Judicial Independence

By Asst. Professor Viral Dave

TYBLS
Introduction
• Judiciary is cornerstone of Democracy.
• It is an indispensible pre-requisite of a civilized society under the
rule of law.
• Judiciary stands between the citizens and the states as a hallmark
against state excesses and misuse or abuse of power.
• In a state with federal constitution it is the judiciary which
maintains the distribution of power and separation of power.
• Judiciary is the protector of Fundamental rights and the
constitution and is the interpreter of the constitutional and other
statutory provisions.
• Thus it becomes important that the judiciary remains independent
in order to perform its functions and duties
Meaning of Independence of Judiciary
• Freedom from Bias and other Influences.
• Freedom from executive action and opinion
• To act without fear or favor.
• To do justice without succumbing to outside pressure.
• Does not mean absolute independence entitling a judge to act in an
arbitrary manner.
• Also does not mean deciding a case against the State.
• S. P. Gupta V. Union of India( AIR 1991 SC 149) Justice Bhagavati observed
“ `the concept of independence of judiciary is not limited only to
independence from executive pressure or influence but it is a much wider
concept which takes within its sweep independence from many other
pressures and prejudices. It has many dimensions namely fearlessness
from other power centers, economic or political and freedom from
prejudices acquired and nourished by the class to which the judge belongs”
 • Seventh UN congress held in Italy adopted basic principles of independence of
Judiciary as follows:
1. The independence of judiciary shall be guaranteed by the state and enshrined
in the constitution or the law of the country
2. The judiciary shall decide the matters before them impartially on the basis of
facts and in accordance with the Law.
3. It shall have jurisdiction over all issues of Judicial Nature.
4. There shall not be any inappropriate or unwarranted interference with the
judicial process.
5. Everyone shall have right to be tried by the ordinary courts.
6. it is the duty of the state to provide resources to enable the judiciary to
perform its functions.
7. Even the judges like other citizens have right to freedom of expression, belief,
association and assembly. In exercise of such right they preserve the dignity of
their office and the impartiality and independence of judiciary.
Independence of Judiciary in India
• In India Independence of Judiciary is a Constitutional gift.
• The constitution of India has ensured independence of
Judiciary in the following ways:
Separation of Judiciary from the executive.
Salaries of judges cannot be reduced during their tenure
except in case of emergency.
Difficult parliamentary procedure for removal.
Power of the court to punish for its own contempt.
Neither the parliament nor in the state legislature can the
conduct of judges of higher judiciary in discharge of their
duties can be discussed.
Appointment of Judges and independence of Judiciary- judicial interpretations

• Article 124 provides that every Judge of the Supreme Court shall be appointed
by President by warrant under his hand and seal after consultation with such
of the Judges of The Supreme Court and of The High Courts in the States as
the President may deem necessary for the purpose. Provided that in case
of appointment of a Judge other than the Chief Justice, The Chief
Justice of India shall always be consulted.
• Article 217 provides that every Judge of a High court shall be appointed by the
President by warrant under his hand and seal after consultation with the
Chief Justice Of India and The Governor of the State, and, in the case of
appointment of a Judge other than the Chief Justice the Chief Justice of
High Court.
• The consultation to be made by the President has been open to a lot
of judicial interpretation as regards whether the would be bound by the
advice given by the Chief Justice and other Judges or after taking advice he
can act otherwise.
Important cases on Judicial interpretations as to
Appointment of Judges

• Union Of India V. Sankalchand ( AIR 1977 SC 2328)

• S. P. Gupta V. union Of India (AIR 1982 149)
• S. P. Sampath Kumar V. union Of India ( AIR 1987 SC
386)
• Subhash Sharma V. Union Of India( AIR 1991 SC 631)
• Supreme Courts Advocates on record V. Union Of
India(AIR 1994 SC 268)
• Re presidential Reference case(AIR 1999 SC 1)
• Supreme Courts Advocates on record V. Union Of
India [(2016) 5 SCC 1]
Union Of India V. Sankalchand ( AIR 1977 SC 2328)

• In this case the apex Court observed that Article

217(1)provides only mode of appointment of
High Court Judge. It does not make the
central Government the employer of the
High Court Judge. In fact High Court Judge has
no employer. He occupies a high
constitutional office which is coordinate with
the executive and the legislature.
S. P. Gupta V. Union Of India (AIR 1982 149)

• Primacy should be given to the opinion of the

constitutional functionaries and giving it due weight.
However central government is no bound to act
in accordance with the opinion of the Chief
Justice of India.
• However if the government departs from the opinion
of the Chief Justice of India, the government has to
justify its action by giving cogent and convincing
reasons for the same and if challenged to prove to the
satisfaction of the court that a case was made out for
not accepting the advice of the Chief Justice of India.
S. P. Sampath Kumar V. Union Of India ( AIR 1987 SC 386)

• The Supreme Court adopted a different approach and

stated that in case of appointment of chairman and
vice chairman of Administrative Tribunal the
appointment should be done after meaningful
consultation with the Chief Justice of India and
ordinarily the recommendation of Chief Justice of
India must be accepted unless there are
• cogent reasons
• in which event the reasons must be disclosed to The
Chief Justice of India and
• his response must be invited to such reasons
Subhash Sharma V. Union Of India( AIR 1991 SC 631)

• The Apex Court observed that “ we are of the

view that the primacy of the Chief Justice of
India in the process of selection would
improve the quality of selection. The
purpose of consultation is to safeguard the
independence of Judiciary and to ensure
selection of proper person. The consultation
should be to achieve the constitutional
purpose and should not be rendered
sterile by a literal interpretation.
Supreme Courts Advocates on record V. Union Of India(AIR 1994
SC 268)

• Primacy should be given to the opinion of Chief Justice of India

as the symbol of judiciary in matters of the initiation of
appointments and final approval.
• for transfer of a Judge or Chief Justice of High Court the
proposal must be made by the chief Justice of India.
• No appointment of any Judge to the Apex Court or the High Court can
be made unless it is in conformity with the opinion of Chief
Justice of India.
• The criterion for the appointment of the Chief Justice of India shall be
seniority.
• With regard to the position of the president, court held that the
president is bound by the advice of his council of Ministers but the
council of Ministers is bound to give only that advice which the Chief
Justice of India after consultation with his colleague tenders.
• Court further held that power to transfer must
however be exercised only in “public Interest, i.e.
for promoting better administration of justice
through out the country.
• The opinion of Chief Justice of India is
determinative.
• In case of the transfer the consent of a transferred
Judge or Chief Justice is not a requirement.
• Institution of proposal for transfer must be by
Chief Justice of India.
Re presidential Reference case(AIR 1999 SC 1)
(special reference no. 1 of 1998)

• The opinion of the Chief Justice of India having primacy in the

consultative process and reflecting the opinion of the judiciary has to be
formed on the basis of consultation with the collegium comprising
of the Chief Justice of India and four senior court judges of
Supreme Court. Their views should be obtained in writing.
• Views of the senior most judges of the Supreme Court who hail from the
High Court, if not the part of the collegium, must be obtained in writing,.
• Recommendations of collegium and Supreme Court who hail from
the High Court should be conveyed by Chief Justice of India to
government of India.
• Normally the collegium should make its recommendation on the
basis of consensus but in case of difference of opinion no one
would be appointed, if the Chief Justice of India dissents.
• If two or more members of collegium dissent, Chief Justice of
India should not persist with the recommendation.
• In case of non appointment of the person recommended, the
materials and information conveyed by the government of India
must be placed the before the collegium so, to consider
whether the recommendation should be withdrawn or
retained.
• The Chief Justice of India may, in his discretion, ring to the knowledge
of the person recommended the reasons disclosed by the
government for his non appointment and ask for his response
thereto.
• Merit should be predominant consideration though inter
seniority among the judges in their High Court and their
combined seniority on all India basis should be given weight.
• Cogent and good reasons should be recorded for
recommending a person of outstanding merit,
regardless of his lower seniority..
• For recommending one of several persons of more or
less equal degree of merit, the factor of the High
Court not represented on the Supreme Court
may be considered.
• The recommendations made by the Chief Justice of
India without complying with norms and
requirements, are not binding on the
government of India.
Supreme Courts Advocates on record V.
Union Of India [(2016) 5 SCC 1]
• In this case the Supreme Court rejected the National Judicial
Appointment Commission Act, introduced by the 99th
amendment.
• The Act introduced new system for appointment of Judges to the Higher
judiciary by replacing the old collegium system.
• National Judicial Appointment Commission consisted of a) Chief Justice
Of India b) Two senior most judges of Supreme Court c) Law
Minister d) two eminent person to be nominated by the
committee consisting of Chief Justice Of India, Prime Minister
and Leader of Opposition party.
• The act provided that Chief Justice Of India and Two senior most judges of
Supreme Court can veto any name proposed for appointment to a judicial
post if they do not approve of it. Once a proposal is vetoed it cannot be
revived but at the same time judges require the support of other members of
the commission to get a name through.
• On 16th October 2015 the judiciary took a tough
stand and struck down the 99th constitutional
amendment of 2014. the amendment was
declared unconstitutional by a majority of 4:1.
• The judgment upheld the independence of
judiciary as part of the basic structure of
the constitution.
Removal procedure and Independence of
Judiciary
• Scheme of removal of judges under the Indian Constitution is a
blend of the political and judicial processes.
• A judge can be removed only on two grounds under Article 124, I.e
proved misbehavior or proved incapacity.
• The Parliament has also enacted Judges Inquiry Act 1968 in this
regard
• under the constitution the procedure for removal includes an order
of removal to be passed by the president after proved
misbehavior or proved incapacity by complying following
procedure.
 A motion addressed to the president signed by 100 members of
Loksabha or 50 members of Rajyasabbha delivered to
speaker or Chairman as the case may be.
.
Investigation by committee of three
members i.e. Two Judges of Supreme Court and a
distinguished Jurist.
If the committee finds the judge guilty then
motion and report of committee taken up for
consideration in the house where motion is pending.
Motion is to be passed in each house by 2/3
rd majority and addressed to the president
The judge will be removed after the president
gives his order for removal.
• in Sub committee of Judicial Accountability V. Union Of
India (AIR 1992 SC 320) the Constitutional validity of Judges Inquiry
Act 1968 was questioned.
• It was held in this case that “ the Act reflects the constitutional
philosophy of both the judicial and political elements of the process
of removal. The ultimate authority remains with the parliament in the
sense that even if the committee of investigation records a finding that
a judge is guilty of the charges it is yet open to the parliament to decide
not to represent an address to the president for removal. But if the
committee records a finding that the judge is not guilty, then the
political element in the process of removal has no further option. The
Law indeed is a civilized piece of legislation reconciling the concept of
accountability of judges and the values and judicial independence.
• Justice Ramaswamy Impeachment episode
Conclusion and Suggestions
• Like legislature and Executive, The Judiciary is a
constitutional machinery.
• Independence of Judiciary is an important element of
the Basic structure of the Constitution.
• Judiciary acts as a safeguard to the Constitution and
Fundamental Rights of the people so it is important to
safeguard its independence.
• The Judiciary is not directly accountable to the citizens
like the Legislature or the executive neither is it elected
by the people so judiciary has to maintain self restraint
and separation of power.