INTRODUCTION

Our country India is a democratic country, means that the government has to be
`by the people, for the people and of the people`. It guarantees to its citizens various rights
through its Constitution. In order for the smooth working and ensuring rights to everyone the
Supreme Court and the High Courts have been given special powers to safeguard these rights.
A mere submitting of a letter addressed to a judge after violation of a fundamental right, either
by the victim of another person is enough to move courts.
Violation of Fundamental Right may have been done even by state. Now a
dilemma arises that should judiciary take sides with the state or with the victim? If the Judiciary
is independent, then of course it would help the victim, if judiciary is under state control then
justice would be forgotten and the state would not hesitate again to violate a fundamental right
again.
During the last few years, the question of independence of judiciary has been
hotly debated in India. This question has agitated the minds of jurists, politicians and the lay
men. The supporters and the opponents have both given very effective and sound arguments.
Those who believe in the absolute independence of judiciary say that democracy
cannot be possible in the absence of an independent judiciary. They say that rule of law can
only be upheld by a supreme judiciary. And this rule of law is very essential for the successful
working of democracy.
On the other hand its opponents want to uphold the supremacy of the Parliament.
They want to limit the powers of the judiciary. They say that it should not stand in the path of
economic and social reforms in the country for the establishment of a socialistic society.
The famous French philosopher Montesquieu had first of all given the idea of
the independence of judiciary. He believed in the theory of separation of powers of the three
Branches of the government- Legislature, Executive and Judiciary. Inspired by his theory the
father of the American Constitution established an independent judiciary in their country. The
American people have a great confidence in the independence of judiciary. They feel that their
rights and liberties will be endangered if the judiciary is weakened in anyway.
There is no doubt that a fearless and impartial judicial system is a must for any
civilized nation. It is also the essential condition for a federal type of government as in India.
If the judges of the higher courts are fearless, impartial and independent, only then it can be
expected that they can protect the fundamental rights of the citizens. On the other hand, if the
judges themselves are weak and fearful they cannot uphold the rights of the citizens.
In our country also the constitution has established a separate and independent
judiciary. It has remained impartial and independent all these years. There is no doubt that the
Indian Supreme Court has always shown its independence and impartiality since its inception.
On many occasions it pronounced several historical judgments fearlessly, which sometimes
even went against the government.
This dissertation is divided in five chapters. In first chapter I’m trying to unpack
the concept of “Judicial Independence”. The second chapter deal with the relationship between
the three organ of a democratic state. In third chapter the international phenomenon over
“Independence of Judiciary” has been discussed. Finally before concluding in chapter five, the
fourth chapter will deal with Indian perspectives over “Independence of Judiciary”

RESEARCH METHODLOGY
AIMS & OBJECTIVES: The project is an attempt to study the need of
“Independence of Judiciary” in a democratic state especially in Indian perspective. As a part
of this, not only the constitutional provisions, but the various international norms, whether
they are sufficient or not. Study on actual position of “Judicial independence” outlined and
compared with the same in the Indian system.
LIMITATIONS OF THE STUDY: The scope of the project is not merely to
study the area and the issues evolved therein from a constitutional point of view but as means
and ways of improving the judicial system and the efficiency of the legal community. The
limitation of the work lies in the fact that there is a plurality of views in this regard and it is a
difficult proposition to choose between the various perspectives.
NATURE OF THE STUDY: The project is descriptive to the extent that it has
outlined the various constitutional provisions relating to the area under study. It has also
outlined the position stated in various judicial pronouncements. It is also analytical as the
researcher has tried to compare the various viewpoints regarding the area under the study and
has tried to give his own views in this regard. The researcher has also analysed the efficacy of
the present system as outlined under the Constitution. An attempt has also been made to draw
a comparative analysis of the nature and extent of analogous provisions in various
jurisdictions.
SOURCES OF DATA: Secondary sources have been mainly referred to for the
purposes of the research. Secondary sources includes a literature review of books, journal
articles and reports from nongovernmental organisations and other sources, as well as a survey
of relevant newspaper and magazine. The researcher also gained an overview on the topic by
going through the Lectures and speeches of various judges all across the globe and discussions
with experts in the concerned area.

LIBRARIES CONSULTED: Various libraries have been consulted for reviewing different
literatures related to the researches so far done in the similar area. The libraries referred are:-

• Departmental Library, Amity Law School, Amity University.

• Departmental Library, Faculty of Law, Banaras Hindu University.

• Central Library, Banaras Hindu University.

• Library of High Court of Allahabad Lucknow Bench.

 CONTENT

CHAPTER 1
UNPACKING INDEPENDENCE OF 2-13
JUDICIARY
1.1 The Concept of Judicial Independence 2
1.2 The Principle Of Independence Of The 4
Judiciary
1.3 Defining Judicial Independence 10

CHAPTER 2
INDEPENDECE OF JUDICIARY AND 14-31
DEMOCRATIC STATE
2.1 Rule of Law in a Democratic State 15
2.2 Doctrine Of Seperation Of Power 20
2.2.1 Montesquieu’s Doctrine 22
2.2.2 Importance Of The Doctrine 24
2.3 Doctrine Of Separation Of Powers In 24
Indian Perspective
2.3.1 Functional Overlap 25
2.3.2 Means Of Check And Measure 26
2.3.4 The Practice 28

CHAPTER 3
INTERNATIONAL PHENOMENA 32-49
3.1 International Law And The 33
Independence And Impartiality Of The
Judiciary
3.1.1 Applicable International law 34
3.2 Basic Principles on the Independence of 36
the Judiciary, 1985
3.3 The Notions of Independence and 36
Impartiality: Links and Basic
Differences
3.4 The Notion of Institutional 38
Independence
3.4.1 Independence As To Administrative 38
 Matters
3.4.2 Independence as to financial matters 38
3.4.3 Independence as to decision-making 39
3.4.4 Jurisdictional Competence 40
3.5 The notion of individual independence 40
3.5.1 Appointment 41
3.5.2 Security of Tenure 43 3.5.3 Financial security 44
3.5.4 Promotion 45
3.5.5 Suspension and removal 46

CHAPTER 4
INDEPENDENCE OF JUDICIARY: An 50-103
INDIAN PERERSPECTIVE
4.1 Historical Background 51 4.1.1 Before
Independence 51 4.1.2 Position of Judiciary in the
Settlements of 51 the Company before 1726:
4.1.3 Position of Judiciary after 1726 52
4.1.4 Indian High Courts Act, 1861 56
4.1.5 The Government Of India Act, 1915 And 57 The
Government Of India Act, 1935.
4.2 Judicial Independence And The 58
Constitution-Making
4.3 The Constitution Of India And 62
Independence Of Judiciary
4.3.1 Relationship between Supreme Court and 65
the High Courts
4.3.2 Immunity from outside influence 67
4.3.3 Appointment of Judges. 74
4.3.3.1 Consultation whether mandatory 79
4.3.4 Security of tenure 86
4.3.5 Transfers 87
4.3.6 Conditions of Service 89
4.3.7 Oath of office 90
4.3.8 Judicial Decisions Binding On The 90
Executive
4.3.9 Power To Punish For Its Own Contempt 92
4.3.9.1 Criticism of Judges 92 4.3.10 Removal of a Judge 96
4.4 Judicial Response to “Independence of 97
Judiciary”

Chapter V
5 Conclusion 104-106
Bibliography 107-109
Table of Cases
Page No.
A K Roy v. Union of India (1982) 1 SCC 271 27,67
Ajay Kumar Pandey, In re AIR 1998 SC 3299 (3305 96
All Kerala Poor Aid Legal
Association, Trivandrum v. Chief Justice of Kerala MR 1990 Kcr241 73
Arundhati Roy, In re AIR 2002 SC 1375 (1380) 94,96
Aslam v. Union of India, AIR 1995 SC 548 91
Attorney General
For India v. Amratlal
Prajivandas (1994) 5 SCC 54 30
Baradakantn Mishra v. The
Registrar of Orissa High
Court, AIR 1974 SC 710 93
Bradley v. Fisher 20 Led 646 (650). 67,68
Brahm Dutt v. Union of
India 2002 (5) SCC 431. 26
Brahma prakash Sharma v.
 State of Uttar Pradesh, AIR 1954 SC 10 : 95
Cf. Kawasaki v. Bantham, (1939) 2 KB 544 (552). 90,91
Cf. Kins v. Speyer, (1910) 1 KB 596 89
Chetak Construction Ltd.
(M/s.) v. Om Prakasti AIR 1998 SC 1855 (1859) 71
Cl. King v. Speyer, (1910) 1 KB 596 91
Codavannan Tirumulpad v. Ashok Khot (2006) 5 SCC 1. 91
Cooper v. Aaron (1958) 357 US 1 72
D.C. Saxena v. Hon'ble the
Chief justice of India AIR 1996 SC 2481 94,96
Daktaras v. Lithuania Appeal No. 42095/98 37
Delhi Laws : In Re 1951 SCR 747 21
Eastern Trust Co, v.
McKenzie (1915) AC 750 89,91
Entick v. Carrington (1765) 19 St Tr 1030 69
Epuru Sudhakar and Ors.
v Government of Andhra
Pradesh and Ors AIR 2006 SC 3385 31
Evans v. Gore 64 L Ed 887 68
Golden v. U.K (1970) 1 RIIRR 524). 7
High Court of Judicature of
Bombay v. Shirish Kumar
R. Patil AIR 1997 SC 2631 73
High Court of Karnataka v. 1996 Cri L J 1747 (1751,
P.N. Shelly, 1752) (Kant.) 93

Hon'bie Chief Justice of

High Court, M.P, v. Mohan
Kumar 199-1 (Supp-2) SCC (.02 66
I. R. Coelho v. State
of Tamil Nadu 2007 (2) SCC 1 30
In re Murcliisein (1955) 349 US 133 69
In Re Presidential Refrence AIR (1999) SC 1. 29,78,87,100
Indira Gandhi
Nehru v. Raj Narain AIR 1975 SC 2299 28
Jaswant Singh v. Virender
Singh AIR 1995 SC 520: 71
K. Ashoka Reddy v.
Government of India A.I.R. 1994 S.C. 1202 100
K. Veeraswami v. Union of
India (1991) 3 SCC 655 66,69
Kawasaki v. Bentham S.S.
Co (1930) 2 KB 544 (JJ2). 70
Keshav Singh v. Speaker,
Legislative Assembly (1965) 1 SCR 413 25
Keshavanada
Bharati v. State of Kerala L (1973) 4 SCC 225 21,26
Chandra Kumar v. Union
of India AIR 1 997 SC 1 1 25 7,25,67
Lalit Mohan Das v.
Advocate General. Orissa AIR 1957 SC 250 96
Leversidge v. Anderson (1942) AC 206 69
Liyang v. Reginnm (1966) 1 All ER 650 (658) 7,63
Lokabail (VK) v. Bayfield
Properties Ltd. (2002) 2 WLR 870 7
M v Home Office, M. (1994) 1 AC 377. 90,91
P. Oil
Extraction v State of M. P. AIR 1998 SC 145 28
Millar v. Dickson, (2002) 3 All BR 1041. 15
Minerva Mills
Ltd v. Union of India (1980) 3 SCC 625 28
Mungaroo v. The Queen, 1991)1 WLR 1351 7
O.C. Saxena v. Hon'ble the
Chief lattice of India, P.N. AIR 1996 SC 2481 (2493) 93
Dube v. P. Shiv
Slumker. AIR 1988 SC 1208 93
Pandit M S M
Sharma v. Sri Krishna
Sinha AIR 1960 SC 1186, 24
Pictson v. Ray IS Led 2d, 288 71
R C Cooper v. Union
of India India (1970) 1 SCC 248 27
R v Beciurexiird (1987) LRC (Const) 180

(188 IT.) Can (SC). 67

Raja Ram Pal v. Hon’ble (2007) 3 S.C.C. 184 29,30

Speaker, Lok Sabha

Rajiv Ranjan Singh (Lalan)
v. Union of India (2005) 1 1 SCC 31 2 66
Ram Jawaya Kapur v. State
of Punjab AIR 1955 SC 549 22
Rameshwar Prasad v.
Union of India AIR 2006 SC 980 30
S.C.R. Manitoba Provincial
Judges Assn. v. Manitoba (1997) 3 S.C.R. 44
S.P. Sampath
Kumar v. Union of India (1987) 1 SCC 125 26
S. P.Gupta v President AIR 1982 SC 149
of India
6,28,65,6972,74,75,76,77,87,92,98,9
S.R. Bommai v. Union 9
of India (1994) 3 SCC 1 30
Shamsher Singh v. State of
Punjab AIR 1974 SC 2192 (2230) 6
Shiv Kumar Chadha v.
MCD 1993 (3) SCC 161 26
State of Madras v. V.G.
Row A.I.R. 1952 S.C. 196, 8
Stefaneli v. San Marino,
(2001) 33 EHRR 16. 7
Stump v. Sparkman 55 Led 2d 333 (346) 71
Subhash Shanna v. Union
of India, AIR 1991 SC 631 : 1991 77
Supreme Court Advocates on
Record v.Union of India
, AIR 1994 SC 268 7,29,63,73,78,84,87,88,99
Surya Prakash Khatri v. 2001 Cri L.J 3476 (3482)
Smt. Madhu Trachan, l (Del 92
T. Fenn Waller v. Union
of India AIR 2002 SC 2679 73
Tirupali ttalaji Developers
(P.) Lid. v. Stale of BUicir AIR 2004 SC 2351 66
U.P. Sales Tax Association
v. Taxation Bar
Association, Agra, AIR 1996 SC 98 (101 95
U.S. v. HW,'(1936) 299 US 123 (145) 68
Union of India v Pratibha
Bounerjee AIR 1996 SC 693 73
Union of India vs AIR 1977 SC 2328
Sankalchand Himmat Lal
Sheth 6,69,73,80,87,92,97,98
Valiente v. The Queen (1985) 2.S.C.R 37
William Macbury v. James 5 U.S. (1 Cranch) 137 (1803 19
)

ABBERVIATION
AC Apeal Cases

African Commission on
ACHPR Human and Peoples Rights

AIC All India Cases

AIR All India Reporter

ALJ Allahabad Law Journal

All ER All England Law Report

Centre for Independence of

CIJL Judges and Lawyers

EHRR Essex Human Rights Review

General Assembly Official

GAOR Records (United Nations)

SCC Supreme Court Cases

SCR Supreme Court Reperts

Saint Louis University Law

ST. LOUIS U. L.J Journal

WLR The Weekly Law Reports

 Chapter 1

UNPACKING INDEPENDENCE OF JUDICIARY

1.1 The Concept of Judicial Independence

Understanding the concept of judicial independence requires defining from

whom judges are to be independent. While judicial independence is a dynamic concept
that may be defined in different ways, it is generally referred to as shorthand for the
judiciary’s independence from the executive and legislative branches of government.
This is the Supreme Court’s essential understanding of the phrase. At a minimum, it means
that judges cannot be punished physically or economically for the content of the decisions
they reach. Consequently, judges need not fear deciding cases on their merits, even when
contrary to the interests or desires of the other branches of government. Thus, other
branches of government have no power over case outcomes. Judicial independence thereby
frees judges to apply the rule of law and do justice in individual cases. Judicial
independence is an instrumental means to an end, not an end in itself. The concept is not
attractive because it makes judges happy, but because it protects against other branches
forcing unfair judicial outcomes, grounded in self-interest or ideological fervor. Justice
Brayer has thus noted that the “question of judicial independence revolves around the
theme of how to assure that judges decide according to law, rather than according to their
own whims or to the will of the political branches of government.”1 Freed from threats
from the other branches, judges may be better able to render dispassionate judgments and
apply the law fairly to the facts. They are to be principled decision makers impartially
deciding cases according to the rule of law. It is against this standard that judicial
independence must be measured, and there is no intrinsic guarantee that independence will
further the standard.

The concept of the independence of the judiciary has been thus explained by a
distinguished writer:

“The rendering of an honest unbiased opinion based on the law and the facts is
far from it is one of the most difficult tasks which can be imposed on fallible man. It
demands wisdom as well as knowledge,, conscience as well as insight, a sense of balance
and proportion, and if not absolute freedom from bias and prejudice at least the ability
to detect and discount such failings, so that they do not becloud the fairness of the
judgment, it is evident that the ordinary political environment is unable to provide the
proper incentives which will call for these qualities, nor will it permit these qualities to be
exercised without a large measure of interference which will deprive them of the great
part of their value. The Judiciary in short, must be given a special sphere clearly separated
from that of the legislative and executive. They to accomplish this separation, be
given privileges which are not vouchsafed to other branches of the Government and they
must be protected against political, economic and other influence which would disturb that
detachment and impartiality which are indispensable pre-requisites for the proper
performance of their function. It is these unusual factors which create the condition known
as independence of the Judiciary." 2

The concept of "independence of the judiciary" was also discussed in the 19th
biennial conference of the International Bar Association held in New Delhi in October
1982. In that conference, the "Draft Minimum Standards of Judicial Independence"
contained in Dr. Shimon Shetreet’s paper were finally adopted as the "Delhi Minimum
Standards" of judicial independence.

Dr. Shetreet stated that the modern concept of judicial independence cannot be
confined to individual judges and to their substantive and personal independence but must
also include the collective independence of the judiciary as an institution.

Thus, conceptually, as well as from the point of view of practical reality, the
independence of the judiciary comprises two basic postulates, viz., "independence of the

1
Stephen G. Breyer, Judicial Independence in the United States, 40 ST. LOUIS U. L.J. 989, 989 (1996).
2
The Government of Canada by R. Mac-Gregor Da'xson revised by Norman Ward. University of
Toronto Press. 1964 p. 345 cited by M.C.Setalvad “An Independent Judiciary and A Democratic
State” p 2
judiciary as an institutionalized organ" and "independence of the individual judges," and
no judiciary can be said to be independent unless these two essentials are present.

1.2 The Principle Of Independence Of The Judiciary

This principle has been imported into India from England, where it had been
asserted by COKE C.J. in his struggle against an absolute monarch and was later confirmed
by Parliament by enacting the Act of Settlement, 1700.

The members of the Constituent Assembly envisaged the judiciary as a bastion

of rights and of justice. The question was how to render the fortress impregnable to sapping
by private interests. The assembly had been careful to keep the judiciary out of politics.
How was politics to be kept out of the courts? The assembly's answer was to strengthening
the walls of the fortress with constitutional provisions. At first glance, the assembly's
debates on the judicial provision seem to have been disproportionately concerned with the
administrative aspects of the judicial system, with the tenure, salaries allowances and
retirement age of judges, with the question of law detailed the judicial provisions of the
Constitution should be, and more pertinently with the mechanism for choosing judges. A
closer look, however, shows that the member's interest in me, apparently routine matters—
which did at times become tedious-—was prompted is the desire to insulate the courts from
attempted coercion by forces within or outside the government."

The judiciary is, in effect, part of the public service of the Crown. Hut a judge is
not "employed" in the sense that a civil servant is employed. lie fills a public office, which
is by means the same thing; and part of his independence consists in the fact that no one
can give him orders as to the manner in which he is to perform his work. Like the more
fortunate practitioners in some profession, "he owns no man master". The only
subordination which he knows in his official capacity is that which he owes to the existing
body of legal doctrine, enunciated by his brethren, past and present, on the bench and the
legislative enactments of the King in Parliament.3

"The independence of the judiciary lends prestige to the office of the Judge and
inspires confidence in the general public. It acts as a safeguard not merely against the
manipulation of the law for political purposes at the highest of the government in power,
but also against the corruption of the judicial organs of the State by the bribery and
intimidation of powerful outside interest which threaten the impartial administration of
justice from time-to-time.

3
Justice and Administration Law by William A. Romson, 3 rd Edn. At pp. 49-44 cited by Dr.D.D.Basu
in Commentary on Constitution Vol. V page 5539
 The psychological fact behind the principle of independence is not the immediate
reaction of feeling in a man whose impulses are obstructed, hut the permanent result in his
conduct of the obstruction of some impulses and the encouragement of others. We make a
Judge "independent" not in order to spare him personal humiliation, but in order that
certain motives shall not and certain other motives hall direct his official conduct.

The independence of the Judge is, we may conclude, of essential importance in

so far as it enables the Judge to adopt a particular attitude of mind towards the questions
which come before him for decision. He can, in short, determine the case before him
without fear that adverse results or material reward will accrue to him according to whether
the decision does not meet with the approval of other persons.

The judiciary is not a disembodied abstraction. It is composed of individual men

and women who work primarily on their own. Judicial individualism is perhaps one of the
lust citadels of jealously preserved individualism.

Justice Douglas in his dissenting opinion in Stephen S. Chandler: Judicial of the

Tenth Circuit of the United States slated: "No matter how strong an individual judge's
spine, the threat of punishment — the greatest peril to judicial independence — would
project a dark shadow whether cast by political strangers or by judicial colleagues........
Neither one alone nor any member handed together can act as censor and place sanction
on him. It is vital to reserve the opportunities Tor judicial individualism." He further said:
"An independent judiciary is one of the Nation's outstanding characteristics. Once a federal
judge is confirmed by the Senate and takes his oath, he is independent of every other judge.
He commonly works with other federal judges who arc likewise sovereign. But, neither
one alone nor any member banded together can act as a censor and place sanctions on him.
Under the Constitution, the only leverage that can be asserted against him is impeachment,
where pursuant to u resolution passed by the House, he is tried by the Senate, sitting as a
Jury. Our tradition even bars political impeachment as evidenced by highly partisan, but
unsuccessful, effort to oust Justice Samuel Chase of this court in 1805"....... There is no
power under our Constitution for one group of federal Judges to censor or discipline any
federal judge and no power to declare him inefficient and strip him of his lo act as a judge.

It is lime that an end to put lo these efforts of federal judges to ride herd on the
other federal judges. This is a form of "having" having no place under the Constitution
Federal judges are entitled, like other people, to full freedom of the First Amendment. If
they break the law, they can he prosecuted. If they become corrupt or sit in eases in which
they have a personal or family stake, they can he impeached by the Congress Hut I search
the Constitution in vain for any power of surveillance which other federal judges have over
those observations. Some of the idiosyncrasies may be displeasing if those who walk in
more measured conservative steps. But those idiosyncrasies can be of no possible
constitutional concern to other federal Judges. It is time we put an end to the monstrous
practices that seem about to overtake us........"
 In India, the need for judicial independence is enhanced by the fact that India has
a written Constitution with a Bill of Rights and Judicial Review and a federal structure as
a result of which the Union of India and the Governments of the States figure as the largest
single litigants before the Supreme Court and the High Courts. 4 Appreciating the
significance of this change in the constitutional set-up, the makers of our Constitution
provided for greater safeguards to ensure judicial independence than under the
Government of India Act, I935"5

Some of the Judges of our Supreme Court have gone further to assert that
"independence of the judiciary is a basic structure of the Constitution."6 It would mean
that if the Constitution itself is amended so as to encroach upon this independent e. the
Constitution Amendment Act will be adjudged void by the Judiciary.7

The independence of the judiciary from the executive and the legislature as well
as independence of each and every judge within the Judiciary is considered as a necessary
condition for a free society and a Constitutional democracy. It ensures the rule of law; and
realization of human rights and also the prosperity and stability of a society. Therefore, the
Constitution provides for the independence not only of the Supreme Court, hut also the
High Courts and the subordinate courts. Independence of judiciary being a basic feature of
the Constitution, any attempt to curtail it directly or indirectly even by an amendment of
the Constitution would he invalid8

The right to an independent and impartial tribunal is separately mentioned in the

International Covenant and European Convention and some national Constitution. It has
been held to be included in a wider guarantee of "fair hearing".3 A person cannot be assured
of a fair hearing if: (a) the judge or Tribunal is removable during the term of. his office
except for misconduct; (b) the judge can be controlled or influenced by any authority in
the performance of his duties as a judge; (c) even a law which deprives court of its judicial
discretion or seeks to exercise judicial power would offend "Due Process" or a
constitutional guarantee of separation of powers;"9 (d) another requirement is immunity
from any legal liability for acts done within jurisdiction.10 "Independence" thus means
"independence from the executive or the legislature and independence from either party"11,

Independent judiciary is necessary for maintaining rule of law and fain judicial
administration in the country. Independent judiciary plays an important role in controlling

4
Shamsher Singh v. State of Punjab, AIR 1974 SC 2192 (2230), Union of India v. Sankalchand
Himatlal Seth. AIR 1977 SC 2328
5
Union of India v. Sankalchand Himatlal Sheth, AIR 1977 SC 2328
6
Gupta v. President of India, AIR 1982 SC 149
7
Vide C6, Vol.(), pp. 197 IT.
8
Supreme Court Advocates-on-Record Association v. Union of India, AIR 1 994 SC 268, L.
Chandra Kumar v. Union of India, AIR 1 997 SC 1 1 25 3 Golden v. U.K., (1970) 1 EHRR 524).
9
Liyanag v. R, (1966) I All ER 650; Stefaneli v. San Marino, (2001) 33 EHRR 16.
10
In re,Mc.,(1985)AC528(IIL).
11
Mungaroo v. The Queen, (1991)1 WLR 1351; Lokabail (VK) v. Bayfield Properties Ltd., (2002) 2
WLR 870.
the arbitrary act of the administration. If the arbitrary act of the administration causes injury
to any person, it provides Relief to them. Often independent judiciary-is made guardian of
the Constitution and enforces the rule of law. Every person whether rich or poor is
considered equal before law and any person who violates law is punished by the Court.
For this purpose the judiciary is required to be independent because if it is not independent
and is in the control of the executive, it cannot punish the executive in case the executive
violates the law. Besides, it is the rule, of fair justice that justice not only be done but it
should appear to the people that justice has been done. If the disputes are decided by the
independent judiciary, people are satisfied that justice has been done with them and
consequently no dissatisfaction would prevail among the people.

Legitimacy of judicial decisions depends on a shared perception that they are

independent and non-political. By “non-political” we mean that the judges are not
committed to any political party or any ideology canvassed by one or more of the political
parties. The word “non-political” must be distinguished from the word “apolitical.” The
view that judges must be apolitical contradicts views expressed by the judges themselves.
Justice Patanjali Sastry said, as early as 1952, that while deciding the reasonableness of
restrictions on fundamental rights, the social philosophy of a judge was bound to be
reflected in his decisions.12 A judge cannot be “apolitical” because, like any other citizen,
he is bound to have political preferences and ideologies. However, a judge can be non-
political in the sense that his decisions are based not on considerations of power, but rather
on principles. The phrase “being political” is understood in a pejorative sense as being
shrewd enough to understand the mechanics of power and adjusting one’s decisions to
considerations of acquiring power.

A judge need not be apolitical, but he must be independent, fearless, and

impartial. Independence means freedom from any influence whether political, social, or
economic. Fearless means a judge should not fear the consequences of his decisions. A
judge should be neither susceptible to temptation nor subjected to intimidation. To an
extent, judges acquire these qualities as a result of their upbringing and education. But they
must also be people of character and integrity. There are, however, external factors that
may adversely affect the character or integrity of a judge.

Chief Justice Michael Wolff of Missouri, in his 2006 State of the Judiciary
address, elaborated eloquently:

“Independence,” quite frankly, is both overused and misunderstood. It should not

be interpreted, either by the public or by any judge, to mean that a judge is free to do as he
or she sees fit. Such behavior runs counter to our oaths to uphold the law, and any attempt
to put personal beliefs ahead of the law undercuts the effectiveness of the

12
State of Madras v. V.G. Row, A.I.R. 1952 S.C. 196, 200. 100 Journal of Law & Policy
Judiciary as a whole. Better stated, “Independence” refers to the need for courts that are
fair and impartial when reviewing cases and rendering decisions. By necessity, it also
requires freedom from outside influence or political intimidation, both in considering cases
and in seeking the office of judge. Courts are not established to follow opinion polls or to
try to discern the will of the people at any given time but rather are to uphold the law. The
people rely on courts to protect their access to justice and to protect their legal rights. For
the sake of the people, then, judicial independence must always be coupled with the second
stated measure – accountability.” 13 ‘

Simply stated independence of judiciary means that

• The other organs of the government like the executive and legislature must
not restrain the functioning of the judiciary in such a way that it is unable to do justice.
• The other organs of the government should not interfere with the decision
of the judiciary.
• Judges must be able to perform their functions without fear or favour.

Independence of the judiciary does not imply arbitrariness or absence of

accountability. Judiciary is a part of the democratic political structure of the country. It is
therefore accountable to the Constitution, to the democratic traditions and to the people of
the country.

1.3 Defining Judicial Independence

The definition of "independence of the judiciary" evolved by the International

Commission of Jurists in 1981 and formulated in Article 2 of the Siracusa Draft principles
contains some of the essentials of the concept:

"Independence of the judiciary means . . . (1) that every judge is free to decide
matters before him in accordance with his assessment of the facts and his understanding
of the law without any improper influence, inducements or pressures, direct or indirect,
from any quarter or for any reason. . . ."14

Much of the debate on judicial independence is confused by how various

discussants define the term "judicial independence." However, most agree that as a general
concept, judicial independence has two components: institutional independence and
decisional independence. When discussing institutional independence, the focus of the
discussion is the judiciary's ability to stand up to other branches of government.
Institutional independence is sometimes referred to as "external" independence."

13
The Missouri Bar, Vol. 62, No. 2, March-April 2006.
14
CIJL Bulletin 8 (1981)
 When discussing the decisional component of judicial independence, the focus is
on the individual decision making of each judge or of each collegial court." The ability of
each judge or court to make independent legal determinations also may be referred to as
"internal" judicial independence. Both broad concepts are significant to the legitimacy of
the judicial branch of government, and both concepts of judicial independence are
applicable to state as well as federal courts.

The component of institutional independence is essential to our tripartite system

of government. It requires the courts' independence from the legislative and executive
branches. Institutional independence is most often associated with the separation of powers
doctrine, though in reality both decisional and institutional independence have separation
of powers qualities. Institutional independence cannot be accorded the judicial branch
without the respect of the executive and legislative branches for judicial decisions. At least
one writer has noted,

"An independent judiciary requires also that its decisions, once given, would not
be altered or ignored by the government [responsible for enforcing them."'

However, as part of the system of checks and balances created in our tripartite
system of government, there are occasions when it may be appropriate for the legislature
to regulate a matter in an area of constitutionally shared powers or to overrule the courts
in an area of exclusive legislative authority.

In the primitive era family Head would be dispensing justice by resolving

conflicts within the family. However, there would be possibilities of element of bias in
the Head who may show favour to one member because of his personal liking, or personal
interest resulting from proximity. As the time progressed and social relations became
complex, the need for independent i.e. unrelated adjudicator of disputes arose.
Independence of judges should therefore be viewed not as a privilege of an individual
judge but as a social arrangement, which ensures that there is no likelihood of bias due to
proximity, relationship, personal acquaintances and other influencing causes. Thus, the
principle of natural justice that no one will be a judge in his own cause, (which means he
should have no direct or indirect interest involved in the outcome of the proceedings) is a
child of the necessity to render unbiased and fair decisions.

1.3.1 Independence of judiciary is therefore not a private right of judges but

the very foundation of judicial impartiality – and a constitutional right of the people of
India to be governed by the rule of law that shuns all arbitrariness. Judicial independence
characterizes a state of mind, which is concerned with the judge’s impartiality in fact and
reality, and a set of institutional and operational arrangements, which define the
relationships between judiciary and others, particularly the other branches of the
government so as to assure both, the reality and appearance of independence and
impartiality. Individual independence of a judge is reflected in such matters as security of
tenure, while; the institutional independence of the court over which the judge presides is
reflected in its institutional or administrative relationships to the executive and legislative
branches of the State. The Judges are undoubtedly servants of the public but they are not
public servants whose essential obligation is, consistently with law, to give effect to the
policy of the government of the day. The duty of a judge, on the other hand, is to administer
justice according to law, without fear or favour, and without regard to the wishes or policy
of the Executive.15

1.3.2 Judicial independence, however, is not only a matter of appropriate

external and operational arrangement, but it is also a matter of independent and impartial
decision making by each and every judge. The judge’s duty is to apply the law as he or
she understands it without fear or favour and without regard to whether the decision is
popular or not. This is the cornerstone of the rule of law. Judges individually and
collectively should protect, encourage and defend judicial independence.16

1.3.3 The right to be tried by an independent and impartial tribunal is an integral

part of the principles of fundamental justice. The test of impartiality is whether an informed
person, viewing the matter realistically and practically – and having thought the matter
through, would apprehend a lack of impartiality in the decision maker. A reasonable
perception that a judge lacks impartiality is damaging to the judge, the judiciary as a whole,
and the good administration of justice. Judges should, therefore, avoid deliberate use of
words or conduct, in and out of court, that could reasonably give rise to a perception of an
absence of impartiality.17 The judges should not deal with case concerning which the judge
actually has a conflict of interest. The judge should avoid circumstances in which a
reasonable, fair minded and informed person would have a reasonable suspicion that the
judge is not impartial. However, the judge should not recues unnecessarily, because, to do
so will add to the burden of his or her colleagues and contribute to delay in the courts.

1.3.4 In a constitutional democracy independence of judiciary facilitates

maintenance of rule of law, ensures that unconstitutional statues are declared void and
ineffective, and valid laws are duly implemented. Such judicial independence will have
the effect of disciplining the holders of economic or political power for collective good.
The Judiciaries should never be allowed to be used as instruments to advance the interests
of the ruling elite, rather than as mechanisms to protect individual rights and freedoms and
promote access to justice

1.3.5 The integrity and independence of judges depend in turn upon their acting
without fear or favour. Although judges should be independent, they should comply with
the law, as well as provisions of the accepted code of conduct. Public confidence in the

15
The Hon’ble Gleeson Murray AC, Chief Justice of Australia in his speech – “The Role Of The Judge
And Becoming A Judge”, National Judicial Orientation Programme, Sydney 16th August, 1998
16
Ethical Principles for Judges, adopted by the Canadian Judicial Council
17
Commentary to Canon 3B, ABA, Model Code of Judicial Conduct (1990)
impartiality of judiciary is maintained by the adherence of each judge to this responsibility.
Conversely, violation of the code diminishes public confidence in the judiciary and thereby
does injury to the system of government under law.

1.3.6 Judges also must keep up the appearance of the impartiality of the
judicial process. For example, a judge should not be friendly, shake hands, and have an
intimate conversation with one of the lawyers in front of the adversary party just before
the trial begins, even if the judge and the lawyer used to be classmates. The opposing party
who has seen such gesture of personal acquaintance will not accept an unfavourable
decision, suspecting that the judge was biased. These things are evident, and the violations
of these rules diminish the prestige and authority of the court. One rule, said
Alfred the Great, applied everywhere: “Judge not one judgment for the rich and another
for the poor”.

CHAPTER 2

INDEPENDECE OF JUDICIARY AND DEMOCRATIC STATE

2.1 Rule of Law in a Democratic State

A free society recognizes the craving for justice in man. It attempts, as far as
possible, to meet the desire of its citizens for solution of their disputes with fellow citizens
of the State by unbiased and trustworthy men. Thus arose the institution-of an impartial
and independent judiciary capable of serving the needs of the society and its craving for
justice. Such an institution dealing with an even hand with the administration of justice
creates confidence and contentment among the members of the society. The unique
function which members of the judiciary perform in a State makes it imperative that
they should be segregated from the other of the State, The judicial structure and the
adjudicatory process have to be so designed as to insulate the judges from influences of all
kinds except those needed for reaching a correct and impartial decision of the disputes that
come before them. Any suspicion of interference or domination over the judicial mind in
the determination of disputes coming before them would in a great measure destroy the
essential functions of the judiciary in a free society.

Judicial independence is an aspect of the rule of law in its own right. It overlaps with
hut goes beyond the separation of powers. Separation of powers concerns the independence
of the judicial system from other branches of government. Judicial independence requires
the independence of individual judges from any pressures that threaten not only the actual
impartiality, but also the appearance of impartiality. Art. 6 of the European Convention on
Human Rights includes both elements by requiring a "fair and public hearing....... by an
independent and impartial tribunal established by law". In Millar v. Dickxon18 the Privy
Council found a violation of Art. 6, where the prosecuting authority, the Scottish Lord
Advocate, was also responsible for renewing the appointment of a temporary judge, even
though there was no complaint about actual impartiality of the judge in question. It was
observed: "Central to the rule of law in a modern democratic society is the principle that
judiciary must be and must be seen to be independent of the executive".

18
Millar v. Dickson, (2002) 3 All ER 1041.
 The International Commission of Jurists, dealing with the independence
of the Judiciary under the Rule of Law in a free society, in a report says;

"In a free society, whether it has a written constitution or not and whether or not
this constitution is subject to the review of a judicial body, the position of judiciary and of
the individual judges is of special importance. The inevitability of human error, especially
when self interest (which includes the exercise of power as an end in itself') comes into
conflict with the claims of others, requires that the law, and the assumptions which underlie
it should be interpreted by a judiciary which is as far as possible independent of the
Executive and the Legislative.

"The conception of independence as applied to the Judiciary needs however

further elaboration. It does not mean that independence should be absolute entitling a judge
to act in an entirely arbitrary manner. The judge's duty is to observe the law and the
assumptions which underlie it, in the light of his own conscience to the best of his abilities.

"To assert the independence of the judiciary, within the restricted conception of
independence given above, is even in free societies to state an ideal rather than a fully
realised condition of fact. The Individual judge, the judicial collegiums and the highest
court are not exempt from human imperfection or impervious to the influence of sectional
'interest.- It is therefore, important to have regard t3 the independence not only of: the
judge but also of the judiciary as an institution. The latter may provide traditions and a.
sense of corporate responsibility which are a stronger guarantee of independence than the
private conscience of the individual judge.

"The significance of the qualifying phrase 'as far as possible' in relation to judicial
independence is seen most clearly as far as its independence of the -Legislative and
Executive is concerned. There must be machinery for the selection, promotion and in case
of extreme necessity removal of judges. This may involve the participation of the
'Executive, the Legislative, the Judiciary itself, other institutions {such as the Bar), the
people through the electorate- or a combination' of two or more of these bodies. What is '
essential to a free society under the Rule of Law is that such machinery and perhaps more
important, the traditions which govern its exercise, should themselves express the spirit of
the law and its underlying assumptions," 19

The importance of the Rule of Law, the results in a democracy of its application
and the great importance of justice as an end in itself, to democracy and humanity is thus
pointed out by C.K. Alien:

"Far above and beyond the practical applications of the Rule of Law there is a
principle of the utmost moment not only to democracy, but to the whole of humanity
namely that justice is an end of itself and must be pursued unflinchingly, whatever the

19
The rule of Law in a free society. The Judiciary and the legal profession under the law.
inconvenience to individuals or to Governments. The contrary principle which is
established in all totalitarian societies is that justice is an instrument of policy. To any true
democrat, this is the ultimate and unpardonable heresy, the sin against the light. Law thus
interpreted. is power ; and the whole meaning of the Rule of law is that it is restraint on
power. In the Law Quarterly Review for April 1943 there appears a remarkable article by
an anonymous writer apparently of German nationality. I cannot do better than quote his
eloquent word; “The Rule of Law puts political power at a discount. It checks the ambitious
politician in his fight for power and in his use of power. The more unscrupulous and
adventurous he is, the more noticeable is the check. The Rule of Law not only bars some
ways, of obtaining.' power; it limits access to it to, certain rnore or less strictly defined
avenues of approach. By prescribing conditions, forms, terms and limits of its use, the
holding of power in general. No quick success remedies the fault by which the success has
been obtained.

Only time may remedy them. Law balances the various social forces in a nation
which are fighting for supremacy. Their right is a natural not an obnoxious thing. Tt is an
expression of life and vigour. The Rules of Law does not prevent the fight or at least a
good one does not attempt to do so. It only provides rules of conduct and regulations for
defining the winner. It prevents the fight from becoming continuous and protects the
defeated party from being crushed.lt tries to distribute the spoils of victory in a fair way
and to maintain the unity of the State and Nation in spite of the conflicting aims of different
groups."20

`Thus, the application of the Rule of Law is itself in severable from an

Independent judiciary. Indeed the two are inextricable so that no state which does not have
the Institution providing for an independent and impartial judiciary can be governed by the
Rule of Law.

M.C.Setalvad in his speech delivered in New Delhi on the occasion of

International Commission of Jurist in 1959 says that “But it would be an error to imagine
that the enforcement of the Rule of law needs no vigilance in countries functioning under
really representative institutions.

Modern governments with their manifold functions have so largely encroached

upon the manner of life and the liberty of the individual that a constant watchfulness is
necessary on the part of those concerned with the administration of the law to guard the
rights of the individual against the State. Several truly democratic constitutions contain
limitations on the legislative power. The law making functions may not be so discharged
as to affect the fundamental rights of the individual or the citizen. The Constitution may
provide, as the Indian does, for a judicial review of legislation alleged to contravene the
rights of the subject. But an independent judiciary and an equally independent and a public

20
Democracy and the Individual by C. K. Alien (Oxford University Press, 1952) PP 65-66.
spirited legal profession become necessary even where such constitutional provision exist
for safeguarding the Rule of Law, Delegated legislation so extensively resorted to by all
modern government, also requires a continuous watchfulness on the part of the legislators,
the judiciary, the lawyer and the public so that it may be kept within the bounds of the
Constitution and the laws under which it is enacted.

More constant and more irksome to the citizen are perhaps the encroachments of
the executive on the rights of the citizen. Not an often under the guise of administrative
rules and procedure, the official engages in the furtherance of that policy. Here again the
remedy lies in the insistence upon a system which would enable the validity of an executive
act to be tested by a mind free from executive bias. These aspects of the enforcement 'of
the Rule of Law, even in States functioning under truly representative institutions emphasis
the need of an independent and fearless judiciary and a legal profession prepared to stand
against the Executive and assert the rights of the individual against administrative
interference. It needs to be remembered that, even in the advanced systems -of democracy
which we have so far been able to develop, power lies in the majority of the people
and in practice and substance these democratic governments tend to be run by leaders of
the majority group. The views and the policies of the party in power have not an
often a tendency to affect the judiciary and even the profession of law. Such situations
are more noticeable m infant democracies where the ruling parties are overwhelmingly
strong, opposition parties have not gathered strength and public opinion does not make
itself felt. It is therefore, appropriate that a body like the Commission should repeatedly
emphasis the importance of a judiciary who would perform their functions without fear
or favour and resist any encroachments by Governments or political parties on their
independence and that it should call upon the legal profession to maintain an attitude
which would enable it to effectively an assert the rights of individual against the State."
2122

We in India have a federal system of government. It therefore becomes necessary

to emphasise the need for the support of the Rule of Law by an efficient and independent
judiciary in a country with a written Constitution of a federal nature. As we know the
federal system of government predicates parallel governments with limited powers
operating in the same manner in different fields, the respective fields of power are
demarcated by the Constitution. The functioning of parallel governments with limited
powers makes it imperative that there should exist a competent and impartial authority to
adjudicate on the limits their respective powers whenever conflicts arise between the
general government and the units or as between the units themselves, The only department
of the state which could be entrusted with such a power is the judicial department. As was

21
The Hula of Law in a Five Society, A Report on the International commission of judges, 1959, PP.
22
-32
said by Chief Justice Marshal, "It is emphatically the province and cuty of the judicial
department to say what the law is."23

The importance of a judiciary possessing unimpeachable independence has to be

particularly emphasized for states like India and the 'United States which have
constitutionally enacted Bills of Rights. In such states a supreme tribunal interpreting the
Constitution as between the State legislature and Executive and the citizen or individual
assumes a greater importance. The citizen or individual on whom the Constitution has
conferred inalienable rights needs a tribunal which he can readily approach in order to
obtain a quick vindication of his rights. An alleged invasion of these rights invariably
demands an interpretation of one or other of the provisions of the Constitution. Naturally
therefore controversies in regard to the infringement of these rights become appropriate
subjects of inquiry by tribunals entrusted with the interpretation of the Constitution. It is
essential that adjudication of these controversies should be entrusted to persons possessing
a deep knowledge of the Constitution and of acknowledged independence.

Having thus, postulated an impartial and independent judiciary as an

indispensable requirement of a free democratic society governed by the Rule of Law we
may examine briefly how our Constitution has taken measures towards the creation of such
a judiciary.

Ordinarily in a federation the courts established by the general government

interpret and enforce the laws made by the general government whereas the courts
established by the States interpret and enforce the laws of the respective States. Such a oral
system of courts prevails in the United States. The federal courts enforcing federal laws
begin with the district courts and lead up to the Supreme Court of the United States. The
system of State Courts enforcing State laws end up with the State Supreme Courts, 2.2
Doctrine Of Seperation Of Power

In every State there are three organs; the legislature, the executive and the
judiciary, functioning in relation to each other at the same time functioning independently
of each other. The doctrine of separation of powers propounded by Montesquieu says that
if the power is vested with one authority it will lead to a situation of no liberty and there
would be an end of everything, where the same man or the same body, whether of the
nobles or of the people, to exercise those three powers, that of exacting laws, that of
executing the public resolutions and of trying the causes of the individuals.24 Thus, the
doctrine of separation of powers idealizes situation wherein one person or a single
authority is not wheeling the whole power.

The origin of separation of powers is found in the American Constitution. The

framers believed that vesting of power in one authority would lead to tyranny. The

23
William Macbury v. James 5 U.S. (1 Cranch) 137 (1803)
24
Administrative Law, I P Massey, Eastern Book Company, edn. 6, 2005, p.34
legislative power is vested with the Congress under Article 1, executive power with the
President under Article II and the judicial power with the Supreme Court under Article III.
Thus the Constitution of America provides for an express separation of powers.

Moreover, there are other provisions which provides for a check and balance
mechanism. Marbury v. Madison25 first case in which the power of judiciary to review
legislative actions was laid down. At the very same time the system of government in
United Kingdom, under whom India was a colony and later adopted governmental system
there, does not flow the separation of powers.

While the US Constitution lays down a rigid separation of powers, but the Indian
constitution does not provide for an express separation of powers. Separations of powers
is clearly derivable from the Constitution of India as the provisions relating to executive,
legislature and the judiciary are dealt with in separate chapters in Part V and Part VI of
the Constitution. The provisions relating to legislature, executive, judiciary are given in
different parts in our constitution, thus providing for an implied separation of powers. 26
The only provision expressly providing for the separation of judiciary from the executive
is not enforceable through the Courts as it is laid down under the Directive Principles of
State Policy.27 Apart from this the constitutional scheme does not embody the separation
of power in its strict and clear sense. This implied separation of powers has been
recognized as part of the basic structure of the Constitution through various judicial
interpretations.28 The legislature performs the law making function, the executive the
function of implementing law and the judiciary functions as a means of censor of both
legislature and executive, subject to restrictions. The Hon’ble Supreme court has laid down
that we follow a separation of functions and not powers and hence it is not rigid. 29[6] But
it is essential to say that the every organ in certain circumstances discharges the functions
of the other and others functions are monitored by each organ. Thus this doctrine in the
Indian scenario also functions as a doctrine of check and balance.

2.2.1 Montesquieu’s Doctrine

“To become truly great, one has to stand with people, not above them.”

The separation of powers is a model for the governance of both democratic and
federative states. The model was first developed in ancient Greece and came into
widespread use by the Roman Republic as part of the uncodified Constitution of the Roman
Republic. The doctrine of separation of powers has emerged in several forms at different
periods. Its origin is traceable to Plato and Aristotle. In the 16th and 17th centuries, French
philosopher John Bodin and British politician Locke expressed their views about the theory

25
(1803) 1 Cranch 137
26
Delhi Laws : In Re 1951 SCR 747
27
Article 50 of the Constitution of India
28
Kesavananda Bharathi v. State of Kerala, (1973) 4 SCC 225
29
Ram Jawaya Kapur v. State of Punjab AIR 1955 SC 549
of separation of powers. But it was Montesquieu who for the first time formulated this
doctrine systematically, scientifically and clearly in his book ‘Esprit des Lois’ (The Spirit
of the Laws), published in the year 1748.

Contribution of Montesquieu in the development of the Concept of Separation of

Power Meaning of Separation of Power Understanding that a government's role is to
protect individual rights, but acknowledging that governments have historically been the
major violators of these rights, a number of measures have been derived to reduce this
likelihood. The concept of Separation of Powers is one such measure. The premise behind
the Separation of Powers is that when a single person or group has a large amount of power,
they can become dangerous to citizens. The Separation of Power is a method of removing
the amount of power in any group's hands, making it more difficult to abuse. It is generally
accepted that there are three main categories of governmental functions-a) legislative b)
executive, and c) judicial. Likewise, there are three main organs of the Government in a
State-a) Legislature, b) Executive and c) Judiciary. According to the theory of separation
of powers, these three powers and functions of the Government must, in a free democracy,
always be kept separate and be exercised by three separate organs of the Government.
Thus, legislature cannot exercise legislative or judicial power; the Executive cannot
exercise legislative or judicial and the Judiciary cannot exercise legislative or executive
power of the Government.

Though the doctrine of Separation of Power is traceable to Aristotle but the

writings of Locke and Montesquieu gave it a base on which modern attempts to distinguish
between legislative, executive and judicial power is grounded. Locke distinguished
between what he called:

i) Discontinuous legislative power;

ii) Continuous executive power;

iii) Federative power.

He included within ‘discontinuous legislative power’ the general rule making

power called into action from time to time and not continuously. ‘Continuous executive
power’ included all those powers which we now call executive and judicial. By ‘federative
power’ he meant the power of conducting foreign affairs.

Montesquieu, a French scholar, found that concentration of power in one person

or a group of persons results in tyranny. And therefore for decentralization of power to
check arbitrariness, he felt the need for vesting the governmental power in three different
organs, the legislature, the executive, and the judiciary. The principle implies that each
organ should be independent of the other and that no organ should perform functions that
belong to the other.
 Montesquieu in the following words stated the Doctrine of Separation of Powers
“There would be an end of everything, were the same man or same body, whether of the
nobles or of the people, to exercise those three powers, that of enacting laws, that of
executing the public resolutions, and of trying the causes of individuals.”

This theory has had different application in France, U.S.A., England and India.
In France, it resulted in the rejection of the power of courts to review the acts of the
legislature or the executive. The doctrine was never accepted in its strict sense in England.
About U.S.A and India it will be further dealt in brief.

2.2.2 Importance Of The Doctrine

The doctrine of separation of power in its true sense is very rigid and this is one
of the reasons of why it is not accepted by a large number of countries in the world. The
main object as per Montesquieu in the Doctrine of separation of power is that there should
be government of law rather than having will and whims of the official. Also another most
important feature of the above said doctrine is that there should be independence of
judiciary i.e. it should be free from the other organs of the state and if it is so then justice
would be delivered properly. The judiciary is the scale through which one can measure the
actual development of the state if the judiciary is not independent then it is the first step
towards a tyrannical form of government i.e. power is concentrated in a single hand and if
it is so then there is a cent percent chance of misuse of power. Hence the Doctrine of
separation of power do plays a vital role in the creation of a fair government and also fair
and proper justice is dispensed by the judiciary as there is independence of judiciary. Also
the importance of the above said doctrine can be traced back to as early as 1789 where the
constituent Assembly of France in 1789 was of the view that “there would be nothing like
constitution in the country where the doctrine of separation of power is not accepted”.

2.3 Doctrine Of Separation Of Powers In Indian Perspective

The constitution of India lays down a functional separation of the organs of the
State. Article 50 lays down that State shall take steps to separate the judiciary from the
executive. This is for the purpose of ensuring the independence of judiciary. Article 122
and 212 provides validity of proceedings in Parliament and the legislatures cannot be called
into question in any Court. This ensures the separation and immunity of the legislatures
from judicial intervention on the allegation of procedural irregularity. 30 Judicial conduct
of a judge of the Supreme Court and the High Court’s cannot be discussed in the Parliament
and the State Legislature, according to Article 121 and 211 of the Constitution. Articles 53
and 154 respectively, provide that the executive power of the Union and the State shall be

30
Pandit M S M Sharma v. Sri Krishna Sinha AIR 1960 SC 1186, Powers, Privileges and Immunities of
State Legislatures, Re, AIR 1965 SC 745
vested with the President and the Governor and they enjoy immunity from civil and
criminal liability.

2.3.1 Functional Overlap

The legislature besides exercising law making powers exercises judicial powers
in cases of breach of its privilege, impeachment of the President and the removal of the
judges. The executive may further affect the functioning of the judiciary by making
appointments to the office of Chief Justice and other judges. Legislature exercising judicial
powers in the case of amending a law declared ultra vires by the Court and revalidating
it.31 While discharging the function of disqualifying its members and impeachment of the
judges, the legislature discharges the functions of the judiciary. Legislature can impose
punishment for exceeding freedom of speech in the Parliament; this comes under the
powers and privileges of the parliament. But while exercising such power it is always
necessary that it should be in conformity with due process. 32 The heads of each
governmental ministry is a member of the legislature, thus making the executive an integral
part of the legislature. The council of ministers on whose advise the President and the
Governor acts are elected members of the legislature. Legislative power that is being
vested with the legislature in certain circumstances can be exercised by the executive.33 If
the President or the Governor, when the legislature or is not in session and is satisfied that
circumstances exist that necessitate immediate action may promulgate ordinance which
has the same force of the an act made by the Parliament or the State legislature. The
Constitution permits, through Article 118 and Article 208, the Legislature at the Centre
and in the States respectively, the authority to make rules for regulating their respective
procedure and conduct of business subject to the provisions of this Constitution. The
executive also exercises law making power under delegated legislation. The tribunals and
other quasi-judicial bodies, which are part of the executive discharges judicial functions.
Administrative tribunals which are part of the executive discharge judicial functions.34
Higher administrative tribunals should always have a member of the judiciary.35 The
higher judiciary is conferred with the power of supervising the functioning of subordinate
courts36. It also acts as a legislature while making laws regulating its conduct and rules
regarding disposal of cases.

2.3.2 Means Of Check And Measure

The organs of the State while being separated also discharges each other’s
function. The powers and functions of each organ is subject to restrictions which would be

31
L Chandra Kumar v. Union of India, (1995) 1 SCC 400.
32
Keshav Singh v. Speaker, Legislative Assembly (1965) 1 SCR 413
33
Article 123, 213 of the Constitution of India

34
Shiv Kumar Chadha v. MCD, 1993 (3) SCC 161
35
S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 125. Brahm Dutt v. Union of India, 2002 (5)
SCC 431.
36
Article 235 of the Indian Constitution.
the function of another organ. The laws made by the parliament and State legislatures are
subject to judicial review. Any law that is contravention to Part III ; Fundamental Rights,
would be declared ultra vires by the Supreme Court and High Courts in exercise of power
of judicial review, as laid down in article 13 of the Constitution.

The supreme court has the power to declare void the laws passed by the
legislature and the actions taken by the executive if they violate any provision of the
constitution or the law passed by the legislature in case of executive actions. Even the
power to amend the constitution by the parliament is subject to the scrutiny of the court.
The court can declare any law void it affects the basic structure of the Constitution.37

The constitution has invested the constitutional courts with the power to
invalidate laws made by the Parliament and State Legislature transgressing constitutional
limitations. Where an Act made by the legislature is invalidated by the courts on the ground
of legislative incompetence, the legislature cannot enact a law declaring that the judgment
of the Court shall not operate; it cannot overrule or annual the decision of the Court. But
this does not mean that the legislature which is competent to legislate that law cannot re
enact it. It is open to the legislature to alter the basis of the judgment. The new law or the
amendment law so made can be challenged on other grounds but not on the ground that it
seeks to in effectuate or circumvent the decision of the court. It necessary that each organ
functions within its well settled limits of authority. The check and balance mechanism
would make sure that the actions of the each organ is within its well defined limits. The
doctrine of ultra vires lies down that any law that is in contravention of Part III of the
constitution is void and hence ultra vires.

The judicial review power of the higher judiciary under Article 32 and 226
empowers the Courts to check the constitutionality of every law made by the Parliament
and the Legislatures. This is a check on the legislative act. Judicial review is also
applicable to executive actions. The grounds on which a legislative or executive action can
be challenged is the golden trilogy of Article 14, 19 and 21. Judicial review in India is
based on the assumption that the Constitution is the supreme law of the land, and all
governmental organs, which owe their origin to the Constitution and derive their powers
from its provisions, must function within the frame work of the Constitution.38

It is also necessary to state that the legislative power of the Parliament and the
State legislature are laid down in Article 245. Article 254, along with VII Schedule any
law which is repugnant to VII schedule will be void to that extent. The control of the
executive is ensured by making it, accountable to the Parliament. The legislative power of
the executive under ordinance is limited. There can be judicial review of President
satisfaction of the necessity to promulgate an ordinance.39 The supremacy in appointment

37
Keshavanada Bharati v. State of Kerala (1973) 4 SCC 225
38
V N Shukla, Constitution of India, Eastern Book Company, edn.10, p. A-52
39
R C Cooper v. Union of India (1970) 1 SCC 248, A K Roy v. Union of India (1982) 1 SCC 271
of judges to the higher judiciary is with the Executive with the consultation of the Chief
Justice, this is while ensuring the independence of judiciary.

“In our country, the “Constitution is supreme lex, the paramount law of the land
and there is no authority, no department or branch of the State, which is above or beyond
the Constitution or has powers unfettered and unrestricted by the Constitution. The
Constitution has devised a structure of power relationship with checks and balances and
limits are placed on the powers of every authority or instrumentality under the
Constitution. Every organ of the State, be it the executive or the legislature or the
judiciary, derives its authority from the Constitution and it has to act within the limits of
such authority. Parliament too, is a creature of the Constitution and it can only have such
powers as are given to it under the Constitution”40

2.3.4 The Practice

The Constitutional provisions relating to separation of powers, as

discussed above has in the actual practice been made flexible to benefit the supremacy of
each organ, leading to a situation where in each organ has infringed into the functional
sphere of the other. The judicial interference in the power of executive and the legislature
in exercise of judicial review should always necessarily be with the constitutional
bounds.41

The dispute regarding the election of the Prime Minister, the Court held that the
when a constituent body declared that the election is not void, it was discharging a judicial
function, is the first instance in which the position of doctrine separation of power was
challenged and clarified. . The adjudication of a specific dispute is a judicial function,
which cannot be exercised by the Parliament even by using the amending powers.3
Separation of power is a method of avoiding concentration of power in a group’s hand,
making it difficult to abuse.

The appointment of the judges to the Supreme Court, according to Article 124(2),
is to be made by the President in consultation with such of the judges of the
Supreme Court and the High Court as the President may deem fit. The consultation with
Chief Justice of India is mandatory in case of appointment of a judge other than the Chief
Justice. This had created a balance of power in appointment of judges to the higher
judiciary The Hon’ble Supreme Court has through a series of judicial interpretations have
shifted the supremacy from the President to itself. The Hon’ble Court has created an extra-
constitutional body called collegiums42, and vested with the power of appointment of
judges. The Court has held that the word ‘consultation’ means concurrence and the opinion
of the collegiums is binding on the President and the consultation is by the Chief justice

40
Minerva Mills Ltd v. Union of India, (1980) 3 SCC 625
41
M. P. Oil Extraction v State of M. P. AIR 1998 SC 145
3
Indira Gandhi Nehru v. Raj Narain AIR 1975 SC 2299
42
S P Gupta v. Union of India AIR 1982 SC 149
with other judges43. It is also noteworthy that the provision for consultation with the judges
of the High Courts has been conveniently ignored. As the position stands currently a
collegiums consisting of the Chief Justice of India and four senior most judges of the
Supreme Court and their opinion is binding on the President. In the recent issue of
appointment of Judges the President had returned the opinion rendered by the collegiums
for reconsideration, which was send back without any change being made. The
appointment was made according to the ‘concurrent opinion’ of the collegiums.

The interference of judiciary in legislative matters was legislature is also seen in

the issue of disqualification of members of Parliament on account of taking money for
raising questions in the question hour and the subsequent intervention of the supreme court
in the matter2. The Court in the instant case held that legislature cannot claim immunity
from judicial scrutiny in their internal proceedings, raising the question of the existence of
Article 121 and 211 in the constitution, thus the Court has assumed the power of over
viewing legislature as it is managed by the legislators. The Constitution permits, through
Article 118 and Article 208, the Legislature at the Centre and in the States respectively,
the authority to make rules for regulating their respective procedure and conduct of
business "subject to the provisions of this Constitution". As the acts of the legislature was
not in accordance with the provisions of the Constitution it can be subject to judicial
review, was the stand taken by the Hon’ble Court in the instant case.

The Article 212 and 122 makes the legislatures supreme in its own sphere and
any interference by the judiciary would be clear defiance of the separation of powers. The
Supreme Court in the Jharkhand Assembly issue ordered the protem speaker to conduct a
floor test and submit a video copy of the same. This case is different from the Meghalaya
issue wherein the Court has made it clear that it is not over viewing the proceedings of the
legislature, no officer of the legislature is subject to the jurisdiction of the Court. The order
of the Court was not enforced because of the subsequent resignation of Shibu Soren. This
also raises the question as who would be held liable for contempt of court; is it the speaker
or the members of the legislature.

The Bihar Assembly was dissolved by a notification dated 24 May 2005, even before its
first meeting on the ground that attempts are being made to cobble a majority by illegal
means and lay claim to form the Government in the State and if these attempts continue, it
would amount to tampering with constitutional provisions. This is an instance of the
executive acting on the interests of the ruling political party. Article 356(1) empowers the
President to assume charges of the State Government on grounds of failure of
constitutional machinery and dissolve the Assembly. But this cannot be presumed to
include the ground of dissolution on the ground of mal administration. The court in

43
Supreme Court Advocates on Record v. , In Re Presidential
Reference,1998 2 Raja Ram Pal v. Hon’ble Speaker, Lok Sabha , (2007) 3
S.C.C. 184.
appropriate cases will not only be justified in preventing the holding of fresh elections but
would be duty-bound to do so by granting suitable interim relief to make effective the
constitutional remedy of judicial review and to prevent the overshadowing of the
Constitution44. The power under Article 256 is not to preserve the interest political party
in power nor a weapon to strike at the political opponent. In the Bihar Assembly dissolution
case the Supreme Court has held that the order for dissolution was unconstitutional.45

The Article 31B of the Constitution provides that any Act or regulation placed in
IXth schedule shall be deemed to be void or ever to become void on the ground that it is
inconsistent with the fundamental rights and any judgment, regulation or order of any
Court shall have no effect, it only the power of the competent legislature to repeal or amend
it and till then it shall continue in force. It is a constitutional device to place certain specific
statues beyond the attack on the ground that they infringe Part III of the
Constitution.46 The decision of the Supreme Court I R Coelho’s case47 has laid down that
all those Acts inserted in IX Schedule after 24 April 1973 would be subject to judicial
review. The decision of the apex court is in the light of increasing number of repressive
legislations being protected under this provision. But this judgment is an encroachment
on the power of the legislature to repeal, amend the laws placed under the IX schedule.

In the matter of reservation to private educational institutions the Supreme

Court thorough its judgment has laid down that the private educational institutions has
been guarded against the reservation policy of the State. The Parliament brought out the
ninety third constitutional amendments, 2005 and inserted clause (5) to Article 15 of the
Constitution reservation would be available to socially and educationally backward class,
scheduled caste and scheduled tribes in matters to admission to educational institutions
including the private educational institutions. The minority educational institutions have
been spared. The action of the legislature even though legitimate, raised certain eyebrows
as to on whose interested they have acted. The Supreme Court has asked the government
to provide with the data relating to the actual population of OBC’s, so that their reservation
quota may be fixed. In this regard it is to be asked as to whose functions the Hon’ble
Supreme Court is trying to discharge.

Another incident of judicial over-activism is seem in setting aside of a a remission

granted by the then Andhra Pradesh Governor Sushil Kumar Shinde, to a convict belonging
to the Congress party and whose wife happened to be a sitting MLA. The power to grant
pardon under Article 72 and the 161 are at the absolute discretion of the executive head
of the Union and the State in relation to any matter in which the executive power of the
Union and the State respectively extends. The Hon’ble Supreme Court in its recent
judgment has held that the Executive heads ought to give reasons for granting such

44
S.R. Bommai v. Union of India (1994) 3 SCC 1
45
Rameshwar Prasad v. Union of India AIR 2006 SC 980
46
Attorney General For India v. Amratlal Prajivandas (1994) 5 SCC 54
47
I. R. Coelho v. State of Tamil Nadu 2007 (2) SCC 1
pardons. The Governor has made his attempt to hold the Constitutional position clear by
stating that it is the power of the executive to grant pardon. The Court has held that the
power to grant pardon can no longer be said that prerogative power is ipso facto immune
from judicial review. An undue exercise of this power is to be deplored.48 Thus the
judiciary has brought the power to grant pardon under judicial review. In this instant case
of judicial interference on the executive power, the public at large can be satisfied that a
decision of the executive head merely on narrow political grounds rather than on rule of
law has been overturned.

CHAPTER 3

INTERNATIONAL PHENOMENA

48
Epuru Sudhakar and Ors. v Government of Andhra Pradesh and Ors AIR 2006 SC 3385
3.1 International Law And The Independence And Impartiality Of The

Judiciary

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 .

Whereas in the Charter of the United Nations the peoples of the world affirm,
inter alia , their determination to establish conditions under which justice can be
maintained to achieve international co-operation in promoting and encouraging respect for
human rights and fundamental freedoms without any discrimination,

Whereas the Universal Declaration of Human Rights enshrines in particular the

principles of equality before the law, of the presumption of innocence and of the right to a
fair and public hearing by a competent, independent and impartial tribunal established by
law,

Whereas the International Covenants on Economic, Social and Cultural Rights

and on Civil and Political Rights both guarantee the exercise of those rights, and in
addition, the Covenant on Civil and Political Rights further guarantees the right to be tried
without undue delay,

Whereas frequently there still exists a gap between the vision underlying those
principles and the actual situation, Whereas the organization and administration of justice
in every country should be inspired by those principles, and efforts should be undertaken
to translate them fully into reality,

Whereas rules concerning the exercise of judicial office should aim at enabling
judges to act in accordance with those principles,

Whereas judges are charged with the ultimate decision over life, freedoms, rights,
duties and property of citizens,

Whereas the Sixth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, by its resolution 16, called upon the Committee on Crime
Prevention and Control to include among its priorities the elaboration of guidelines relating
to the independence of judges and the selection, professional training and status of judges
and prosecutors,
 Whereas it is, therefore, appropriate that consideration be first given to the role
of judges in relation to the system of justice and to the importance of their selection,
training and conduct,

The following basic principles, formulated 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.

3.1.1 Applicable International Law

All general universal and regional human rights instruments guarantee the right
to a fair hearing in civil and criminal proceedings before an independent and impartial
court or tribunal, and the purpose of this section is to analyze the meaning of the terms
"independent" and "impartial" in the light of the case-law of the competent international
monitoring organs. While these treaties as interpreted do not solve all the problems arising
with particular regard to the notion of independence of the Judiciary,

They do provide a number of essential clarifications.

Of the most important treaties, the International Covenant on Civil and Political
Rights states in its article 14(1) that "all persons shall be equal before the courts and
tribunals" and further, that "in the determination of any criminal charge against him, or of
his rights and obligations in a suit of law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by law" The
Human Rights Committee has unambiguously held that "the right to be tried by an
independent and impartial tribunal is an absolute right that may suffer no exception".49 It
is thus a right that is applicable in all circumstances and to all courts, whether ordinary or
special.

Second, article 7(1) of the African Charter on Human and Peoples' Rights
provides that "every individual shall have the right to have his cause heard", a right that
comprises, in particular, "(b) the right to be presumed innocent until proved guilty by a
competent court or tribunal", as well as "(d) the right to be tried within a reasonable time
by an impartial court or tribunal”.

Furthermore, according to article 26 of the Charter, the States parties "shall have
the duty to guarantee the independence of the Courts". It is the view of the African

49
Communication No. 263/1987, M. Gonzalez del Río v. Peru (Views adopted on 28 October
1992), in UN doc. GAOR, A/48/40 (Vol. II), p. 20, Para. 5.2;
Commission on Human and Peoples' Rights that article 7 "should be considered non
derogable " since it provides "minimum protection to citizens".50

Third, article 8(1) of the American Convention on Human Rights provides that
"every person has the right to a hearing, with due guarantees and within a reasonable time,
by a competent, independent, and impartial tribunal, previously established by law, in the
substantiation of any accusation of a criminal nature made against him or for the
determination of his rights and obligations of a civil, labor, fiscal, or any other nature”.

Lastly, article 6(1) of the European Convention on Human Rights specifies that
"in the determination of his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law" (emphasis added).

Although some countries may not yet have ratified or acceded to any of these
human rights treaties, they are still bound by customary rules of international law, as well
as by general principles of law, of which the principle of an independent and impartial
judiciary is generally considered to form part. They are thus also bound by the fundamental
principles laid down in the Universal Declaration of Human Rights, which provides in its
article 10 that "everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of his rights and obligations and
of any criminal charge against him".

3.2 Basic Principles on the Independence of the Judiciary, 1985

In 1985, the Seventh United Nations Congress on the Prevention of Crime

and the Treatment of Offenders adopted the Basic Principles on the Independence
of the Judiciary, which were subsequently unanimously endorsed by the General
Assembly.51 These principles can therefore be described as being declaratory of
universally accepted views on this matter by the States Members of the United
Nations, and they have become an important yardstick in assessing the
independence of the Judiciary in the work of international monitoring organs and
non-governmental organizations (NGOs).

These principles deal with the following subjects:

(i) independence of the Judiciary;

(ii) freedom of expression and association;
(iii) qualifications, selection and training;
(iv) conditions of service and tenure;

50
ACHPR, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project
v. Nigeria, Communication No. 218/98, decision adopted during the 29 th Ordinary session, 23 April - 7
May 2001, p. 3 of the text published on http://www1.umn.edu/humanrts/africa/comcases/218-98.html;
51
General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.
 (v) professional secrecy and immunity; and
(vi) Discipline, suspension and removal. Without seeking to be in any sense
exhaustive, the present chapter will deal with some of the significant issues relating to the
independence and impartiality of the judiciary.

3.3 The Notions of Independence and Impartiality: Links and Basic

Differences

The notions of "independence" and "impartiality" are closely linked, and in some
instances the international control organs have dealt with them jointly. Yet each has its
specific meaning and requirements, which will be further explained in more detail below.
Suffice it to indicate at this juncture that the concept of "independence" is an expression
of the constitutional value of judicial independence and, as stated by the Canadian
Supreme Court in the case of Valiente v. The Queen, in a passage that conveys well the
general understanding of the notion of independence of the Judiciary not only under
Canadian constitutional law but also under international human rights law, this notion
"connotes not only a state of mind but also a status or relationship to others - particularly
to the executive branch of government - that rests on objective conditions or
guarantees".52 This status or relationship of independence of the Judiciary "involves both
individual and institutional relationships: the individual independence of a judge as
reflected in such matters as security of tenure and the institutional independence of the
court as reflected in its institutional or administrative relationships to the executive and
legislative branches of government".53

By contrast, the Supreme Court of Canada described the concept of judicial

"impartiality" as referring to "a state of mind or attitude of the tribunal in relation to the
issues and the parties in a particular case".54This view has also been confirmed at the
international level, where, for instance, the Human Rights Committee has held that the
notion of "impartiality" in article 14(1) "implies that judges must not harbor
preconceptions about the matter put before them, and that they must not act in ways that
promote the interests of one of the parties".55 As to the European Court of Human Rights,
it considers that the notion of impartiality contains both a subjective and an objective
element: not only must the tribunal be impartial, in that "no member of the tribunal should
hold any personal prejudice or bias", but it must also "be impartial from an objective
viewpoint", in that "it must offer guarantees to exclude any legitimate doubt in this

52
(1985) 2.S.C.R Valiente v. The Queen 673, to be found at http://www.lexum.umontreal.ca/csc-
scc/en/pub/1985/vol2/html/1985scr2_0673.html, .
53
Ibid.,
54
Ibid.,
55
Communication No. 387/1989, Arvo O. Karttunen v. Finland (Views adopted on 23 October 1992), in
UN doc. GAOR, A/48/40 (Vol. II), p. 120, para. 7.2.
respect".56 The European Court thus adds to the more subjective mental element of bias
the important aspect of availability of guarantees.

3.4 The Notion of Institutional Independence

The notion of institutional independence means that the Judiciary has to be

independent of the other branches of government, namely the Executive and Parliament.
According to Principle 1 of the Basic Principles on the 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."

Furthermore, according to Principle 7 of the Basic Principles,

"It is the duty of each Member State to provide adequate resources to enable the
judiciary to properly perform its functions."

In order to secure true independence of the Judiciary from the other two branches
of government, it is necessary for this independence to be guaranteed, preferably by the
Constitution; or, failing this, by other legal provisions.

3.4.1 Independence As To Administrative Matters

Although international law does not provide details as to how this institutional
independence is to be realized in practice, it is clear that, as a minimum, the Judiciary must
be able to handle its own administration and matters that concern its operation in general.
This includes "the assignment of cases to judges within the court to which they belong", a
matter which, as stated in Principle 14 of the Basic Principles, "is an internal matter of
judicial administration".

3.4.2 Independence as to financial matters

As supported by Principle 7 of the Basic Principles, the Judiciary must further be

granted sufficient funds to properly perform its functions. Without adequate funds, the
Judiciary will not only be unable to perform its functions efficiently, but may also become
vulnerable to undue outside pressures and corruption. Moreover, there must logically be
some kind of judicial involvement in the preparation of court budgets. However, when it
comes to administrative and financial issues, independence may not always be total, given
that the three branches of government, although in principle independent of each other, are
also by nature in some respects dependent on each other, for instance with respect to the

56
Eur. Court HR, Case of Daktaras v. Lithuania, judgment of 10 October 2000, para. 30; for the text see
the Court’s web site: http://echr.coe.int.
appropriation of resources. While this inherent tension is probably inevitable in a system
based on the separation of powers, it is essential that in situations where, for instance,
Parliament controls the budget of the Judiciary, this power is not used to undermine the
efficient working of the latter.57

3.4.3 Independence as to decision-making

Next, as follows from Principle 1 of the Basic Principles, the other branches of
government, including "other institutions", have the duty "to respect and observe the
independence of the judiciary". This means, more importantly, that the Executive, the
Legislature, as well as other authorities, such as the police, prison, social and educational
authorities, must respect and abide by the judgments and decisions of the Judiciary, even
when they do not agree with them. Such respect for the judicial authority is indispensable
for the maintenance of the rule of law, including respect for human rights standards, and
all branches of Government and all State institutions have a duty to prevent any erosion of
this independent decision-making authority of the Judiciary.

The condition of the Judiciary's independence as to decision-making is further

supported by Principle 4 of the Basic Principles, according to which:

"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."58

It is not clear whether executive amnesties and pardons would be contrary to

Principle 4, but Governments must in any event always exercise considerable care in
resorting to such measures, so that any measures of clemency do not subvert the
independent decision-making power of the Judiciary, thereby undermining the rule of law
and true respect for human rights standards.

57
An Independent Judiciary, Report of the American Bar Association Commission on Separation of
Powers and Judicial Independence, published on:
http://www.abanet.org/govaffairs/judiciary/report.html.

58
Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe on the
independence, efficiency and role of judges provides that "decisions of judges should not be the
subject of any revision outside any appeals procedures as provided for by law" (Principle I.2.a.i.), and
that "with the exception of decisions on amnesty, pardon or similar, the Government or the
administration should not be able to take any decision which invalidates judicial decisions
retroactively" (Principle I.2.a.iv.) 2 Recommendation No. R (94) 12 of the Committee of Ministers of
the Council of Europe provides that "no organ other than the courts themselves should decide on its
own competence, as defined by law"
(Principle I.2.a.iii
3.4.4 Jurisdictional Competence

According to Principle 3 of the Basic Principles, the independent decisionmaking

power of the Judiciary also comprises "jurisdiction over all issues of a judicial nature and
... exclusive authority to decide whether an issue submitted for its decision is within its
competence as defined by law".2

This rule of judicial autonomy in the determination of questions of competence

is in fact well established at both national and international levels and can also be found,
for instance, in article 36(6) of the Statute of the International Court of Justice, and, as
regards the European Court of Human Rights, in article 32(2) of the European Convention
on Human Rights.

3.5 The notion of individual independence

It is not only the Judiciary per se, as a branch of government, that must be
independent of the Executive and Parliament; the individual judges, too, have a right to
enjoy independence in carrying out their professional duties. This independence does not
mean, of course, that the judges can decide cases on the basis of their own whims or
preferences: it means, as will be shown below, that they have both a right and a duty to
decide the cases before them according to the law, free from fear of personal criticism or
reprisals of any kind, even in situations where they are obliged to render judgments in
difficult and sensitive cases. Unfortunately, judges are not always allowed to carry out
their work in this spirit of true independence, but in many countries have to suffer undue
pressure ranging from inappropriate personal criticism and transfer or dismissal to violent
and even fatal attacks on their person.

The independence of the individual judge must be secured in a number of ways,

the most important of which will be described below.

3.5.1 Appointment

International law does not provide any details as to how judges should be
appointed, and the Basic Principles are neutral with regard to the appointment or election
of judges. However, according to Principle 10 of the Basic Principles:

"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."
 This principle means that, irrespective of the method of selection of judges,
candidates' professional qualifications and their personal integrity must constitute the sole
criteria for selection. Consequently, judges cannot lawfully be appointed or elected
because of the political views hey hold or because, for instance, they profess certain
religious beliefs. Such appointments would seriously undermine the independence both of
the individual judge and of the Judiciary as such, thereby also undermining public
confidence in the administration of justice.

The Human Rights Committee has expressed concern "that in appearance as well
as in fact" the Judiciary in the Sudan was "not truly independent, ... that judges can be
subject to pressure through the supervisory authority dominated by the Government, and
that very few non-Muslims or women occupy judicial positions at all levels". It therefore
recommended that "measures should be taken to improve the independence and technical
competence of the judiciary, including the appointment of qualified judges from among
women and members of minorities".59 The Human Rights Committee has also
recommended to Bolivia that "the nomination of judges be based on their competence and
not their political affiliation".60

With regard to Zambia, the Human Rights Committee has expressed concern
about "the proposals made by the Constitutional Review Committee in regard to the
appointment of judges of the Supreme Court by the President after their retirement and the
removal of Supreme Court judges by the President, subject only to ratification by the
National Assembly without any safeguard or inquiry by an independent judicial tribunal".
It concluded that such proposals were "incompatible with the independence of the judiciary
and run counter to article 14 of the Covenant".61

Consequently, article 14 of the Covenant has not been complied with in cases
where judges are appointed or dismissed by the President without these decisions having
been taken in consultation with some independent legal authority, even where the
President's decisions must be ratified by Parliament.

Likewise, as regards Slovakia the Committee has noted with concern that the
rules in force "governing the appointment of judges by the Government with approval of
Parliament could have a negative effect on the independence of the judiciary"; it
recommended that "specific measures be adopted as a matter of priority guaranteeing the
independence of the judiciary and protecting judges from any form of political influence,
through the adoption of laws regulating the appointment, remuneration, tenure, dismissal
and disciplining of members of the judiciary".62

With regard to the Republic of the Congo, the Committee expressed its

59
UN doc. GAOR, A/53/40 (vol. I), para. 132.
60
UN doc. GAOR, A/52/40 (vol. I), para. 224.
61
UN doc. GAOR, A/51/40, para. 202.
62
UN doc. GAOR, A/52/40 (vol. II), para. 379
"concern at the attacks on the independence of the judiciary in violation of" article 14(1),
and drew attention to the fact that such independence was "limited owing to the lack of
any independent mechanism responsible for the recruitment and discipline of judges, and
to the many pressures and influences, including those of the executive branch, to which
the judges [were] subjected".63 It therefore recommended to the State party that it should
"take the appropriate steps to ensure the independence of the judiciary, in particular by
amending the rules concerning the composition and operation of the Supreme Council of
Justice and its effective establishment".2

Appointments of judges must, in other words, in themselves constitute a strong factor

for independence and cannot be left to the exclusive discretion of the Executive and
Legislature.

3.5.2 Security of Tenure

As indicated above, unless judges have some long-term security of tenure, there
is a serious risk that their independence will be compromised, since they may be more
vulnerable to inappropriate influence in their decision-making. Principle 11 of the Basic
Principles therefore provides that:

"The term of office of judges, their independence, security, adequate

remuneration, and conditions of service, pensions and the age of retirement shall
be adequately secured by law."

Principle 12 further specifies that

"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."64

It would consequently be contrary to Principles 11 and 12 to appoint or elect

judges with no guarantee of tenure at all or only a brief period of guaranteed term of office.4
It is by providing judges with a permanent mandate that their independence will be
maximized, as will public confidence in the Judiciary.

It follows that, in the view of the Human Rights Committee, the practice of
executive recertification or review of judges is contrary to article 14(1) of the International
Covenant on Civil and Political Rights.

63
.UN doc. GAOR, A/55/40 (vol. I), para. 279
2
Ibid. para. 280.
64
Recommendation I.3 of Council of Europe Recommendation No. R (94) 12 is identical to principle
12. 4 The Special Reporter on the independence of judges and lawyers has held that while "fixed-term
contracts may not be objectionable and not inconsistent with the principle of judicial independence, (to
be
3.5.3 Financial security

The international and regional treaties do not expressly deal with the question of
financial security for the Judiciary and individual judges, but Principle 11 of the Basic
Principles quoted above provides that judges shall have adequate remuneration and also
pensions.

The question of fair and adequate remuneration is important since it may help
attract qualified persons to the bench and may also make judges less likely to yield to the
temptation of corruption and political or other undue influences. In some countries judges'
salaries are protected against decreases, although pay increases may depend on the
Executive and Legislature. Where the Executive and Legislature control the budgets of the
Judiciary, there may be a potential threat to the latter's independence.

In the case of Manitoba Provincial Judges Assn. v. Manitoba (Minister of

Justice), the Canadian Supreme Court had to decide "whether and how the guarantee of
judicial independence in s. 11(d) of the Canadian Charter of Rights and Freedoms restricts
the manner by and extent to which provincial governments and legislatures can reduce the
salaries of provincial court judges".1As part of its budget deficit reduction plan, the
Province had enacted the Public Sector Pay Reduction Act whereby it reduced the salaries
of Provincial Court judges and others paid from the public purse in the province. Following
these pay reductions, numerous accused persons challenged the constitutionality of their
proceedings in the Provincial Court, alleging that, as a result of the salary reductions, the
court had lost its status as an independent and impartial tribunal.

continued) a (continued) term of five years is too short for security of tenure". In his view "a
reasonable term would be 10 years"; UN doc. E/CN.4/2000/61/Add.1, Report on the Mission to
Guatemala, para. 169(c).

1
(1997) 3 S.C.R. Manitoba Provincial Judges Assn. v. Manitoba (Minister of Judges) at
http://www.lexum.umontreal.ca/csc-scc/en/pub/1997/vol3/html/1997scr3_0003.html

The Supreme Court concluded that the salary reductions "as part of an overall public
economic measure were consistent with s. 11(d) of the Charter", as there was "no evidence
that the reductions were introduced in order to influence or manipulate the judiciary". 65
What constituted a violation of judicial independence was, however, the refusal of the
Manitoba Government to sign a joint recommendation to the Judicial Compensation
Committee, "Unless the judges agreed to forgo their legal challenge "of the law whereby
the salary reduction was imposed. The Court considered that the Government had thereby
"placed economic pressure on the judges so that they would concede the constitutionality
of the planned salary changes".66 In its view, "the financial security component of judicial
independence must include protection of judges' ability to challenge legislation implicating

65
Ibid.,
66
Ibid.,
their own independence free from the reasonable perception that the government might
penalize them financially for doing so".67

3.5.4 Promotion

Principle 13 of the Basic Principles provides that "promotion of judges, wherever

such a system exists, should be based on objective factors, in particular ability, integrity
and experience". Improper factors not linked to the professional merits of the judges
concerned are thus not to be considered for purposes of promotion. Principle I.2.c.
emphasizes that “all decisions concerning the selection and career of judges should be
based on objective criteria" and that not only the selection of judges but also their career
"should be based on merit, having regard to qualifications, integrity, ability and
efficiency"; moreover, decisions regarding the career of judges should be independent of
both the Government and the administration 68Such improper factors might, for instance,
include attitudes of discrimination based on gender, race or ethnicity.

It would thus appear clear that the Human Rights Committee considers that the
term "independent" in article 14(1) of the Covenant requires that unethical professional
behaviour be dealt with by an organ fully independent of government influence.

3.5.5 Suspension and removal

The matter of discipline, suspension and removal of judges is also dealt with in
Principles 17-20 of the United Nations Basic Principles, which read as follows:

“17. 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.

18. Judges shall be subject to suspension or removal only for reasons of

incapacity or behavior that renders them unfit to discharge their duties.

19. All disciplinary, suspension or removal proceedings shall be determined in

accordance with established standards of judicial conduct.

20. Decisions in disciplinary, suspension or removal proceedings should be

subject to an independent review. This principle may not apply to decisions of the highest
court and those of the legislature in impeachment or similar proceedings."

It is noteworthy, however, that Principle 17 speaks only of "an appropriate

procedure" and that Principle 20 recommends that decisions in disciplinary and other

67
Ibid
68
Council of Europe Recommendation No. R (94) 12
procedures "should be subject to an independent review" (emphasis added). It would thus
appear that the interpretation of article 14(1) of the International Covenant on Civil and
Political Rights by the Human Rights Committee goes further than the Basic Principles in
this respect.

The notion of independence of the Judiciary also means that

• Individual judges must enjoy independence in the performance of their

professional duties; individual judges have a right and a duty to decide cases before
them according to law, free from outside interference including the threat of reprisals
and personal criticism;

• Individual judges must be appointed or elected exclusively on the basis of

their professional qualifications and personal integrity;

• Individual judges must enjoy long-term security of tenure;

• Individual judges must be adequately remunerated;

• The promotion of individual judges must be based on objective factors;

• The question of accountability of individual judges for unethical

professional behavior must be dealt with by a fully independent and impartial organ
ensuring due process of law.

Summing up the international Principles on Independence of judiciary

(i) 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.

(ii) 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.

(iii) 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.

(iv) 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.

(v) 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.

(vi) 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.

(vii) It is the duty of each Member State to provide adequate resources to enable
the judiciary to properly perform its functions.

(viii) 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.

(ix) 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.

(x) 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.

(xi) 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.

(xii) 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.

(xiii) Promotion of judges, wherever such a system exists, should be based on

objective factors, in particular ability, integrity and experience.

(xiv) The assignment of cases to judges within the court to which they belong is
an internal matter of judicial administration.

(xv) 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.
 (xvi) 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.

(xvii) 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.

(xviii) Judges shall be subject to suspension or removal only for reasons of

incapacity or behaviour that renders them unfit to discharge their duties.

(xix) All disciplinary, suspension or removal proceedings shall be determined in

accordance with established standards of judicial conduct.

(xx) 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 or similar proceedings.

CHAPTER 4

INDEPENDENCE OF JUDICIARY: An INDIAN PERERSPECTIVE

4.1 Historical Background

4.1.1Before Independence

During British period, especially during the East India Company’s rule in
India, the judiciary was subservient to the executive. The Company gave lesser importance
to the judicial independence, fair justice and rule of law. It was interested in the expansion
of its trade and territorial possession and it was in favour of protecting its interest even at
the cost of justice. If at any time a separate judicial body was established that was put under
the thumb of the executive. The voice of the judicial independence was suppressed without
least hesitation.

4.1.2 Position of Judiciary in the Settlements of the Company before 1726:

Before 1726 the administration of justice .in the settlements of the East India
Company was executive and judiciary. The executive had power to appoint and remove
judges. In short, the judiciary was under the control of the executive. The Agent or
Governor-in-Council of a factor of the East India Company had both executive and judicial
powers.69

In Madras also the whole judicial administration was under the complete control
of the executive
An attempt to separate the judiciary from the executive was made in 1686, when
the Court of Admiralty was established in Madras under the Charter of 1683. An expert in
civil law was t« be the Judge-Advocate (i.e., the Chief Judge) of this Court. Under the
Charter of 1683 the Court of Admiralty was to decide only mercantile and maritime cases
but in practice it used to decide civil and criminal cases also. Thus, for the first time the
executive gave up its judicial function and an expert in law was associated to the judicial
body.

69
See the Charters of 1600 and 1661
 The condition 'of the judicial administration in Bombay was' not much improved.
Aungier made serious attempt to raise the status of the judiciary. However, the separation
between the executive and the judiciary could not be maintained. So long as Aungier was
Governor, the judiciary was paid much respect but alter him the later Governors could not
follow the same tradition and considered the judiciary subservient to the executive.

The judicial administration in Calcutta was also executive ridden. The Collector
cases of the native inhabitants of the Company's Zamindari. The Collector was used to be
a member of the Governor's Council. The death sentence awarded by the Collector was to
be confirmed by the Governor and Council. The Governor and Council were to hear
appeals from the Collectors Court. The serious civil and criminal cases of the Englishmen
were to be decided by the Governor and Council. Thus, the Collector and Governor-
inCouncil were to exercise all judicial and executive powers.

Thus, the judicial administration in the Company's settlements before 1726 was
not of high order. The Company gave I lesser importance to judicial independence, fair
justice and rule of law. There was no separation between the executive and judiciary. If at
any time a separate judicial body was established that was put under the thumb of the
executive. The voice of the judicial independence was suppressed without least hesitation.
Whenever an attempt was made to establish an independent court, it was frustrated by the
united efforts of the Governor-in-Council and the other authorities of the Company.

4.1.3 Position of Judiciary after 1726

The Charter of 1726 made a provision for the establishment of a Mayor's Court
in each Presidency Town. The Mayor and Alderman of the Corporation of the Presidency
Town were to constitute, the Mayor's Court established at that town. The Mayor or
Senior Alderman with two other Aldermen was to constitute quorum of the Court. The
Mayor's Court was to be the Court of Records. It was empowered to hear and try
all civil suit pertaining to the persons living in the Presidency Town an working
in the Company's subordinate factories. Thus, the Charter of 1726 conferred on the
Mayor's Court jurisdiction with regard to civil matters arising with the Presidency Town,
and i subordinate factories. Thus, the Charter of 1726 conferred on to Mayor's Court
jurisdiction -with regard to civil matters arising with the Presidency Town and its
subordinate factories.

The Mayor's Court was also given testamentary jurisdiction. It was empowered
to issue letters of the administration to the legal heir of the deceased person, failing him,
to his principal creditor and failing him, to any other person deemed proper by the Mayor's
Court for this purpose. It was also empowered to grant probates of wills of the deceased
persons. The Court was given- power to punish persons found guilty of its contempt.
 Under the Charter of 1726 the Governor and five senior members of the Council
were to be Justice of the Peace and they were also to exercise the criminal jurisdiction.
They had power to arrest and punish persons for petty criminal offences.

Before 1726 there was no uniform judicial system for Company's settlement in
India. The Charter of 1726, for the first time, made provision for the introduction of a
uniform judicial system in all the three Presidency Towns, Bombay, Calcutta and Madras.
The Charter, for the first time, introduced royal Courts in India. The Mayor's Courts to be
established under the Charter were to derive their authority from the British Crown and
not from the East India Company and thus they were to be Brief Crown's Courts and not
the Company's Courts. Thus, the Charter intended to introduce such Courts in India as
having status equivalent to that of the Court in England.

Under this Charter an attempt was made to make the judiciary (i.e., the Mayor's
Courts) independent of the executive control. The judges of the Mayor's Courts were not
to be appointed by the Governor and Council. The Governor and Council could dismiss an
Alderman on reasonable cause being shown against him, but the dismissal order could be
challenged by the dismissed Alderman in the Privy Council in England.

The Charter failed to maintain complete separation between the executive and
the judiciary. The executive (the Governor-in-Council) was fully competent
to remove any Alderman (a judge of the Mayor's Court) on reasonable cause being
shown against him. No doubt, the dismissal order could be challenged by the dismissed
Alderman in the Privy Council England but in practice this limitation on the dismissal
powers of the Governor-in-Council was nominal. Besides, the executive (i.e., the
Governor-in-Council) was given wide judicial powers. The Governor and five senior J
members of the Council were to constitute Justice of the Peace 'i and they were to exercise
the criminal jurisdiction. Thus, the executive was still predominant.

The conflict between the Mayor's Courts and Governor, and Council created
much confusion and chaos in the settlement. On account of it the Company requested the
British Crown to issue a new Charter so as to introduce suitable amendment in the Charter
of 1726. In 1753, a Charter known as the Charter of 1753 was issued by British Crown.

In short, under the Charter of 1726 the appointment of the Mayor and Aldermen
was not in the hands the Government and Council (the executive government of the place)
but under the Charter of 1753 the power of appointment the Mayor and Aldermen was
given to the Governor and Council. The power of removal of the Alderman was already
vested in the Governor and Council. As a result, the Charter of 1753 made the judiciary
subservient to the executive. Bolt appears to be right in his statement that so long as
the Mayor's Court had the powers of electing their own members to fill up all vacancies, it
was a great degree independent, but when the right of electing Aldermen was transferred
from their own body to the Governor and Council who thereby had unconstitutional powers
of making and unmaking of the judges, the Court lost its independence. 70 The Mayor's
Courts became the branches of the Company's executive government. In short, so far as
the judicial independence is concerned the Charter of 1753 was much inferior to that of
1726.71 The Governor and Council were to hear appeals from the Mayor's Courts and they
were to decide criminal cases also.

However, the establishment of these court should be appreciated for making a

good beginning of the establishment of a uniform judicial system in the (Company's
settlements on the basis of English Law and procedure and thereby laying the foundation
for the establishment of the improved courts in future.72 In 1770, Bolt made a significant
attempt to make the Mayor's Courts independent. He suggested that the Company's powers
of obstructing or interfering with the due course of justice should be taken away and the
Mayor's Court should be independent of the Governor and the Council and a Court of
Appeals should be established therefore and this Court of Appeals must be independent of
the Governor and the Council or any other powers in India.73

In 1774 the Calcutta Mayor's Courts was replaced by the Supreme Court. In
1798 the Mayor's Court of Bombay and Madras were replaced by the Recorder's Courts.
The .Regulating Act empowered the British Crown to| establish a Supreme- Court
at Calcutta by issuing a Charter. The British Crown issued a Charter in 1774 establishing
the Supreme Court of Judicature at Calcutta. The Charter of 1774 superseded the
provisions of the Charter of 1753 and resulted in the abolition of the Mayor's Court at
Calcutta.

The Charter of 1774 made provisions for the appointment and removal of the
judges as well as for the jurisdiction, powers and functions of the Court on the basis of and
in accordance with the Regulating Act, 1773. The Supreme Court established under the
Charter of 1774 consisted a Chief Justice and three Puisne Judges. Only those persons who
were barristers of not less than 5 years standing could be appointed by the British Crown
and they were to hold office during the pleasure of the Crown. The Supreme Court was a
Court of record. It was conferred on civil, criminal, admiralty and ecclesiastical
jurisdiction.

The Court of Collector, Quarter Sessions, Court of i Requests, Sheriffs, etc.

were put under its control and supervision j and for this purpose it was also authorised to
issue writs of 'Certiorari, mandamus, error or procedendo to these Courts.

However, it is to be noted that the Supreme Court was not empowered to try the
Governor-General and members of the Council for any offence except treason or felony.

70
Love, Vestiges of Old Madaras, Vol III, p. 440
71
Cf. Dr. M.P. Jain, Indian Legal History, p. 68
72
Fawcett. Op, cit. p. 217
73
Bolt. Op. cit. p. 224
 The conflict between the Supreme Council and the Supreme Court reached to a
very serious stage. The British Parliament appointed a Parliamentary Committee to make
inquiries in the matter and prepare a report. The Committee presented report on the conflict
between the Supreme Councils and the Supreme Court in 1781. On the basis of this report
the British Parliament passed an Act' in 1781. This Act is known as the Act of Settlement,
1781.

The analysis of the provisions of the Act makes it clear that the Act was
substantially in favour of the Governor-General and Council and against the Supreme
Court. The Governor-General-in-Council was made supreme and arbitrary. The Britishers
were more interested in the acquisition of territories in India and therefore they made the
executive (i.e the Governor-General-in-Council) strong and supreme and did not allow the
Supreme Court to introduce rule of law and independent judiciary in India. The idea of the
judicial control of the executive was thus frustrated and the executive was sent beyond the
judicial control.

4.1.4 Indian High Courts Act, 1861

In 1861 the Indian High Courts Act was passed by the British Parliament. The
main object of the Act was to abolish the Supreme Courts and the Sadar Adalats (i.e., Sadar
Diwani Adalat and Sadar Nizamat Adalat) and in their place to establish High Courts in
the Presidency Towns Calcutta, Bombay and Madras. The Act empowered the British
Crown to establish one High Court, in each Presidency Town. Thus, the Act did not by
itself establish the High Courts, but only authorised the British Crown to establish the High
Courts. The jurisdiction of the Supreme Courts and the Sadar Adalats were vested to the
High Court. The dual system of the Courts was abolished and a unified judicial system was
established. This step was necessary in order to avoid the conflict between the Supreme
Court and the Sadar Adalats. The judges of the High Courts were to hold their office during
the pleasure of Her Majesty.

It was provided in the Act that each High Court would exercise all such Civil,
Criminal, admiralty and vice-admiralty, testamentary, intestate and matrimonial
jurisdiction (original and appellate) and all such powers and authority in relation to the
administration of justice in the Presidency for which it was; established, as the British
Crown might grant and direct by such Letters Patent. It was made clear that by Letters
Patent the; British Crown could impose direction and limitations as to the exercise of
original, Civil and Criminal jurisdiction, beyond the limits of the Presidency Towns. Each
High Court was to exercise the appellate jurisdiction of the Sadar Adalats and original
jurisdiction of the Supreme Courts.

The High Courts were to consist of both these types of Judges and thus the Act
made it possible to unite the judges having thorough knowledge of the English Law with
the non-lawyers judges having thorough knowledge of the native laws and customs. This
arrangement was more suitable to the Indian conditions.74

The High Court was more effective appellate Court and also enjoyed powers of
superintendence over the lower courts and I therefore the judicial administration was
improved to a greater extent by the establishment of the High Court.

4.1.5 The Government Of India Act, 1915 And The Government Of India Act,
1935.

The Government of India Act, 1915 repealed all the existing High Courts. It
introduced several changes in the constitution, jurisdiction and the law to be applied by
these Courts.

The Government of India Act, 1915 was repealed by the Government of India
Act, 1935. Under the Act of 1935 every High Court was to be a Court of Record. It was to
consist of a Chief Justice and such other judges as were appointed by His Majesty from
time to time, however the number of the judges so appointed together with any additional
judges appointed by the Governor-General was not to exceed such maximum number as
His Majesty-in-Council might fix in relation to that Court. Every judge of the High Court
was to be appointed by His Majesty and was to hold office until the attainment of
the age of sixty however; a judge might resign or might be removed from his office by.
His Majesty on the ground of misbehaviour or infirmity of mind or body on the
recommendations of the Privy Council.

Under the Act it was made clear that salaries and pensions. of the judges of the
High Courts would be fixed by His Majesty on their appointment, but after appointment
being made they cannot be changed to the disadvantage of any of such judge.

The Government of India Act, 1935 made provision for the establishment of a
Federal Court.75

Judges were to be appointed by the British Crown. They were to hold office up
to the age of sixty-five years. A judge could be removed from the office on the ground of
misbehavior or of mental or bodily infirmity in case the Privy Council, on reference by the
British Crown, so recommended. The Federal Court was given exclusive original
jurisdiction in the case of dispute between any two or more of the following parties:—
The Federation, any of the provinces or any of the

Federated States if the dispute involved any question of law or' fact on which
the existence or extent of a legal right depended.

74
Keith Constitutional History of India, pp. 203-204 cited by Kailsh Rai History of Courts Legislature
and Legal Profession in India pp199
75
Section 200
 The appeals from the High Courts in the Federated States were also allowed to
the Federal Court.

The Governor-General was empowered to refer any point of law to the Federal
Court for its opinion. The Federal Court was to pronounce it’s on such in open Court.

4.2 Judicial Independence And The Constitution-Making

The Superior Courts like the other branches of the government belong to the
Indian people; they are the repository of the confidence of the Indian people. "An
independent judiciary need not be a mysterious area of government or appear to be an
occult priesthood or remain a remote, austere marble temple housing ... seldom seen jurists
who periodically issue pronouncements on the law of the land".76 Be that as it may, there
is an unhappily wide consensus that excellent judges are not in long supply, and as such
we fail too regularly to people the bench ideally. However, the ideal is not itself very
uncertain. The judge ought to be neutral, detached, kindly benign, reasonably learned in
law, firm but fair, wise, knowledgeable about human behaviour, and somewhat super
human. The qualities in the terms of personality of the judge may be succinctly stated as
his eight virtues (because none would like to see the reverse of it in a judge): independence,
courtesy and patience, dignity (but not excluding humour), open mindedness, impartiality,
thoroughness, and decisiveness (as indecisiveness causes unpleasantness). However, there
may be variations, but, a central core of agreed standards defines the judge as the neutral,
impartial, calm, non-contentious umpire standing between the adversary game. The
bedrock premise is that the adversary contest is the ideal way to achieve truth and a just
result rested upon the truth. It may be submitted that the judge has a more robust part. The
essence of the judicial role is impartiality and detachment, both felt and exhibited.

In the backdrop of this, Sardar Vallabhbai Patel while explaining the manner of
appointing the superior judges a multo fortiori stated "the judiciary should be above
suspicion and should be above party influence"77 so that none may have the complaint to
say that "higher courts are right because they are superior, not superior because they are
right".78 The subject of the independence of the judiciary was close to the minds of the
members of the Constituent Assembly inasmuch as the issues of the powers of the superior
courts and the judicial review. They further believed that the independence of the superior
courts was essential in free India with a federal Constitution and it should not be
endangered. In answer to a question concerning the independence of the superior courts,
they expressed that the judiciary must be above reproach, free from coercion external as

76
Vide Chief Justice U.S. Supreme Court Justice Warren E. Burger as quoted in Frank M. Coffin, View
from the Bench, 1987, p. 27

77
C.A.D. VI. 2 579.
78
Frank M. Coffio, op cit
well as internal, and free from political influences "if the beacon of the judiciary was to
remain bright".79

An independent judiciary should not be conceived as a dogma or ritual. To keep

the judicial system pure and independent, the superior court has been empowered with
wide original, extra-ordinary appellate jurisdiction in federal matters, in fundamental rights
cases, in civil and criminal cases, thus making it interpreter and guardian of the
Constitution, supreme guarantor of the Rights as well as a bastion of rights and of justice.80
Ayyar J believed:

While there can be no two opinions on the need for the maintenance of judicial
independence, both for the safeguarding of individual liberty and the proper working of
the Constitution, it is also necessary to keep in view one important principle. The doctrine
of independence is not to be raised to the level of a dogma so as to enable the Judiciary to
function as a kind of super-Legislative or super Executive. The Judiciary is there to
interpret the Constitution or adjudicate, upon rights between the parties concerned. The
Judiciary as much as the Legislature and the Executive, is depending for its proper
functioning upon the co-operation of the other two.81

An independent judiciary is inevitable and "the State shall take steps to separate
the Judiciary from the Executive in the public services of the State". 82 It seems that the
members of the Constituent Assembly have been careful to keep the politics out of the
corridors of the courts as well as to keep the Judiciary out of politics. A closer look at the
constitutional provisions shows that the Constitution-makers were conscientious of this
aspect and as such provided non-political mechanism for choosing the judges for the
superior courts. In this context, it seems that the Constituent Assembly must have been
influenced by the findings of the Sapru Committee Report which appeared to have been
prompted by the desire to insulate the courts from attempted coercion by forces within or
outside the government.4 The Sapru Committee Report suggested: "The justices of the
Supreme Court and the High Courts should be appointed by the head of the State in
consultation with the Chief Justice of the Supreme Court and, in the case of High Court
Judges, in consultation additionally with the High Court Chief Justice and, the head of the
Unit concerned. The justices of all courts could be removed on grounds of misbehaviour
or infirmity of mind by the head of the State, with the concurrence of the Supreme Court
in the case of High Court justices".83 Besides, Constituent Assembly's Ad Hoc Committee
in its Report favoured the system of a Judicial Commission in the matter of choosing
justices -for the superior courts and recommended accordingly that it would not "be
expedient to leave the appointment of Supreme Court judges to the unfettered discretion

79
Granville Austin, The Indian Constitution: The Cornerstone of a Nation, 1966. Pp. 164.65
80
Ibid. Pp. 169,173,175
81
C.A.D. XI, 9,837
82
Article 50 of the Constitution of India
4
Supra Note 134 at p.176
83
Sappu Committee Report Clause 13. Pp. xi-xii and lbid.
of the President of the Union . . . The President should nominate judges with the
concurrence of the Chief Justice of India, and this nomination would then be subject to
confirmation by a panel composed of High Court Chief Justices, some members of both
Houses of Central legislature, and the law officers of the Union. The panel should submit
three names to the President who would choose one of them with the concurrence of the
Chief Justice of India".84 This shows that Constituent Assembly's Ad Hoc Committee was
in favour of the functioning of the institutions of the government in a federal polity under
the federal Constitution. It is; however, pertinent to note that the Constitution Draft
Committee did not weigh the suggestions of the Ad Hoc Committee rather it accepted the
method of selection and appointment of justices of superior courts as presented by Sapru
Committee, viz., Justices be appointed by the President of India in consultation with the
Chief Justice of India and such other Supreme Court justices as might be necessary.

However, there was a reaction to this judicial provision of the Draft Constitution
from Chief Justice H.J. Kania who confined his reaction to the independence of the
judiciary and, thus, suggested: The Draft Constitution should cover the relationship of the
Executive with the Judiciary so that the courts would be free from suspicion of Executive
control. When recommending to the President a person for a judgeship on a High Court,
the Governor and the High Court Chief Justice should be in direct contact so that the State
Home Ministry not be an intermediary in the proceedings, otherwise, local politics might
affect the selection of judges.85

A closer overview of the deliberations at different level shows that there was no
basic difference between the Draft Constitution and the opinion of the Chief Justice as well
as those of the Sapru Committee Report and the Ad Hoc Committee Report on the issue
of judicial independence. The fundamental difference seemed to be concerning the
modalities in the selection and appointment of justices of the superior courts. For instance,
the Ad Hoc Committee Report suggested for a Judicial Commission. Be that as it may, the
Constituent Assembly approved the judicial provisions of the Draft Constitution which
have been mentioned earlier with the aim to have "just ends by just means"86 necessary to
have "a first-rate Judiciary in India" "preserving the independence of the Judiciary".

4.3 The Constitution Of India And Independence Of Judiciary

In our Constitution there is no express vesting of Judicial Power in Courts, such

as one finds for example in the case of the United States of America or Australia. In the
two instances there were no Federal Courts apart from the Constitution. Unless such Courts
were created and invested with power by the Constitution they had no existence or power.

84
Ad Hoc Committee Report, paras 14,15,16, pp, 65-66
85
Chief Justice Kania’s letter to the Prime Minister of India Pandit Jawaharlal Nehru
86
K,L.Bhatia, judicial Review and judicial Activism: A' Comparative Study Between India and
Germany from an Indian Perspective, 1997, pp. 139, 172. 2 Constitutions of India, Article 215
 In our country the position was different. The change of sovereignty did not in
itself produce any apparent change in the Constitution or the functions of the Judicature.
So far as the Courts were concerned their work continued unaffected hv the Indian
Constitution. The Judicial System had been established if not earlier, by the Indian High
Courts Act. 1861, by the Letters Patent creating the High Courts, and by other enactments
dealing with subordinate Courts

The Indian Constitution specifically deals with the judicial system under Article
225 of the Constitution. Subject to the provisions of the Constitution and to the provisions
of any law of the appropriate legislature made by virtue of power conferred on that
legislature, by the Constitution, the jurisdiction of. and the law administered in any existing
High Court and the respective power of the Judges thereof in relation to the administration
of justice in the Court, including any power to make rules of the Court and to regulate the
sittings of the Court and of members thereof sitting alone or in a Division Courts, shall be
the same as immediately before the commencement of the Constitution2 The Supreme
Court is established by the Constitution and its powers and jurisdiction have been clearly
defined.87

The importance of securing the independence of Judges and of maintaining the

dividing line between the judiciary and the executive were clearly appreciated by those
who framed the Constitution. These provisions manifest an intention to secure in the
judiciary a freedom from political, legislative and executive control. They are wholly
appropriate in a Constitution, which intends that judicial power shall be vested only in the
judicature. They would be inappropriate in a Constitution by which it was intended that
judicial power should be shared by the executive or the Legislature. The Constitution's
silence as to the vesting of judicial power is consistent with its remaining where it had lien
for about a century, in the hands of the judicature. It is not consistent with any intention
that hence forth it should pass to or be shared by, the executive or the legislature.88

Independence of the judiciary cannot be secured by vesting the power of

appointment of superior judges in the Executive. The independence of judiciary is
inextricably linked and connected with the constitutional process of appointment of Judges
of the higher judiciary. 'Independence of Judiciary' is the basic feature of our Constitution.
The framers of the Constitution could have never intended to give this power to the
Executive. Even otherwise the Government—Central or the State—are parties before the
Courts in large number of cases. The Union Executive has vital interests in various
important matters which come for adjudication before the Apex Court. The Executive—in
one form or the other—is the largest single litigant before the Courts. In this view of the
matter, the judiciary being the mediator between the people and the Executive, the framers

87
Constitution of India, Article 32.
88
Liyangc v. Reginnm,. (1966) 1 All ER 650 (658).
of the Constitution could not have left the final authority to appoint the Judges of the
Supreme Court and of the High Courts in the hands of the Executive.89

The Constitution of India which we have given to ourselves is the fundamental

law of the land. The judiciary, under the Constitution, is designed to be an intermediary
body between the people on the one side and the Executive on the other. It belongs to the
judiciary to ascertain the meaning of the constitutional provisions and the laws enacted by
the Legislature. In order to keep the Executive/Legislature within the limits assigned to
their authority under the Constitution, the interpretation of laws is the proper and peculiar
province of the judiciary. Constitution is the "will" of the people whereas the statutory
laws are the creation of the legislators who are the elected representatives of the people.
Where the will of the legislators declared in the statutes stands in opposition to that of the
people declared in the Constitution the will of the people must prevail. The Constitution
of India provides for an elected President. House of People is elected. The State Legislators
are elected. Supreme Court Judges are not elected, they are appointed under the
Constitution. So are other High Court Judges. Yet the Constitution gives unelected Judges
a power called judicial review under which they may nullify unconstitutional acts of the
Executive and of the elected representatives of the people assembled in the Parliament and
the State Legislatures. This conclusion does not suppose that the judiciary is superior to
the Legislature. It only supposes that the power of the people embodied in the Constitution
is superior to both.

The role of the judiciary under the Constitution is a pious trust reposed by the
people. The Constitution and the democratic polity there under shall not survive, the day
judiciary fails to justify the said trust. If the judiciary fails, the Constitution fails and the
people might opt, for some other alternative.

In view of the role of the judiciary in the context of the Constitution it is fallacious
to say that the Legislators alone are answerable to the people regarding the functioning of
the judiciary. It is rather the judiciary which screens the functioning of the Executive and
the Legislatures through the process of judicial review. This Court, therefore, was not
justified when, in S.I3. Gupta's ' case it gave primacy to the Executive on the ground that
the Executive through the Legislators was answerable to the people regarding the
functioning of the judiciary.

Independence of judiciary is the sine qua nan of democracy. So long as the

judiciary remains truly distinct from both the Legislature and the Executive, the general
power of the people can never be endangered from any quarter. Montesquieu in his book
Spirit of Laws observed "there is no liberty, if the power of judging be not separated from
the legislative and the Executive powers". The framers of the Constitution made it known
in an emphatic voice that separation of judiciary from Executive, which is the life line of

89
Supreme Court Advocates-on-Record Association v. Union of India, AIR 1994 SC 268 (400)
'independent judiciary90, is a basic feature of the Constitution. Dr. B.R. Ambedkar in his
speech in the Constituent Assembly on June 7, 1949 observed as under:

"I do not think there is any dispute that there should be separation between the
executive and the judiciary and in fact all the articles relating to the High Court as well as
the Supreme Court have prominently kept that object in mind."

4.3.1 Relationship between Supreme Court and the High Courts

Under the Constitutional Scheme as framed for the Judiciary, the Supreme Court
and the High Courts, both are Courts of Record. The High Court is not a court
"subordinate" to the Supreme Court. In a way the canvas of judicial powers vesting in the
High Court is wider inasmuch as it has jurisdiction to issue all prerogative writs conferred
by Art. 226 of the Constitution and "for any other purpose". While the original jurisdiction
of the Supreme Court to issue prerogative writs remains confined to the enforcement of
fundamental rights and to deal with some other matters such as Presidential election or
inter-stale disputes which the Constitution does not envisage being heard and determined
by High Courts. The High Court exercises power of superintendence under Art. 227 of the
Constitution over all subordinate courts and tribunals; the Supreme Court has not been
conferred with any power of superintendence. If the Supreme Court and High Courts both
were to be thought of as brothers in the administration of justice, the High Court has larger
jurisdiction, but the Supreme Court still remains the elder brother. In a unified hierarchical
judicial system which India has accepted under its Constitution, vertically the Supreme
Court is placed over the High Courts.

The Union Judiciary and State Judiciary are undoubtedly independent of each
other except in a law areas such as the appellate jurisdiction conferred on the Supreme
Court in all civil, and criminal matters as the ultimate court of appeal. It is the final
interpretation of law. To the extent of the exercise of appellate jurisdiction, certain
Supreme Court exercises a superior jurisdiction and hence a superior court than the High
Court, though both the courts are Courts of Record. Under Art. 139-A, the Supreme Court
may transfer any case pending before one High Court to another High Court or may
withdraw the case to itself. Under Art. 141, the law declared by the Supreme Court shall
be binding on all courts including the High Courts within the territory of India. Under Art.
144, all authorities, civil and judicial, in the territory of India which include the High
Courts as well, shall act in aid of the Supreme Court.91

The Supreme Court has neither administrative control over the High Court nor
power on the judicial side to enquire into the misbehaviour of a Chief Justice or a Judge of
High Court. But the Chief Justice of India being the head of judiciary in India has a big

90
S. P. Gupta v. President of India, AIR 1982 SC 149.
91
Tirupali ttalaji Developers (P.) Lid. v. Stale of BUicir. AIR 2004 SC 2351
2
K. Veerasami v. Union of India, (1991) 3 SCC 655.
role to play, his opinion having primacy and importance. In the case of any prosecution
under the Prevention of Corruption Act even against a retired Chief Justice of a High Court,
sanction has to be obtained from the President, who has to act after consultation with the
Chief Justice of India.2 It is the prerogative of the Chief Justices of the High Court to
constitute a Bench of his choice and Supreme Court will not interfere with the prerogative
and it is an administrative function performed by the Chief Justice of the High Court.92:

Normally the Supreme Court will not issue any direction to the High Court in
regard to judicial administration. But when the High Court is facing a crisis in judicial
administration virtually coming to a grinding halt, Supreme Court gave direction while
emphasizing that it is not having any supervisory control over the administration of the
High Court.93

Hence, it is necessary to examine in detail, the ingredients and limitations of this

doctrine as embodied in the Indian Constitution.

Unlike the US Constitution, the Constitution of India does not expressly vest the
judicial power in the Supreme Court and other courts division of the three main functions
of government recognized by the Constitution. Judicial power in the sense of the judicial
power of the State vests in the judiciary.94 It is now well accepted constitutional proposition
that even though the Constitution does not provide for a clear cut separation of powers as
is done in US Constitution, the judicial power cannot be passed over to or shared with the
executive and the legislature.2

4.3.2 Immunity from outside influence

It is a general principle of the highest importance to the proper administration of
justice that Judges of Courts of superior or general jurisdiction are not liable to civil
action’s for their judicial acts, even when such acts are in excess of their jurisdiction, and
are alleged to have been done maliciously or corruptly.3
As slated at the outset, the first ingredient of judicial independence is that a Judge
should be free to arrive at his judicial decision objectively, and without any95 interference,
pressure or influence from any outside agency.

Few doctrines are more solidly established than the immunity of Judges from
liability for damages for acts committed within their judicial jurisdiction. This immunity
applies even when the Judge is accused of acting malicious and corruptly, and "it is not for
the protection or benefit of a malicious or corrupt Judge, but for the benefit of the public,
whose interest it is that the Judges should be at liberty to exercise their functions with

92
Rajiv Ranjan Singh (Lalan) v. Union of India, (2005) 1 1 SCC 31 2.
93
Hon'bie Chief Justice of High Court, M.P, v. Mohan Kumar, 199-1 (Supp-2) SCC (.02.
94
L Chandra Kumar v. Union of India, AIR 1997 SC I I
25 2 A.K. Roy v. Union of India, AIR 1982 SC 710 3
Bradley v. Fisher, 20 Led 646 (650).
95
R. v. Beciurexiird, (1987) LRC (Const) 180 (188 IT.) Can (SC).
 independence and without fear of consequences. It is a general principle of the highest
importance, to the proper administration of justice that a judicial officer, in exercising the
authority vested in him, shall be free to act upon his own conviction, without apprehension
of personal consequences to himself. Liability to answer to every one who might feel
himself aggrieved by the action of the Judge, would be inconsistent with the possession of
this freedom, and would destroy that independence without which no judiciary can be
either respectable or useful.96 The Court of Appeals correctly recognised that the necessary
inquiry in determining whether a defendant Judge i.e. immune from suit is whether at the
time he took the challenged action he had jurisdiction over the subject matter before him.
Because “some of the most difficult and embarrassing questions which a judicial officer is
called upon to consider and determine relate to his jurisdiction,"2 The scope of Judges
Jurisdiction must be construed broadly where the issue is the immunity of the Judge. A
Judge will not be deprived of immunity because the action he took was in error, was done
maliciously or was in excess of his authority; rather, he will be subject to liability only
when he has acted in the 'clear absence of all jurisdictions.3

Under the Indian Constitution, it means, in short, that the judge must be allowed
to work under a condition which enables him to keep his oath of office (Forms IV and VIII
of the Third Schedule to the Constitution)—"to uphold the Constitution and the laws"
"without fear or favour". How many people realise that this is not a mere homily addressed
to a judge but constitutes a corresponding right of every litigant that his judge must be
independent and impartial'97 independence and impartiality, in fact, are intertwined and it
is futile to expect an impartial judgment from a judge who is not immune from extraneous
influences of any kind whatever. "Impartiality", as one of America's best Judges once
observed: "is not a technical conception. It is a stale of mind."98

"I have always thought from my earliest youth till now", said the great Chief
Justice Marshall "that the greatest scourge an angry Heaven ever inflicted upon an
ungrateful and a sinning people was an ignorant a corrupt or a dependent judiciary." 99

In a democratic country, all government officials, high or low, are public

servants, which they more often than not forget; but judges arc public servants par excellence.100
The reason I shall explain, by quoting from the Constitution adopted by the State of
Massachusetts in the year 1780:

96
Bradley v. Fisher, 20 Led 646
(649). 2 Ibid. 3 Ibid
97
An. 10 of the universal Declaration of Human Rights emphasises the right of everyone to a fair and
public hearing by 'an independent and impartial tribunal'.
98
U.S. v. HW,'(1936) 299 US 123 (145), Iluiiims, C.J.
99
Cited by Justice VAN DeVANTER in Evans v. Gore, 64 L Ed 887.
100
But in India, the word 'government servant' is used in the leehnieal sense and it has been held thai
Judges of the Supreme Court and a High Courl hold 'constitutional office' and are not 'government
servants' in (he technical sense. K. Veeraswami v. Union of India, (1991) 3 SCC 655 (para. 9); Union
of India v. Sankalchand Himmatla Seth AIR 1977 SC 232H : (197X)
 "It is essential to the preservation of the rights of every individual, his life, liberty,
property and character, that there be an impartial interpretation of the laws, and
administration of justice. It is the right of every citizen to be tried by judges as free,
impartial and independents as the lot of humanity will, admit. "101

In fact, this principle was borrowed by the Americans from the guarantee in Cl.
40 of the Magna Caria (1215) that "to none will we sell, to none will we deny, to none will
we delay right or justice".

Such a condition does not postulate merely an absence of interference from any
external agency, but a subjective feeling by a judge that he is there to administer the law,
including the fundamental law, and "not the will of the Executive"102 If a judge comes
into such frequent contacts with members of the Executive as gives the least justification
to a wrong-headed critic to use the slang 'hobnobbing', it is likely to produce what LORD
AKIN lamented of, in his memorable dissent in Liversidge's case103 namely, Judge who is'
"more executive minded than the executive".

Is it possible COY such a judge to say, like Lord Coke, citing Braclon,5 in the face
of an absolute monarch that "the King is under God and the laws"104 ; to say like Lord
Camden that "the King ........ has no power to declare when the law ought to be violated
for reason of State"7; to say like Viscount Finlay, that the plea of 'act of State' is not
available against a subject or to say, like Lord Greene

"I do not...... think that fear of embarrassing the executive is a very attractive
ground on which to build a rule of common law."105

An independent Judge would be a person whom "nothing could daunt and nothing
could bribe" to use the words by which Learned Hand described his predecessors in
office.106

There is a deep historical significance in the line of Shakespeare's "Henry the

Eighth" where the wretched Queen Katherine passionately declares: "Heaven is above all
yet: there sits a Judge that no King can corrupt". Whether or not the decision of a judge
bring satisfaction or anger to the Prime Minister and his colleagues, or to the Lord
Chancellor, he cannot he dismissed at will. His tenure is for life or until retirement subject
only to good behavior. |There are now statutory retiring ages (except the Lord Chancellor)).

101
In the U.S.A. this is constitutionally ensured by the 'Due Process' Clause \Tume.\ v. Ohio, (1927) 273
US 510; In re Murcliisein, (1955) 349 US 133].
102
Cf. Denning The Road to Justice 1955, p. 11.
103
Leversidge v. Anderson (1942) AC 206, per Lord
Atkin 5 Bracton. Dr. Litmus (Swiss Edn., 1854), 5b.
104
Prohibitions Del Roy, (1607) 12 Co. Rep. 63; sec the dialogue between Coki C.J. and King
James quoted at para. 1052 of Gupta v, Prisedent of India AIR 1982 SC 149 7 Entick v.
Carrington (1765) 19 St Tr 1030.
105
Kawasaki v. Bentham S.S. Co., (1930) 2 KB 544 (JJ2).
106
Learned Hand, Bill of Rights, 195K, p. 77.
His salary is fixed and paid out of the Consolidated found in order that it may not be
subjected to the running fire of criticism of Parliament lo which all the ordinary items of
budgetary expenditure are liable. His conduct cannot even he discussed in Parliament save
on a substantive motion for an address for removal from office; an extreme step to be taken
only in the event of impropriety of the gravest kind.........The independence of the Judge is
of essential importance in so far as it enables the Judge to adopt a particular attitude of
mind towards the questions which came before him for decision. He can, in short,
determine the case before him without fear that adverse results or material reward will
accrue to him according to whether the decision does or does not meet the approval of
other persons.107 Impartiality or independence of (he Judge required both an open mind
and freedom from the influence, real or apparent of departments concerned with the
subject-matter of their decision.108 But it is stated that the idea that "by taking the oath of
office as a Judge, a man ceases to the human and strips himself of all predilections,
becomes a passionless thinking machine, is doubtless beyond achievement".109

It is tor the benefit of public whose interest it is that the fudges should be at liberty
to exercise their functions with independence and without fear of consequences. It is a
Judge's duty to decide all cases within his jurisdiction that are brought before him,
including controversial cases that arouse the most intense feelings in the litigants. His
errors may be corrected on appeal but he should not have to fear that unsatisfied litigants
may hound him with litigation charging malice or corruption. Imposing such a burden on
Judges would contribute not to principled and fearless decision making but to
intimidation.110

The Supreme Court in Jaswant Singh v. Virender Singh111 observed:

"It is most unbefitting for an Advocate to make imputations against the Judge
only because he does not get the expected result, which according to him is the fair and
reasonable result available to him. Judges cannot be intimidated to seek favourable orders.
Only because a lawyer appears as a party in person, he does not get a licence thereby to
commit contempt of the Court by intimidating the Judge or scandalising the Courts. He
cannot use language, either in the pleadings or during arguments, which is either
intemperate or unparliamentarily. These safeguards are not for the protection of any Judge
individually but are essential for maintaining the dignity and decorum of the Courts and
for touchy to fair and reasonable criticism of their judgments. Fair comments, even if
outspoken, but made without any malice or attempting to impair the administration of
justice and made in good faith in proper language, do not attract any punishment for
contempt of Court. However, when from the criticism a deliberate, motivated and

107
Justice and Administration LAW by William Romson 3rd Edn. at pp. 43,4X.
108
R.V. Sussex Justices Exp. McCarthy (1924) 1 KB 256.
109
See in: Smttilon Judicial Review, 2007 Edn., pp. 499-500
110
Pictson v. Ray. IS Led 2d, 288; Stump v. Sparkman, 55 Led 2d 333 (346).
111
.AIR 1995 SC 520: referred in Chetak Construction Ltd. (M/s.) v. Om Prakasti. AIR 1998 SC 1855
(1859)
calculated attempt is discernible to bring down the image of the judiciary in the estimation
of the public or to impair the administration of justice or tend to bring the administration
of justice into disrepute, the Courts must bestir themselves to uphold their dignity and the
majesty of law. The appellant has, undoubtedly, committed contempt of Court by the use
of Objectionable and intemperate language. No system of justice can tolerate such
unbridled licence on the part of a person, be he a lawyer, to permit himself the liberty of
scandalising a Court by casting unwarranted, uncalled for and unjustified aspersions on
the integrity, ability, impartiality or fairness of a Judge in the discharge of his judicial
functions as it amounts to an interference with the due course of administration of justice."

An objective determination requires that a Judge must be free from outside

influence. And that any attempt to influence a Judge in his judicial function or to obstruct
or interfere with the administration of justice must be prevented. In the English system the
protection of the courts from such influence, whether from the Government,112 the Press
or From an individual, is secured by penalizing an act of such interference with the smooth
course of justice as a 'contempt of court', which will he further dealt with under Art. 129,

The need for independence of the judiciary under any system of Constitutional
Government can best he explained in the words of JUSTICE FRANKFURTER in Cooper v.
Aaron2

"The most prized liberties themselves presuppose an independent judiciary

through which these liberties may he, as they often have been, vindicated. When in a real
controversy such as is now here, an appeal is made to law, the issue must be loll to the
judgment of courts and not the personal judgment of one of the parties. This principle is a
postulate of our democracy."4

Where the Judges are appointed by the Executive, independence of a Judge from
external influence would primarily mean freedom from pressure of influence from the
Executive,113 in the exercise of his adjudicator function. Independence of the Judges not
only refers to security of tenure hut also the freedom of the judges to act according to their
reason and conscience, apart from the desire or convenience of the Executive. Judges have
to administer the law and not the will of the Executive114 and the Executive should have
no opportunity of influencing their judgment either directly or indirectly. There was a"
time in England when Judges were subservient to the Crown, but the Act of Settlement,
1707, which guaranteed security of tenure to the Judges closed that chapter of English
constitutional history and there has since been no question as to the fidelity of an English
Judge to the oath he takes on his appointment, that he "will do right to all manner of people
.... without fear or favour, affection or will. “That the same result is intended by the makers

112
Wilson's Case, 1943, referred to in ALLEN, LAW AND ORDERS, 4th Edn.,
448 2 Cooper v. Aaron, (1958) 357 US 1.
113
Gupta v. President of India. AIR 1982 SC 149.
114
C f. DENNING, The ROAD TO JUSTICE, 1955, p. 11. Cited byDr. D.D.Basu in Comnetary on
Constitution vol V pp 5543
 of our Constitution is evident from the fact that the form of oath prescribed for the Judges
of our Supreme Court and the High Courts'115 reproduce a similar expression as in England.
In High Court of Judicature of Bombay v. Shirish Kumar R. Patil116 it was held: "In a
democracy governed by rule of law, under a written Constitution, Judiciary is the 'sentinel
on the qui vive' to protect fundamental rights and posed to keep even the scales of justice
between the citizens and the State or the Stales inter se. Rule of law and judicial review
are basic features of the Constitution. As its integral constitutional structure, independence
of judiciary is an essential attribute of rule of law. Judiciary must, therefore, he free from
pressure or influence from any quarter. The Constitution has secured to them the
independence”. A Judge is not holding an office under Government of India as to hold so
will militate against the concept of independence of judiciary. A Judge holds a
Constitutional Office. In Union of India v. Sankalchand Hiniatlal Seth, 117 it was held:
"Judges of the High Court owe their appointment to Constitution and hold a position of
privilege under it........ They, the Judges of High Court, arc not government servants in the
ordinary signification of that expression....... In fact, a High Court Judge has no employer;
he occupies a high constitutional office which is in co-ordination with the executive and
the legislature. The independence of judiciary is a fighting faith of our Constitution."118
When sitting Judges are appointed ID head Tribunals or Commissions, to preserve the
independence of High Court Judges, the Supreme Court has laid down guidelines for
appointment of these Judges to Tribunals, Commissions, etc.119

It has also been emphasized by our Supreme Court that in view of the
provisions of the Preamble and the Directive Principles of The Constitution, which arc binding
on every limb of the Slate including The Judiciary, it is a duly of the Judiciary to ensure social
and economic justice and, therefore, in India, independence of the Judiciary means not only
independence from the Executive but also independence or freedom from pressure from any
non-governmental force or vested interests which operate as menaces in the discharge of the
function of the Judiciary to ensure social justice .120

4.3.3 Appointment of Judges.

It has been pointed out that, provided the foregoing conditions for securing
judicial independence arc ensured, there are certain limits to the doctrine of independence,
because the Judiciary, being only one of the limbs of the State, cannot claim to act in
isolation.121

115
Third Schedule, Forms IV and VIII, Vol. p, pp. 219, 220.
116
High Court of Judicature of Bombay v. Shirish Kumar R. Patil AIR 1997 SC 2631
117
Union of India v. Sankalchand Himallal Seth, AIR 1977 SC 2328
118
Also see All Kerala Poor Aid Legal Association, Trivandrum v. Chief Justice of Kerala, MR 1990
Kcr241; Supreme & our Advocales-on-Record Association v. Union of India, MR. 199-4 SC 268 :
(1993) 4 SCC 441; Union of India v. Pratibha Bounerjee , AIR 1996 SC 693
119
T. Fenn Waller v. Union oj India, AIR 2002 SC 2679
120
Gnpta v. President of India, AIR 1982 SC 149 :
121
. Ibid
 Hence, the following provisions of the Constitution have been held not to violate
the principle of independence of the Judiciary:

(a) Arts. 124(2) and 217(1): Appointment by the Executive. Judges of the
Supreme Court and the High Courts are appointed by the President, who has to act on the
advice of his Council of Ministers.48 Of course, there is a check upon this executive power
in so far as the Constitution provides for consultation with other dignitaries, e.g., the Chief
Justice of India [Art. 124(1), 1st Proviso; 217(1)].122 Appointments are made "in
consultation" with the Chief Justice of India and the opinion of Chief Justice of India in
the process of consultation must be given primacy. Consultation must be to achieve a
constitutional purpose and should not be rendered sterile by a literal interpretation. The
process of consultation is to discharge a "constitutional trust" and the consultation
envisaged in the first proviso to Art. 124(2) and Art. 217(1) (in respect of High Court
Judges) in respect of judicial officers is a reservation or limitation on the power of the
President to appoint Judges of the superior court and is not an empty formality nor a futile
exercise or a mere casual one attached with no sanctity. It is mandatory in character.

Appointment by the Executive, of itself would not impair judicial independence,

provided, after such appointment, the Executive has no scope to interfere with the work of
a Judge.123

In India, even though appointed by the Government, Judges of the Supreme Court
or of the High Courts are not 'government servants' in the ordinary signification of that
expression because the following features distinguish these Judges from other government
servants:
(i) Government has no power to direct what work or the manner in which a
Judge shall discharge his judicial duties.124
(ii) Their tenure of service, salary and other conditions of service are
guaranteed by the Constitution.125

In this context, the observations of the Supreme Court on this point recall what
the Author had said as early as 1972 in his Tagore Law Lectures:

In this context, il should also be pointed out that the mere fact tluil the Judges u!
the superior courts even are appointed by the Executive should not stand in the way of their
independence. If they are to be appointed, such appointment must ultimately come from
the Executive who exercise the power It) appoint all holders of offices in the body politic,
but that need not convert .Judges into 'government servants' in the same way as other civil
servants are. Neither in the United Kingdom nor in the United States are Judges of the
superior courts, at least, regarded as civil servants. In this connection, it must be pointed

122
Ibid. (paras. 1016, 1025, VLNKATAKAMIAII, J.).
123
Ibid. (paras. 1016, 1025, VLNKATAKAMIAII, J.).
124
Union of India vs. Sankalchand Himmat Lal Sheth AIR 1977SC 2328
125
Ibid
out that the very Preamble of our Constitution which promises to the people 'liberty of
thought, expression, belief, faith and worship', and 'equality of status and of opportunity'
would be turned into an idle profession il' the provisions in Arts. 16, 19 and the like are
not enforced against the Stale itself by Judges whom "nothing can daunt nor bribe." This
is a lack which cannot be performed by civil servants or anybody having like mentality.126

The Judges of the Supreme Court and the High Court hold a co-ordinate status
under the Constitution and arc not subordinate cither to the Executive or the Legislature.127

The principle of appointment of Judges by the Executive does not impair judicial
independence, so long as the Executive makes no attempt to select committed Judges in
order to get judgments favourable to the party in power,128 and, if need be, 'lo pack the
court by such new appointments..

A suggestion has been made by some Judges in Gupta’s case129 that a Judge must
take an 'activist' role to further the socio-economic goals aimed at by our Constitution and
that, accordingly, "while appointing each individual the constitutional philosophy of each
individual ought to be a vital consideration". The Author regrets his inability h, subscribe
lo this view, however, alluring it may be. In the Author's opinion, the SuprciiK Court and
the High Court’s being the highest courts of law, learning in law should be the only
criterion for selection amongst rival candidates for these highest judicial posts. If the
candidate has learnt the law well, and his learning ;s not jaundiced b\ affiliation lo any
particular political ideology, there cannot be any apprehension tin; his judgments will be
contrary to the tenor of the Directive Principles or the like Secondly, how is the Council
of Ministers to test the 'constitutional philosophy' ..n each candidate? The interpretation of
the constitutional goals by a Council of Ministers must obviously be the interpretation of
a particular party which is in power for the time being, and a successor party may entertain
just the contrary view (as has been demonstrated by the Congress and the Janata
Governments, from 1976-78). The views of neither party can claim finality. Il is to make
a proper adjudication as between such rival political ideologies that Judges arc appointed
to a final court of law. It is a travesty of all principles of justice to assert the contrary that
it is the Judges who should decide according to the political manifesto of the party in
power. If this policy is pursued at the lime of each appointment, it would import the
American 'spoils system' into the Indian Judiciary, with eyes open as to the patent vices of
the 'spoils system' which prevailed in the mailer of" recruitment to the American Civil
Service prior to the creation of the Civil Service Commissions.130

126
D D Basu’s T.L.L. ON LIMITED GOVERNMENT AND JUDICIAL REVIEW (1972), p. 28.
127
Gupta v. President oj India, AIR 1982 SC 149
128
Vide PALKIIIVAIA, Our Constitution DEECED AND DEFIELD pp. 99-103.
129
Gupta v. President of India, AIR 1982 SC 149
130
Cf. Ocg and Roy, ESSENTIALS OF AMERICAN GOVERNMENT (1965). pp. 286-87
 It is curious that DESAI, J. in Gupta's case131 advocated selection according to
'constitutional philosophy',132 overlooking his own reference to Jackson's observation4 that
"political considerations have hardly entered the process of judicial selection since 1907".
As another English Author points out,5 though appointments to the superior courts arc
made by the Crown on the advice of the Prime Minister, in giving his advice, the Prime
Minister has to consult the head of the Judiciary, i.e., the Lord Chancellor, whose
recommendation is departed from by the Prime Minister 'only in the most exceptional case'.

In practice, appointments to the superior courts arc made only from successful
legal practitioners and the average experience of those appointed is well above the legal
minimum. The Lord Chancellor reports that he is committed to "ensure that the best
candidates arc appointed to judicial office, regardless of gender ethnic origin, marital
status, sexual orientation, political affiliation, religion or disability" except in the last case
where "the disability prevents the fulfillment of the physical requirements of the office",
It has been said that the Lord Chancellor "seeks to appoint candidates of the highest
integrity and judicial quality, look in particular for the good judgment once described by
Lord Devlin as the first quality of a good judge133 (But the authority of Lord Chancellor is
being replaced under Constitutional Reforms Act, 2005, where separate procedure is
provided for appointment of Judges of Superior Courts.)

In Subhesh Sharma v. Union of India,134 court emphasised that an independent,

non-political judiciary was crucial to sustain the democratic political system adopted in
India. It was observed that the opinion of Chief Justice of India has crucial importance in
the appointment of Judges, both of Supreme Court and High Courts. It was observed: "In
India, however, the judicial institutions, by tradition have an avowed a political
commitment and the assurance of a non-political complexion of the judiciary cannot he
divorced from the process of appointments. Constitutional phraseology of "consultation"
has; to be .understood and explained consistent with and to promote this constitutional
spirit. ... The appointment is rather the result of collective constitutional process. It is a
participatory constitutional function. It is, perhaps inappropriate to refer to any "power" or
"right" to appoint Judges. It is essentially a discharge of constitutional 'trust of which
certain constitutional functionaries arc collectively repositories.........."

In Supreme Court Advocates-on-Record Association v. Union of India,135 it was

held by the majority that in the choice of a candidate suitable for appointment, the opinion

131
Gupta v. President of India, AIR 1982 SC 149
132
CHASH, Federal judges, cited in EDWARDS, AMERICAN POLITICAL EXPERIENCE (1978), p.
297 4 JACKSON, MACHINERKY IN ENGI.AND, quoted at para. 706 in Gupta's case AIR 1982 SC
149 5 Grifeeth Politics of The Judiciary, pp. 17-18.
133
CONSTITUTIONAL AND ADMINISTRATION LAW by A.W. BKADI.LY & K.D. EVING, 13th Edn. (2003) at
p. 368.
134
Subhash Shanna v. Union of India, AIR 1991 SC 631 : 1991 (Supp-1) SCC 574.
135
Supreme Court Advocates-on-Record Association v. Union of India, AIR 1994 SC
268 2 Special Reference No. 1 of 1998, (1998) 7 SCC 739 : AIR 1999 SC 1
of Chief Justice of India should have the greatest weight as he is best suited to know the
worth of the appointee; the selection should be made as a result of a participatory
consultative process in which the executive has the power to act as a mere check on the
exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus,
the executive clement in the appointment process is reduced to the minimum and any
political influence is eliminated. The court also explained what is meant by "primacy of
the opinion of the Chief Justice of India". In effect, "the primacy of the opinion of the Chief
Justice of India formed collectively, that is to say, after taking into account the views of
his senior colleagues who are required to be consulted by him for the formation of his
opinion". It was emphasised that this process would achieve constitutional purpose "of
selecting the best available" for the composition of the Supreme Court and the High Court,
which is so essential to ensure the independence of judiciary and to preserve democracy.
The greatest advantage of the above decision is that it "minimised political influence" in
the appointment of High Court Judges since the Executive cannot appoint any person by
passing the opinion of the Chief Justice of India. The above view was further explained in
Special Reference No, 1 of 1998.2 In that ease, the Supreme Court held that merit is a
predominant consideration for the appointment to the Supreme Court and where there is
outstanding merit, the possessee thereof deserves to be appointed regardless of the fact he
may not stand high in the all India seniority list or in his own High Court. All that then
need to be recorded when recommending him for appointment is that he has outstanding
merit.

If the American system be to the contrary, that would not be covetable in India,
when we have adopted the British system of justice which is characterised by certainty,
predictability, and impartial decision. It is also to be noted that the evils of partisan
appointments by the President has led the American Bar Association to set up a Committee
on the Federal Judiciary to assess the legal qualifications of the nominees of the President
to make it "difficult for a President to appoint political hacks who are officially rated
incompetent by the lawyers who would be practising law before them."136

4.3.3.1 Consultation whether mandatory

So far as appointment of a Supreme Court Judge is concerned, it is not

consultation with the Chief Justice of India alone that is provided in Clause (2) of Article
124. Undoubtedly, consultation with the Chief Justice of India is a mandatory requirement
but in addition "such of the Judges of the Supreme Court and of the High Court’s" as the
Central Government may deem necessary are also required to be consulted.

This clause clearly provides for consultation as a mandatory exercise the only
matter which is left to the discretion of the Central Government choice of the Judge of the
Supreme Court and the High Courts who consulted. The words "as the President may deem

136
CHASI FEDERAL JUDGES, cited in EDWARDS, AMERICAN POLITICAL EXPERIENCE (1978), p. 297
necessary" qualify preceding words "such of the Judges of the Supreme Court and of I
Courts in the States". Which of the Judges of the Supreme Court at High Courts should be
consulted is left to the discretion of the Government but consultation there must be with
one or more of the Jud Supreme Court and of the High Courts. The Central Government
must least one Judge out of the Judges of the Supreme Court and of the Hi; before
exercising the power of appointment conferred by Clause (2) 124.

The question in Sankalchand Seth’s case related to the s meaning of

consultation in Clause (1) of Article 222, but it was common between the parties that
'consultation' for the purpose of Clause (2) 124 and Clause (1) of Article 217 has the
same meaning and t 'consultation' in Clause (1) of Article 222. Chandrachud, J., quoted
approval the137 following passage from the judgment given by Justice i when he was a
Judge of the Madras High Court in R. Pushpam Madras,138 "the word 'consult' implies a
conference of two or more person impact of two or more minds in respect of a topic in
order to enable them to evolve a correct or at least a satisfactory solution" and added "in
on two minds may be able to confer and produce a mutual impact, it that each must have
for its consideration full and identical facts w once constitute both the source and
foundation of the final Krishna lyer, J., speaking on behalf of himself and Fazal AU, J.,
also pointed out that "all the materials in the possession of one who consults must be
unreservedly placed before the consultee" and further a reasonable opportunity
information taking other steps and getting prepared for tendering a meaningful advice
must be given to him" and "the consultant in the matter seriously since the subject is of
grave importance. The President must communicate to the Chief Justice all the material
he has and the course he proposes. The Chief Justice, in turn, must collect necessary
informs responsible channels or directly, acquaint himself with the re deliberate on the
information he possesses and proceed in the in administration of justice to give the
President such counsel of thinks will further the public interest, especially the cause c
system". Each of the constitutional functionaries required to be consulted under these two
articles must have for his consideration full and ii bearing upon appointment or
nonappointment of the person concerned and the opinion of .each of them taken on
identical material must by the Central Government before it takes a decision whether or
the person concerned as a judge But, while giving the fullest effect to consultation, it
must be born in mind that it is only consultation which is provided by way of fetter upon
the power of appointment vested in the Central Government and the consultation cannot
be equated with concurrence. We agree with what Krishna lyer; J. said in Sankalchand
Sheth139 case that "consultation is different from consentaneity. They may discuss but
may disagree; they may confer but may not concur". It would therefore be open to the
Central Government to override the opinion given by the constitutional functionaries

137
Union of India v Sankalchand Himutlal Seth, AIR 1977 SC 2328
138
Ibid
139
Ibid
required to be consulted and to arrive at its own decision in regard to the appointment of a
Judge in the High Court or the Supreme Court, so long as such decision is based on
relevant considerations and is not otherwise mala fide. Even if the opinion given by all
the constitutional functionaries consulted by it is identical, the Central Government is not
bound to act in accordance with such opinion, though being a unanimous opinion of all
the three constitutional functionaries, it would have great weight and if an appointment, is
made by the Central Government in defiance of such unanimous opinion, it may become
vulnerable to attack on the ground that it is mala fide or based on irrelevant grounds.
Ordinarily the Central Government would make an appointment of a Judge in a High
Court if all the three constitutional functionaries have expressed an opinion against it. On
a proper interpretation of Clause (2) of Article 124 and Clause (1) of Article 217, it is
open to the Central Government to take its own decision in regard to appointment or
nonappointment of a Judge in a High Court and a Judge in the Supreme Court after taking
into account and giving due weight to the opinions expressed by the constitutional
functionaries required to be consulted under these two Articles and the only grounds on
which such decision can be assailed is that it is mala fide or based on irrelevant
considerations. Where there is a difference of opinion amongst the constitutional
functionaries who are consulted, it is for the Central Government to decide whose
opinion should be accepted and whether appointment should be made or not. It was
contended on behalf of the petitioners that where there is difference of opinion amongst
the constitutional functionaries require to be consulted; the opinion of the Chief Justice of
India should have primacy, since he is the head of the Indian Judiciary and patter families
of the judicial fraternity. "We find ourselves" said Bhagwati, J. ".....unable to accept this
contention. It is difficult to see on what principle primacy can be given to the opinion of
one constitutional functionary, when Clause (1) Article 217 places all the three
constitutional functionaries on the same pedestal so far as the process of consultation is
concerned and does not make any distinction between one constitutional functionary and
another. Each of the three constitutional functionaries occupies a high constitutional
office and Clause (1) of Article 217 provides that the appointment of a High Court Judge
shall be made after consultation, with all the three constitutional functionaries without
assigning superiority to the opinion of one over that of another. It is true that the Chief
Justice of India is the head of the Indian judiciary and may be figuratively described as
patter families of the brotherhood of Judges but the Chief Justice of a High Court is also
an equally important constitutional functionaries and it is .not possible to say that so far
as the consultative process is concerned, he is in any way less important than the Chief
Justice of India. In fact, under the constitutional scheme, the Chief Justice of a High
Court is not subject to the administrative superintendence of the Chief Justice of India nor
is he under the control or supervision of the Chief Justice of India. It is only the power of
hearing appeals against the decision of the Chief Justice of a High Court that is possessed
by the Chief Justice of India and there, his superiority over the Chief Justice of the, High
Court ends. If we look at the raison detre of the provision for consultation enacted in
Clause (1) of Article 217, it will be obvious that the opinion given by the Chief Justice of
the High Court must have at least equal weight as the opinion of the Chief Justice of
India, because ordinarily the Chief Justice of the High Court would be in a better position
to know about the competence, character and integrity of the person recommended for
appointment as a Judge in the High Court. The opinion of the Governor of the State,
which means the State Government would also be entitled to equal weight, not in regard
to the technical competence of the person recommended and his knowledge and
perception of law on which the Chief Justice of the-High Court would be the proper
person to express an opinion, but in regard to the character and integrity of such person,
his antecedents and his social philosophy and value system. So also the opinion of the
Chief Justice of India would be valuable because he would not be affected by caste,
communal or other parochial considerations and standing outside the turmoil of local
passions and prejudices; he would be able to look objectively at the problem of
appointment. There is, therefore, a valid and intelligible purpose for which the opinion of
each of the three constitutional functionaries is- incited before the Centr.il Government
can take a decision whether or not to appoint a particular person as a Judge in a High
Court. The opinion of each of the three constitutional functionaries is entitled to equal
weight and it is not possible to say that the opinion of the Chief Justice of India must
have primacy over the opinions of the other two constitutional functionaries. If primacy
were to be given to the opinion of the Chief Justice of India, it would, in effect and
substance, amount to concurrence, because giving primacy would mean that his opinion
must prevail over that of the Chief Justice of the High Court and the Governor of the
State, which means that the Central Government must accept, his opinion. But as pointed
out earlier, it is only consultation and not concurrence of the Chief Justice of India that is
provided in Clause (1) of Article 217. When, in the course of debates in the Constituent
Assembly an amendment was moved that the appointment of a Judge of a High Court or
the Supreme Court should be made with the concurrence of the Chief Justice of India, Dr.
B.R. Ambedkar made the following comment which is very significant:

"It is therefore, clear that where there is difference of opinion amongst the
constitutional functionaries in regard to appointment of a Judge in a High Court' the
opinion of none of the constitutional functionaries is entitled to primacy but after
considering the opinion of each of the constitutional, functionaries, and giving it due
weight, the Central Government is entitled to Come to its own decision as to which opinion
it should accept in deciding whether or not to appoint the particular person as a Judge. So
also where a Judge of the Supreme Court is to be appointed, the Chief Justice of India is
required to be consulted, but again it is not concurrence but only consultation and the
Central Government is not bound to act in accordance with the opinion of the Chief Justice
of India. The ultimate power of appointment rests with the Central Government and that is
in accord with the "constitutional practice prevailing in all democratic countries. Even in
the United Kingdom a country from which we have inherited our system of administration
of justice and to which many of our anglophiles turn with reverence for inspiration and
guidance, the appointment of High Court Judges is made by or on the advice of the Lord
Chancellor, who is a member of the Cabinet while appointments to the Court of appeal and
the House of Lords and to the offices of Lord Chief Justice Master of the Rolls and the
President of the Family Division are made on the advice of the Prime Minister after
consultation with the Lord Chancellor. Thus the appointment of a Judge belonging to the
higher echelons of judicial service is wholly in the hands of the Executive. So also in the
commonwealth countries like Canada, Australia and New Zealand, the appointment of
High Court and Supreme Court Judges is made by the Executive."

Another issue relevant in this context is of the appointment of judges in the

Supreme Court and the High Courts. Chief Justice of India, K.G.Balakrishnan asserts that
the collegium headed by him is strictly following the decision in the Second Judges case
by which they are bound. The general perception voiced eloquently by the executive is that
the executive has no part in making these appointments for which the judicial collegiums
alone is responsible and answerable. In this manner the judiciary is held responsible for
the aberrations in these appointments in the recent years. It is true that the veto power
granted to the executive by the First Judge’s case, 140is taken away by the Second Judge’s
case,141 but it is not correct that the executive has been denuded of all power in adjudging
the suitability of the candidates for appointment. However, greater responsibility does lie
in the judicial collegiums because of its role under the existing system. A brief reference
to the Second Judge’s case is necessary.

The significance of every single appointment to the Supreme Court or a High

Court was emphasized in the majority opinion in K.Veeraswami case. It said:

“A single dishonest judge not only dishonours himself and disgraces his office
but jeopardizes the integrity of the entire judicial system…a judge must keep himself
absolutely above suspicion; to preserve the impartiality and independence of the judiciary
and to have the public confidence thereof”.

The collective wisdom of the constitutional functionaries involved in the process

of appointing a superior judge is expected to ensure that persons of unimpeachable
integrity alone are appointed to these high offices and no doubtful person gains
entry…even if sometime a good appointment does not go through. This is not difficult to
achieve.

A brief reference to the Second Judge’s case 142is apposite. The majority opinion
held:

140
AIR 1982 SC 149
141
AIR 1994 SC 268
142
AIR 1994 SC 268
 “The process of appointment of judges of the Supreme Court and the High
Court’s is an integrated ‘participatory consultative process’ for selecting the best and most
suitable persons available for appointment…There may be a certain area, relating to
suitability of the candidate, such as his antecedents and personal character, which, at times,
consultees, other than the Chief Justice of India, may be in a better position to know. In
that area, the opinion of the other consultees is entitled to due weight, and permits non-
appointment of the candidate recommended by the Chief Justice of India…If the non-
appointment in a rare case, on this ground, turns out to be a mistake, that mistake in the
ultimate public interest is less harmful than a wrong appointment…nonappointment for
reasons of doubtful antecedents relating to personal character and conduct, would also be
permissible”.

The clear language of the decision leaves no room for any doubt that the executive
has a participatory role in these appointments; the opinion of the executive is weightier in
the area of antecedents and personal character and conduct of the candidate; the power of
non-appointment on this ground is expressly with the executive, notwithstanding the
recommendation of the CJI; and that doubtful antecedents etc. are alone sufficient for non-
appointment by the executive. The decision also holds that the opinion of the judicial
collegiums, if not unanimous does not bind the executive to make the appointment.

Some reported instances in the recent past of the executive failing to perform its
duty by exercise of this power even when the recommendation of the judicial collegiums
was not unanimous and the then President of India had returned it for reconsideration, are
not only inexplicable but also a misapplication of the decision, which the CJI, Balakrishnan
rightly says is binding during its validity. Such instances only prove the prophecy of Dr.
Rajendra Prasad that the Constitution will be as good as the people who work it. Have any
system you like, it’s worth and efficacy will depend on the worth of the people who work
it! It is, therefore, the working of the system that must be monitored to ensure transparency
and accountability.

The Second Judge’s case affirmed by the Third Judge’s case in the Presidential
Reference, merely formalizes the procedure developed and followed till executive
supremacy in the matter of appointments was given by the First Judge’s case (1982); and
that practiced even later by Chief Justices who did not succumb to executive pressure. A
few earlier observations to this effect are significant to prove the point. Granville Austin
in his book—‘Working A Democratic Constitution: The Indian Experience’ (1999), has
dealt with the issue of judicial independence. Some portions therein summarise the
experience of the first fifty years. He says: “The CJI during the Nehru period had virtually
a veto over appointment decisions, a result of the conventions and practices of the time
and the Chief Justice’s strength of character”. He quotes Mahajan, C.J. saying “Nehru has
always acted in accordance with the advice of the CJI”, except in rare circumstances,
despite efforts by State politicians with ‘considerable pull’ to influence him. The Law
Commission chaired by M.C.Setalvad in its 14th report recommended that appointments
to the Supreme Court and the High Court’s be made solely on the basis of merit sans any
other consideration; and on the recommendation of the Chief Justice of the High Court
with concurrence of the CJI.

4.3.4 Security Of Tenure

The need for this independence becomes most important in cases where the State
itself is one of the parties in the controversy. In such cases, in order that the Judges may
administer justice freely, that is, without 'fear or favour', it is essential that their tenure
should not depend upon the mere pleasure of the Government, but upon what is called
'good behavior'.143 "The security of tenure which the Judge enjoys is at bottom the most
essential fact underlying the principle of independence. It results in recognition by the
general public that the Judge has nothing to lose by doing what is right and nothing to gain
by doing what is wrong. Il is found on the belief that a man cannot be relied upon an act
rightly regardless of the personal consequences."144 As long as the tenure of judicial office
dependent on royal pleasure, there was risk of the subservience of Judges to the Crown.
To ensure that English Judges should not hold office at the pleasure of the Crown, the Act
of Settlement, 1700 provided that they should hold office "quamdiu se hene gesserint"
(during good behavior), but subject to a power of removal upon an address from both
Houses of parliament. The misconduct for which he may he removed, by a solemn
parliamentary process is rare and improbable; and no responsible person has suggested that
a Judge should be removed because he was thorn in the side of government." 145 The
protection afforded Judges of Tribunals deriving their jurisdiction from Art. Ill
(Constitution of USA) includes life tenure with removability only for misconduct in office
and the guarantee that judicial salaries may not be diminished during tenure in office.146
This is secured by the express provision in our Constitution that Judges of the Supreme
Court [Art. 124(4)] or of a High Court Art. 217(1), Proviso (b)] shall not be removable
except by an address by both Houses of Parliament to the President, passed by a special
majority, and on the ground of 'proved misbehavior or incapacity' (see post). Apart from
this procedure of 'joint address' which is a difficult one, a Judge of the superior Courts, in
India, is guaranteed absolute security of tenure.

143
Acl of Settlement, 1701, sec under An. 124(2) Past DENNING, ROAD TO JUSTICE, 1955, pp. 14-15.
144
.JUSTICE AND ADMINISTRATION. LAW by WILLIAM. ROUSUN, 3rd lidn. At pp. 47.
145
LAW AND ORDER by CHARLITON KEMP ALLIN 4TH Edn., at p. 4.
146
Constitutional Interpretation BY CRAR R. DUCAT, 8th Edn. p. 38. Cited by Dr.D.D.Basu in
Comentary on Constitution vol V
4.3.5 Transfers

The power to Transfer of a Judge from one High Court to another147 is to be

exercised to sub serve the public interest and not by way of punishing a Judge who has
fallen from the grace of the executive, or for inconvenient decisions.3

The question of transfer of Judges has been considered in Supreme Court

Advocates-on-Record Association v. Union of India4 wherein it was reiterated that there
is no requirement of prior consent of the Judge before his transfer under Art 222, hut the
opinion of the Chief Justice of India has been given "not mere primacy" but determinative
character in the transfer process and the process of transfer should be initiated by the Chief
Justice of India alone. It was reiterated that the power of transfer could be exercised only
"in public interest" and not to be "punitive" in nature. It was observed that any transfer in
accordance with the recommendation^!' the Chief Justice of India cannot be treated as
punitive or as an erosion in the independence of Judiciary. The court also elaborately gave
how to express the opinion of the Chief Justice. The procedure to obtain the opinion of the
Chief Justice of India was further explained in Special Reference No. 1 of 1998.148 It is
now settled that the Chief Justice of India will recommend a transfer only "in public
interest", i.e., for promoting better administration of justice throughout the country or at
the request of the concerned Judge.

An order of transfer of a Judge of High Court can be challenged only by the Judge
who is affected by the transfer and by no other person. Judicial review is entertained against
the order of transfer only on limited grounds, i.e., transfer being made without the
recommendation of Chief Justice of India.149

Since this Provision raised a great storm leading to the voluminous judgments in
case, a discussion of this topic will be postponed [ii] A.I. 222,

In the formation of his opinion, the Chief Justice of India, "in the case of transfer
of a Judge other than the Chief Justice is expected to take into account the "views of the
Chief Justice of the High Court from which the Judge is to be transferred, any Judge of the
Supreme Court whose opinion may be of significance in that case, as well as the views of
at least one other senior Chief Justice of a High Court, or any other person whose views
are considered relevant by the Chief Justice of India. The personal factors relating to the
concerned Judge, and his response to the proposal, including his preference of places of
transfer, should be taken into account by the Chief Justice of India before forming his final

147
Union of India v. Sankalchand Himatlal Seth ,(1978) 1 S.C.R
423 3 Gupta v. President of India, AIR 1982 SC 149 4 AIR 1994
SC 268 :
148
(1998) 7 SCC 739
149
Supreme Court Advocates-on-Record Association v. Union of India, MR 1994 SC 268
opinion objectively, on the available material, in the public interest for better
administration of justice.

The continuing practice of having Acting Chief Justices for long periods;
transferring permanent Chief Justices and replacing them with out of turn Acting Chief
Justices for long periods; appointing more than one Chief Justice from the same High Court
resulting in frustration of the legitimate expectation of Judges of some other High Courts
commensurate with their seniority to be appointed Chief Justice in their turn, except in an
extraordinary situation must be deprecated and avoided. Application of the policy has been
quite often selective and it is essential to make it uniform to prevent any injustice.

It may be desirable to transfer in, advance the senior-most Judge due for
appointment as Chief Justice to the High Court where he is likely to be appointed Chief
Justice, to enable him to take over as Chief Justice as soon as the vacancy arises and, in
the meantime, acquaint himself with the new High Court. This would ensure a smooth
transition without any gap in filling the “office of Chief Justice. In transfer of puisne
Judges, parity in proportion of transferred Judges must be maintained between the High
Courts, as far as possible.

The recommendations in the Report of the Arrears Committee (1989-90) mention

certain factors to be kept in view while making transfers to avoid any hardship to the
transferred Judges. These must be taken into account.

4.3.6 Conditions of Service

Apart from security of tenure and independence of the administrative authorities,

it is also essential that so long as they remain in office, the conduct of the Judges should
not be subject to interference even by Parliament. In the case of the Judges of the superior
courts, this is secured in India—

a. By fixing the salaries of the Judges of the Supreme Court and High Courts
by the Constitution and providing that though the allowances, leave and pension may be
determined by law made by Parliament, these shall not be varied to the disadvantage of a
Judge during his term of office. In other words, his right to remuneration will not be
affected adversely by any changes made by law since his appointment.150 Arts. 125(2) and
221
But it will be competent for the President to override this guarantee, under a
Proclamation of 'Financial Emergency'. (Art. 360(4) (b)
b. By providing that the administrative expenses of the Supreme Court and
the High Courts, the salaries and allowances etc. of the Judges as well as of the staff of'

150
A principle established in England by the Ael of Settlement, 1701, and guaranteed in the U.S.A. Art.
Ill, Sec. 1 of the Constitution.
these courts shall be 'charged upon the revenues of India' i.e., shall not be subject to vote
in Parliament. (Arts. I46(3) and 202(3)(d)151
Hence as in England, the salaries etc. of 'he Judges are not dependent upon the
annual vole of Parliament, and the judicial administration cannot be debated in Parliament.

c. By providing that even individually, the conduct of a Judge cannot be

criticized in Parliament, except upon a substantive motion for presenting an address to the
President for the removal of Judge. In order to protect a Judge in the fearless discharge of
his judicial duties from criticism in legislative proceedings, it has been provided that the
conduct of a Judge shall be immune from any discussion in the Legislature, except in
proceedings for his removal. [Arts. 121 and 211]

4.3.7 Oath of office

As stated earlier, the very oath of office which a Judge of the superior courts has
to subscribe, under Arts. 124(6) and 219 and Sch. Ill (IV, VIII), requires that he must
perform his judicial duties without fear of any pressure from the Executive and without
expecting any favour from the Government which commands a large patronage 152 By
judicial oath, they promise "to do right to all manner of people after the laws and usages
of this realm, without fear or favour, affection or ill-will".

4.3.8 Judicial Decisions Binding On The Executive

Independence of the judiciary not only requires that a Judge must be free from
executive influence in coming to his decision hut must also have the assurance that his
decision will he carried out by the Executive. It was held by the House of Lords that
ministers and civil servants were subject to the contempt jurisdiction of the courts, and the
Home Secretary was in contempt when he disobeyed L Judge's order to return to London
a Zaircn teacher who had sought asylum in England.153 It was observed therein that the
dangers of exempting ministers of the Crown from the coercive jurisdiction of the courts,
and said of the argument that there was no power to enforce the law by injunction or
contempt proceedings against a minister in his official capacity that it would, it upheld,
establish the proposition that the executive obey the law as a matter of grace and not as a
mailer of necessity, a proposition that would reverse the result of the Civil War. It was held
in another case: "The proper constitutional relationship of the executive with the courts is
that the courts will respect all acts of the executive within its lawful province, and the
executive will respect all decisions of the courts as to what its lawful province is".154

151
Cf. Kins v. Speyer, (1910) 1 KB 596; Eastern Trust Co. v. McKenzie, (1915) AC 750.
152
Cf. Kawasaki v. Hutuliam, (1939) 2KB 544 (.152).
153
. M v, Home Office, 1,(1994) 1 AC 377.
154
M v. Home Office, (1992) QB 270
 In a government of laws not of men, the executive branch of the government beats
a grave responsibility for upholding and obeying judicial order.155 If the orders courts are
not obeyed, the person against whom the order is made can be found guilty without
offending the rule of Crown immunity. The court awarded an exemplary sentence of one
month's imprisonment to the two individuals.3

The Constitution has entrusted the task of interpreting the law to the Judiciary
whose view on the subject is made legally final and binding on all till it is changed by a
higher court or by a permissible legislative measure. Those living and functioning under
Constitution have to accept and submit lo this obligation of respecting the constitutional
authority of courts. Under a constitutional government, such final authority has lo vested
in some institution. Otherwise, there will be chaos. The court's verdict has to be respected
not necessarily by the authority of its reason, but always by reason of its authority. Any
conduct designed to or suggestive of challenging this crucial balance of power devised by
the Constitution is an attempt to subvert the rule of law and an invasion to anarchy.'156

The leading decisions on the subject.5 A Judge should not, accordingly, depart
from the' application of law on the ground that the Executive would be 'embarrassed',157
even where Foreign Affairs are involved (provided, of course, the question is justifiable).7
Nor conversely, should the Government intercept a petition to the court, in a Judicial it
matter, on any ground.158

4.3.9 Power To Punish For Its Own Contempt

The Supreme Court (Art. 29) and a High Court (Art. 215) have been given the
power to punish any person for contempt of itself and thus to protect itself against
interference in the course of administration of justice, from whatever source it may
come.159

4.3.9.1 Criticism of Judges

Some of the Court's strongest Jesting have stressed the value of n vigilant and
attentive public interest in its work Consider this from Mr. Justice Brewer:

"It is a mistake to suppose that the Supreme Court is either honored or helped by
being spoken of as beyond criticism. On the contrary, the life and character of its justices
should be the objects of constant watchfulness by all, and its judgments subject to the freest
criticism. The tin e is past in the history of the world when any living man or body of men

155
Mohd. . Aslam v. Union of India, AIR 1995 SC 548 3
Codavannan Tirumulpad v. Ashok Khot, (2006) 5 SCC 1.
156
Sanjay Dutta Dy. Secretary Ministry of Information and Broadcasting, In re., (1995) 3 SCC 619
5
Cl. King v. Speyer, (1910) 1 KB 596; Eastern Trust Co, v. McKenzie, (1915) AC 750.
157
Cf. Kawasaki v. Bantham, (1939) 2 KB 544
(552). 7 Re, C. (an Infant], (1939) Cb 363.
158
Wilson’s case, (1 943), referred to in ALLIN, LAW AND ORDERS , 2nd Edn., p. 423.
159
Union of India v. Sankalchand Himatlal Seth, MR 977 SC Gupta v. President of India. AIR 1982 SC
149
can be set on a pedestal and decorated with a halo. True, many criticisms may be, like their
authors, devoid of good taste, but better all sorts of criticism than no criticism at all. The
moving waters arc full of life and health; only in the still waters is stagnation and death."160

There is no doubt that the Court like any other institution does not enjoy
immunity from fair criticism. While fair and temperate criticism of the Court, even if
strong, may not be actionable, but attributing improper motives or tending to bring the
Judges or the Courts into hatred and contempt or obstructing directly or indirectly with the
functioning of the Courts is a serious contempt of which notice must and will be taken.
Respect is expected not only from those to whom the judgment of the Court is acceptable
but also from those to whom it is repugnant. Those who err in their criticism by indulging
in vilification ot the institution of Courts, administration of justice and the instruments
through which the administration acts, should take heed for they will act at their own
peril.161

The freedom of expression to any person cannot extend to scandalise the judiciary
as a whole or the members of the judiciary who have not issued order favourable to the
accused, in particular. No such freedom of expression is recognised and the accused cannot
claim such a right to scandalise and hurl abuses against the Judges who do not issue orders
in his favour.162

Bonn fide criticism of any system or institution including judiciary is aimed at

inducing the administration of the system or institution to look inward and improve its
public image. Courts, the instrumentalities of the State, are subject to the Constitution and
the laws and are not above criticism. Healthy and constructive criticism is tools to augment
its forensic tools for improving its functions. A harmonious blend and balanced existence
of free speech and fearless justice counsel that law ought to be astute to criticism.
Constructive public criticism even if it slightly oversteps its limits thus has fruitful play in
preserving health of public institutions. Section 5 of the Contempt of Courts Act, 1971,
accords protection to such fair criticism and saves from of the court The best way in
sustain the dignity and respect for the office of Judge is to deserve respect from the public
at large by fearlessness and objectivity of the approach to the issues arising for decision,
quality of the judgment, restraint, dignity and decorum a fudge observes in judicial conduct
off and on the Bench and rectitude.163

Where a provision in the law relating to contempt imposes reasonable

restrictions, no citizen can take the liberty of scandalising the authority of the institution
of judiciary. Freedom of speech and expression, so far as they do not contravene the
statutory limits as contained in the Contempt of Courts Act, 1971, is to prevail without any

160
IS Nat Corp. Rep. S49 (1898).
161
Surya Prakash Khatri v. Smt. Madhu Trachan, 2001 Cri L.J 3476 (3482) (Del):
162
High Court of Karnataka v. P.N. Shelly, 1996 Cri LJ 1747 (1751, 1752) (Kant)
163
O.C. Saxena v. Hon'ble the Chief lattice of India, AIR 1996 SC 2481 (2493): P.N. Dube v. P. Shiv
Slumker. AIR 1988 SC 1208: Baradakantn Mishra v. The Registrar of Orissa High Court, AIR 1974 SC
hindrance. However, it must be remembered that the maintenance of dignity of the Courts
is one of the cardinal principles of rule of law in a democratic set up and any criticism of
the judicial institution couched in a language that apparently appears to be a

710

mere criticism but ultimately results in undermining the dignity of the Courts cannot be
permitted when found having crossed the limits and has to be punished.164

The notion of a Judge being 'impartial' needs more thought than it is commonly
given. Lord Justice Scrutton, in discussing the need for 'impartiality', said:

"This is rather difficult to attain in any system. I am not speaking of conscious

impartiality; but the habits you are trained in, the people with whom you mix, lead to your
having a certain class of ideas of such a nature that, when you have to deal with other ideas,
you do not give as sound and accurate judgments as you would wish."

In D.C. Saxena v. Hon'ble the Chief justice of India,165 the Supreme Court
observed:

"Advocacy touches and asserts the primary value of freedom of expression. It is

a practical manifestation, of the principle of freedom of speech. Freedom of expression in
arguments encourages the development of judicial dignity, forensic skills of advocacy and
enables protection of fraternity, equality and justice. It plays its part in helping to secure
the protection of other fundamental human rights. Freedom of expression, therefore, is one
of the basic conditions for the progress of advocacy and for the development of every man
including legal fraternity practising the profession of law. Freedom of expression,
therefore, is vital to the maintenance of free society. It is essential to the rule of law and
liberty of the citizens. The advocate or the party appearing in person, therefore, is given
liberty of expression. But they equally owe countervailing duty to maintain dignity,
decorum and order in the Court proceedings or judicial process. The liberty of free
expression is not to be confounded or confused with licence to make unfounded allegations
against any institution, much less the judiciary…………. In other words, imputing
partiality, corruption, bias, improper motives to a Judge is scandalisation of the Court and
would be contempt of the Court. Even imputation of lack of impartiality fairness to a judge
in the discharge of his official duties amounts to contempt gravamen of the offence is that
of lowering his dignity or authority or an affront to the majesty of justice. When the

164
Arundhati Roy, In re, AIR 2002 SC 1375 (1380)
165
AIR 1996 SC 2481
condemner challenges the authority of the Court, he interferes with the performance of
duties of Judge's office or judicial process or administration of justice or generation or
production of tendency bringing the Judge or judiciary into contempt."

It is fundamental that if rule of law is to have any meaning and content, the
authority of the Court or a statutory authority and the confidence of the public in them
should not be allowed to be shaken, diluted or undermined- The Courts of justice and all
Tribunals exercising judicial functions from the highest to the lowest are by their
constitution entrusted with functions directly connected with the administration of justice.
Maintenance of dignity of the Court/judicial officer or quasi-judicial authority is, therefore,
one of the cardinal principles of law embedded in judicial review. Any uncalled for
statement or allegation against the judicial officer/statutory authorities, casting aspersions
on Court's integrity or corruption would justify initiation of appropriate action for
scandalising the Court or Tribunal or vindication of authority or majesty of the
Court/Tribunal. The accusation of the judicial officer or authority or arbitrary and corrupt
conduct undermines their authority and rudely shakes them and public confidence in
proper dispensation of justice. It is of necessity to protect the dignity or authority of the
judicial officer to maintain the stream of justice, pure and unobstructed. The judicial
officer/authority needs protection personally. Therefore, making wild allegations of
corruption against the presiding officer amounts to scandalising the Court/statutory
authority. Imputation of motives of corruption to the judicial officer/authority by any
person or group of persons is a serious inroad into the efficacy of the judicial process and
a threat to judicial independence and needs to be dealt with strong arm of law.166

Fair criticism of the conduct of a Judge, the institution of the judiciary and its
functioning may not amount to contempt if it is made in good faith and in public interest.
To ascertain the good faith and the public interest, the Courts have to see all the
surrounding circumstances including the person responsible for the comments, his
knowledge in the field regarding which the comments are made and the intended purpose
sought to be achieved. All citizens cannot be permitted to comment upon the conduct of
the Courts in the name of fair criticism which, if not checked, would destroy the institution
itself. A litigant losing in the Court would be the first to impute motives to the Judges and
the institution in the name of fair criticism which cannot be allowed for preserving the
public faith in an important pillar of democratic set up, i.e. the judiciary.167

If the authority of the Court is undermined or impeded by acts or publications,

the fountain of justice would get sullied creating distrust and disbelief in the minds of the
litigant public and the right thinking public at large. Indeed everybody is entitled to express
his honest opinion about the correctness or legality of a judgment or sentence or an order

166
U.P. Sales Tax Association v. Taxation Bar Association, Agra, AIR 1996 SC 98 (101} Brahma
prakash Sharma v. State of Uttar Pradesh, AIR 1954 SC 10 :
167
Arundhati Roy, Re, AIR 20Q2 SC 1375 (1394) , D.C. Saxena v. Hon'blc the Chief fustic of India.
AIR 1996 SC
of a Court. Objective criticism is permissible provided it is made with detachment in a
dignified language and respectful tone. The liberty of expression cannot be treated as a
licence to scandalise the Court and instead of criticising the judgment to criticise the Judge
who delivered it.168

4.3.10 Removal of a Judge

A Judge of the Supreme Court may be removed from his office but he shall not
be removed from his office except by an order of the President passed after an address by
each House of Parliament supported by a majority 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, has been presented to the President in the same session for such removal.

The removal of a Judge is a matter of the greatest seriousness. It affects not only
the Judge personally but also, in a larger sense, affects the general reputation of the
judiciary. Consequently, the Constitution, by Clauses (4) and (5) of Article 124 and by the
Judges (Inquiry) Act, 1968 has made the removal subject to a constitutional and statutory
process consisting of several stages at each of which the action for removal is screened.

Article 124(4) of Indian Constitution provides for removal of High Court and
Supreme Court Judges. The Article says: "A judge of Supreme Court shall not be
removed from his office except by an order of the President passed after an address by
each House of Parliament supported by a majority of the total number of membership of
that House and by a majority of not less than two-thirds of the members of that House
present and voting has been presented to the President in the same session for such
removal on the ground of proved misbehavior or incapacity."There is no separate
provision for removal of High Court judges and Article217 (1) (b) provides for this and
says, "A judge may be removed from his office by the President in the manner provided
in clause (4) of Article 124for the removal of a judge of the Supreme Court."The
processes of removal of High Court and Supreme Court judges are the same. The above
Article of the Constitution provides for impeachment, whereas; Judges (Inquiry) Act,
1968 determines the process of impeachment.

Under our system, impeachment is the only disciplinary method against Judges.
This procedure has been made difficult because of our desire to have an independent
judiciary. An independent judiciary has been the great rock in storming seas, men of
conscience trained in the law are not easily tethered when give the sovereignty of judicial
power.

168
Ajay Kumar Pandey, In re, AIR 1998 SC 3299 (3305) , SC 2176 Lalit Mohan Das v. Advocate
General. Orissa, AIR 1957 SC 250
4.4 Judicial Response to “Independence of Judiciary”

In the backdrop of the above analysis, it is expedient to analyze judicial response

to judicial independence and selection as well as appointment of justices of superior courts
in order to understand the supremacy—bureaucratic or juristocratic bureaucracy!

Union of India v. Sankalchant169 was the first case concerning the transfer of
Judges from one High Court by invoking Article 222 as the Central Government seemed
to initiate the steps on the recommendation'. of the Law Commission of 1958 in
midseventies. Whether the government had intended to transfer Judges of High Courts for
the purposes of justice or for political reasons is for anyone to guess. Article 222 stipulates
that the President may, after consultation with the Chief Justice of India, transfer a Judge
from one High Court to any other High Court. A plain reading of the language of this
Article tells that notwithstanding the legal position that a Judge can be transferred without
his consent; there is- ua- element- of discretion in the matter of transfer of judges; there
may Be proximity of extraneous as well as political influences in the matter of transfer of
a judge. In order to belittle the possibility of political influence the Supreme Court
suggested that Article 222 cannot be construed to mean that for transfer of a Judge to
•another High Court, it is necessary to obtain his consent as a matter of constitutional
obligation. Though the language of the Article does not say so, however, by healthy
constitutional convention normally the consent of the Judge concerned should be taken,
not so much as a constitutional necessity, but as a matter of courtesy . . . Where the Judge
does not consent and public interest compels, the power under Article 222 can, be
exercised; the Chief Justice of India owes a corresponding duty to the President and that
he shall consider every relevant fact, and, indeed, as a matter of constitutional duty, to
elicit and ascertain facts either directly from the Judge concerned or from other reliable
sources.170

In S.P. Gupta v. Union of India171 the Supreme Court was grappled with two
questions, namely, the transfer of Judges including the Chief Justice of High Courts, and,
appointment of Justices to the superior courts. As regards the question of transfer of
Judges, the principle of "Constitutional convention of courtesy" evolved in Sankalchand's
case172was affirmed by a larger Bench in this case. And, as regards the question of
appointment of justices to the superior courts, the Supreme Court opined: The Central
Government is bound to consult at least one Judge out of the Judges of the Supreme Court
and of the High Courts besides the Chief Justice of India. The practice, however, has been
to consult the Chief Justice of India only. This is not a very satisfactory mode of
appointment, because wisdom and experience demand that no power should be vested in
a single individual howsoever high and great he may be and howsoever honest and well

169
A.I.R. 1977 S.C. 2328
170
Ibid.
171
A.I.R. 1982 S.C. 149
172
A.I.R.1977 SC 238
meaning ... It is not concurrence but only consultation and the Central Government is not
bound to act in accordance with the opinion of Chief Justice of India though it is entitled
to great weight as being the opinion of the Indian Judiciary. 173 In concurrence possibility
of political or other influences is inasmuch as maximised as in consultative process, since
in consultative process lies the maximum element of discretion. Therefore, in order
to jettison the external influences in the selection of justices, the Supreme Court
suggested a collegium to make recommendation to the President in regard to
appointment of justices of-superior courts. The collegium should be more broad-based and
there should be consultation with wider interests. If the collegium is composed of persons
who are expected to have knowledge of the persons who may fit for appointment it would
go a long way towards securing the right kind of persons as justices for higher judiciary,
who would be truly independent and who would invest the judicial process with
significance and meaning for the deprived and exploited sections of humanity. 174 The
Supreme Court, however, felt that the President does not have the discretion not to consult
anyone in the judicial branch. As regards the question of appointment of Chief Justice of
India, the Supreme Court significantly a proprio vigore exerted that in order to discharge
his function of selecting the best suitable person to be the Chief justice of India, the
President must choose such fair sprinkling of Supreme Court and High Court Judges as
would enable him to gather enough and relevant material which would help him in
decision-making process . . . When the 'primacy of judicial opinion' doctrine fails in the
case of the appointments of the Chief Justice' of India, it would not be appropriate to hold
that it prevails in the case of appointments of other Judges of the Supreme Court and the
Judges of the High Courts.175

Supreme Court Advocates-on-Record v. Union of India176 has had the occasion

to examine the issues like: (1) The Primacy of the opinion of the Chief Justice of India in
regard to the appointments of Judges to the Supreme Court and the High Courts and in
regard to the transfers of High Court judges/ Chief Justices; (2) Justiciability of these
matters, including the matter of fixation of the Judge-strength in the High Courts; and (3)
The correctness of the majority view in S.P Gupta's case. From it, it discerns that there has
been a shift from "political influence" to "judicial primacy in the opinion of the Chief
Justice of India" in judicial approach/mind/attitude to thc-primacy question of judicial
independence and judicial appointments. The Supreme Court in its majority opinion in(the
Second Judges Case has emphasised that the Chief Justice of India has primacy in the
matter of appointments of justices to the Supreme Court and the High Courts. The Supreme
Court explained its opinion in regard to the principle of-primacy of Judicial Primacy of
Chief Justice of India thus: "The opinion of the Chief Justice of India is reflective of the
opinion of the judiciary, which means that it must necessarily have the element of plurality

173
A.I.R. 1982 S.C. 149
174
Ibid.
175
Ibid.
176
A.I.R. 1994 S.C. 268
in its formation and formed after taking into account the view of some other Judges who
are traditionally associated with this function; the opinion so given has primacy in the
matter of all appointments and an opinion formed by the Chief Justice of India in any
manner other than that indicated has no primacy in the matter of appointments to the
Supreme Court and the High Courts and the Government is not obliged to act thereon; the
collegium should consist of the Chief Justice of India and the four senior most puisne
Judges of the Supreme Court; one of the four senior most puisne Judge of the Supreme
Court would succeed the Chief Justice of India; merit is the predominant consideration for
the purposes of appointment to the higher judiciary". The collegium consists of "Plurality
of Judges" not only in the matter of appointments but also in the matter of transfer of High
Court Judges, because the "Plurality of Judges in the formation of the opinion of the Chief
Justice of India is (an) in-built check against the likelihood of arbitrariness or bias as well
as any erosion of independence of the judiciary . . . The judicial element being decisive in
transfers, the need for further judicial review, as in other executive actions, is eliminated".
However, in K. Ashoka Reddy v. Government of India,177 the Supreme Court of India
stated that judicial review is necessary in regard to transfer of judges to check arbitrariness
and bias.

In re Presidential Reference178 the Supreme Court was to give its judicial opinion
in regard to three broad aspects of the questions raised in the President reference of July
23, 1998, namely,

1. Consultation between the Chief Justice of India and his brothers

Judges in the matter of appointments of Supreme Court and High Court Judges
and transfers of the
latter;

2. Judicial review of transfers of Judges of High Courts; and

3. The relevance of seniority in making appointments to the Supreme

Court

As stated earlier, the constitutional provisions indicate that in the choice of a

candidate suitable for appointment to the-superior courts, the opinion of the Chief justice
of India should have the greatest weight; the selection should be made as a result of
participatory consultative process in which the executive should have power to act as a
mere check on the exercise of power by the Chief Justice of India, to achieve the
constitutional purpose, namely, men of calibre committed to judicial independence. The
underscoring objective in these constitutional provisions is that the executive element in
the appointment process is reduced to the minimum and any political influence is
eliminated. By using the word "consultation" instead of "concurrence" the

177
A.I.R. 1994 S.C. 1202
178
A.I.R. 1990 S.C. 1
Constitutionmakers have desired not to give absolute discretion to any one, not even to the
Chief Justice of India as individual, much less to the Executive Head of the State in order
to have an independent judicial institution; there is an element—of-opposition between
discretion and the Rule of Law, and as such in these constitutional provisions there seems
to be an in-built check on the exercise of discretion both by the Executive Head as well as
the Head of the Judicial institution. It may also be seen in the majority, besides the
constitutional objectives, that no question of primacy would arise when decision is reached
in "participatory consultative process" without any difference of opinion; the opinion of
the judiciary symbolised by the view of the Chief Justice of India, is to be obtained by
consultation with the Chief Justice of India, and it is this opinion which has primacy". In
the "third Judges case" the Supreme Court's nine Judge Bench opined the Judicial
Supremacy of the Chief Justice of India on referential question as follows:

1. "The expression consultation with the Chief Justice of India requires

consultation with a plurality of Judges in the formation of the opinion of the Chief Justice
of India. The sole individual opinion of the Chief Justice of India does not constitute
consultation within the meaning of the constitutional provisions.
2. The transfer of puisne Judges is judicially reviewable only to this extent
that the recommendation that has been made by the Chief Justice of India has not been
made in consultation with the four senior most puisne Judges of the Supreme Court and/or
that the views of the Chief Justice of the High Court from which the transfer is to be
effected and of the Chief Justice of the High Court to which the transfer is to be effected
have not been obtained.
3. The Chief Justice of India must make a recommendation to appoint a Judge
of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in
consultation with the four senior most puisne Judges of the-Suprerne_Court. Insofar as an
appointment to the High Court is concerned, the -recommendation must be made in
consultation with the two senior most puisne Judges of the Supreme Court.
4. The Chief justice of Indi.i is not entitled to act solely in his individual
capacity, without consultation with other Judges of the Supreme Court, in respect of
materials and information conveyed by the Government of India for non-appointment of a
Judge recommended for appointment.
5. The requirement of consultation by the Chief Justice of India with his
colleagues . . . does not refer only to those Judges who have the High Court as a parent
High Court. It does not exclude Judges who have occupied the office of a Judge or Chief
Justice of that High Court on transfer.
6. "Strong cogent reasons" do not have to be recorded, but what has to be
recorded is the positive reason for the recommendation.
7. The views of other Judges consulted should be in writing and should be
conveyed to the Government of India by the Chief Justice of India along with his views to
the extent set out in the body of his opinion.
 8. The Chief Justice of India is obliged to comply with the norms and the
requirement of the consultative process.
9. Recommendations made by the Chief Justice of India without complying
with the norms and requirements of the consultative process are not binding upon the
Government of India".
 Chapter V

Conclusion

Independent judicial power is implicit in the 'basic concept of separation of

powers' among a plurality of agencies and the tripartite scheme of checks and balances.
This concept is the very 'heart of the constitutional scheme' .

On the one hand, law is necessary to legitimize authority and the existing
political order, and authority is indispensable for the enforcement of the law and the
prevailing legal or judicial system. On the other hand, law is essential in dictating the
limits and rules with which power will be exercised legally, and power is imperative
for revitalizing the confines and precepts of the rule of law and modern
Constitutionalism". There exists a conflict of opinion between the legislature and
the judiciary with respect to the fact? Whether power supersedes justice or vice versa.
Law and power must match each other to form a complimentary pair, since law without
power is impotent, while power without law is unfair and illegitimate.

Hence, rule of law emerges as the best strategy for imposing limits as well as
curtailing the exercise of power, and, within it, the establishment of a Constitution is that
which regulates both, the legitimacy and legality of political power. Perhaps this is the
reason why rule of law is a sacrosanct feature of our Constitution because it is law that
brings forth justice. Law is at the apex as far as hierarchy of our justice delivery system
goes because law will be futile if it is not guided with the sole aim of achieving justice.

Judiciary got its Constitutional strength in terms of its special power of judicial
review. The judiciary also managed to establish its Constitutional ascendancy in terms
of possessing its sole discretionary right in progressive interpretations of law. As a
result one can witness the changing role of judiciary in Indian polity since
independence. The Supreme Court thus perceives the Indian judiciary as both the
 protector of individual liberties against political branch aggression and the ultimate
arbiter of the Constitution's meaning.

Further adding it also can be said our Constitution includes almost every
principles of independence of judiciary which was adopted by the Seventh United Nations
Congress on the Prevention of Crime and the Treatment of Offenders adopted the Basic
Principles on the Independence of the Judiciary in 1985 although it was made 35 years
back.

Learned Judges of Sup.Court were of very much clear view about the
“Independence of judiciary” from very beginning.

The judiciary stands between the citizen and the State as a bulwark against
executive pressure, excesses and misuse of power by the executive.

It's the judiciary (with that I mean the judges as well as the advocates) who have
made law an instrument of social change. The primary role of a judge is to apply law with
a view to provide justice to the parties before him. Justice has many dimensions which is
what the critics fail to comprehend. The law may not keep pace with the dynamics of local
change. The role of the judge is to bridge the gap between law and society by way of
interpretation in the light of changing circumstances. Power is thus needed to enforce the
mandate of law, the writ of the State and execution of a verdict delivered.

In India the Supreme Court will stand firm and aloof from party politics and it is
unconcerned with the changes in the government. The court stands for administration of
law, for the time being in force and thus has sympathy for all, but allied to none.

Our Supreme Court has very zealously been protecting the fundamental rights
of the citizens. Thus it has been acting as a protector and guardian of the Indian Constitution
as well as the rights of the citizens. But in the modern age the independence of the judiciary
doesn’t mean that it should not keep in mind the social and economic deals and aspirations of
the people, while delivering its judgments. Rather the judiciary should actively participate in
the sacred task of building a welfare society in the country and the regeneration of the nation.
Similarly the executive or the Parliament should not do anything to undermine the
independence of judiciary.
Bibliography

Books and Commentries

• Basu, D.D. “Commentary on Constitution of India” Vol 5(VIII edition 2008,

LexisNexis Butterworth Wadhwa)
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