Independence of the Judiciary

Introduction

        Judicial independence is imperative if justice is to be administered without fear or favour. Impartial enforcement of laws requires an independent judiciary. The Constitution has tried to insulate the Judiciary from outside influence both from the executive and the legislature. Independence of the judiciary constitutes the foundation on which rests the edifice of Democratic Polity. The general concept of Judicial Independence is that a judge should be free from any pressure from the government or any one else as to how to decide any particular case; for that reason, salary of a judge is not dependent on the executive decision and his conditions of service are secured and not to be varied at the whim of the executives. In memorable words of Lord Delvin “An independent judiciary is not to be disposal of the government, it is an asset belongs to the whole of the  nation.”

International Scenario 

The sixth United Nations Congress by its resolution 16, issued guidelines relating to the independence of judges. Article 10 of the U. N. declaration of Human rights has also accorded Independence of judiciary for the protection of Human Rights.    The U.N. General Assembly in 1985 adopted U.N. Basic Principles on Judicial Independence: 1985 and the following principles were laid down:


[1] Access to Court: Every one shall have the right to be tried by the ordinary courts or Tribunals, established by law.


[2] Basic Principle: The judiciary shall be independent of the executive and legislature.


[3] Constitutional Guarantee: The Independence of the judiciary shall be guaranteed by the State under its Constitution and laws of the nation.


[4]  Debar: No power shall be exercised as to interfere with the judicial process. Judiciary shall be free from restriction, improper influence, inducement, pressure, threats, or interference, direct or indirect, from any quarter, for any reason.


[5]  Exclusive jurisdiction: The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide as to whether an issue submitted for its decision is within its competence as defined by law.


[6] Fair Trial: It should be ensured that judicial proceedings are conducted fairly and that rights of the parties are respected.


[7]  Government's Duty: It is the duty of each member State to provide adequate resources so as to enable the judiciary to perform its functions properly. 


[8]  Impartiality: The courts shall decide matters before it impartially on the basis of facts and in accordance with law.


[9]  Jurisdiction: Jurisdiction of Courts and tribunals shall not be excluded. No ad hoc tribunals shall be established to displace jurisdiction properly vested in courts.


[10] Limits of Executive: The executive shall have no powers to close down or suspend the operation of the courts. 


[11] No interference: There shall not be inappropriate or unwarranted interference with judicial process, nor shall judicial decisions by courts shall be subject to revision, except, in accordance with law.


[12] Service Conditions: The term of office of the judges, their independence, security, adequate remuneration, and condition of service, shall be secured by law and shall not be altered to their disadvantage.


[13]  Retirement Age: Retirement Age shall not be altered for judges in office without their consent.


[14] A judge shall not be subject to removal except on grounds of proved misbehaviour or incapacity. 

Almost every democratic country in the world has made provisions for the Independence of the judiciary, in accordance with the said international norms.

Article 50

 Separation of judiciary from executive 

          Article 50 mandates that the State shall take steps to separate the judiciary from the executive in the public services of the State. 

Independence of the judiciary embodied in Article 50 of the 

Constitution of India should by no means be allowed to be eroded. 

The independence of judiciary is the livewire of our judicial system and if that wire is snapped, the 'dooms day' of judiciary will not be 

far off.

Articles 121 and 211

 Restriction on discussion in Parliament

No discussion shall take place in Parliament and State Legislature with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. The founding fathers of the Constitution engrafted Articles 121 and 211 of the constitution and prohibited the parliament and the legislatures to discuss on the floor of the House the conduct of any judge of the Supreme Court or the High Court in the discharge of his duties. This is an important provision for securing independence of judiciary.

Safeguarding against fake charges

          In K. Veeraswami v. U.O.I., [1991]3 SCC 665, the Apex court has  held that no criminal case shall be registered against a judge       without the approval of the Chief Justice.

Article 124 and 217

Appointment of judges

Executive interference in the appointment of judges after the post Kesavanand Bharti phase was increased. Independence of Judiciary was seriously jeopardized when the executive of the day used it as a weapon of superseding twice in the appointment of C.J.I. First incident was in 1973 when Justice A. N. Rai   was appointed C.J.I. superseding Justice Shelot, Justice Grover and Justice Hegde, each of them had concurred with the majority view in Kesavanand Bharti case. Again in 1976 Justice H. R. Khanna who had dissented in A.D.M. Jabalpur v. Shivakant Shukla case was superseded and Justice Beg was appointed as C.J.I. Therefore, it had become necessary for the Apex Court to review the said situation for securing independence of the judiciary and enforcing rule of law. 

In its zeal to discharge its Constitutional obligation of creating a rule of law society, and safeguarding independence of judiciary, the power of appointment of judge to the Supreme Court and of the High Courts was assumed by the Supreme Court itself in S.C. Advocates on record Association V. Union Of India (1993) 4 SCC 441.

Article 222

 Transfer of High Court judges

According to Article 222, the President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. In S.P. Gupta  v.  UNION OF INDIA, AIR 1982 SC 149, held that the intention of proposal for the transfer should be from C.J.I. alone. In S.C. Advocates on record Association V. Union Of India (1993) 4 SCC 441, the Apex Court held that the opinion of C.J.I. has primacy in the matter of transfer of a High Court Judge. Such transfer should be only in the public interest and not by way of punishment.

Articles 124[4], 217[1] (b) of the Constitution

Removal of Judges

 A Judge of the Supreme Court or of a High 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 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 misbehaviour or incapacity. This is an effective provision and how it has proved effective in case of justice Ramaswami that only impeachment motion presented in the Parliament against a judge could not be passed.

          A Judge of the Supreme Court as well as a Judge of the High Court is made totally independent of the control and influence of the executive by mandatorily embodying in Article 124 or Article 217 

of the Constitution that a Judge can only be removed from his office in the manner provided in clauses (4) and (5) of Article 124, as held in K. VEERASWAMI  Vs. UNION OF INDIA AND OTHERS, 

[1991] 3 SCC  655. 

Articles 124(7) and 220

Restriction on practice

        No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India as provided by Article 124[7] of the Constitution. Article 220 postulates that no permanent Judge of a High Court shall plead or act in any court / authority in India except the Supreme Court and the other High Courts. These provisions will prevent any influence of senior retired judges on the sitting judge.  

Articles 125 & 221

Salaries, etc., of Judges

 Neither the privileges nor the allowances of a Judge of the Supreme Court or of the High Court, nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment. Owing to this protection a judge is able to discharge judicial function without fear of affecting his service condition.  

Articles 129 and 215

Supreme Court and High Court each shall have power to punish for contempt of itself. Independence of the judiciary doesn’t mean that Judges, like Caesar's wife, should be above suspicion. Fair criticism does not come under the purview of the contempt of the court and it doesn’t affect independence of the judiciary.


Encroachment on Judicial function


Pareena Swarup v. U.O.I. [2008]14 107, it is   necessary for the Supreme Court to draw a line which the executive may not cross in their misguided desire to take over bit by bit judicial functions and powers exercised by duly constituted courts. 

 LOWER JUDICIARY

SUBORDINATE COURTS 

Article 233

 Appointment of district judges
courts In Chandra Mouleshwar Prasad v. Patna high court, AIR 1970 SC 370, it was held that appointment of District Judge by government without consultation with high court is not valid.

Article 235

Control over subordinate courts

The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to judicial officers belonging to the judicial service shall be vested in the concerned High Court.

        In Praksh Singh Badal v.  State of Punjab (2007)1  SCC 1, the

Apex Court has held that the control of the High Court over 

subordinate Judiciary is comprehensive, exclusive and effective and 

it is to subserve a basic feature of the Constitution i.e. 

independence of  Judiciary. 

          Article 226 and 227

Superintendence

  For securing independence of Judiciary the power of 

judicial superintendence by the High Court, under Articles 226 

and 227 of the constitution, over the decisions of all courts 

and Tribunals within their respective jurisdiction is a part of 

basic structure of the Constitution.  In L. Chandra Kumar v. 

U.O.I. AIR 1997 SC 1125, the Apex Court held that these 

powers can not be taken away even by the amendment of 

the constitution.

Control over staff of the Supreme Court

Article 146 (1)

Appointments of officers and servants of the Supreme Court shall be made by the Chief Justice of India or such other Judge or officer of the Court as he may direct.

The conditions of service of officers and servants of the Supreme Court shall be prescribed by rules made by the Chief Justice of India or by some other Judge or officer of the Court authorised by the Chief Justice of India to make rules for the purpose.

     The administrative expenses of the Supreme Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of India. 

Article 229

Control over staff of the High Courts

 Officers and servants and the expenses of High Courts

(1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct:

The conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose.
Dr. Alladi Krishna Murti had emphatically stressed in the Constituent Assembly that doctrine of judicial independence is not to enable judiciary to function as a kind of super legislature or super executive. The supremacy of the judiciary is in its assigned sphere. 

 The principle of separation of powers and independence of 

Judiciary clearly provided for in our Constitution is not an optional

 feature to be selectively recognized by other organs of the State but

 is a basic feature of our Constitution which has to be respected 

otherwise credibility of our democratic institution will be suspected.         Independence of judiciary means a judge should be in  a position to discharge his duties and upholding the Constitutional values and laws with supreme impartiality, fairly, without fear or favour, affection or ill will, without any restrictions, free from improper influence,  direct or indirect, from any quarter for any reason.