INDEPENDENCE OF Prof.

Unnati Jadhav
JUDICIARY
 INTRODUCTION
• Independent judiciary is necessary for maintaining rule of law and fair judicial
administration in the country.
• It plays important role in controlling 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.
•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.
•For the establishment of independent judiciary, appointment and removal of the judges should
not be in the hands of the executive and if it is so vested, there must be due safeguard so that
it may not be misused.
 Functions of the judiciary
❑The main functions of judiciary in the modern democratic India are:
• Rendering justice,
• Interpreting laws,
• Creating laws,
• Protecting the federation,
• Advising the government,
• Acting as Court of courts,
• Punishing the individuals for contempt of Court and
• Safeguarding the Constitution besides some other miscellaneous functions or
dealing with civil and criminal matters.
 INDEPENDENCE OR FREEDOM OF JUDICIARY
• The judiciary consists of the judges charged with the functions of the administration of justice.
• The judges sit in Courts in a hierarchical manner.
• The judiciary must be given a special sphere clearly separated from that of the legislature and the
executive.
• It must be given privileges which are not given to other branches of the government and protected
against political, economic and influences which would disturb the detachment and impartiality.
•Judiciary is independent when the following conditions exist:
➢ a) The judiciary must have full freedom to administer justice. impartially, independently and freely.
➢ b) It must have authority to protect individual freedom and rights.
➢ c) It must have power to check and control the despotic tendencies of the executive.
➢ d) Without fear or favour, judges should deliver judgment impartially
➢ e) Either the legislature or the executive should not control or interfere with the judiciary.
 INDEPENDENCE OF JUDICIARY IN INDIA
❑ The Constitution of India provides various provisions to ensure the Independency of
Judiciary headed by the Supreme Court as stated hereunder:
1. Security of Tenure: (Appointment, tenure and removal):
• The Judges of the Supreme Court are appointed by the President of India.
• The Chief Justice also is appointed by the President with the consultation of the other
Judges of the Supreme Court and High Courts (if he finds such consultation is necessary).
• He holds office until he attains the age of 65 years.
• His term of office is fully secured.
• The Judge of Supreme Court or High Court cannot be removed/terminated except by
impeachment motion with two-thirds majority in the Parliament.
2. Jurisdiction:
The Constitution conferred wide powers on the jurisdiction of the Supreme Court. The Parliament
may extend its jurisdiction, but cannot curtail the same.
3. Salary:
The Judges are duly paid and their salaries and allowances cannot be altered except in a grave
financial emergency.
4. No discussion in the House:
According to Articles 105 and 194 of the Constitution, the members of the House (Parliament or
State Legislature) are privileged to discuss any matter without the fear of defamation proceedings
against them. However, this privilege is subject to the restriction that the conduct of the Judges should
not be discussed in the House.
5. Contempt of Court: Supreme Court and High Courts are empowered to punish those, who are
guilty of the contempt of Court. (Articles 129 and 215). This power is very essential for maintaining
the independence of judiciary. Articles 32 and 226 of the Constitution confer wide powers on the
Supreme Court and High Courts respectively for maintaining the independence of judiciary.
6. Separation of judiciary from executive: Art.50 directs the State to take steps to separate the
judiciary from the executive in the public services of the State. It emphasises the need of securing the
judiciary from the interference by the executive.