INDEPENDENCE OF JUDICIARY

• ’There can be no difference of opinion in the

house that our judiciary must both be
independent of the executive and must also
be competent in itself. And the question is
how these two objects could be secured.
There are two different ways in which this
matter is governed in other countries. In Great
Britain the appointments are made by the
crown.
• United States where, for instance, offices of
the Supreme Court as well as other offices of
the State shall be made only with the
concurrence of the senate in the United States
 DR.B.R.Ambedkar

The people of a nation may lose confidence in the

Executive (The King), or the Legislature but it will be
an evil day if they lose their confidence in its
judiciary. The judiciary is the guardian of human
rights and civil liberties. The judiciary contributes
vitally in the preservation of peace and order by
settling disputes between the State and Citizens
and among citizens which leads to a harmonious
and integrated social existence
• The judicial institutions i.e., the Courts are not only Courts
of law, they are also the Courts of justice.
• The “Rule of law”, said, A.V. Dicey, in 1885 means, “the
absolute supremacy or predominance of regular law as
opposed to the influence of arbitrary power and excludes
the existence or arbitrariness, of prerogative, or even wide
discretionary authority on the part of the Government.
Another significance, which Dicey attributed to the concept
of Rule of law, was; “equality before the law or the equal
subjection of all classes to the ordinary law of the land
administered by the ordinary law Courts”. The principle
implicit in the Rule of Law that the Executive must act
under the law and not by its own decree or fiat, is still
cardinal principle of the English system.
• For a democratic government, Rule of Law is a
basic requirement, and for the maintenance of
Rule of Law, there must be an independent
and impartial judiciary. In a State professing
Rule of Law, the aim should be to provide for a
system which secures to its citizens adequate
procedure for the redress of their grievances
against the State before forums which are able
to administer justice in an impartial manner
without any fear and favour.
• The judiciary is the final interpreter and the guardian of
the Constitution. In a Federal Constitution, the
judiciary is constituted as ultimate authority to restrain
any exercise of absolute, capricious and arbitrary
power. The Legislative action of majority has to
undergo the scrutiny of the legal elite, the judiciary.
The human rights are secured and the tyranny of the
majority is contained by Judicial Vigilance, that is to
say, the legislative and executive action is counter
balanced by judicial verdict. Democracy has no
alternative but to the accept the Courts as the sentinel
and the guardian of liberty and freedom.
 Meaning of Independence of Judiciary:

• Before we discuss how independence of judiciary is

maintained in India, it is essential to explain what do we
mean by the term “independence of judiciary. In the words
of Dr. V.K. Rao, “Independence of judiciary has three
meanings:
• (i) The judiciary must be free from encroachment from
other organs in its sphere. In this respect, it is called
separation of powers. Our Constitution makes the judiciary
absolutely independent except in certain matters where
the Executive heads are given some powers of remission
etc.,
• (ii) It means the freedom of the judgments and free from
legislative interference.
• (iii) The decisions of the judiciary should not
be influenced by either the Executive or the
Legislature—it means freedom from both, fear
and favour of the other two organs.”
• The Constitution of India envisages an
independent Supreme Court. In fact, every
member of the Constituent Assembly had been
eager to see that the Court was made
independent, as it could possibly be.
• In the words of Austin, “The members of the
Constituent Assembly envisaged the judiciary as a
bastion of rights and of justice. The Assembly has
been careful to keep judiciary out of politics.”
• In the words of Graham Walles, “The
psychological fact behind the principle of
independence is not the immediate reaction of
feeling in a man whose impulses are obstructed
but the permanent result in his conduct of the
destruction of some impulses and the
encouragement of others. We make a judge
independent not in order to spare him personal
humiliation but in order that certain motives shall
not and certain other motives shall direct his
official conduct.”
 Methods to Secure Independence of
Judiciary:

• (a) High Qualifications:

• Politics in the appointment of judges has been
avoided by prescribing high minimum
qualifications for such assignments in the
Constitution itself. An aspirant for such an
important office must have been a judge of a
High Court, at least for five years or must an
advocate of a High Court be at least for ten
years, or be a distinguished jurist.
• (b) Handsome Remuneration Subject to Vote of
Legislature:
• (c) Security of Tenure:
• The Judges of the Supreme Court enjoy security
of tenure. They are not removable from office
except by an order of the President and that also
only on the ground of proved misbehavior or
incapacity, supported by a resolution adopted by
a majority of total membership of each House
and also by a majority of not less than 2/3 of the
members of that House present and voting.
 (d) Oath to Work Fearlessly:

• Before assumption of office, the judges have to

take an oath to perform their duties fearlessly
and to uphold the Constitution. The ruling party
committed to a particular ideology expects the
judges to read the writing on the wall and act
accordingly. The supersession of three judges and
appointment of a junior judge as Chief Justice
raised the issue. Ex-Chief Justice S.M. Sikri was of
the view that commitment to the philosophy of
the ruling party, is not the part of the oath
administered to a judge. Hence such commitment
should not be expected of him.
• (e) No Practice after Retirement:
• (f) Denial of Political Office before or after
Retirement:
• The judges should not be allowed to hold
political office after retirement otherwise they
will have the temptation of creating ground
for becoming the political leaders or gaining
some other lucrative office through political
Godfathers during their tenure as judges.
 (g) Appointment by the Executive
• The supersession of three judges viz., Messers J.M. Shelat,
K.S. Hegde and A.N. Grover and elevation of a junior Judge
Mr. A.N. Ray to the post of Chief Justice of the Supreme
Court led to scathing criticism by the concerned and their
adherents that the President of India could make such
appointments or effect such promotions with extraneous
considerations in view.
• In this case three superseded judges had given verdict
against the controversial 24th and 25th Amendments on
April 24, 1973. Only two days later on the retirement of
Chief Justice, S.M. Sikri, a junior judge was promoted as the
Chief Justice. In the opinion of distinguished lawyers and
judicial luminaries, this was very unfortunate action on the
part of the Executive since it impaired independence of
judiciary a great deal.
• The essence of a Federal Constitution is the division of
powers between the Centre and the State
Governments. This division of power is made by the
written Constitution which is the supreme law of the
Land. Since language of the Constitution is not free
form ambiguities and its meaning is likely to be
interpreted differently by different authorities at
different times, it is, therefore, natural that disputes
might arise between the central and constituent units
regarding their respective powers. So, an independent
judiciary is required to decide dispute between the
Centre and State or the States inter se.
• An independent and impartial judiciary with
power of judicial review has been established it
plays another significant role of determining the
limits of power of the Centre and States.
• In Britain, the independence of judiciary rest not
on formal constitutional guarantees and
prohibitions but on an admixture of statutory and
common law rules, constitutional conventions
and parliamentary practices, fortified by
professional traditions and public opinion.
• In United States of America, the Supreme
Court is the highest Court of judicial
administration and the judicial independence
depends upon the supremacy of the Supreme
Court. The supremacy of judiciary developed
as the Supreme Court assumed the power to
perform constitutional obligation and protect
the people and their rights from the State
action.
• Since the case of Marbury v. Madison, it has
come to be considered a duty of every judge in
United States to treat as void any enactment
which violates the Constitution. The Court cannot
properly decline to exercise this power. This has
led the establishment of the doctrine of judicial
supremacy. The doctrine has been thus expressed
by Willoughby, “the fundamental principle of
American constitutional jurisprudence is that
law’s and not men shall govern”.
• The framers of the Constitution established
independent and impartial judiciary in India.
But the image of judiciary in its functional
aspect is not fully independent. The
establishment of independent judiciary
remains more in the text book of our
Constitution
 Necessity for Independence of
Judiciary
• In democratic countries, the judiciary is given
a place of great significance. Primarily, the
courts constitute a dispute- resolving
mechanism. The primary function of the court
is to settle disputes and dispense justice
between one citizen and another. But courts
also resolve disputes between one citizen and
another. But courts also resolve disputes
between the citizen and the state and the
various organs of the state itself.
• The architects of the Indian Constitution were
conscious of the very significant and special role
assigned to the judiciary in the scheme of the
Constitution. It was envisaged as the organ for
protecting the rights of the citizens, guaranteed under
the Constitution. There was the recognition that
Judges, particularly the judges of the superior courts,
who have been given the power of judicial review of
administrative and legislative actions, should function
without fear or favour and that the judiciary should
remain totally independent and fully insulated from
any external interference.
• The judges of the superior courts have been
confessed with the power and jurisdiction to
review both the executive actions and the
legislative actions of the state on the
touchstone of the constitutional provisions
and relevant statutory provisions.
• It is a function of the courts to uphold the rule of law
and to ensure that the government runs according to
the law. In a country with a Written Constitution,
courts have the additional function of safeguarding the
supremacy of the Constitution by interpreting and
applying its provisions and keeping all authorities
within the constitutional framework. For the
maintenance of the rule of law and fair judicial
administration, an independent judiciary is of utmost
importance. Thus, independent judiciary plays an
important role in controlling the arbitrary acts of the
administration.
• Independence of judiciary is the sine qua non of
democracy.
• Only an impartial and independent Judiciary can
stand as a bulwark for the protection of the rights
of the individual. The Judiciary is the protector of
the rights of the Constitution and, as such, it may
have to strike down executive, administrative and
legislative acts of the Centre and the State. For
Rule of Law to prevail, judicial independence is of
prime necessity.
• Being the highest court in the land, it is very
necessary that the Supreme Court is allowed
to work in an atmosphere of independence of
action and judgement and is insulated from all
kinds of pressure, political or otherwise.
 A.C. Thalwal v. High Court of
Himachal Pradesh
• The Supreme Court has itself laid emphasis on
the independence of the judiciary' from time
to time. The court has observed recently in
this case that constitutional scheme aim at
securing an independent Judiciary which is
bulwark of democracy.
 The basic need for the independence of the
judiciary rests upon the following points
• (i) To check the functioning of the Organs:
Judiciary acts as a watch dog by ensuring that all
the organs of the state function within their
respective area and according to the provisions
of the Constitution. Judiciary acts as a guardian
of the Constitution and also aid in securing the
doctrine of separation of power.
• (ii) 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 as to clear the
ambiguity but such an interpretation must be unbiased
i.e. free from any pressure from any organs like executive.
If the judiciary is 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.
• (iii) 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 emphasized 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.
• IV. Institutional Independence:
The Judiciary is one of the important pillars of
democracy. It has more onerous responsible
than two other important estates, the Executive
and the Legislative. In fact it is the judiciary and
the institute of judiciary that helps the orderly
functioning of parliamentary democracy and the
exercise of powers by the various wing of
administrative machinery.
 What is the Collegium System and how it
works?
• The Collegium is comprises of the Chief Justice
of India along with four other senior judges.
This system is in practice since October 28,
1998. Collegium system is used for
appointments and transfers of judges in High
courts and Supreme Courts.
• Article 124 to 147 in Part V of the Indian
Constitution envisages the powers,
independence and jurisdiction of the Supreme
Court.
• The Collegium System is a system under which
appointments/elevation of judges/lawyers to
Supreme Court and transfers of judges of High
Courts and Apex Court are decided by a forum of
the Chief Justice of India and the four senior-
most judges of the Supreme Court.' There is no
mention of the Collegium either in the original
Constitution of India or in successive
amendments.
• The Collegiums System of appointment of
judges was born through “three judges case”
• The recommendations of the Collegium are
binding on the Central Government; if the
Collegium sends the names of the
judges/lawyers to the government for the
second time.
• The Collegium sends the recommendations of
the names of lawyers or judges to the Central
Government. Similarly, the Central
Government also sends some of its proposed
names to the Collegium. The Central
Government does the fact checking and
investigate the names and resends the file to
the Collegium.
• Collegium considers the names or suggestions
made by the Central Government and resends
the file to the government for final approval. If
the Collegium resends the same name again
then the government has to give its assent to
the names. But time limit is not fixed to
reply. This is the reason that appointment of
judges takes a long time.
• Here I would like to give the example of Chief
Justice of the Uttrakhand High Court. In this
case the Collegium is recommending the
name of the Chief Justice K.M. Joseph for the
judge of the Supreme Court but the central
government is not giving its assent due to
political reasons.
• In April, 399 posts of judges were vacant,
while the figure was 394 in March. The
vacancy position in February stood at 400 and
in January, it was 392, according to the data
collated by the Department of Justice.
• Over 43 lakh cases are pending in the 25 high
courts.