Name – Shubham Sambhav

Course – BBA.LLB

Batch – 2016 - 21

Registration No. – 16040142136

Subject – ADMINISTRATIVE LAW

School – Alliance School of law

Topic –

CONTRIBUTION OF INDIAN JUDICIARY IN

RELATION WITH DELEGATED LEGISLATION

Submitted by :- Submitted to :-

SHUBHAM SAMBHAV PROF.RAHUL MISHRA

 INTRODUCTION
The framers of the Indian Constitution at the time of framing of our
constitution were concerned about the kind of judiciary our country
should have. This concern of the members of the constituent assembly
was responded by Dr. B.R. Ambedkar in the following words:

“There can be no difference of opinion in the House that our

judiciary must be both independent of the executive and must also
be competent in itself. And the question is how these two objects can
be secured“.

The question that arises at first instance in our minds is that what
made the framers of our constitution to be so much concerned about
providing the separate entity to the judiciary and making it self
competent.

The answer to this question lies in the very basic understanding that
so as to secure the stability and prosperity of the society, the framers
at that time understood that such a society could be created only by
guaranteeing the fundamental rights and the independence of the
judiciary to guard and enforce those fundamental rights. 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.

The doctrine of Separation of Powers which was brought into

existence to draw upon the boundaries for the functioning of all the
three organs of the state: Legislature, Executive and the Judiciary,
provides for a responsibility to the judiciary to act as a watchdog and
to check whether the executive and the legislature are functioning
within their limits under the constitution and not interfering in each
others functioning. This task given to the judiciary to supervise the
doctrine of separation of powers cannot be carried on in true spirit if
the judiciary is not independent in itself. An independent judiciary
supports the base of doctrine of separation of powers to a large extent.

It is theoretically very easy to talk about the independence of the

judiciary as for which the provisions are provided for in our
constitution but these provisions introduced by the framers of our
constitution can only initiate towards the independence of the
judiciary. The major task lies in creating a favorable environment for
the functioning of the judiciary in which all the other state organs
functions in cooperation so that the independence of the judiciary can
be achieved practically. The independence of the judiciary has also to
be guarded against the changing economic, political and social
scenario.

Whenever there is a talk regarding the independence of the judiciary,

there is also a talk of the restrictions that must be imposed on the
judiciary as an institution and on the individual judges that forms a
part of the judiciary. In order to ensure smooth functioning of the
system there must be a right blend of the two.

MEANING – THE INDEPENDENCE OF THE

JUDICIARY
The meaning of the independence of the judiciary is still not clear
after years of its existence. Our constitution by the way of the
provisions just talks of the independence of the judiciary but it is no
where defined what actually is the independence of the judiciary.

The primary talk on the independence of the judiciary is based on the

doctrine of separation of powers which holds its existence from
several years. The doctrine of separation of powers talks of the
independence of the judiciary as an institution from the executive and
the legislature.

The other meaning of the judicial independence can be found out by

looking at the writings of the scholars who have researched on the
topic. Scholars have followed the “constituent mechanism” (i.e. what
constitutes the judiciary) to define the independence of the judiciary.
Scholars try to define judiciary by talking about the independence of
the judges which constitutes judiciary. Therefore the independence of
the judiciary is the independence of the exercise of the functions by
the judges in an unbiased manner i.e. free from any external factor.

So the independence of the judiciary can be understood as the

independence of the institution of the judiciary and also the
independence of the judges which forms a part of the judiciary.

Shetreet in his work tries to explain the words “Independence” and

“Judiciary” separately, and says that the judiciary is “the organ of the
government not forming a part of the executive or the legislative,
which is not subject to personal, substantive and collective control,
and which performs the primary function of adjudication”.

The final outcome that can be derived from Shetreet’s writings is that
the independence of the judiciary as an institution and the
independence of the individual judges both have to go hand in hand as
the independence of the judiciary as an institution is not possible
without the independence of the individual judges and is the
institution of the judiciary is not independent, there is no question of
the independence of the individual judges.

Parliamentary Committee on Law & Justice

The Judicial Standards and Accountability Bill, 2010

The Constitution of India has been in force for over six decades now
and many a change has been made to ensure that the canons of
Independence of the Judiciary are afforded to the Indian people both
in letter and spirit. The latest and perhaps the most extensive of
changes envisaged till date is the Judicial Standards and
Accountability Bill, 2010 which is currently making its way through
the Indian Parliament. The Bill is the tallest endeavour till date, for an
overhaul of the Judiciary in India. It is an endeavour to lay down the
highest standards for Judicial Conduct and for bringing about
transparency in the Judges' conduct.
 The Bill seeks to

(a) Lay down standards of conduct for the judiciary

(b) Provide for the accountability of judges by mandating declaration

of their assets

(c) Establish mechanisms for investigating individual complaints for

misbehavior or incapacity of a judge of the Supreme Court or High
Courts

(d) Provide a mechanism for the removal of judges, while repealing

the Judges (Inquiry) Act, 1968 which presently regulates the
procedure of removal of judges

(e) Maintain confidentiality in inquiry into complaints and penalize

frivolous complaints.

 The Bill aims at a metamorphosis in the working of the Indian

Judiciary by mandating the judges to adopt universally accepted
values of judicial life which include, a prohibition on:

(a) Close association with individual members of the Bar who practise
in the same court as the judge

(b) Allowing family members who are members of the Bar to use the
judge’s residence for professional work

(c) Hearing or deciding matters in which a member of the judge’s

family or relative or friend is concerned

(d) Entering into public debate on political matters or matters which

the judge is likely to decide

(e) Engaging in trade or business and speculation in securities.

Judges will be required to declare their assets and liabilities, and also
that of their spouse and children within 30 days of the judge taking
oath of office.

Every judge will have to file an annual report of his assets and
liabilities. The assets and liabilities of the judge will be displayed on
the website of the Court to which he belongs.
The Bill establishes three authorities to investigate complaints against
judges:

 National Judicial Oversight Committee: to which initial

complaints will be made, comprising of a retired Chief Justice
of India as the Chairperson, a judge of the Supreme Court
nominated by Chief Justice of India, a Chief Justice of the High
Court, the Attorney General for India, and an eminent person
appointed by the President. The Bill seeks to eliminate frivolous
or vexatious complaints at the outset by vesting the Oversight
Committee to penalize such complaints.

 Scrutiny Panel: to which the Oversight Committee refers

complaints comprising of former Chief Justice and two sitting
judges of that court. It will be constituted in the Supreme Court
and every High Court. If the Scrutiny Panel feels there are
sufficient grounds for proceeding against the judge, it shall
report on its findings to the Oversight Committee. If it finds that
the complaint is frivolous, or that there not sufficient grounds
for inquiring against into the complaint, it shall submit a report
to the Oversight Committee giving its findings for not
proceeding with the complaint.

 Investigation Committee: If the Scrutiny Panel recommends

investigation into a complaint against a judge, the Oversight
Committee will constitute an investigation committee to
investigate into the complaint. The investigation committee will
consist of not more than three members. It will have some
powers of a civil court and also the power to seize documents
and keep them in its custody. The investigation committee will
frame definite charges against the judge and shall communicate
 the same to the judge. The judge shall be given an opportunity
to present his case, but if he/ she chooses not be heard, the
proceedings may be heard without the Judge's presence.

 If the charges against a judge are proved, the Oversight Committee

may

(a) Recommend that judicial work shall not be assigned to the judge
(b) Issue advisories and warnings if it feels that the charges proved do
not warrant the removal of the judge
(c) If the Committee feels that the charges proved merit the removal
of the judge, it shall request the judge to resign voluntarily, and if he
fails to do so, advise the President to proceed with the removal of the
judge. In such a case, the President shall refer the matter to
Parliament.

 A motion for removal of a judge can also be introduced in

Parliament by members of Parliament. In such a case, the
Speaker or the Chairman can either admit the notice, or refuse to
admit it. If the notice is admitted, the matter shall be referred to
the Oversight Committee for inquiry.

 The Bill exempts documents and records of proceedings

related to a complaint from the purview of the Right to
Information Act, 2005. The reports of the Investigation
Committee and the order of the Oversight Committee shall be
made public.

A critical analysis of the Judicial Standards and Accountability Bill

raises a few causes for concern in the following provisions:

 The 195th Report of the Law Commission and the 21st

Report of the Parliamentary Standing Committee on Personnel,
Public Grievances, and Law and Justice in their respective
reports on the Judges (Inquiry) Bill, 2006, recommended a
broad-based Oversight Committee to represent members of
executive, legislature, judiciary and the Bar. There is no member
of the legislature in any of the authorities proposed in the Bill.
  The Bill provides that judges from the same High Court shall
first scrutinize whether a complaint against a judge needs to be
investigated, however, there is no provision for a review
mechanism by the Oversight Committee if the Scrutiny Panel
decides that there is no merit in the complaint.

 In 1997, the Supreme Court adopted a different in-house

procedure for inquiring into complaints of misbehavior against
judges. It stated that the inquiry committee would consist of two
Chief Justices of High Courts other than the High Court to
which the judge belongs, and one other High Court judge to
ensure that judges of the same High Court would not sit in
inquiry against a judge of that Court. In violation of the
rationale behind this, the Bill provides for a scrutiny Panel
headed by a former Chief Justice of the High Court and two
other sitting judges of that court.

 The Bill requires all complaints to be kept confidential. Any

breach of confidentiality carries a penalty. In addition, a
vexatious or frivolous complaint, if made in public, may also be
penalised under the Contempt of Courts Act, 1971. However,
judges cannot be defamed if complaints are kept confidential,
therefore, the need for an additional safeguard against frivolous
complaints may be questionable.

 In C. Ravichandran Iyer v. Justice A.M.Bhattacharjee, the Supreme

Court has held that a judge can seek ‘judicial review’ against an order
of the President removing him. The Bill makes no mention of whether
a judge who has been removed has a right to appeal to the Supreme
Court. Therefore, in the absence of any provision in the Bill rendering
finality to the Presidential order, based on this judgment, a judge will
to have the right to appeal to the Supreme Court to review the order of
removal passed by Parliament.
Permissible Delegated Legislations:

This type of delegations include those which Executive may exercise its power
to legislate.

1.Supplying Details:

If the legislative policy is formulated by the legislature, the function of

supplying details may be delegated to the executive for giving effect to the
policy.

e.g. Section 3 of the All India Services Act, 1951 authorizes the Central
Government to make rules to regulate conditions of service in the All India
Services.

2.Inclusion:

Sometimes, the legislature passes an Act and makes it applicable, in the first
instance, to some areas and classes of persons, but empowers the
Government to extend the provisions thereof to different territories, persons
or commodities, etc.

e.g., the Transfer of Property Act, 1882 was made applicable to the whole of
India except certain areas, but the Government was authorized to apply the
provisions of the Act to those areas also.

Exclusion:

There are some statutes which empower the Government to exempt from
their operation certain persons, territories, commodities, etc.

e.g., Section 36 of the Payment of Bonus Act,1965 empowers the Government

to exempt any establishment or a class of establishments from the operation
of the Act. Such provision introduces flexibility in the scheme of the legislation.
The Legislature which is burdened with heavy legislative work is unable to find
time to consider in detail hardships and difficulties likely to result in enforcing
the legislation.
3.Suspension:

Some statutes authorize the Government to suspend or relax the provisions

contained therein.

e.g. under Section 48(1) of the Tea Act, 1953, the Central Government is
empowered under certain circumstances to suspend the operation of all or any
of the provisions of the said Act.

4.Application of existing laws:

Some statutes confer the power on the executive to adopt

and apply statutes existing in other States without modifications (with
incidental changes) to a new area. There is no unconstitutional delegation in
such cases, as the legislative policy is laid down in the statute by the
competent legislature.

5.Modification:

Sometimes, provision is made in the statute authorizing the executive to

modify the existing statute before application. This is really a drastic power as
it amounts to an amendment of the Act, which is a legislative function, but
sometimes, this flexibility is necessary to deal with local conditions.

6.Framing of Rules:

A delegation of power to frame rules, bye-laws, regulations, etc. is not

unconstitutional, provided that the rules, bye-laws and regulations are
required to be laid before the legislature before they come into force and
provided further that the legislature has power to amend, modify or repeal
them.

NEED FOR THE INDEPENDENCE OF THE

JUDICIARY
The basic need for the independence of the judiciary rests upon the
following points:

1. To check the functioning of the organs: Judiciary acts as a

watchdog by ensuring that all the organs of the state function within
their respective areas and according to the provisions of the
constitution. Judiciary acts as a guardian of the constitution and also
aids in securing the doctrine of separation of powers.

2. Interpreting the provisions of the constitution: It was well

known to the framers of the constitution that in future the ambiguity
will arise with the provisions of the constitution so they ensured that
the judiciary must be independent and self-competent to interpret the
provision of the constitution in such a way to clear the ambiguity but
such an interpretation must be unbiased i.e. free from any pressure
from any organs like executive. If the judiciary is not independent, the
other organs may pressurize the judiciary to interpret the provision of
the constitution according to them. Judiciary is given the job to
interpret the constitution according to the constitutional philosophy
and the constitutional norms.

3. Disputes referred to the judiciary: It is expected of the Judiciary

to deliver judicial justice and not partial or committed justice. By
committed justice we mean to say that when a judge emphasizes on a
particular aspect while giving justice and not considering all the
aspects involved in a particular situation. Similarly judiciary must act
in an unbiased manner.

COMPONENTS – THE INDEPENDENCE OF THE

JUDICIARY
The components of the independence of the judiciary as talked of here
refers to some of the requisite terms and conditions which are so
necessary that if they are absent, the independence of the judiciary
also cannot exist.

It is very difficult to lay down certain set conditions as law is dynamic

in itself and of the changing economic, political and social scenario.

CONSTITUTIONAL PROVISIONS –
THE INDEPENDENCE OF THE JUDICIARY
Many provisions are provided in our constitution to ensure the
independence of the judiciary. The constitutional provisions are
discussed below:

Security of Tenure: The judges of the Supreme Court and High

Courts have been given the security of the tenure. Once appointed,
they continue to remain in office till they reach the age of
retirement which is 65 years in the case of judges of Supreme
Court (Art. 124(2)) and 62 years in the case of judges of the High
Courts (Art. 217(1)). They cannot be removed from the office
except by an order of the President and that too on the ground of
proven misbehaviour and incapacity. A resolution has also to be
accepted to that effect by a majority of total membership of each
House of Parliament and also by a majority of no less than two
third of the members of the house present and voting. Procedure is
so complicated that there has been no case of the removal of a
Judge of Supreme Court or High Court under this provision.

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 (Art. 125(2)) except in the event of
grave financial emergency.

Powers and Jurisdiction of Supreme Court: Parliament can only

add to the powers and jurisdiction of the Supreme Court but cannot
curtail them. In the civil cases, Parliament may change the
pecuniary limit for the appeals to the Supreme Court. Parliament
may enhance the appellate jurisdiction of the Supreme Court. It
may confer the supplementary powers on the Supreme Court to
enable it work more effectively. It may confer power to issue
directions, orders or writs for any purpose other than those
mentioned in Art. 32. Powers of the Supreme Court cannot be
taken away. Making judiciary independent.
 No discussion on conduct of Judge in State Legislature /
Parliament: Art. 211 provides that there shall be no discussion in
the legislature of the state with respect to the conduct of any judge
of Supreme Court or of a High Court in the discharge of his duties.
A similar provision is made in Art. 121 which lays down that no
discussion shall take place in Parliament with respect to the
conduct of the judge of Supreme Court or High Court in the
discharge of his duties except upon a motion for presenting an
address to the President praying for the removal of the judge.

Power to punish for contempt: Both the Supreme Court and the
High Court have the power to punish any person for their
contempt. Art. 129 provides that the Supreme Court shall have the
power to punish for contempt of itself. Likewise, Art. 215 lays
down that every High Court shall have the power to punish for
contempt of itself.

Separation of the Judiciary from the Executive: Art. 50 contains

one of the Directive Principles of State Policy and lays down that
the state shall take steps to separate the judiciary from the
executive in the public services of the state. The object behind the
Directive Principle is to secure the independence of the judiciary
from the executive. Art. 50 says that there shall be a separate
judicial service free from executive control.

CONCLUSION
The independence of the judiciary as is clear from the above
discussion hold a prominent position as far as the institution of
judiciary is concerned. It is clear from the historical overview that
judicial independence has faced many obstacles in the past specially
in relation to the appointment and the transfer of judges. 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 so because the independence of
judiciary is the pre-requisite for the smooth functioning of the
Constitution and for a realization of a democratic society based on the
rule of law. The interpretation in the Judges Case giving primacy to
the executive, as we have discussed has led to the appointment of at
least some Judges against the opinion of the Chief Justice of India.
The decision of the Judges Case was could never have been intended
by the framers of the Constitution as they always set the task of
keeping judiciary free from executive and making it self-competent.
The decision of the Second Judges Case and the Third Judges Case is
a praiseworthy step by the Court in this regard.

There is a saying that “‘Power tends to corrupt, and absolute

power corrupts absolutely”

- Lord Acton

Whenever there is a mention of the independence of the judiciary,

there is always a concern about the latent dangers of the judicial
independence and there arises the importance of “Judicial
Accountability”. The recent development in this regard is the
recommendation of the Law Commission for the inclusion of a
whistleblower provision, aimed at protecting those making complaints
against judges, in a draft bill dealing with the removal of judges of the
Supreme Court and High Courts. Introduction of such a bill by the
Law Commission is a major step in the direction of making changes
to the rigid procedure in our constitution for the removing of the
judges of the Supreme Court and the High Courts.

The final outcome of the above discussion is that the importance of

the independence of the judiciary was long ago realized by the
framers of the constitution which has been accepted by the courts by
marking it as the basic feature of the constitution. It is well known
law has to change so as to meet to the needs of the changing society.
Similarly judicial independence has to be seen with the changing
dimension of the society. Judicial Accountability and Judicial
Independence have to work hand in hand to ensure the real purpose of
setting up of the institution of judiciary.