CONSTITUTIONAL LAW II

INDEPENDENCE OF JUDICIARY WITH REGARD TO

NATIONAL JUDICIAL APPOINTMENT COMMISSION
HARI PRAKASH K V1
Abstract
The forefathers of our great nation gifted us with a democracy which by its very definition
assumes a judiciary and an independent one too. Democracy is not functional if there is not an
impartial body to review the states action as state cant be the judge in its own cause. Also in a
country like India, the independence of the judiciary is of utmost importance in upholding the
pillars of the democratic system hence ensuring a free society. It is a well-known fact that the
independence of the judiciary is the basic requisite for ensuring a free and fair society under the
rule of law. Rule of law that is responsible for good governance of the country can be secured
through unbiased judiciary. An independent judiciary supports the base of doctrine of separation
of powers to a large extent. In a judiciary, the Judges are the most important persons in the
administration of justice. This is why the transfer of Judges is a very important issue. The
constitution of India provides for the transfer of the judges by the president in consultation with
the chief justice of India. This power was rarely resorted to in the early fifties. Later the
Successive law commission and the Administrative Reforms commission suggested that at least
one third of the judges of the high court should be drawn outside the state. There has always been
a controversy whether the transfer of judges is consensual or punitive in nature. This Project
explains the Pros and cons of The 99th Constitutional Amendment Act and explain the various
verdict given by the Hon'ble Supreme court of India. This project projects how independence of
judiciary is been a part of basic frame of the constitution and gives a brief on National Judicial
Appointment Commission Which was headed by the Chief Justice of India. The NJAC will give
recommendation to the President on the Judicial Appointment of Both HC and SC i.e.
Appointment of Judges of Supreme Court and High Courts respectively. This project also contain
provisions relating to Judicial Independence and critical analysis of Judge Transfer Cases.

1 Hari Prakash K V, Reg No. BC0150006, II Year B.Com LLB (Hons.), Tamil Nadu National Law School,
Tiruchirapalli, Tamil Nadu, India, E-mail id: prakashkv96@gmail.com, Contact No: 7598204589.
 Research Objective

To study and analyse the National Judicial Appointment Commission (NJAC) by the 99 th

Constitutional Amendment.

To analyse the need to transfer the Judges

To analyse the provisions relating to transfer of Judges

To study where the real power lies while transferring a Judge

Research Question

1. Whether the 99th Constitutional Amendment violated the Independence of Judiciary?

2. Is the consent of the particular judge being transferred required for the transfer to another High

Court?

3. Whether the Chief Justice can be the only authority to give consultation for transferring the

Judge?

4. Whether the transfer of Judges was made by the way of punishment or is there any arbitrary

decision?

Research Methodology

The research methodology used in this project is analytical method. The project is basically done

with the help of collected information from various primary and secondary sources and also the

use of online sources. The information collected on the topic is accessed and interpreted

according to the view of the researcher and a final conclusion is given.

 Tentative Chapters
1. Introduction
2. Need for an Independent Judiciary
3. Origin and Development of Independence Judiciary
4. Provisions that proves the Independence of Judiciary is part of Indian Constitution
5. Provision for the Transfer of Judges
6. 99th Constitutional Amendment Act
7. Procedure for Appointment and Transfer of Judges
8. Research Questions
9. Conclusion

Bibliography

Books:
1. Indian Constitutional Law, Prof. M.P.Jain, 6th Edition, 2010, Lexis Nexis Butterworths
Wadhwa Nagpur.
2. Constitutional Law of India, M.Hidayatullah, Aspect Publication Ltd.
3. The Constitutional of India, P.M.Bakshi, Universal Law Publishing Co Ltd.

Statutes:
1. Constitution of India, 1950
2. Government of India Act, 1915
3. Government of India Act, 1935

Websites:
1. NJAC vs. Collegium: The Debate Decoded, http://www.thehindu.com/specials/in-depth/njac-
vs-collegium-the-debate-decoded/article7768919.ece
2. The Narrative of Judicial Appointments, https://polityinindia.wordpress.com/tag/appointment-
and-transfer-of-judges/