JUDICIAL INDEPENDENCE

The independence of the judiciary is one of the

central elements of India’s democratic system. It is
a unique feature that separates India from other
countries. However, time and again, the
independence of the judiciary has been challenged
by external or political influence and this has raised
some doubts on the provisions mentioned in the
principle of separation of powers.
The Constitution of India guarantees independence
to the judiciary. However, protecting judicial
autonomy begins with the Constitution governing
the court. In the end, the independence of the
judiciary rests on the creation and support of an
overall favourable environment by all state
institutions, including the judiciary and the general
public. The judiciary’s independence must also be
continuously protected against unforeseen
circumstances and shifting social, political, and
economic circumstances; it is too sensitive to be
left unprotected.
Independence of judiciary in India
Due to the prolonged British Raj and then a newly
formed democracy, there was always a concern on
how the judiciary in India should function. Hence,
an independent judiciary was the answer to this
question. For the prosperity and stability of the
country, the rule of law is very important. An
independent and impartial judiciary can establish a
stable rule of law. Independence of judiciary
means, the power of upholding the rule of law,
without any fear or external influence, and
maintaining effective control over the actions of
the government. The independence of the judiciary
is part of the basic structure of the Constitution.
The independence of the judiciary ensures that the
powers of the Parliament, the State legislature, and
the Executive, are properly distributed and there is
a balance between the demands of the individuals
and norms of the society. The legal system does
not have any ideology and political interests and is
often rendered neutral.

Few case laws which explain the concept of

independence of the Indian Judiciary
In the case of S.P Gupta v Union of India (1982),
the court held that the judges should be fearless
and should uphold the principle of rule of law. This
is the basis of the concept of independence of the
judiciary.
In the case of Supreme Court Advocates-on-Record
Association & Anr. Vs Union of India (1993), the
court observed that the independence of the
judiciary is necessary for democracy to function
effectively. The court further concluded by stating
the powers and rights can never be hampered as
long as the judiciary remains independent from the
executive and the legislature.

Constitutional provisions on an independent

judiciary
Around the world, the independence of the
judiciary has been a debate. However, as India has
a written Constitution, the independence of the
judiciary is mentioned in writing, hence, making
this concept even more important. Independence
of the judiciary means that the legal fraternity has
all the powers to make their own decisions, without
any external influence. The judiciary is not only
important in dispensing justice but also, in solving
disputes arising between the States. This can only
be done if the judiciary is free from all outside
pressures. Judges play one of the most important
roles in the legal system. Hence, independence of
the judiciary also means independence of the
judges. This means that the judges can submit
their reports and take decisions without any
influence, they are not dependent on the
Government, and they are not dependent on any of
their superior judicial officers. Part 5 of the Indian
Constitution deals with the Union Judiciary. The
independence of the judiciary starts with the
appointment of the judges in the courts. Article 124
to Article 147 deal with the appointment of the
Supreme Court judges and, Article 214 to Article
231 deal with the appointment of judges in the
High Courts. Further, the Subordinate courts are
mentioned under Article 233 to Article 237 of the
Constitution. The highest subordinate court is that
of the court of District Judge. The framers of the
Constitution divided the judiciary, legislature, and
the executive into three separate organs, so as to
ensure that each organ will perform its roles
independently and not interfere with the
functioning of the other, and also that this will help
in justifying the principles mentioned in the
Preamble.

The meaning of independence with respect to the

judiciary
Even after years of existence, the meaning of the
judiciary’s independence is still unclear. Our
Constitution’s Articles 124 to 147 deal with the
appointment of Supreme Court judges and Articles
214 to 231 deal with the appointment of judges in
the High Courts, but our Constitution only mentions
the judiciary’s independence; it makes no mention
of what such independence truly entails. Judiciary’s
independence includes both the independence of
the judicial institutions and the independence of
the judges who make up its body. However, judicial
independence does not mean lack of responsibility
or arbitrariness. The country’s democratic political
system includes the judiciary. As a result, it must
answer to the country’s citizens, the Constitution,
and democratic values. The theory of the
separation of powers appears to be the concept’s
foundation and focal point. Therefore, it largely
refers to the judiciary’s independence from the
executive and legislative branches. Judiciary’s
independence goes beyond just establishing a
separate institution free from the oversight and
influence of the government and the legislative
branch. The fundamental goal of the judiciary’s
independence is that judges must be able to
resolve a dispute that comes before them in
accordance with the law, free from other
influences. Because of this, every judge’s
independence is a component of the judiciary’s
overall independence.
Independence of the judiciary and the rule of law
French theorist Montesquieu contended that a
framework in which various authorities exercised
legislative, administrative, and judicial authority
while all being bound by the rule of law was the
best way to avoid despotism. He saw despotism as
a looming danger to any government that was not
already despotic and the principle of separation of
powers refers to this theory. Judicial review is one
of the strongest strategies courts use to defend the
rule of law. Judicial review refers to the court’s
authority to assess the legality of both government
executive orders and laws established by the
legislature. By employing this authority, the court
maintains control over the legislative and executive
branches.

The case of Marbury v. Madison (1803), in which

Chief Justice Marshall established that the court
had the authority to evaluate legislation adopted
by the legislature, can hence be credited for giving
birth to the concept of judicial review. However, a
lot of academics have criticised this idea for a
variety of reasons, including judicial
authoritarianism, excessive dependence on judges,
being undemocratic, and being a barrier to a
strong democracy.
Independence of the judiciary : international
perspective
The Basic Principles on the Independence of the
Judiciary, which were ratified by the General
Assembly in resolutions 40/32 on November 29,
1985, and 40/146 on December 13, 1985, were
approved by the 7th United Nations Congress on
the Prevention of Crime and the Treatment of
Offenders, held in Milan from August 26 to
September 6, 1985. The Universal Declaration of
Human Rights (Article 10) and the International
Covenant on Civil and Political Rights, among other
human rights documents, both established the idea
of judicial independence (Article 14). Additionally,
there are a number of UN standards, particularly
the Bangalore Principles of Judicial Conduct from
2002 which was accepted by the UN General
Assembly.

The United Nations Charter, the Universal

Declaration of Human Rights, the International
Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and
Cultural Rights, the Organisation and
Administration of Justice in Every Country, and
other basic principles developed to aid the Member
States in their task of securing and promoting the
independence of the judiciary should be taken into
consideration and respected by governments
within the framework of their national legislation
and practise and brought to the attention of
judges, lawyers, members of the executive, and
the legislative.

Constitutional provisions (more content for existing

heading)
Our constitution has several clauses that
guarantee the independence of the judiciary. The
following is a discussion of the constitutional
clauses:

Security of Tenure:
The Supreme Court and high court justices have
been granted tenure security. Once appointed, they
stay in their positions until they reach the
retirement age, which is 65 years for judges of the
Supreme Court (Article 124(2)) and 62 years for
high court judges (Article 217(1)), respectively.
They cannot be removed from their positions other
than by presidential order, and even then only on
the basis of proven misbehaviour and incapacity. A
majority of all members of each House of
Parliament, as well as a majority of at least two-
thirds of the members who are present and voting,
are required in order to approve a resolution to that
effect. Due to the difficult nature of the procedure,
there has never been a case of a Supreme Court or
High Court judge being removed under this clause.

Separation of the Judiciary from the Executive:

According to Article 50, which is one of the
Directive Principles of State Policy, the State must
take action to keep the judiciary and executive
branches distinct in its public services. Securing
the judiciary’s freedom from the executive is the
goal of the Directive Principle. There must be a
separate, independent judiciary according to
Article 50.

Salary and Allowances:

Since judges’ salaries and allowances are set and
not subject to a vote by the legislature, it is also a
factor that contributes to the judges’
independence. In the instance of judges of the
Supreme Court, they are charged to the
Consolidated Fund of India, and in the instance of
judges of the high court, to the state consolidated
fund. Except in extreme financial emergencies,
their pay structures can be changed, but they
cannot be changed to their detriment (Article
125(2)).

Powers and jurisdiction of Supreme Court:

Parliament is only able to increase the Supreme
Court’s authority, it cannot reduce it. Parliament
may alter the monetary threshold for Supreme
Court appeals in civil matters. The Supreme Court’s
appellate authority may be expanded by
Parliament. To help the Supreme Court function
more efficiently, it could grant it extra authority. It
may provide authority to issue orders, writs, or
directives for any purpose other than those listed
in Article 32. The Supreme Court’s authority cannot
be diminished, thereby establishing judicial
independence in India.

Penalising for its contempt:

Both the Supreme Court and the high court are
able to do so. According to Article 129, the
Supreme Court is empowered to penalise for its
contempt. Similarly, Article 215 stipulates that
each high court should have the authority to
impose punishment for contempt of itself.
The conduct of a judge is not discussed in the state
legislature or Parliament:
According to Article 211, no debate over the
behaviour of any Supreme Court or high court
judge in the course of his duties shall take place in
the state legislature. A similar provision is included
in Article 121, which states that no discussion of
the behaviour of the Supreme Court or A high court
judge in the performance of his duties may take
place in Parliament until a resolution is presented
by the President requesting the judge’s dismissal.

Appointment of Judges
The Collegium
According to the First Judges case, the Chief Justice
of India’s (CJI) proposal for judge appointments and
transfers might be rejected for “cogent reasons.”
For the following 12 years, the executive had
priority over the judiciary in making judicial
appointments. However, the Supreme Court held in
the Second Judges case (and subsequently the
Third Judges case, which was a clarification) that
the judiciary had supremacy in appointing judges.
According to it, the Supreme Court’s senior-most
judges and the Chief Justice of India will have a
major influence on judicial recruitment decisions.
Regarding judicial appointments, rules and
procedures were established. The executive’s
position was drastically diminished, and the
judiciary now controlled a major function.

NJAC
With the passage of the Constitution (Ninety-ninth
Amendment) Act of 2014 as well as the National
Judicial Appointments Commission Act of 2014, the
NDA government proposed the establishment of
the National Judicial Appointments Commission in
2014. The Commission would be made up of the
Chief Justice of India, two senior judges, the Law
Minister, and “two eminent personalities” chosen
by the Prime Minister and Leader of the Opposition.
The NJAC Act and Constitution (Ninety-ninth
Amendment) Act, 2014 were, however, declared
illegal by the Supreme Court in a case brought by
the Advocates-on-Record Association as according
to them it undermined the separation of powers
and intruded on the independence of the judiciary.

Relevant rulings where the independence of the

Indian Judiciary has been challenged
No one is perfect in this world. So, how can a
judiciary be perfectly independent? In India too,
judicial independence has been challenged in
various court rulings. However, before that, to
justify this, in India the Constitution has mentioned
provisions for the appointment of judges in the
Supreme Court and the High Court, but the final
approval while selecting the judges is in
consultation with the President of India. A few of
these court rulings are:

The Rafale deal case

In this case, the Indian Government announced a
deal with the French Government to purchase 36
Rafale fighter jets from the French company
Dassault Aviation in 2015. The deal also included a
50% offset clause which meant that the French
company had to invest 50% of the contract value
in India by purchasing Indian goods and services.
Next year, the company and Reliance Group
announced a joint venture. Dassault specified that
it wants to invest $115 million to fulfill its offset
obligation partially. Hence, the matter went to the
Supreme Court where the litigants alleged
irregularities in the deal. The Court turned down
the corruption charges on the grounds that it had
less scope for judicial review in defense matters.
This decision of the Court proved to be
controversial as the government stated that the
judgment had some factual errors. The judgment
consisted of the CAG(Comptroller and Auditor
General) report and the Parliamentary Accounts
Committee report which were submitted to the
Court by the government and were termed as
misinformation. The Court decided to review the
petitions on merit, hence closing the controversy.

The Bhima Koregaon case

In 2018, the celebrations for the bicentenary
anniversary of the Bhima Koregaon battle were
interrupted due to violence leading to the death of
a person and several injuries. The police
investigated and arrested several activists claiming
that inflammatory speeches were made by them
eventually leading to the violence. Hence a PIL was
filed seeking an investigation by the SIT(Special
investigation team) over the Unlawful Activities
(Prevention) Act charges against the arrested
activists. The litigants alleged that the Mumbai
Police were biased in their decision. The case went
to the Supreme Court who dismissed the case with
a 2:1 majority. While the two judges who were
Chief Justice of India Dipak Misra and Justice
Khanwilkar were satisfied with the investigation
done by the Mumbai Police, Whereas, Justice D.Y
Chandrachud was not. Justice Chandrachud
dissented, alleging that the arrests were made
targeting political dissent.

Aadhar Act as a money bill case

In this case, the issue was whether the Aadhar Act
in 2016, was passed as a money bill. The court
held that it was a money bill again with a majority.
Justice A.K Sikri accepted the act as a money bill
and referred to Section 7 of the Act which states
that the Aadhar based authentication can be used
for benefits or services charged on the
Consolidated Fund of India, hence it can be used as
a money bill. Whereas, Article 110 of the
Constitution stated that the money bill can be used
only on services related to spending and receiving
of money by the Union Government. Hence, the
judgment was criticized and Justice Chandrachud
who had dissented to the judgment termed it as a
fraud on the Indian Constitution.

The CBI-Alok Verma case

In this case, the judgment was delayed. The
government had divested the CBI director Alok
Verma of all his powers. This needed sanctions
from a high-powered committee under the Delhi
Special Police Establishment Act. The Supreme
Court examined the details of the corruption
charges against the CBI director. Later, the Court
directed the reinstatement of Verma as the CBI
director on the basis of the sanctions of the
selected committee. However, the reinstatement
was ordered when Mr. Verma had just three weeks
left for his tenure. Hence, this raised criticism once
again.

Is India’s judicial independence at stake

The above-mentioned court rulings were criticized
on the grounds that they had political interests.
However, there have been instances where the
judges after retirement have enjoyed certain
benefits. Former Chief Justice of India Ranjan Gogoi
was made a member of the Rajya Sabha after
stepping down from the post of CJI. Similar
instances in the past have occurred. In 1991,
Justice Ranganath Mishra stepped down as the CJI
and was later made the Chairman of the National
Human Rights Commission. Justice M. Hidayatullah
was the Chief Justice of India who retired in 1970.
He later became the Vice President of India. There
have also been instances where the members of
Parliament have become judges. Due to the COVID
19 pandemic, the courts are shut and all physical
hearings are done online. This has made things
difficult because there is already a huge pendency
of cases. Hence the courts decided to deliver
judgments on cases that are very urgent. However,
the listing of urgent cases for hearing has been
controversial. A petition was filed in the case of
Jagdeep Chokkar v Union of India (2020), for the
return of the migrant workers who were helpless
and stranded amidst the lockdown to their homes.
This matter was not heard immediately, whereas a
petition filed in the case of Arnab Goswami v Union
of India (2020), for quashing the FIRs against him,
was heard on the next day. Hence this was
controversial as to which case the court found
more important. Further, the internet in Jammu and
Kashmir was shut down for nearly 6 months. The
Court took a long time to hear this matter. The
people in Jammu and Kashmir were deprived of the
internet and cut of from the rest of the world. As
we have touched on the cases where the court has
faced criticism for having political interests, there
have been many landmark judgments that were
assumed to have political interests but the
judiciary stood strong. In the case of Indira Gandhi
v Raj Narain (1975), Raj Narain, an activist
challenged the appointment of the then Prime
Minister Indira Gandhi on the grounds that it was
faulty. This case was just before the emergency
was implemented. The Court found out that the
appointment of Indira Gandhi was faulty and she
was ordered to leave her office. This judgment
proved to be one of the major judgments in the
context of judicial independence. However, in
recent times, the judiciary has had to face a lot of
criticism due to the cases they give more priority
to, and also the post-retirement stint of the judges.
This shows that there is work needed to be done in
the functioning of the justice system. Few
suggestions are:

The salaries given to the judges in India are less as

compared to the other countries, which makes a
strong reason why the judges look for post-
retirement jobs.
Many times it is seen that highly influential cases
are given more priority than the cases which are of
a social cause and are really necessary to be
heard. The reason this might be happening is the
low strength of the judiciary. Increasing the
strength of the judiciary can help in solving
influential as well as genuinely urgent cases.
There is a need to impose a law that ensures that
the judges do not get post-retirement jobs. This will
ensure a little discipline and reliability in the
working of the courts.
Suggestion
Before the concept of the collegium given by the
Supreme Court, Article 124 of the Indian
Constitution stated unequivocally that the
President of India, in concert with the Chief Justice
of India, would appoint any judges to the Supreme
Court. This indicates that the constitutional writers
themselves thought the appointment of judges
required the intervention of the executive. It has
been made very obvious that all of the components
of a democratic government require the
establishment of certain safeguards. The
Constitution’s framers made a conscious decision
to keep the executive involved in the selection of
the judiciary in order to prevent any abuse of
power by a single branch of government, despite
the fact that the entire concept of the separation of
powers was created to keep each branch
independent of the other. However, collegium
governance should also exist with regard to the
promotion or transfer of judges in order to protect
their judicial independence and allow them to
exercise their judgement freely without interfering
with their personal or substantive independence.
So, we can say that independence of the judiciary
is necessary while not forcing itself on the other
wings of the government.

Conclusion
The work that the justice system does is very
difficult. Hence, the judiciary has been given the
power of judicial independence which is mentioned
in the Constitution of India. The judges do a
phenomenal job of administering impartial justice
to the people. However, while doing this, there are
bound to be people who are not happy with the
decision. Hence, this is where the independence of
the judiciary is challenged. Now, no one can ever
prove whether there is any sort of influence on the
justice system in India. However, the above-
mentioned case laws and the examples of judges
acquiring jobs after retiring from the judiciary, call
for some serious reforms in the country’s justice
delivery system.