DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW

2018-2019

CONSTITUTIONAL LAW-II

TITLE OF THE PROJECT:

INDEPENDENCE OF JUDICIARY

SUBMITTED TO: SUBMITTED BY:

Mrs ANKITA YADAV SANDEEP CHOUDHARY
Assistant Professor (Law) Enrolment No. - 170101117
Dr. Ram Manohar Lohiya National Section ‘B’
Law University, Lucknow B.A.L.L.B. (Hons.) SEM- IV
 ACKNOWLEDGEMENT

I, SANDEEP CHOUDHARY, hereby declare that the project titled “INDEPENDENCE OF

JUDICIARY” made under the guidance of Mrs ANKITA YADAV, is an original work. This
project has been submitted as the end-term project for the subject of Family Law-II for the
fourth semester of B.A. LL.B (Hons) course. All the information and data that has been
analysed and used from various sources has been duly cited and accredited.

Date: 26-03-2019
Signature:
(SANDEEP CHOUDHARY)
4th semester, 2nd year
TABLE OF CONTENTS
INTRODUCTION................................................................................................................................ 4

IS INDIAN JUDICIARY INDEPENDENT? ................................................................................... 5

OBSTRUCTIONS TO JUDICIAL INDEPENDENCE .................................................................. 6

HISTORICAL BACKGROUND ........................................................................................... 6

THE TENURE ..................................................................................................................... 10

THE SALARY ..................................................................................................................... 10

THE DISSMISAL ................................................................................................................ 11

JUDICIAL FLAW................................................................................................................ 12

CONCLUSION .................................................................................................................................. 13

BIBLIOGRAPHY .............................................................................................................................. 14
 INTRODUCTION

The independence of judiciary is an integral part of democracy. Courts are expected as protectors of
law, who independently exercise their judicial powers without any functional of judicial interference.
Such interference usually comes from executive or legislative officials, politicians, military and
sometimes judicial hierarchy itself.

Prof. Willoughby went so far as to claim that this is the “primary function of government”1. Although
it is the weakest part of the democracy as it is expected to be most moral, has no control over the
purse and police. Although the strength of the judiciary lies in its command on the heart of the men.
Beaten up by the injustice of individuals or state they seek to judiciary for help. It has the power to
interpret laws and statutes made by the legislature. It is considered to be guardian of the conscience
of people as well as law of the land. It is at advantageous position as it remains away from the arena
of politics, its stresses and storms. It is manned by men of high integrity, learned and love for fairness
people.

Independence of judiciary is the sine qua non of democracy. What does the term “independence of
judiciary” mean? Independence from what? Might be the question in the masses. The fear might be
independence means no “accountability” perhaps “arrogance”. Well, judicial concepts and judicial
independence are discrete concepts at war with each other, when in fact they are complementary
concepts that can and should be regarded as allies.2 Public information campaigns have enhanced
the demand for judicial transparency, independence and accountability. As the citizens feel it’s their
right to ask the courts for better governance, because they believe in this organ of state unlike other
organs. Courts should be held accountable for their misconduct or mal-treatment. The citizens should
feel free to approach to higher courts for reservations against the lower courts, without fearing that
the higher courts will support their men.

Montesquieu, a French philosopher devised a mechanism called separation of power, wherein the
three pillars of democracy, executive, legislative and judiciary blessed with certain powers should
not encroach into each other powers and basic functions. “The Executive controls the steering wheel.
It decides which way the country will go. The legislature controls the fuel supply. It votes the money

1 Vishnu Prasad, Independence of judiciary in India,

http://www.jstor.org/stable/41854044.
2
Stephen b. Burbank , What Do We Mean by “Judicial Independence”?
Ohio state law journal [Vol. 64: 323 (2003)].
to fund the policies which the executive proposes. The judiciary controls the breaks.” 3
Judicial
independence is an idea that has both internal (and normative) and external (or institutional) aspects.
From a normative viewpoint, judges should be autonomous moral agents, who can be relied on to
carry out their public duties independent of venal or ideological considerations. Independence, or
impartiality, in this sense is a desirable aspect of a judge’s character.4

IS INDIAN JUDICIARY INDEPENDENT?

As of Indian context, the researcher after intense research can claim that Indian judiciary to an
extent is over powered by government and its officials. Attacks on judiciary can be traced back
to the earlier suppression on the appointment of chief justice Ray who became CJI on April 25,
1973 superseding three judges senior to him Hegde, Grover and Shelat. resulting in resignation
of the judges in protest. The appointed was followed after the judgment of Kesvananda Bharti
case, as the judgment given by these superseded judges was against the government. This was
thirteen judges bench. “For the performance of the duties of Chief Justice of India, there is
needed, not only a judge of ability and experience, but also a competent administrator capable
of handling complex matters that may arise from time to time, a shrewd judge of men and
personalities who would on the occasion arising, be a watchdog of the independence of the
judiciary.” 5 although the suppression had preceded emergency and continued for two years,
then the Bar realized and denounced such practice. Even after all this the practice of
suppression repeated itself on may 10, 1974 when justice Narula was appointed as the chief
justice of India superseding justice Pandit, the then judge of Punjab high court. And again in
1977 instead of H R Khanna, J., the senior most judge M U Beg,J. was appointed as the Chief
Justice of India. Khanna like the other three judges resigned to protest such action of the
executive. The obvious reason for this was his dissenting judgment in A.D.M v. Shukla.6
However after Beg’s retirement, being the senior most judge Hon’ble Justice Chandrachud was
appointed as the CJI. Since then the appointments were made as per the seniority level of the
judge.

3
Anonymous, https://articlesonlaw.wordpress.com/2014/12/29/judicial-accountability-the-present-contours-and-
the-way-forward/,last accessed on: September 20, 2015.
4
John Ferejohn, independent judges, dependent Judiciary: explaining judicial Independence, last accessed on:
September 20, 2015.

5
Ashok H Desai ,Assaults.on the Judiciary,
6
AIR 1976 SC 1207.
The famous ADM Jabalpur case, wherein Hon’ble Supreme Court of India gave politically
influenced decision, the Indira – Nehru reign. In conclusion it was clear that the 1975 national
emergency was nothing but a pre-planned drama of the Indira Gandhi government in order to
secure certain political objectives.
The Government’s attempt to control the judiciary continued even in 1980’s when Indira tried
to reverse the appointment of judges made by Janta party government.

OBSTRUCTIONS TO JUDICIAL INDEPENDENCE

The obstruction can be classified in broad three categories The Appointments, The Tenure, The
Dismissal and The salary.
The Appointment of judges- Constitution and that the Executive from time to time have
attacked on the independence of judiciary either by politicizing the appointment process or the
judges itself. One prevents the judge from hearing certain case or to give delayed wrong
judgments. And if they fail the other can “legitimately” do this by “packing” the courts with
new judges.

 HISTORICAL BACKGROUND

The supreme court of India’s collegiums system, which appoints judges to the nation is the
result of three landmark judgments-
1) S. P. Gupta v. Union of India - 1981 (also known as the Judges' Transfer case)
2) Supreme Court Advocates-on Record Association v. Union of India – 1993
3) In re Special Reference 1 of 1998
 S.P. Gupta v. Union of India 1981
In this case there were several writ petitions filed, challenging constitutional validity of
appointment and non-appointment of judges, and their transfers. The four major issues dealt
in this case are-
1. The claim of privilege of certain correspondence between certain Chief Justices, the CJI
and the Law Minister.
2. The locus standi of the petitioners.
3. The circumstances of appointment and non-appointment, conditions of the service and
Confirmation of Additional Judges, in the context of Justices Vohra & Kumar of the
Allahbad High Court.
 4. The circumstances for transfer of the Judges, arising in the context of Chief Justice KBN
Singh of the Patna High Court.

When these petitions reached before the Hon’ble Supreme Court, Mr. Mridul who
appeared on the behalf of the law minister challenged the locus standi of these petitions, as
these petitions could not be maintained for the reason that no legal injury by the circulars.
On this the court established that in case of harm to the constitutional law or any of its
provisions, any person can file a writ before SC or HC irrespective of the fact that he has
suffer any legal injury.7
“It may therefore now be taken as well established that where a legal wrong or a legal injury
is caused to a person or to a determinate class of persons by reason of violation of any
constitutional or legal right or any burden is imposed in contravention of any constitutional
or legal provision or without authority of law or any such legal wrong or legal injury or
illegal burden is threatened and such person or determinate class of persons is by reason of
poverty, helplessness or disability or socially or economically disadvantaged position,
unable to approach the Court for relief, any member of the public can maintain an
application for an appropriate direction, order or writ in the High Court under Article
226 and in case of breach of any fundamental right of such person or determinate class of
persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury
caused to such person or determinate class of persons.”
As of the issue of privilege is concerned, supreme court ordered to produce relevant
documents and turned down the UOI plea.
 Advocates -on- record Association v. Union of India
1. In 1993, a nine-Judge Constitution Bench of the high court in high court Advocates-on-
Record Association vs. Union of India over-ruled the verdict in S.P.Gupta.
2. The nine-Judge Bench (with majority of seven) not unattended overruled S.P. Gupta’s how
things stack up but by the same token devised a dead set on procedure for courtesy of Judges
of the high court in the high on the hog of “protecting the fairness and guarding the free
course of the judiciary.”
3. For the alike reason, the preeminence of the Chief Justice of India was practice be essential.
It held that the advice in that behalf should be made separately Chief Justice of India in

7
Dr. Upendra Baxi v. State of U. P.(1981) .
 consultation by the whole of his two senior-most colleagues whatever such word in the ear
should normally be given doom to by the executive.
4. In all of a sudden, the thing of disbursement passed directed toward the hands of judiciary
and the role of the executive became merely formal. The 1993 order was reaffirmed in
1998 in a undivided opinion rendered by a nine-Judge Bench of the Supreme Court on a
reference for made by the President under Article 143 of the Constitution. All the part and
parcel of conclusions of the majority in the 1993 ruling were reaffirmed. There was,
nevertheless, several variation. It was held that the advice should be made by the Chief
Justice of India and his four senior-most colleagues (instead of the Chief Justice of India
and his two senior-most colleagues) and also that Judges of the Supreme Court derive from
the High Court to which the proposed judge comes from must also be consulted. In
circumstance, the Chief Justice of India and his four senior-most colleagues are now
routinely referred to as the ‘Collegium’ for the final cause of appointment of Judges to the
Supreme Court.

Article 124 says- “ Every Judge of the Supreme Court shall be appointed by the President…”
meaning thereby, that the President, with the consultation of certain judges of his choice from
Supreme court and High Courts shall appoint the Judge of Supreme Court. The CJI has to be
consulted in all the appointments barring his/her own appointment.
Article 217 says “ every Judge of a High Court shall be appointed by the president…” meaning
thereby, that the president shall appoint the Judge after consulting the CJI, Governor, and Chief
Justice of the High Court concerned.
The question that researcher raises is, is the appointment is wrong or it is the procedure that we
follow is at fault.
The president’s power of appointment is unfettered. As per the court’s interpretation of these
provisions, the process of appointing a judge is initiated by the chief justice wherein he
recommends the presidents, these recommendations are the result of a Collegium comprising
of himself and four of the senior most judges of the court. Such recommendations are binding
on the court.
Many a times the questions have been raised as to how many times the advice of the chief
justice has been accepted by the president for appointing a judge. The questions remain
unanswered. Many retired judges of SC and HC are of the view that the president should be
bound to follow the advice of the Supreme Court, like he does of the prime minister. But the
researcher differs, as this would thrust the CJI with immense power. Therefore here we should
follow French system of appointment of judges. There should be one senior council of justice
at all India level comprising of, president of India, CJI, two representative of All India Bar
Council, two senior most judges of High court of India, and two representatives chosen by Lok
Sabha. Such setting would ensure independence of judiciary.

Article 214 was interpreted for the first time in 1981 in S P Gupta v. union of India8. This case
was also known as “first judges case”, where in the supreme court ruled that the
recommendations made by the CJI can be rejected for ‘cogent reasons’ thereby tilting the case
towards executive. The recommendations came for reconsideration before the ‘second judges
case’, Supreme Court Advocates-on record Association vs. Union of India case in October
1993 which led to creation of Collegium system. The majority verdict was written by Justice
Verma, where he said “justiciability” and “ primacy” required that CJI should be given primal
role in appointments of judges.
In 1998, president K R Narayan raised a question if “consultation” meant consulting the CJI or
consulting the number of judges. In response the Supreme Court laid down 9 guidelines for the
functioning of the quorum for appointing judges. This came to be known as ‘third judge’s case’.
The NJAC was the second attempt to change the appointment of judges system. Justice M N
Venkatchalliah was appointed by BJP to look into the matter if Collegium system needed a
change. The commission was in favor of change, and prescribed for an NJAC consisting of the
CJI and two senior most judges, the law minister, and an eminent person from the public, to be
chosen by the President in consultation with the CJI. The case currently is before the five Judge
bench and may land up before 11 judge bench. “I don’t intend to discuss about the Bills passed
by Parliament but will speak about something dearest to me — Independence of Judiciary.”
said the then Justice Lodha commenting over the new bill passed in parliament regarding
appointment of judges. He said that it is the judiciary in which people bore confidence and
came up to the courts if they received any injustice from the Executive
The government has made another efforts to weaken the institution of justice by changing the
process of appointment of judges. The proposed judicial appointment commission would
include-
1) Chief Justice of India.
2) Two Sitting Supreme Court Judges.
3) One eminent jurist appointed by the President of India ( political interference)

8
AIR 1981 Supp SCC 87: AIR 1982 SC 149.
 4) Second eminent jurists appointed by the President ( political interference)
5) The Union Law Minister ( political interference)
6) Secretary- Department of Law and Justice. (political interference)
The cabinet says to include leader of Opposition in JAC.
As evident the majority members of the commission are the executive controlled.

 THE TENURE

While discussing independence of judiciary, we must not forget to mention about the tenure of
the Judges of High Court and Judges of Supreme Court. Art. 124(1) discusses about tenure of
the judges. The age of the judge is determined by either by such authority and in such manner
as the parliament may by law provide. It is said that while the power to appoint a judge is
executive power, the power to decide his age is judicial power. The judges of High court retire
at 62 years of age and the Judges of Supreme Court retire at the age of 65 years of age. As
compared to America the judges there have the life tenure. This practice of India leads to many
evils, like many lucrative lawyers do not go for the post of the Judge of the High Court or
Supreme Court for that matter. Second being judges after retirement are left with temptation to
attain membership of some tribunal or such other body. It is also said that in between his period
of appointment and period of retirement the time is so short that judges do not have sufficient
time to acquire experience and attain maturity. Judiciary is not merely a question of
constitutional or administrative settings, it is also on the Judge’s habits and traditions per se.
Judicious thinking should be his close preserve it should not be influenced by any individual’s
thought or group or anything for that matter, as the saying goes, Fiat Justitia Ruat Caelum.

 THE SALARY
According to article 125 of the constitution- the judges of the Supreme Court shall be paid such
salaries as determined by the parliament. Such salaries are specified in the second schedule of
the constitution.9 They are entitled to certain privileges and allowances and pensions which
shall be determined by the parliament time to time. And the same rights are specified in second
schedule of the constitution.
Such privileges, allowances or leave are not subject to change after the appointment of the
judge. This provision curbs the power of the parliament to use its powers for disadvantage of

9
Subs. By the constitution( 54th amendment) act, 1986, S.2.
the judge. the salary of the judges of the supreme court or the high court10 is only subject to
changes in situation of financial emergency11 when the president may order to reduce the salary
of the judges and staff.
Also to add, to reduce salaries of judges the legislature should not do anything in this but to
formulate poor fiscal policies.
Judges to be independent must receive good returns to their services. At the end they are
humans and cannot be expected to base their services on ideals alone. Clause (1) of this article
was amended in 1986, as the original clause fixed in second schedule did not provide for
provision for upward revision of salary. As of now the salary has been revised although it is
way to less than the lawyers earning in the same court. in many countries the salary of the
judges increases with the increase in the cost of living, but unfortunately this does not happen
here. They are the protectors of the liberty of the people; they should be vested with highest
emoluments and provisions to lead an honorable life. Therefore the salary and allowances
should be subjected to time to time upward revision.

 THE DISSMISAL

The process of removal of judge is a parliamentary process which is not subjected to judicial
intervention, until it has culminated in the removal of the judge. The combined effect of Article
124(4) and the Judges (inquiry) Act, 1968 sets the following procedure for impeachment-
1) A motion is addressed to the President signed by at least 100 members of Lok Sabha or 50
members of the Rajya Sabha.
2) The Motion is then investigated by a committee of three judges( two of the Supreme Court
judges and one distinguish Jurist)
3) If the committee finds the Judge guilty of misbehavior than report of the committee send
back to the house where the matter is at halt.
4) If the motion passed in both the houses by majority of the members present or by two third
of the members present and voting, the motion is then presented to the president.
5) The judge will be removed after the president gives his order for removal on the said
address.

10
Article 221.
11
Art. 360(4)(b).
Once the finding of the guilt is made by the Enquiry committee, the case is subject to judicial
review on the permissible grounds that too only on the instance of the aggrieved judge. 12 Before
that the judge is not entitled to the copy of the report prepared by the Enquiry Committee.
Subject to the clauses (4) and (5) the parliament can at any point of time drop the proceedings.
This provision of the constitution assures to the judges security of tenure. This is such a
complex procedure, is proved by the fact that no judge has ever been removed by this process
so far. The first step to enable judges to act independently by assuring them a reasonable sense
of security of tenure. The high tradition of the British Judiciary flourished only after
establishment of Act of Settlement of 1701, which stated that the Judges would continue to
hold their office on the principle of quamdiu se bene gesserit not on the basis of durante bene
nastro. The latter meant that the judges shall continue their office for their good behavior, not
on the president’s pleasure.
However the researcher feels that the impeachment should take place in the courts itself subject
to two thirds voting rule, majority of this size are hard to put together and sustain. And this
must be especially done if the impeachment is one of the politically controversial one.

 JUDICIAL FLAW

Every democratic country ensures to provide suitable laws and atmosphere for judicial
independence. The minimum legal safeguard that a judge can be ensured about is, immunity
from civil accountability. Meaning thereby that no person should be held liable civilly for what
he has done in the capacity of judge. This is a universal requirement.

12
Sarojini Ramaswami v. Union of India, (1992) 4 SCC 506: AIR 1992 SC 2219
 CONCLUSION

“But when politicians talk thus, or act thus without talking, it is precisely the time to watch
them most carefully. Their usual plan is to invade the constitution stealthily, and then wait to
see what happens. If nothing happens they go on more boldly; …..Their one and only object,
now and always, is to get more power into their hands that it may be used freely for their
advantage, and to the damage of everyone else. Beware of all politicians at all times, but beware
of them most sharply when they talk of reforming and improving the constitution.”

— H. L. Mencken, in The Constitution

The researcher giving an end note to his research concludes, it is upon the judicial minds and
the legislature to think upon the protection of the one of the basic structure of the constitution,
which B .R Ambedkar sahib and other constitutional members had included in the constitution
of our country. However whatever procedure are adopted or formulated for the appointment
there must be consultative process in which all the stakeholders are involved. As of now the
strictest criticisms of the current collegiums model is that the entire procedure of appointment
is dependent on the Chief justice of India, and four senior most judges of the Hon’ble Supreme
Court of India. This procedure lacks arbitrariness and transparency. The new appointment
procedure must have information on how competence and suitability of candidates is measured,
necessitating the need for parameters to measure both of it. The independence of judiciary to a
lot more extends on the security of tenure of the judges. If the judge’s tenure is certain and
reasonable, it would be easy for them to render their services without any fear or favor. If
compared to the salary of lawyers, there is no dispute that judges are grossly underpaid. The
failure to raise the salary of the judges made it impossible to attract the strongest and the most
knowledgeable of them. Therefore, it is time for the ministers who have tremendously
increased their pay to bring a hike in the salary of the judges.

COLLEGIUM SYSTEM- It is an arrangement through which decisions related to

appointments and transfer of judges in supreme court and high court is taken, the system
consists of CJI, four senior most judges of supreme court and three members of concerned high
court (in the matter related to high court) including chief justice of high court.
 BIBLIOGRAPHY

1. Anonymous, Insights Daily Current Events, Polity and Government Bills, January 14,
2014, http://www.insightsonindia.com/2014/01/14/insights-daily-current-events-january-
14-2014/
2. Anonymous, From Politics to Fashion, Facts History about Collegium System, April 27,
2015, http://www.realityviews.in/2014/04/facts-history-about-collegium-system-sc.html
3. Gjylbehare Murati, The Independence of the Judiciary and Its Role in the Protection of
Human Rights under UN Administration Using the Case of Kosovo,http://www.esil-
sedi.eu/sites/default/files/Murati_0.PDF
4. Justice F. B. William Kelly, an independent judiciary: the core of the rule of law,
http://www.ruleoflawus.info/Judiciary/An_Independant_Judiciary.pdf
5. John Ferejohn, independent judges, dependent judiciary: explaining judicial independence,
http://www-bcf.usc.edu/~usclrev/pdf/072303.pdf
6. Joseph B Diescho, The paradigm of an independent judiciary: Its history, implications and
limitations in Africa,
http://www.kas.de/upload/auslandshomepages/namibia/Independence_Judiciary/diescho.
pdf
7. Anonymous, Confederation of Indian Bar International Seminar on “Judicial
Independence”,http://www.supremecourtofindia.nic.in/speeches/speeches_2007/judicial_i
ndependence--23[1].11.07.pdf
8. Thomas E. Plank, The Essential Elements of Judicial Independence and the Experience of
Pre-Soviet Russia, William & Mary Bill of Rights Journa, Volume 5 ,Issue 1, Article 2
9. Stephen b. Burbank, What Do We Mean by “Judicial Independence”?, Ohio state law
journal, [vol. 64: 323 (2003)
10. Stephen B. Burbank, The Architecture of Judicial Independence, University of
Pennsylvania Law School Penn Law: Legal Scholarship Repository, 1999,
http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1942&context=faculty_scho
larship