JUDICIAL INDEPENDENCE

INTRODUCTION:
It is one of the most debated topics during the past few decades in judicial conferences
throughout the world. Why is judicial independence so important? Independence of
judiciary is not itself an important governance value. A judge may believe in the doctrine
due to status or protection of his profession. The common man will embrace this
principle only when its reality leads to ensuring fundamental rights. The very existence of
a right depends upon the remedy for its enforcement; unless there is remedy, there is no
enforcement. Therefore, neither justice nor human rights guaranteed by the constitution
become secure for the people without a free and independent judiciary. “Judicial
independence” is most important in the cases where courts are called upon to resolve
disputes between individuals and the state or between different branches of government.

CONSTITUTIONAL PROVISIONS:
Independence of judiciary stems from the notion of the separation of powers, whereby the
executive, legislature and judiciary form three separate branches of government. The
constitution of India1 provides: the state shall take steps to separate the judiciary from the
executive in the public services of the state. Provisions in regard to the judiciary in India
are contained in part V (the union) under chapter IV titled, “the union judiciary” and part
VI (the states) under chapter VI titled, “subordinate courts” respectively. It is, however,
important to emphasize that unlike, other federal systems; we do not have separate
hierarchy of federal and state courts. In India, the judiciary is integrated. For the entire
republic of India, there is one unified judicial system –one hierarchy of courts- with the
Supreme Court as the highest court and also as the arbiter in matters of relation between
the union and the states and the states inter se. India practices constitutional governance
by rule of law. Be it legislature, executive or judiciary; all are creatures of constitution of

1
Article 50
India. In this democratic setup, the judiciary is an impartial empire that resolves disputes
within the boundaries laid down by a written constitution.

The provisions and features of the constitution under mentioned, would explain the extent
of the independence of judiciary under the constitution.
1. Special mode of appointment of judges: - The Constitution of India in art.124 (2)
envisages a special mode of appointing the chief justice and other judges of the
Supreme Court. Similarly art.217 of the constitution deals with the procedure to
appoint the chief justice and other judges of the High Court.
2. Security of tenure: - The judges of the higher as well as the lower judiciary have a
security of tenure. A judge of the Supreme Court retires at the age of 65yrs; and
that of High Court retires at the age of 62yrs. None of them can be removed by
the president or any other executive authority under the Indian constitution,
except by way of “impeachment”.
3. Immunities in respect of salaries and allowances of judges: - under the provisions
of art.125 and 218 of the constitution, the supreme court and high court judges are
entitled to be paid such salaries as determined by parliament. They cannot be
varied by the legislature except during emergency.
4. Administrative power of the Supreme Court and High Court: - The Supreme
Court and High Court have been given the authority to recruit their staff and
frame rules regarding conditions of service (Art.146 and 229).
5. Salaries drawn from the consolidate fund: - the expenditure in respect of the
salaries and other allowances of judges of higher judiciary are drawn from the
consolidated fund of India.
6. Bar as to discussion of conduct of judges: - No discussion shall take place in the
legislature of a state or in the parliament with respect to the conduct of any judge
of the supreme court or of a high court in the discharge of his duties2.
7. Power to punish for the contempt: - Under art.129 of the constitution, the supreme
court has been designated as a court of record and the power to punish for
contempt of itself. Similarly under art.215 the high court has the same power.

2
Article 121 & 211
CONCEPTUAL ANALYSIS:
William Blackstone, says that3 “if the judiciary is joined with the legislature, the life
liberty and property of the subject would be in the hands of arbitrary judges, whose
decisions would be then regulated only by their own opinions and not by any
fundamental principles of law; where it joined with the executive, this union might soon
be an overbalance for the legislature. The role of the judiciary in any society must be to
protect human rights by way of due process and effective remedies. This role cannot be
fulfilled unless the judicial mechanism is functioning independently, with its decisions
based solely on the basis of legal principles and impartial reasoning. But “political
considerations” often impose limitations on the substantive decisions of the courts. The
goal of an independent judiciary is often just that; a goal with a reality. So, judicial
independence, at its basis means that judges are free to rule against government, without
fear or reprisal.

The movement towards judicial independence must begin from the appointment of
judges. The method by which federal judges in the US are selected, appointment by the
president and confirmation by the senate, is an attempt to free federal judges from the
political pressures associated with elections. In Supreme Court Advocates on Record
Association vs. Union of India4, the Supreme Court said that, constitutional safeguards
attached to the office of the judge are not the last word, in regard to the independence of
judiciary. In addition to this there should be a basic and vital condition, necessary to
secure the judicial independence; and that is the methodology followed in the matter of
selecting and appointing a proper and fit candidate to the higher judiciary. The motivated
selection of a candidate to the judiciary by the executive certainly undermines the public
confidence in the rule of law, and finally the concept of an independent judiciary will
remain a myth rather than a reality.
The independence of judges after appointment to the bench should be protected to
enforce that the rights of litigant are not compromised by illegitimate or illegal
considerations. Protection from reprisal can be attained through life tenure or some other
3
In “Commentaries on the Laws of England”
4
(1993) 4 SCC 441
forms of protection that insulates arbitrary removal or transfer from the office. In US, the
issue was confronted in the debate over adoption of the constitution. Alexander
Hamilton5 argued that the standard of judicial tenure “during good behavior” was the
most effective method against encroachment by the legislative branch, providing for
speedy, upright, and impartial administration of the laws. Hamilton was convinced that
the more trust to be put in members of the judiciary; the more important it was to assure
them “tenure during good behavior”.

If the people are to have any realistic check on a powerful executive short of armed
conflict, it must be by an independent judiciary authorized and able to decide cases
contrary to the position of the government when required by law. Thus the ability of
courts to perform their task of administering justice may well lie initially in the extent to
which the concept of judicial review is developed and accepted. Courts are often called
upon to decide issues of exceptional importance involving the states or conflicts between
branches of government. In order to resolve these disputes effectively, it is necessary that
courts establish a recognized means of reviewing decisions of political sensitivity and
significance. The ability of citizens to bring a lawsuit requesting review of governmental
decisions is essential to judicial review. As Hamilton intimated, the existence of judicial
review does not entail a conclusion that the judiciary is superior to either of the other
branches.

CONTEMPT LAW:
The judiciary undoubtedly is the arbiter of the rule of law. Because it is the courts that are
constitutionally entrusted to decide disputes between opposing parties and thereby
maintain the supremacy of law. The founding fathers of the constitution engrafted articles
121 and 211, and thereby prohibited the parliament and state legislators to discuss on the
floor of the house, the conduct of any judge of the Supreme Court or high court in the
discharge of his duties. The contempt law is a very powerful tool in the hands of
judiciary. Its singular purpose is to protect and preserve the majesty of law and the
dignity and independence of judiciary. In Dr. D.C Saxena Vs. Hon’ble Chief Justice of

5
The Federalist Papers No.78
India6 the Supreme Court tried to strike a balance between the freedom of speech and
expression and the duty to maintain public confidence in the administration of justice. In
this particular case, the petitioner filed a writ petition against the Chief justice of India.
By observing allegations made in the petition, the court punished the petitioner for
contempt. The Supreme Court stated that, “scurrilous abuse of a judge or attacks on the
personal character of a judge are acts of contempt 7. It again made a point saying, “but,
this is not to say that judicial decisions are not subjected to criticism; they can be, but not
the judges who took them”.

In certain cases Supreme Court made it clear that, the judiciary exercises a sovereign
judicial power of the state. While deciding, All India Judges Association Vs. Union of
India8 the court declared that, the judicial service is not a service in the sense of
“employment”. The members of other service cannot, however, be placed in par with the
members of the judiciary, either constitutionally or functionally. Therefore a distinction
can be made between them and other “service”, while determining the service conditions.

The power of Supreme Court under art.32 for the enforcement of fundamental rights, to
protect workingwomen from sexual harassment, was came into light, in the case of
Visaka Vs. State of Rajasthan9. In the absence of an enacted law, to provide for the
enforcement of a basic human right of “gender equality”, the Supreme Court laid down
certain guidelines and norms for the strict observance in all institutions to guarantee
against sexual harassment at working places. It further emphasized that; this would be
treated as law under art.141 of the constitution, until legislation comes to existence.

REMOVAL OF A JUDGE:
Article 124(4) deals with the removal of a Supreme Court judge from his office. The
procedure for the removal is prescribed under Judges (Inquiry) Act, 1968; and in the rules
made there under. In Sub-committee on Judicial Accountability Vs. Union of India10, the

6
(1996) 5 SCC 216
7
R v. Grey (1900) 2 QB 76
8
(1993) 4 SCC 288
9
(1997) 6 SCC 241
10
(1991) 4 SCC 699
apex court discussed the provisions in the Judges (Inquiry) Act, 1968. The question in the
case was that, whether the motion against a judge would lapse as a result of the
dissolution of the old house. Majority held that, the motion shall be kept pending till the
committee submits its report; and if the committee finds the judge guilty the motion shall
be taken up for consideration. In a similar case11, the apex court opined that, “the
behavioral discipline of a judge is an integral component of judicial independence”. As
per the provisions of the act, the process of removal of a judge consists in two parts. The
first part is purely statutory, i.e., starting from the initiation, and investigation leading to
the proof of misbehavior. While the second part alone is parliamentary, i.e., only after the
proof. It reflects the constitutional philosophy of both the judicial and political elements
of process of removal of a judge. The law is indeed a civilized piece of legislation
reconciling the concept of accountability of judges and the values of independence of
judiciary.

So, we can undoubtedly say that, the removal of a judge is paved by a judicial verdict,
after following a just and fair procedure. It is, therefore, most efficacious and the best
mode among world’s democracies to uphold the independence of judiciary. Lord Bryce
in his book12 stated that “impeachment is the heaviest piece of artillery in the
congressional arsenal, but because it is so heavy, it is unfit for ordinary use. It is like a
hundred ton gun which needs complex machinery to bring it into position; an enormous
charge of power to fire it; and a large mark to aim at”.

FINANCIAL INDEPENCENCE:
The legislator’s control over the provision of financial recourses to the judiciary prevents
the judiciary from being completely independent from the rest of the government.
Because the political branches of government usually make budgetary decisions; it is
essential that the budget not be used as a means to undermine the independence of
judiciary. It has been suggested that political branches’ financial influence over the
judiciary could be reduced by making judicial budgets some “fixed percentage of the
state budget”; would provide at least a partial solution to the political branches’ ability to
11
Krishna swami Vs. Union of India (1992) 4 SCC 605
12
In, “American Commonwealth”.
exert influence over judiciary. Next to the extent that funds have been earmarked for the
judiciary, the most efficient use of those funds is of utmost importance.

The problem of financial influence over judges has long been recognized, as evidenced
by Hamilton’s argument13 that, “next to permanency in office, nothing can contribute
more to the independence of judges than a fixed provision for their support. In the general
course of human nature, a power over a man’s subsistence amounts to a power of his
will”. In African countries, judges are paid insufficient wages to feed their families. All
are aware that these judges supplement their income through bribes. “Justice for sale is
the antithesis of judicial independence”. The Supreme Court confronted with a question
that, if higher judiciary is covered by Prevention of Corruption Act, in K.Veeraswami Vs.
Union of India14. Here, the apex court said that, a single dishonest judge not only
dishonor himself and disgraces his office, but jeopardizes the integrity of the entire
judicial system. A judicial scandal has always been regarded as far more deplorable than
a scandal involving either a member of legislature or an executive. The slightest hint of
irregularity in the court is a cause for great anxiety and alarm.

If a country’s citizens do not believe in that the judiciary is independent, they will not
resort to it to dispute resolution. Instead they will attempt to circumvent the legal process
and resort to corruption, bribery and intimidation. If a government knows that, the people
want an independent judiciary, it is far more likely that the government support it. The
first way to promote citizens’ desire for an independent judiciary is to create an
atmosphere in which the public has confidence in the integrity of judges’ decisions. If the
public is continually exposed to unjust judicial outcomes resulting from political,
financial or other illegitimate influences, they will not expect to be treated fairly, when
bringing their complaints to the judicial system. The public must be made aware of both
the move toward and need for judicial independence. In order to raise public awareness
of an independent judiciary, occurrences of the judiciary fairly meting out justice to all
who come before it should be publicized. The publicity should extend to increasing
awareness of the process of rooting out corrupt judges, in order to instill in the public
13
The Federalists Papers No.79
14
K.Veeraswami Vs. Union of India (1991) 3 SCC 655.
confidence, not only that the law applies to the political branches of the government, but
also that the corruption within the judiciary itself is being monitored and will not be
tolerated.

JUDICIAL MONITORING SYSTEM:

Now, the delicate issue of monitoring and correction of judicial misconduct comes into
picture. In many countries, this responsibility falls to the executive. There is a threat that
the government may use the judicial correction process to silence judges with whose
views it disagrees. To prevent this obvious threat, the better model is to locate the judicial
correction machinery within the judicial branch itself, as Justice Verma rightly pointed
out in one of his dissenting judgments15. The judiciary unquestionably prefers self-
policing over promulgation of externally established norms of behavior. The desire for an
independent judiciary will be heightened if citizens expect timely justice when the
judicial process is used to resolve conflicts. Backlog and delay is a crucial impediment to
the judicial independence through out the world. The delays often result in substantial
injustice to the litigants, reaching a point at which citizens’ lose their trust and confidence
in the judiciary as a relevant decision making body. Indeed, the increased expense of
trials delayed by backlogs may pressure parties to accept unjust settlements. It is
incumbent upon the judiciary to take a leadership role in solving the problem. Judicial
education can be used to train judges how to process case more effectively and
efficiently, and many innovations, both procedural and technical can be employed to
decrease the time, between the filing of a suit and its resolution. Improved case
management techniques provide an effective method of achieving a resolution in less
time and in a lower cost. The improved efficiency that is realized through improved case
management techniques will lead to quicker resolution of litigation. This will result in a
more favorable impression of judicial resolution.

Most important prerequisite to the peoples’ demand for an independent judiciary is

demonstrated integrity and moral leadership by the members of the judiciary. J.Clifford
Wallace16 once argued that, judicial independence could be preserved only if judges exert
15
K.Veeraswami vs. Union of India (1991) 3 SCC 655.
16
Senior Judge, United States Court of Appeals for the Ninth Circuit.
the moral leadership and strength of character required ensuring judicial accountability.
Arguing in favor of the independence of judiciary, Hamilton stated that, the ranks of
potential judges were necessarily small, as “there can be but few men in the society who
will have sufficient skills in the laws to qualify them for the stations of judges… the
number must be still smaller of those who unite the requisite integrity with the requisite
knowledge”17. Thus the judiciary must not only be independent from the other branches
of government, but also from any other influences. Judges must be individuals of greatest
integrity and worthy of the peoples’ greatest confidence. They must be subject to no
influence other than that of the force of the law. A judiciary beholden to private interests
is not truly independent; it is simply dependent on another, non-governmental entity. In
this respect judicial independence may be largely in the hands of judges themselves. Most
importantly, it must appear independent to those who would bring their disputes before it
for resolution.

CONCLUSION:
It has often been said that, “everyone talks about the weather, but no one does anything
about it”. But some judicial leaders in 1991 began work on stating the principles that are
the foundations of judicial independence. Finally, in 1997 it has been adopted and signed
by chief justices through out Asia-Pacific region18. These principles represent the
minimum standards necessary to be observed in order to maintain the independence and
effective functioning of judiciary.
The maintenance of its independence is much more difficult for the judiciary than for the
other branches. Over two hundred years ago, when the adoption of US constitution was
being debated, Alexander Hamilton made an important observation. He referred to court
as “the least dangerous” and demonstrated that with the following analysis. “The
executive not only dispenses the honors, but holds the sword of the community. The
legislature not only commands the purse, but also prescribes the rule by which the duties
and rights of every citizen are to be regulated. The judiciary, on the contrary, has no
influence over either the sword or the purse; no direction either of the strength or of the

17
Alexander Hamilton, “The Fedederalists Papers No. 78”.
18
Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region.
wealth of the society; and can take no active resolution whatever. It may truly be said to
have neither force nor will, but merely judgment…”

At bottom, a judiciary becomes independent when the people generally want the judiciary
to protect their interests. They will do so as integrity becomes the hallmark of the
judiciary. So, it is the influence of the judiciary’s judgments that ensures independence. If
Hamilton is correct, how well a judiciary functions as an objective, non-corrupt, fair and
rational decision making institution will determine the extent of judicial independence.

BIBLIOGRAPHY:
1. Seervai, H.M, Constitutional law of India, Vol.3, 4th ed., (2005).
2. Jain, M.P, Indian Constitutional Law, 5th ed., (2006).
3. “An essay on independence of judiciary: independence from what and why”,
J.Clifford Wallace, www.nyu.edu
4. “Judicial Independence Fiscal Autonomy and Accountability”, S.B. Sinha, Justice,
Vol.3, Nyayadeep, June (2005).