Open Access Research Article
ANALYSIS OF INDEPENDENCE OF JUDICIARY
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“ANALYSIS OF INDEPENDENCE OF JUDICIARY”
AUTHORED BY - ANISHA KUMARI
Under supervision of Paras Yadav
First Sem LLM Student, IILM University Greater
Noida
Abstract
‘‘The bedrock of our democracy is the rule of law and that means we have
to have an independent judiciary,
judges who can make decisions independent of the political winds that are condition.’’
In independent judiciary is necessary for a free society and a constituent democracy. It ensures
the rule of law and realization of human rights and prosperity and stability of the society. The independence
of the judiciary is normally assured through
the Constitution, but it may also be assured through legislations, conventions and other suitable norms and
practices. Following the constitution of United
States, almost all constitutions lay down at least the foundation if not the entire edifices of an independent
judiciary. The constitutions or the foundational laws on judiciary are, however, only the starting point in the
process of securing judicial
independence. Ultimately the independence of the judiciary depends on the totality of a favorable environment
created and backed by all state organs including the judiciary and the public opinion. The independence of the
judiciary also needs to be
constantly guarded against unexpected events and the changing social,
political, economic.
Independence of judiciary
means the other organs of the government; the executive and legislature must not restrain the
functioning of the judiciary in such a way that it is unable to do justice. Judges
must be able to perform
their functions without
fear or favors. The purpose
of the independence of the judiciary is that judges
must be able to decide a dispute
before them according to law, uninfluenced by any other factor. Montesquieu, a French Philosopher, propounded the idea of an independent judiciary. He believed in
the theory of separation of powers of the three branches of the Government – Legislature, Executive and Judiciary. India
has given itself a liberal constitution in the Euro- American
traditions, which aims at establishing
a free and democratic society. It also aims at prosperity and safety of society. Its makers believed that such a
society could be created through the guarantee
of fundamental rights and an independent judiciary to guard and enforce these rights. Therefore, the framers of
the Indian Constitution dealt with these two
aspects with maximum and identical idealism.
keywords: Independence, Judiciary, Law, Legal, Courts,
Bias, Principles of Natural Justice,
Constitution, Social, Political, Supreme Court, Appointment of Judges,
Judgments, UNO, suggestion.
Introduction
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.
Hence, this article talks about some of the recent instances, where the Independence of the Indian
Judiciary has been challenged. 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
favorable environment by all state institutions, including the judiciary and the 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 the judiciary
The independence of the judiciary shall be guaranteed by the State
and enshrined in the Constitution or the law of the
country. It is the duty of all governmental and other institutions to respect and observe the independence of
the judiciary. The judiciary shall decide matters before them
impartially, based on facts and in accordance with the law, without any restrictions, improper
influences, inducements, pressures, threats, or interferences, direct or
indirect, from any quarter or for any
reason. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive
authority to decide whether an issue submitted
for its decision is within its competence as defined by law. There shall not be any inappropriate or unwarranted
interference with the judicial process, nor
shall judicial decisions by the courts be subject to revision. This principle
is without prejudice to judicial
review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law. Everyone shall have the right to be tried
by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not
be created to displace the jurisdiction belonging to the ordinary
courts or judicial
tribunals. The principle of the independence of the judiciary
entitles requires the judiciary to ensure that judicial proceedings are conducted fairly and that
the rights of the parties are respected. It
is the duty of each Member State to provide adequate resources to enable the judiciary
to properly perform
its functions.
In accordance with the Universal
Declaration of Human Rights, members
of the judiciary are like other citizens entitled to freedom of
expression, belief, association, and
assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve
the dignity of their office and the impartiality and independence of the judiciary.
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 the 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.
Necessity
for independence of judiciary:
In democratic countries, the judiciary is given a place of great significance. 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 favors and that the judiciary should remain totally
independent and fully insulated from any external
interference.
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.
Qualifications
The next issue which has a direct bearing on the Independence of
judiciary is the quality of the
person who is asked to serve in the courts. The quality of the judges depends
on the conditions necessary for the appointment of judges. Article
124(3) prescribes qualifications of a person
who can be appointed as a Judge of the Supreme Court and reads as follows:
A person shall not be qualified for appointment as a Judge of the Supreme
Court unless he is a citizen of India and has
been for at least five years a Judge of a High Court or of two or more such court in succession; or has been for at least ten years an advocate of a High Court or of two or more such courts
in succession; or is, in the opinion
of the President, a distinguished jurist. The qualification of a High
Court judge is set out in Article 217(2) which
read a s under: A person shall not be qualified for appointment as a Judge of a High Court unless he is a
citizen of India and has for at least ten years held a judicial office in the territory of India; or has for at
least ten years been an advocate of a High Court or of two or more such courts in succession.
Salaries And Allowances:
The salaries and allowances of the judges
is also a factor which makes the judges independent as their salaries
and allowances are fixed and are not subject to a
vote of the legislature. They are charged
on the Consolidated Fund of India in case of Supreme Court Judges and the
Consolidated Fund of State in the case of High
Court Judges. Their emoluments cannot
be altered to their disadvantage (Article 125 (2)) except
in the event of grave
financial emergency.
Article 112 (3) (d) (i) of the Constitution required that budget shall
contain a provision for payment of salaries and allowances and pensions to Judges of the Supreme
Court and Article
202 (3) (d) deals with the salaries
and allowances of High Court.
Removal Of Judges
In India, both the Supreme Court and High Court Judges are appointed by
the President under Article 124 and
217, and they enjoyed a fixed tenure and are
removable under Articles 124(4) and 217 on proved misbehavior or
incapacity after an impeachment motion
passed by each house supported by a stipulated majority. Their tenure
and different processes
of removal are also in tune with their independent function. In India a judge may be removed
from his office
by an order of President. The President can pass or order only when it has been addressed to both Houses
of Parliament in the same session. The address must be supported by much of the total
membership of that House and by a majority of
not less than two thirds of the members of that house present and
voting. The Constitution prescribes the procedures for investigating and proof of the
misbehavior incapacity of a Judge of the Supreme Court or of a High Court and for the presentation of an address
by Parliament to the President.
Transfer Of Judges
Article 222(1) empowers the President after consultation with Chief
Justice of India transfer
a judge from one High Court to another. The Constitution makes provisions for granting compensatory allowances when a judge is transferred from one High Court to another. The power of transfer of a judge is vested
with the President is not absolute.
He takes into consideration two things: (i) public interest (ii) effective consultation with Chief Justice
of India.
Power To Punish For Its Contempt
The rationale behind
Contempt of court is that courts must have the power to secure
obedience to their judgements, to serve this purpose of administering justice. Contempt of Court can refer to both civil and criminal contempt.
Contempt of Court
finds a place in the Indian Constitution under Article 19(2),
Article 129 and Article 215. According to Article 19(2) of the Constitution,
contempt of Court' is one of the grounds on which the State can legislate to place reasonable restrictions on freedom of
speech. Article 129 of the Constitution of India
says that the Supreme Court shall be a 'court of record'. Article 215 grants a similar
status to the High Courts.
Prohibition On Practice After Retirement
The Constitution debars the Judges
of the Supreme Court from pleading or appearing before
any court or tribunal or judicial authority
in India after retirement. A retired Judge of the
High Court is also prohibited from practising
before a court
where he had been a Judge. A High Court
Judge, however, can after
retirement, practice in the Supreme
Court or in a High Court in which he had not been a Judge according
to Article 220. However, Article
124(7) does not create a bar
or disqualification for a Judge of the Supreme Court to offer his candidature for membership or to become a Member
of Parliament.
Condition Of Service
Another important point which require
attention for independence of judiciary is the
conditions of service. The conditions of service have direct concern with the day-to-day functioning of the judge as well as the security
in its diverse dimensions after
retirement. By conditions of service here we mean those terms and
conditions within which a judge must act during and after his service as a judge.
The conditions of service for Supreme Court
Judges, there is The Supreme
Court Judges (Conditions of Service) Act, 1958 as amended in 2009 and for the High
Court Judges, The High Court Judges (Conditions of Service) Act, 1954 as amended in 2009. These two enactments lay down conditions of service regarding leave, pension, housing facility, conveyance and sumptuary
allowance, gratuity, and family pension
and after retirement medical facility.
Establishment Of Court
Apart from independence of judges, the other factor
which is necessary
for the independence of judiciary is the establishment of court. By establishment of court, we mean the administrative
set-up of the court. The Constitutional of India contains specific provisions for establishment of court. According
to the provisions of the
Constitution, there shall be officers, servants, and other persons with the courts for administrative work. The
Constitution empowers the Chief Justice of India to make appointments to the administrative staff of the Supreme Court.
Similarly, the Chief Justice of the various
High Courts have been empowered
to make recruitment to the establishment of the respective High Courts. Not only
this, appointments to lower judiciary are also made by the High Court.
The person so appointed are under the complete
control of courts as for as their services are
concerned. At the same, the Constitution also protects the salaries and allowances of the persons
those who have joined the administrative services
of the court. Their salaries are to be paid from the Consolidated Fund of India.
Thus, the provisions of the
Constitution provide for the effective and full control of the Chief Justice over the administrative
staff of the court. These provisions of the constitution
apart from Judges Independence are further in consonance with the philosophy of the independence of the judiciary.
Qualifications, selection, and training
Persons selected for judicial office shall be individuals of integrity and ability with appropriate training
or qualifications in law. Any method of judicial selection
shall safeguard against
judicial appointments for improper motives. In the selection of judges, there shall be no discrimination
against a person on the grounds of race, colour,
sex, religion, political or other opinion, national or social origin, property, birth or status,
except that a requirement, that a candidate for judicial office must be a national
of the country concerned, shall not be considered discriminatory.
Conditions of service and tenure
The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions
and the age of retirement shall be adequately secured by law Judges, whether
appointed or elected,
shall have guaranteed tenure
until a mandatory retirement age or the expiry of their term of office, where such exists. Promotion of judges, wherever such a
system exists, should be based on objective factors,
in particular ability,
integrity and experience.
The assignment of cases to judges within
the court to which they belong is an internal
matter of judicial administration.
Professional secrecy
and immunity
The judiciary shall be bound by professional secrecy with regard
to their deliberations and to confidential information acquired in the course
of their duties
other than in public proceedings, and shall not be compelled to testify
on such matters. Without
prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should
enjoy personal immunity from civil suits for monetary damages for
improper acts or omissions
in the exercise of their judicial
functions.
Discipline, suspension and removal
A charge or complaint made against a judge in his/her judicial and
professional capacity shall be
processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing.
The examination of the matter
at its initial stage shall be kept confidential, unless otherwise requested by the judge.
Judges shall be subject to suspension or removal only for reasons
of incapacity or behaviors that renders them unfit to discharge their duties. All disciplinary,
suspension or removal proceedings shall be determined in accordance with established standards of judicial
conduct. Decisions in disciplinary, suspension or removal
proceedings should be subject to an
independent review. This principle may not apply to the decisions of the highest
court and those of the legislature in impeachment.
Freedom of expression and association
In accordance with the Universal Declaration of Human
Rights, members of the judiciary are like other citizens
entitled to freedom of expression, belief, association,
and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve
the dignity of their
office and the impartiality and independence of the judiciary.
Judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional
training and to protect their judicial independence.
Professional secrecy
and immunity
The judiciary shall be bound
by professional secrecy
with regard to their
deliberations and to confidential information acquired in the course of their duties
other than in public proceedings and shall not be compelled to testify
on such matters. Without prejudice to
any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should
enjoy personal immunity from civil
suits for monetary damages for improper acts or omissions in the exercise
of their judicial
function.
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.
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.
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. Madson (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 criticized 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 several 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,
decisions in disciplinary, suspension or removal proceedings should be subject
International Covenant on Civil and Political Rights, the International
Covenant on Economic, Social and
Cultural Rights, the Organization 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
practice and brought to the attention of judges, lawyers, members of the executive, and the
legislative to an independent 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.
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 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.
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. Conclusion. Courts
have always tried to uphold
the independence of judiciary and have always
said that the independence of the judiciary is a basic feature of the
Constitution. Courts have said to so
because the independence of judiciary is the pre-requisite for the smooth functioning of the
Constitution and for a realization of a India
practices constitutional governance by rule of law. Be it legislature,
executive or judiciary; all are creatures
of the Constitution of India, 1950. In this democratic set up, the
judiciary is an impartial umpire that resolves disputes within the boundaries laid down by a Written
Constitution and distribution of constitutional powers between different
organs, namely, Parliament, State Legislatives and Executive. An independent judiciary is
expected by every citizen of the country and is not only a fundamental right but is also a part of the basic structure of our Constitution.
References
http://www.legalserviceindia.com/legal/article-2973-constitutional-framework-for-independence-of-
judiciary-in-
india.html#:~:text=The%20Indian%20Constitution%2C%20unlike%20the,by%20the%20State%20High%2
0Courts. &
text=For%20rule%20of%20law%20to%20prevail%20judicial%20independence%20is%20of%20absolute%
20necessity.
https://theprint.in/opinion/indian-politicians-get-favourable-outcome-in-courts-when-party-is-in-power-
data-shows/283103/
https://thewire.in/law/restoring-public-trust-in-the-indian-judiciary-calls-for-more-scrutiny-not-less
https://www.ideasforindia.in/topics/governance/the-politics-of-post-retirement-appointments-
corruption-in-the-supreme-court.
Article Information
ANALYSIS OF INDEPENDENCE OF JUDICIARY
Authors: ANISHA KUMARI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/15
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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