THE CONCEPT OF JUDICIAL INDEPENDENCE

This article is written by Soumi Kundu of Surendranath Law College, an intern under Legal Vidhiya

ABSTRACT

Independence in the sphere of the Judiciary is very crucial in the present time. Though the Constitution does not convey it the Judiciary as a guardian of the Constitution works as a watchdog so that the separation of Power doctrine is followed properly and there is no overlapping among different organs of the government. The judiciary interprets laws in a broader way for the benefit of people it is regarded as a last resort of people. As the Judiciary has various functions this organ must work independently other organs should not try to interfere in the matter of the Judiciary as that will harm the smooth functioning of a Democracy. As an important organ of the state Judiciary should be impartial, free from any influence and interference of other bodies.

Keywords

Independence, Judiciary, Constitution

INTRODUCTION

In a democratic country like India, we have three different organs executive, legislative, and Judiciary that uphold the country’s stability and help to maintain its principles. All these organs are important for smooth governance in the country and work on the separation of power principle. Legislature makes laws, Executives implement those laws, and the Judiciary checks the constitutionality of those laws, which means the Judiciary works as a watchdog on the remaining two bodies. That’s why an independent Judiciary is paramount for a vibrant democracy. Various sections of the Indian Constitution also talk about it. The term Independent judiciary has multiple meanings it postulates the independence of the Judiciary as a body and the freedom of Judges to convey their opinion free from any type of political as well as societal pressure.

In this article, we will delve deeper to discuss the necessity of having an independent judicial structure in a democratic country.

HISTORICAL BACKGROUND

18th-century French philosopher Montesquieu coined the term judicial independence. The concept of judicial independence came from England and Wales in 1701 under the Act of Settlement. This statute for the first time recognized that judges will have a secure tenure that cannot be terminated at the mercy of Lords. Before the enactment of the Act of Settlement, 1701, judges could also be dismissed from their position through the Crown just like other civil servants. Judges had to decide any matter in the favour of the King and Queen in case they failed the royal family had the power to remove those judges. After the enactment of the Settlement Act, of 1701 to impeach a judge from the position, the assent of both parliament houses is needed along with the Queen’s official address.[1]

SEPARATION OF POWER

To provide better governance and restrict the arbitrariness of a single organization, in India, we have three different organs for performing different functions. India adopted the Separation of Power doctrine from the US. Under this theory, the State is divided into three organs those are- Executive, Legislative, and Judiciary. All these organs are independent of each other. So, one body cannot encroach upon the power of the other.

Let’s discuss these three organs in detail.

• Legislative– the main function of the legislature is to make laws, rules, and regulations to maintain the country’s law and order situation. Legislature is given the top priority out of these three organs because until and unless there is no law then there is no point in judging its constitutionality and implementing the same. In India, as we follow federalism, we have legislative bodies in the Centre as well as in the States.

The central legislature is known as Parliament which consists of Lok Sabha and Rajya Sabha.

State legislative bodies have Bidhan Sabha and Bidhan Parishad.

• Executive– the main function of the Executive is to implement and apply laws that are created by the Legislature. This body is the administrative head of the government. The executive conducts day-to-day governance functions. The executive is responsible to the people because they are directly elected by the common people. When the executive fails to perform its duties that leads to an imbalance in the government. In the Central government, the President is the head of the Executives and in the State governments, the Governor is the head.
• Judiciary- The judiciary is considered the guardian of the Constitution. Whatever laws are made and implemented if there is any discrepancy in the law and its application Judiciary acts as a final authority to decide the validity of the laws.

As the Judiciary has such important responsibilities it should work as impartially and independently.

TYPES

There are mainly two types of Judicial Independence. They are-

a. Institutional or Functional Independence

 b. Decisional Independence

1. Institutional or Functional Independence: Institutional independence means the Judiciary as an institution has the authority to work independently without interference from the other two organs. It is simply based on the Separation of Power doctrine. In day-to-day court proceedings, administrative work of Courts, and appointing judges in all these matters Judiciary will be the supreme authority for taking any decision.
2. Decisional Independence: Decisional independence means while deciding any particular matter the judges should follow natural justice principles. The proceedings should be impartial, and both parties should get an equal opportunity to present their point. While deciding on any matter that is of national importance judges should not be affected by the opinions of other parties.[2]

INDEPENDENCE OF JUDICIARY IN INDIA

Indian Constitution is considered the supreme law of the country and the Judiciary acts as a guardian to protect the various rights and duties that are being provided to the people. When those rights get violated judiciary is the last resort from where people can seek relief. Today also people have so much faith in the judiciary and to continue that notion Judiciary should be independent.

In our constitution, certain provisions are there that ensure the independence of the Judiciary. Those are

• Security of Tenure– The Judges of the Supreme Court and High Court have security of tenure. Once appointed they continue to be in the office until they reach their retirement age. As per Article 124(2)[3] retirement age for a Supreme Court judge is 65 and for a High Court Judge it is 62 as per Article 217[4] of the Indian Constitution. The Judges can be impeached from their position if misbehavior and incapacity are found on their part. The president of India only has the power to impeach a judge on the recommendation of both houses of parliament.
• Salaries and Allowances– Article 125[5] of the Indian Constitution talks about the salaries of judges. Judges have a fixed salary rate. This is also a reason for which judges can work independently.

Supreme Court judges get their salary from the Consolidated Fund of India and High Court judges from the Consolidated Fund of the state. Except in the cases of Financial emergencies Salaries and allowances of Judges cannot be altered.

• Powers and Jurisdictions of Supreme Court– Article 32[6] of our Indian Constitution empowers people to directly reach the Supreme Court in case of their Fundamental Rights violation the Supreme Court can also issue a writ in those matters. Parliament can only add Powers and Jurisdictions of the Supreme Court, they cannot curtail it. Parliament may change the pecuniary limit for the appeals to the Supreme Court.
• No Discussion of the Conduct of Judges in Parliament or State Legislature– Article 121[7] says that parliament cannot discuss the conduct of any Supreme Court or High Court Judges except in the case when a motion has been passed by the President for impeachment.

Article 211 provides that there shall be no discussion in the state legislature regarding the discharge of duties of any Supreme Court or High Court Judges.[8]

• Power to Punish for Contempt– both the Supreme Court and the High Court have the power to punish any person in case they contempt the sanctity of the court. Under Article 129[9], the Supreme Court has the power for contempt of itself. All the high also have the power to punish for their contempt under Article 215[10] of the Constitution.
• Separation of The Judiciary from the Executive– The Constitution establishing the independence of the Judiciary is mentioned in Article 50[11], one of the Directive Principles of State Policy. This article says that the state shall endeavor to separate the Judiciary from the Executive. Judicial service should be separate and free from executive control.[12]

COLLEGIUM SYSTEM

In India Judges in higher Judiciary are selected by a different body made up of Judges Which is known as the Collegium System. Collegium is not mentioned in the Indian Constitution the body has developed with time through Judicial pronouncements.

Appointment of Supreme Court Judges

In the Supreme Court, Judges are appointed in two ways that is elevation as a High Court Judge and direct appointment as a Supreme Court Judge from the Bar. The collegium system for appointing Supreme Court Judges consists of five Judges. Chief Justice of India and four senior-most judges of the Supreme Court.  In the present Collegium, there are six members according to the rule future CJI should present in the Collegium but the other four judges are not in line to become CJI that’s why Sanjiv Khanna as a Sixth member is added.

After selecting candidates the names are sent to the President and Government for their assent. The government can raise certain objections and ask for clarification but if the Collegium sends the same names again the government has no other option but to appoint them.

Appointment of High Court Judges

Forappointing High Court Judges directly from the bar or through elevation from lower Judiciary there is also a Collegium Structure that is followed. For selecting High Court Judges Collegium consists of three members Chief Justice of the High Court and two senior Judges of that High Court. Once selected the names are sent to the State Government for their consideration. Then, the State Government sends those names to the Central government after doing a proper inquiry about those candidates’ backgrounds Central Government sends those names to the Supreme Court Collegium which also consists of three members Chief Justice of India, and two senior Judges of the Supreme Court.

If the Central Government returns those names for reconsideration and the Collegium sends the same names the government has to accept those candidates.[13]

Role of Collegium System in Judiciary’s Independence

To protect the independence of the Judiciary the judges who are getting selected to such a high pedestal must be free from the influence of other organs so that they can impartially decide any matter. Executive may lack the expertise to appoint judges on the other hand judges who have experience of so many years are in a better position to appoint fellow judges.

As in most of the Supreme Court cases Government is the main litigator if they select any candidate of their choice there is a possibility that those judges may not work impartially. So, for maintaining the sanctity of the Court the power of appointing Judges should rest to the Judiciary.[14]

CASE LAWS THAT ESTABLISHED INDEPENDENT JUDICIARY IN INDIA

S P Gupta v Union of India(1982)[15]

This case is also known as the First Judge Case. In this judgment, it was held that “consultation” did not include “concurrence”, and further, that the power of appointment of Judges under Article 124, was vested with the President, President could override the views of the Judiciary. It declared that the “primacy” of the CJI’s recommendation on judicial appointments and transfers could be refused for “cogent” reasons.

In this case, The Supreme Court reduced its power to appoint Judges and gave control to the Executive.

SC Advocates on Record Association v Union of India(1993)[16]

This case is known as the Second Judge Case. In this judgment, the apex court has overruled its previous judgment thereby reinstating the power of appointing judges in the higher Courts in the hand of the Judiciary. It further held that while sending the recommendation to the President for the appointment of judges Chief Justice must consult with two senior Judges.

In re Presidential Reference(1998)[17]

This case also known as the third Judge case is an extension of the second Judge Case. After the second judge case, consequent doubt has arisen about the interpretation of that case. Hon’ble President under Article 143 referred some questions for the Supreme Court’s opinion.

A nine Judge bench of the Supreme Court unanimously upheld the previous Judgement. It was further stated that the Chief Justice’s opinion without proper consultation with other judges is not binding on the executive.

Supreme Court Advocates on Record Association and another v Union of India (2015)[18]

This case is a recent example of establishing Judicial independence. In that case Supreme Court struck down the 99th Amendment Act, 2014 the constitutionality of this amendment was challenged by Supreme Court Advocates on Record Association. The Amendment aimed to establish a National Judicial Appointment Commission in place of the Collegium system to appoint judges in the High Court and Supreme Court.

The members of the commission would be

• Chief Justice of India,
• Two senior Judges of the Supreme Court,
• The Union Minister of Law and Justice,
• Two eminent personalities. They will be selected by a committee consisting of the Chief Justice, Prime Minister, and Leader of the Opposition.

The Supreme Court struck down the amendment as it was unconstitutional and usurpation of the independence of the Judiciary.

IMPORTANCE OF HAVING INDEPENDENT JUDICIARY

In a democratic country, common citizens are the most powerful. Through elections, they appoint their representatives. The constitution provides them with various rights so that they can live a dignified life. As the Judiciary is known as the Guardian of the Constitution, using the separation of power doctrine judiciary checks overreach and abuse of power by the other two organs. When parliament enacts any law that hampers basic rights of people they directly come to the judiciary as a last resort. Therefore, the Judiciary acts as a last resort when people seek relief. The judiciary measures the checks and balances among different state organs. For running a successful democracy independence of the judiciary is paramount.

Sometimes matters related to national importance are finalized by the judiciary. Apex Court has the final say in deciding any matter. For handling such important responsibilities Judges should act impartially and independently. The work of the judiciary cannot be influenced by the opinion of the media, legislature, executive, and specific pressure groups.

As society is becoming developed with progress the government’s role in public is also increasing day by day. Disputes between the state and common people are also increasing. As a result, the judiciary’s role has expanded from justice provider to protector of common people’s rights.[19]

CHALLENGES IN THE WAY OF JUDICIAL INDEPENDENCE IN INDIA

In the whole article, we have got to know that Judicial independence is paramount for running a smooth government. But as we know providing unfettered power to a particular organ without any restriction can destroy the balancing structure of the governance.

Judges are selected by the collegium system they are not publicly elected so the process through which they got appointed to such an important position is still opaque to common people. While deciding any particular case Judges can be biased because of their personal belief of any matter that results in wrong judgment.

Corruption cases against the judges are nothing new. Judges sometimes decide a particular case in favor of a political party from which they can avail any specific benefits.

Judges sometimes also get pressure from political parties and other powerful bodies to decide matters in their favor.

In our country security system for judges is not proper. Various incidents point towards that discrepancy where Hon’ble judges get attacked or even lose their lives by parties against whom they have passed the judgment.

SOME RULINGS THAT HAVE QUESTIONED THE INDEPENDENCE OF THE JUDICIARY

The Rafale Deal case

In 2015 the French government and Indian governments signed a deal in which India would purchase 36 Rafale fighter jets from a French company. An offset clause of 50% was also included in the deal that said that the French company would invest 50% of the contract value in India by purchasing Indian goods and services. The following year reliance and the company announced a partnership. The French Company mentioned that it wants to invest $115 million to fulfill its offset obligation partially. At last, the matter reached the Supreme Court where parties contended that there was irregularity in the deal. The Court tried to close the matter by saying that in the case of Defence matters Judicial review is very much limited. The government presented the court with two reports, one from the Comptroller and Auditor General and the other from the Parliamentary Accounts Committee, and objected that the Court’s report contained misinformation. The court decided to examine the matter on its merits as a result the controversy was closed.[20]

The Bhima Koregaon case

In 2018 when the bicentennial celebration of the Battle of Bhima Koregaon was being celebrated several people were killed and injured. Activists were arrested by the police on the allegation that they had incited violence through inflammatory speeches. Then a Special Investigation Team was formed to investigate the activists over the Unlawful Activities Prevention Act charges. As there was the allegation that the act of police was biased against the activists, the matter went to the Supreme Court where the two Judges were satisfied with the police investigation and dismissed the case but, Justice D.Y. Chandrachud argued that the arrests were politically driven.[21]

The CBI-Alok Verma case

In this case, the government deprived CBI director Alok Verma of all his powers. The judgment of that case was also delayed. But under the Delhi Special Police Establishment Act for depriving a person of his position sanctions from a high-powered committee were needed. After investigating the corruption charges against the CBI Director, the court restored Verma to his position based on the sanctions of the selected committee. As three weeks were left in his tenure, The Apex Court’s judgment was highly criticized.[22]

CONCLUSION

For a thriving democracy, the Independence of the Judiciary is very crucial. The judiciary acts as a connection between the law-making bodies and the common people for whose benefit the law is made. Sometimes when legislative bodies make laws the law can contradict some of the peoples’ rights but when the matter comes before the court the Judiciary always tries to liberalize the scope of the law so the specific law can fulfill its purpose. There are also instances when a particular type of offense has no specific law Judiciary on understanding the gravity of the matter creates certain guidelines and regulations so that people can get justice easily.

As a last resort for people Judiciary serves various purposes, and for the smooth functioning of a state independent Judiciary is paramount. Though independence does not mean unfettered power there must be regulation. Judiciary as an organ is not without flaws, shortcomings still exist in this area as well. But, for the seamless transition of governance in a country Judicial independence is pertinent.

REFERENCES

1. Jitender Kothari, Independence of Judiciary: A Questionable Affair, LEGAL SERVICE INDIA,(Oct 8, 2024 8:00 PM), https://www.legalserviceindia.com/legal/article-10685-independence-of-judiciary-a-questionable-affair.html
2. Ishani Samajpati, What is an independent judiciary, IPLEADERS, (Oct8,2024,8:02 PM), https://blog.ipleaders.in/what-is-an-independent-judiciary/ 
3. INDIA CONST. art. 124, § 2
4. INDIA CONST. art. 217, § 1
5. INDIA CONST. art. 125, § 1
6. INDIA CONST. art. 32
7. INDIA CONST. art. 121
8. INDIA CONST. art. 211
9. INDIA CONST. art. 129
10. INDIA CONST. art. 215
11. INDIA CONST. art. 50
12. An Article on Independence of Judiciary, LAWBHOOMI, (Oct 8, 2024,8:05 PM), https://lawbhoomi.com/an-article-on-independence-of-judiciary/
13. INDIA TODAY, https://www.indiatoday.in/law/story/centre-vs-collegium-how-judges-are-appointed-in-india-us-uk-and-other-countries-2326456-2023-01-25 (last visited Oct.15, 2024)
14. FORUM IAS, https://forumias.com/blog/collegium-system-and-the-njac-the-issue-of-judicial-appointments/ (last visited Oct. 15, 2024)
15. S P Gupta v Union of India(1982), AIR 149 = 1982(2)SCR 365 = 1981
16. Supreme Court Advocates-On-Record … vs Union Of India, AIR 1994 SUPREME COURT 268
17. In Re: Under Article 143(1) Of The … vs Unknown, AIR1999 SC1
18. Supreme Court Advocates on Record Association and another v Union of India, AIR 2015
19. Ishan Arun Mudbidri, Ayush Tiwari, Independence of the Indian judiciary: as demonstrated in relevant rulings, IPLEADERS (Oct 8,2024, 8:10 PM), https://blog.ipleaders.in/independence-indian-judiciary-demonstrated-relevant-rulings/

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[1]  Jitender Kothari, Independence of Judiciary: A Questionable Affair, LEGAL SERVICE INDIA,(Oct 8, 2024 8:00 PM), https://www.legalserviceindia.com/legal/article-10685-independence-of-judiciary-a-questionable-affair.html

[2] Ishani Samajpati, What is an independent judiciary, IPLEADERS, (Oct8,2024,8:02 PM), https://blog.ipleaders.in/what-is-an-independent-judiciary/ 

[3] INDIA CONST. art. 124, § 2

[4] INDIA CONST. art. 217, § 1

[5] INDIA CONST. art. 125, § 1

[6] INDIA CONST. art. 32

[7] INDIA CONST. art. 121

[8] INDIA CONST. art. 211

[9] INDIA CONST. art. 129

[10] INDIA CONST. art. 215

[11] INDIA CONST. art. 50

[12] An Article on Independence of Judiciary, LAWBHOOMI, (Oct 8, 2024,8:05 PM), https://lawbhoomi.com/an-article-on-independence-of-judiciary/

[13] INDIA TODAY, https://www.indiatoday.in/law/story/centre-vs-collegium-how-judges-are-appointed-in-india-us-uk-and-other-countries-2326456-2023-01-25 (last visited Oct.15, 2024)

[14] FORUM IAS, https://forumias.com/blog/collegium-system-and-the-njac-the-issue-of-judicial-appointments/ (last visited Oct. 15, 2024)

[15]S P Gupta v Union of India(1982), AIR 149 = 1982(2)SCR 365 = 1981

[16] Supreme Court Advocates-On-Record … vs Union Of India, AIR 1994 SUPREME COURT 268

[17] In Re: Under Article 143(1) Of The … vs Unknown, AIR1999 SC1

[18] Supreme Court Advocates on Record Association and another v Union of India, AIR 2015

[19] Supra Note 2

[20] Ishan Arun Mudbidri, Ayush Tiwari, Independence of the Indian judiciary: as demonstrated in relevant rulings, IPLEADERS (Oct 8,2024, 8:10 PM), https://blog.ipleaders.in/independence-indian-judiciary-demonstrated-relevant-rulings/

[21] Ibid

[22] Ibid

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