence refers “to the
ability of courts and judges to perform their duties free of influence or control by
other actors.” But, the term is utilized as a part of a standardizing sense to allude to
the type of freedom considered necessary for courts and judges. So, there are two
sources of perplexity over its significance. The first is theoretical, as an absence of
lucidity concerning the sorts of autonomy that courts and judges can have. The second
is regularizing, as a contradiction over what sort of autonomy courts and judges
should have. To be both extensive and sound, a meaning of legal autonomy must
address a few inquiries. The first is the subject of autonomy for whom; the second is
the topic of freedom from whom, and the third is the topic of autonomy from what. To
answer these questions, depending on some regulating hypothesis, express or
something else, of why legal autonomy is profitable and what is expected to achieve.
In short, it is important to address the subject of freedom for what reason.
14. Dodek, M. Adam, (2009), studied “Judicial Independence as a Public Policy
Instrument” in which the contribution of judges in commissions of inquiry has been
an important part of the public policy process in Canada and elsewhere. However, the
use of judges for these and other extra-judicial functions is not positive and the other
side of the balance is also considered. It chronicled the dramatic rise of the use of
judges by governments for such policy functions, arguing that it has resulted in a
'judicialization of politics of a different sort from the standard conception of that term.
The current political culture of independence and accountability has made judicial
independence a highly valued political commodity that is frequently in demand by
 government officials. It argued that what public policymakers are seeking is not
simply the expertise of judges but also the political capital of judicial independence
which has become an increasingly valued political good in Canadian society (and in
others as well). It analyzed and evaluated this trend from the perspective of judicial
independence and argued that the unreflective reliance on judges for various extra-
judicial functions has the potential to undermine the bedrock principle of judicial
independence if not managed by the judiciary in concert with the executive. It
analyzed two cautionary tales from the use of judicial independence for public policy
purposes: the Gomery Inquiry81 and the controversy over the Chief Justice's
involvement in the award of the Order of Canada to abortion activist Dr. Henry
Morgentaler. Finally, the argument that taking judicial independence seriously
necessitates that judges develop a framework for the consideration of extra-judicial
functions and begin to exercise greater discretion in refusing to take on executive
functions at times, lest the political currency of judicial independence become
devalued over time.”
15. Henckels, Caroline, (2017) studied “Public-Private Arbitration in Australia: Public
Law Concerns, Private Law Responses” where “Unlike investor-state arbitration, the
phenomenon of commercial arbitration between governments and private actors has
largely flown under the radar in Australia. By interpreting and applying domestic law
to exercises of power by government, arbitrators contribute to governance, but
without the hallmarks of the judicial process. There are no restrictions on federal or
state governments’ ability to enter contracts providing for arbitration of disputes.
Moreover, the law regulating arbitration in Australia does not distinguish between
public-private arbitrations and purely private arbitrations; as such, it cannot account
for the public law dimension of some public-private disputes or account for the
involvement of arbitrators in controlling government action. Meanwhile, although the
past two decades have seen a growing awareness of the implications of the
contracting out of public functions to private bodies in terms of public law
accountability, Australian courts have not subjected decisions made under or under
contracts to constitutional or administrative law review. As such, the choice of
arbitration as the dispute resolution mechanism can operate to insulate exercises of
public power from the already limited prospect of judicial scrutiny even further.
Although the time might not yet have come for Australian law to confront these
issues, any appreciable increase in the uptake of contracts relying on arbitration by
 governing one or two more high profile arbitration cases might well raise the spectre
of domestic legislative reform to better protect the public interest.”
16. Bunjevac., Dr. Tin, (2017) studied “From Individual Judge to Judicial Bureaucracy:
The Emergence of Judicial Councils and the Changing Nature of Judicial
Accountability in Court Administration” where his article analyzed “the emergence of
judicial councils and their role in facilitating greater judicial control of court
administration in Australia and other countries. The article scrutinized the arguments
in favor of greater judicial control of court administration, before moving on to
examine the traditional policy challenges of judge-controlled court systems, such as to
develop an effective system of administrative accountability that does not undermine
judicial independence and to devise an institutional framework for a judicial council
and courts that is effective, relevant, and accountable. The transfer of responsibility
for court administration from the executive government to an independent judicial
council has the potential not only to safeguard judicial independence but also to
improve court performance, achieve greater customer focus in the court system, and
bring about an institutional renewal of the judiciary. It argued that the introduction of
formal and transparent administrative hierarchies within the judiciary is both justified
and necessary to improve court performance, enhance the social legitimacy of the
courts and reinforce judicial independence. The final part of the article outlined the
basic institutional contours of a modern judicial council that can assist the courts
achieve these goals and respond to the challenges of the modern court environment.”
17. Colquitt, Joseph, A., (2007) studied “Rethinking Judicial Nominating Commissions:
Independence, Accountability, and Public Support” in which the author mentioned
there is no best way to appoint judges. “Any judicial selection system has both
strengths and weaknesses. State judges in the United States may take the bench via
election or appointment, but most judges, even those in states utilizing judicial
elections, originally take the bench through appointment. The appointment is the
quickest and most efficient way to fill a judicial vacancy. The pillars of the appointive
process, the judicial nominating commission suggest that all jurisdictions should have
judicial appointment commissions. The task is a good judicial selection system is not
simply to fill vacancies but to select the best candidates for judicial positions. To
accomplish this purpose using a nominating commission scheme, the ideal judicial
nominating commission system was developed. This system should possess (at least)
three principal features: It should adhere to democratic ideals; it should maintain as
 much independence as reasonably possible, and it should enjoy public acceptance and
support. Additionally, local conditions and requirements design commission scheme.
These features and considerations conflict. Because of the tension between them, they
complicate efforts to design an ideal commission. Despite these difficulties, one
should not compromise on the principal features of an ideal scheme any more than
necessary to reach the best balance. A delicate balancing of democratic ideals and
independence garner public support for a judicial nominating commission without the
need to over compromise any of these core principles. Political elites should not
control judicial appointments, and proper use of a nominating commission approach
reduces the concentration of power in political officeholders by spreading the
nomination and appointing powers. The commission's independence enhances both
democratic ideals and judicial independence. Commission independence encompasses
both external and internal independence, which includes external and internal capture.
In sum, the spread of power among a more representative group not only is more
democratic, but it can also create a significant degree of independence. Moreover, as
noted, judicial appointment commissions must have the confidence and support of the
public which it serves. Designing the appropriate appointments commission paradigm
is not an easy task, but with proper attention to detail, such impediments as
commission capture are eliminated or reduced. Judicial nominating commissions are
the worthiest, critical, components of the judicial selection process even in
jurisdictions that elect their judges. Nominating commissions, though, are only as
good as their organization, members, and procedures permit. This raised, addressed, a
number of the most challenging issues in developing an appropriate judicial
nominating system.”
18. Sharma, Girijesh Sharda (2009), studied “Constitutional Customs and the
Appointment of Chief Justice of India” where “Custom is recognized as a source of
law in international law and India. Act. 13 of the Indian Constitution recognizes
custom as a law. But the only condition for it is the binding nature which did not
supersede any legislation. The question of customary law exists in the constitution of
any country answered in the study. The issue of constitutional customs in the light of
the appointment of Judges is dealt with. The recommendation for the formation of the
National Judicial Commission. The article examined certain questions like; whether
there exists any constitutional custom; what are the conditions which are necessary for
the existence of a custom in the constitution; which provisions of the constitution
 developed as a custom; whether the President is bound by the custom of appointing
Judges of Supreme Court on the advice of the Chief Justice. The present appointment
procedure of the Judges have referred to questions like has this system stood the test
of time ‘; does it sub-serve the purpose for which it was devised ‘Is it result oriented
‘Does it meets with the requirements expected of it in the Constitution itself‘ Are
there any shortcomings of this system‘ Till now the Indian Judiciary has not decided
any case on this theory. The theory of constitutional customs so, that the Indian
Judiciary while interpreting the constitution can take note of this theory.”
19. Abeyratne, Rehan, (2017) studied “Upholding Judicial Supremacy in India: The
NJAC Judgment in Comparative Perspective” which states “On October 16, 2015, the
Supreme Court of India issued a landmark judgment holding the National Judicial
Appointments Commission (NJAC) unconstitutional. The judgment was flawed in
two ways: First, it held that the Indian Constitution requires sitting judges to have the
final word on judicial appointments. Neither the constitutional text nor the Constituent
Assembly Debates provide any support for this conclusion. Second, the judgment
does not explain how this judicial primacy promotes or secures judicial independence.
A comparative analysis shows that no other major constitutional democracy gives
judges the final word on judicial appointments. So why is India an outlier? The
peculiar political and historical circumstances required the Indian judiciary to assume
an outsized role. The NJAC Judgment is, therefore, best understood in institutional
terms: it represents the judiciary’s reluctance to cede its supremacy to the political
branches of government.”
20. Flanagan, Brian, (2011) studied “Judicial Decision-Making and Transnational Law: A
Survey of Common Law Supreme Court Judges” where a survey was conducted of
“43 judges from the British House of Lords, the Caribbean Court of Justice, the High
Court of Australia, the Constitutional Court of South Africa, and the Supreme Courts
of Ireland, India, Israel, Canada, New Zealand, and the United States on the use of
foreign law in constitutional rights cases. They found that the conception of apex
judges citing foreign law as a source of persuasive authority- associated with Anne-
Marie Slaughter78, Vicki Jackson79, and Chris McCrudden80, is of limited
application. Citational opportunism and the aspiration to membership of an emerging
international ‘guild’ appear to be equally important strands in judicial attitudes
towards foreign law. It was argued that their presence is at odds with Ronald
 Dworkin’s theory of legal objectivity, and is revealed in a manner meeting his
methodological standard for attitudinal research.”
21. Robinson, Nick (2014) studied “India's Judicial Architecture” where he wrote on “the
Indian court which describes the architecture of the Indian judiciary. In other words,
the several types of courts and judges in the Indian judicial system and the hierarchies
and relations between them. It focuses on how the Indian judiciary coordinates its
behavior through both a system of stare decisis (i.e. judicial precedent) and internal
administrative control. The Indian judiciary is unusually top-heavy, with more cases,
more judges, and more administrative power located in the upper judiciary, and
especially the Supreme Court, than in other systems. This top-heaviness has a range
of implications, including leading to a polyvocal jurisprudence and a unique set of
inter-judge relations, while empowering the upper judiciary that weakens the court
system's overall ability to perform core parts of its institutional mandate.”
22. Yellosa, Dr. Jetling (2017), studied “Judicial accountability in India: A myth or
reality” in which he says that the judiciary is one of the three organs of the state.
Article 12 of the Constitution provides the meaning of the state but does not contain
the word judiciary. The Constituent Assembly left the word judiciary to give special
and independent status to the judiciary. The Oxford Dictionary of English Language
defines accountable as “responsible for own decisions or actions and expected to
explain to them when asked”. Accountability is the “sine qua non” of democracy.
Transparency enables accountability. Public establishment or representative is not
exempted from accountability. The Constitution ensures the special status to the
judiciary and it has accountability. Judicial accountability is not the same as the
accountability of the executive or the legislature or any other public establishment.
The people resort to the judiciary as the last provision to set their difficulties when
elected authorities fail to do that. Well, some of the judicial officers sail in the same
directions as the elected authorities to neglect their official duties. The autonomy and
neutrality of the judiciary is a symbol of the democratic system. The Constitution
provides safeguards to maintain the autonomy of the judiciary. There are laws to
maintain judicial accountability but they are not sufficient. The government is framing
more laws to strengthen judicial accountability.
23. Gagrani, Harsh (2009) studied, “Appointment or Disappointment: Historical
Backdrop and Present Problems in the Appointment of Judges of Indian Judiciary” in
which he stated that the method and technique of selection of judges to the higher
 judiciary have always been a topic of debate in India. The public has demonstrated
disappointment, both during the stage of executive and judiciary hold in appointments
While the previous stage saw the legal fulfilling individual impulses of the official,
opening and absence of responsibility portray the last stage. The author has explained
the reason behind the first technique for appointments, offering supremacy to the
official, through the civil arguments, and how over passion secure freedom of legal
incited the judges to decrypt the law strangely. The main driver behind this perplexity
has been the ever-existing power battle between the official and the legal. The tussle
should end through the foundation of the National Judicial Commission, an
autonomous body for the appointment of judges which to date is a paper tiger. Only
such a body ensures that the appointments are unbiased, and not corrupted or selfish.
24. Acharya, Bhairav, (2017) studied “The Evolution of Judicial Accountability in India”
in which he stated that “The Judicial Standards Bill of 2010” almost concluded the
accountability for judicial misbehavior and indiscipline. The growing number of
reports of judicial misconduct includes admission from a sitting Chief Justice in 2001
of many corrupt judges. Previous endeavors to discipline judges were removed
because they interfere with judicial freedom. Lack of regulation in the Constituent
Assembly did not consider judicial accountability in detail. The Assembly is
concerned with the mechanics of removing judges, and not measures to discipline
them. The Judges Act of 1968 was the first statute to regulate the impeachment
process. It invoked but failed to achieve its objectives. The judiciary has made an ad
hoc internal mechanism to deal with the hiatus called the “minor measures” approach.
The punishment behind the “minor measures” approach is transfer. The only way to
step forward from this deadlock is to introduce scalable responses to judicial
misconduct, with strong warnings and punishments, a due process regime, which does
not interfere with judicial independence.
25. Bhattacharjee, Maushumi, & Galaw, Prakhar, (2017) debated on “Judicial
Independence and Judicial Accountability” in which the author discussed the fast-
approaching requirement of accountability in the Indian Judiciary. Lately, the
activities and verdicts of the appointments, transfers, judgments, and orders call for
accountability because of the extensive corruption. The judiciary system which is the
protector of the constitution has fallen into the catch of corruption and nepotism. As
the saying “power corrupts and absolute power corrupts absolutely” goes well with
the Indian judiciary. This is responsible due to a lack of judicial accountability.
 Certain powers like contempt of court, the judges could scare anyone as they have
many powers for which they are not accountable to anyone. Some provisions like
judge’s inquiry make the aberrant judges accountable, but the investigations are done
by the judges’ advisory groups themselves and so biased results. The multifaceted
impeachment process does not remove judges from his office. The problem of
accountability is exhaustive considering the previous, existing, and upcoming
activities related to appointments, transfer, decisions, and misappropriation of the
position for individual advantages and tries to examine different explanations of
accountability like National Judicial Appointment Commission (NJAC).
26. Tiwari, Neeraj, (2009), studied “Appointment of Judges in Higher Judiciary: An
Interpretational Riddle” where it states the original framework consists of a
“consultative process” between the Administrative and the Judges. After the
formation of the Constitution, this was a widespread practice. But in 1993, after the
Second Judges Case, the Supreme Court has discarded the current consultative
process and developed a new plan for the appointment of judges in the higher
Judiciary, specifically "Collegium". A board of Chief Justice of India accompanied by
two seniors most Judges of the Supreme Court commends the appointment of a judge.
However, the current incidents are uncovering the inadequacy and inconsistency of
the collegium. The Law Commission of India, in its 214th Report, indicated profound
worry on the working of the collegium framework and advised for re-evaluation.
27. Rajesh Kumar, "Universal's Guide to the Constitution of India": Stated in L. Chandra
Kumar v U.O.I, the judges of the higher judiciary have been entrusting with the duty
of preservation of constitution that the power to interpret, it has observed by Supreme
Court of India. The judges have to make sure, that the equilibrium of control in the
discharge of function under the Constitution, however, executive and legislatures do
not, in the discharge of function and constitution limitation.
28. U.C. Jain; Jeevan Nair, Judiciary in India, Pointer Publishers, Jaipur, 2000 covers the
history of the Indian Judiciary from Pre-independence to 2000. Judiciary in India also
provides an overview of the entire Judicial systems of the country from district to the
state and national level.
29. A.S. Altaker in his book State And Government in Ancient India, Moti Lal
Benarsidas, 1988, has made efforts to understand the evolution, development, kinds,
nature, purpose, the function of State during the Vedic period in India and critically
examined the relationship between citizens and State, legislature, executive,
 secretariat, administration of local towns and village. This book also discusses the
administration of justice in the ancient period. The author also talks about the Vedic
period literature and thoughts of thinkers relating to the justice system.
30. Joyalbi Grassman’s book Lawyers and Judges, John Wily & Sons, New York, 1969,
is an analysis of the influence of the American Bar Association in the recruitment of
federal judges. An empirical explanation of the politics of selection procedure has
been made and light has been laid down upon the causes of taking interest (in
selection) by President and Attorney General, Senate and Bar; with this nature of
selected judges influence of Bar in recruitment procedure, etc has been discussed. The
book is helpful to understand the functions of judges, judicial procedures, and
political relationships.
31. Tom, Campbell; Justice: Issues in Political Theory, Macmillan Press Ltd., London,
2001 highly acclaimed and widely used text provides a much-expanded overview of
the nature and scope of Justice. The author concludes by reflecting on the role of
Justice in contemporary Political Thought and its partial eclipse by the discourse of
human rights.
32. Varinder Grover; Courts and Political Process in India, Deep & Deep Publications,
New Delhi, 1989 deals with courts and the political process in India. It includes
Articles of different scholars on the Role of Courts, Parliament and Judiciary,
Interaction between Judiciary and Government, Independence of Judiciary, Social and
Natural Justice, Indian Lok Pal, and Common man and other connected matters.
33. Netra Panday in his book Political Ideas and Institution in Ancient India Bharti
Prakashan, Allahabad,1980 explained the prevalent justice system in the Mahabharat
period, Maurya period, and afterward based on Ramayana, Mahabharat Kautilya’s
Arthshastra, Manusmriti, Yajnvalkya, Nitishastra, Kaamandankiyam, etc. It is more
descriptive and mythological rather than analytical.
34. Satyakety Vedalankar has made sincere efforts about organic developments of ruling
institutions and political theories in his book Ruling Institution and Political Ideas of
Ancient India, Saraswati Sadan, New Delhi, 1983. To achieve this goal in this
direction he has been directed by Ashtadhyee by Panini, Arthshastra by Kautilya,
Ramayan, Mahabharat. One chapter of this book deals in justice, law, and order in
ancient India; which he mentioned that in ancient period laws were based on religion
and traditional customs and the king subjected himself to the law i.e. law was
supreme. The king was the supreme officer of the justice system. He might have
 appointed any person as judge, who had been skilled in Vedas. In addition to that, he
has produced thoughts of different thinkers relating to the ancient justice system. It
can be said that this book is a good attempt to highlight ancient systems and ideas.
35. H.R. Khanna; Issues Before the Nation, B.R. Publishing Corporation, New Delhi,
1988 is a thought-provoking book by Justice H.R. Khanna dealing with the various
problems facing the country today. It discusses the various aspects of the existing
Judicial system of India and the problems which Indian democracy is facing. The
author has explained clearly what the role of a Judge ought to be. Like a true Judge,
he has given frankly and impartially his views which are based on his vast study and
wide experience.
36. B. K. Nehru, an eminent administrator and politician in his writing Administration of
Justice, Mainstream Vol. 21, 3 November 1985, has pointed out three main causes for
nonavailability of effective justice e.g. ineffective investigation by police, delay in the
delivery of judgment by courts and lethargic attitude of the legislature. In addition to
this taking, too much remuneration (fee) by the advocates is the main reason behind
the corruption in the judiciary. As a solution to the problem the author has advocated
the establishment of a specific judicial system at the rural level and strengthening
efforts concerning ‘Lok Adalats’.
37. B.N. Kirpal; Ashok H. Desai, (eds), Supreme But Not Infallible, Oxford University
Press, New York, 2000. This book commemorates fifty years of the Indian Supreme
Court. It includes essays by eminent Jurists, legal academicians, and journalists who
critically evaluate the working of this institution over the last five decades.
38. Subash Chander Gupta; Supreme Court of India-An Instrument of Socio-Legal
advancement, Deep & Deep, Publications, New Delhi, 1995 is an attempt to evaluate
the role of the Supreme Court as an institution of Justice reformation. It is now widely
believed that through the announcement of new rights and entitlements the Judiciary
slowly and steadily emerged as the people's court promising to wipe every tear from
every eye. It contains various aspects of the Supreme Court towards Social Justice.
39. Rajeev Dhavan; The Supreme Court of India-A Critique of Its Juriristic Techniques,
N.M. Tripathi, Pvt. Ltd., Bombay, 1977. has analyzed the Judges of India, in their
background and behavior. Their method of work-of the techniques they employ in
their approach to the decisions they make. He also criticizes the role of Judges. He has
presented, not only with a review of the first twenty-five years of the Supreme Court
of India but has also given a critique of it.
 40. P.N. Bhagwati in his article Law, Justice and the Under Privileges, Mainstream, June
21, 1994, has critically discussed the incapacity of the judicial system to do justice
with the rural laborers. According to the article, rural laborers are inorganized, on the
contrary, ‘Samantas’ and ‘Zamindars’ are organized. The author thinks that there is a
need for justice under the various enactments with various provisions under the
constitution of India because the question of political freedom cannot be raised or
solved unless there is social and economic freedom available to the citizens.

STATEMENT OF PROBLEM
1. Whether The Constitutional system has taken consideration to get the Independence
of legal executive at every one of the three levels of this establishment.
2. Whether the contentions that have emerged concerning the arrangement of judges, the
exchanges, and states of administration the surmising that might be drawn is that the
protection ensured to the appointed authorities are not adequate to safeguard the
autonomy of the legal executive

HYPOTHESIS
This study has proceeded with the hypothesis that judicial independence is not an idle wish or
slogan. The modern democratic governments must effectively guarantee judicial
independence.

TOOLS FOR DATA COLLECTION

The present study has been carried out with the help of different books written by Indian and
foreign authors on the Independence of the Judiciary and other related topics. For carrying
out this study different web resources were used including legal databases such as Manupatra,
SCC Online, LexisNexis, Westlaw, HeinOnline, Wilson, etc. Various journals have also been
studied for the present research. Reference has also been made to original texts of ancient
scriptures.