INDEPENDENCE OF JUDICIARY IN INDIA

International Journal of Human Resource & Industrial Research, Vol.1, Issue 8, Dec-2014, pp 01-08

INDEPENDENCE OF JUDICIARY IN INDIA Prashant Kumar* Assistant Professor, School of law, NIMS University Jaipur, Rajasthan

INTRODUCTION Importance of independence of the judiciary is very important facet of democracy, like our country. Independence of judiciary can be achieved by prohibiting interference from the Government (i.e. legislature and executive).In a democratic set up only an impartial and independence judiciary can protect the rights of person and can provide justice without fear or favour. Therefore it is important that all the judicial system (i.e. Supreme Court, High Court and District Court/ Lower Court) should be allowed to perform its function without any pressure. In a democratic country like India judiciary is custodian of rights of citizens. Therefore 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 it. And the question is how these two objects can be secured”. Now a prominent question 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 itself 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 other’s 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 favourable 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.

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Prashant Kumar/ Independence Of Judiciary In India 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 judge. NEED FOR THE INDEPENDENCE OF THE JUDICIARY The basic need for the independence of the judiciary rests upon the following points: 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. 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. International Journal of Human Resource & Industrial Research, Vol.1, Issue 8, Dec2014, pp 01-08 | ISSN: 2349 –3593 (Online), ISSN: 2349 –4816 (Print)

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Prashant Kumar/ Independence Of Judiciary In India 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 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. International Provisions: Basic Principles on the Independence of the Judiciary adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. The principle of independence of the judiciary has been laid down in various human rights instruments, including the Universal Declaration of Human Rights (Article 10) and the International Covenant on Civil and Political Rights (Article 14). There are also a number of UN standards, in particular the Basic Principles on the Independence of the Judiciary endorsed by the United Nations General Assembly in 1985 and the Bangalore Principles of Judicial Conduct of 2002. Within the European framework, the right to an independent and impartial tribunal is guaranteed by Article 6 of the European Convention on Human Rights (ECHR). Apart from the ECHR, there exist a number of more detailed texts, among them the Council of Europe Recommendation on Judges: Independence, Efficiency and Responsibilities adopted by the Committee of Ministers in 2010. In the broader OSCE region, participating States have committed themselves to ensuring the independence of the judiciary in the Copenhagen Document (1990), the Moscow Document (1991) and the Istanbul Document (1999). These Commitments were recalled and specified in the Brussels Declaration on Criminal Justice Systems and in the Ministerial Council’s Brussels Decision on Organized Crime. At the Ministerial Council meeting in Helsinki in 2008, OSCE participating States were encouraged to enhance their efforts to strengthen this aspect of the rule of law. The OSCE/ODIHR’s Kyiv Recommendations on Judicial Independence in Eastern Europe, South Caucasus and Central Asia were elaborated against the background of the above-mentioned international standards. The Charter of the United Nations, UDHR, ICCPR and ICCSER, Organisation and Administration of Justice in every Country etc. formulated following basic principles, to assist Member States in their task of securing and promoting the independence of the judiciary should be taken into account and respected by Governments within the framework of their national legislation and practice and be brought to the attention of judges, lawyers, members of the executive and the legislature and the public in general. The principles have been formulated principally with professional judges in mind, but they apply equally, as appropriate, to lay judges, where they exist:

International Journal of Human Resource & Industrial Research, Vol.1, Issue 8, Dec2014, pp 01-08 | ISSN: 2349 –3593 (Online), ISSN: 2349 –4816 (Print)

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Prashant Kumar/ Independence Of Judiciary In India 1) 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. 2) The judiciary shall decide matters before them impartially, on the basis of 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. 3) 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. 4) 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. 5) 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. 6) The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected. 7) It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions. Above mentioned points are the International provisions for maintaining the independence of judiciary at International level. THE INDEPENDENCE OF THE JUDICIARY IN INDIA The basic principles ensuring the independence of the judiciary should be set out in the constitution. Judges are subject only to the law and their decisions should not be revised outside the appeals procedure. All decisions regarding the appointment and the professional career of judges should be based on merit, by means of the application of objective criteria. The evaluation of judges should never be based on the content of their decisions and, in particular, acquittals should in no way be considered as a sign of failure. Following provisions are given in our constitution to ensure the independence of the judiciary: 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. Appointment of Judges: According to Article 124(2) of our Constitution the Executive have no power to appoint Judge, however it requires the consultation of the Chief Justice of Supreme Court and High Courts in the appointment of the judges of the Supreme Court and High Courts. Under the provision of the Constitution President shall appoint the Judges after the consultation with the judicial authorities, while in case of appointment of the Chief Justice of India, President shall consult such Judges of Supreme Court and the High Court’s as he deems necessary and for the appointment of other judges President must consult with the CJI. Similarly the appointment of the chief Justice of the High Court are made after the consultation of the Chief Justice of India and the Governor of the State concerned, while the appointment of the other judges of High Court’s are made with the consultation of the Chief Justice of the Concerning High Court. Therefore it can be said that Executive have no exclusive discretion in matter of the appointment of Judges, thus Constitution ensures the independence of the judiciary. International Journal of Human Resource & Industrial Research, Vol.1, Issue 8, Dec2014, pp 01-08 | ISSN: 2349 –3593 (Online), ISSN: 2349 –4816 (Print)

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Prashant Kumar/ Independence Of Judiciary In India 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 misbehavior 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 and making judiciary independent. No discussion on conduct of Judge in State Legislature / Parliament: Art. 211 provide 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 lay 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 provide 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. Prohibition of Retired Judges to Practice: Article 124 (7) of the Constitution prohibits a retired Judge of the Supreme Court to plead or appear before any Court or Judicial Authority in India. Factors affecting the Independence of Judiciary in India: Though our Constitution guarantees absolute independence of judiciary but in recent years certain disturbing facts have been shown in matter of the appointment of Judges. Recently, Justice Markandey Katju, a former judge of the Supreme Court alleged that three former Chief Justices of India made “improper compromises” under political pressure in confirming the appointment of a judge they knew to be corrupt. Justice Katju claimed that One judge was given an additional term by Justice Lahoti himself under political pressure from a Congress Minister. Justice Katju alleges that the judge in question was close to an ally of the ruling United Progressive Alliance (UPA) government and this led to Justice Lahoti being pressured into granting the extension. Justice Katju further alleged that the same judge was granted an extension by Justice Lahoti’s successor, Justice Y.K. Sabharwal, and was made a permanent judge by his successor, Justice K.G. Balakrishnan. International Journal of Human Resource & Industrial Research, Vol.1, Issue 8, Dec2014, pp 01-08 | ISSN: 2349 –3593 (Online), ISSN: 2349 –4816 (Print)

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Prashant Kumar/ Independence Of Judiciary In India Judges are appointed by Executive in consultation with the legal expert. In the Judges transfer Case (S. P. Gupta v. Union of India1), the Apex Court submitted to dominance of Executive in matter of transfer of Judges. The Court has held that the expression “consultation” did not mean concurrence and executive was not bound by the advice given by the Judges. The Central Government is not bound to follow the advice by legal expert. The word “consultation” used under Article 124 (2) stands same meaning as the word “consultation” used under Article 212 and 222 of the Constitution. The transfer of Judges can be challenged only on the ground of mala fide and irrelevant considerations that means when constitutional functionaries expressed adverse opinion against the transfer or against the appointment. Thus, the appointment of the Judges of the Supreme Court and the transfer of the high Court Judges have solely been vested in Executive from whose dominance the judiciary is expected to be free and independent. Thus, the Court itself submitted to subordination of Executive, which is dangerous for judiciary. In S.P. Gupta v. Union of India2 case Justice P. N. Bhagwati had suggested for constitution of Judicial Commission to deal with the appointment of Judges of Supreme Court and also transfer of High Court Judges. However, the Supreme Court in Landmark Judgment S. C. Advocates on Records Association v. Union of India3 has held that the opinion of Chief Justice of India must be given the greatest weight in the selection of Judges of Supreme Court and High Courts and in the transfer of Judges of Judges of High Courts. The Court said that selection should make as a result of participatory consultative process. It means the dominance of Executive is reduced and to certain extent political influence is eliminated. The Court further said that, No appointment of Judges to the Supreme Court and any High Court can be made without conformity with the opinion of the Chief Justice of India. However the criterion of the appointment of the Chief Justice of India shall be seniority. This judgement of the Supreme Court would last for a long time in ensuring the impartiality and independence of Judiciary which is one of the basic structures of our Constitution. However, prevailing the trend of appointing the retired Judges in various capacities is likely to pose threat to independence of Judiciary. The XIV Law Commission Report rightly pointed out that – “It is clearly undesirable that the Supreme Court Judge should look forward to other Government employment after retirement. The Government is party in large number of cases in High Courts and average citizen will get the impression that a Judge, who look forward to being appointed by the Government after retirement, does not being fair to his work that detachment outlook which is expected of a Judge in case in which Government is party. We are clearly of the view that the practice has a tendency to affect the independence of judges and should be discontinued”. The above view of Law Commission deserves a serious consideration to overcome the abuse of independence of Judiciary. An independence and impartial Judiciary protects the Fundamental Rights including other Constitutional Rights of the citizen from being violated or infringed by the State as well. Our Constitution provides that a person is entitled to approach the Supreme Court directly by following laid procedure for the enforcement of his Fundamental Rights. The Constitution has done everything feasible to make Judiciary independent and avoid the Executive dominance. CONCLUSION

AIR 1982 SC 149 1993 (4) SCC 441 3 1993 (4) SCC 441 1 2


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Prashant Kumar/ Independence Of Judiciary In India 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. Lord Acton say’s that, “Power tends to corrupt, and absolute power corrupts absolutely”. 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. One of the most important standards underpinning the autonomy of the judiciary is irrevocability. That is, for ordinary judges to be appointed permanently until retirement. The irrevocability of judges, including protection from involuntary transfers, as well as adequate remuneration in conformity with the dignity of the office are other factors that constitute the backbone of genuine independence. Furthermore, it is important to strike the appropriate balance between judges’ accountability and their independence in adjudication. Disciplinary responsibility of judges shall not extend to the content of their verdicts or to judicial mistakes. Also, the body that initiates cases of judicial discipline should not be the one that adjudicates them. Judges facing these bodies should enjoy procedural safeguards and disciplinary hearings must be fully transparent. It is axiomatic that a judge deciding a case should not act on any order or instruction of any third party, inside or outside the judiciary. A hierarchical organization of the judiciary which would amount to subordination of the judges to the court chairpersons or to higher instances in their judicial decision-making activities would be a clear infringement of this principle. In order for freedom from external influence to be ensured, the law should provide sanctions against outside actors seeking to influence judges in any manner. 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.


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Prashant Kumar/ Independence Of Judiciary In India References BOOKS   

V.N. Shukla’s Constitution of India (10th Edn 2001), revised by M. P. Singh. M.P. Jain, Indian Constitutional Law.(6th Edn 2013) Prof. Kailash Rai, Constitutional Law of India.(4th Edn 2013)

WEBSITES  

Independence of Judiciary in India: A Critical http://mulnivasiorganiser.bamcef.org/?p=482 accessed on 28/07/2014. Independence of Judiciary in Indian Constitution, available on

Analysis

available

on

accessed on 28/07/2014.


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INDEPENDENCE OF JUDICIARY IN INDIA

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