MEANING – THE INDEPENDENCE OF THE JUDICIARY: The meaning of the independence of the

judiciary is still not clear after years of its existence. Our constitution by the way of the provisions
just talks of the independence of the judiciary but it is no where defined what actually is the
independence of the judiciary.
The primary talk on the independence of the judiciary is based on the doctrine of separation of
powers which holds its existence from several years. The doctrine of separation of powers talks of
the independence of the judiciary as an institution from the executive and the legislature.
The other meaning of the judicial independence can be found out by looking at the writings of the
scholars who have researched on the topic. Scholars have followed the “constituent mechanism”
(i.e. what constitutes the judiciary) to define the independence of the judiciary. Scholars try to
define judiciary by talking about the independence of the judges which constitutes judiciary.
Therefore the independence of the judiciary is the independence of the exercise of the functions by
the judges in an unbiased manner i.e. free from any external factor.
So the independence of the judiciary can be understood as the independence of the institution of
the judiciary and also the independence of the judges which forms a part of the judiciary.

Shetreet in his work tries to explain the words “Independence” and “Judiciary” separately, and says
that the judiciary is “the organ of the government not forming a part of the executive or the
legislative, which is not subject to personal, substantive and collective control, and which performs
the primary function of adjudication”.
The final outcome that can be derived from Shetreet’s writings is that the independence of the
judiciary as an institution and the independence of the individual judges both have to go hand in
hand as the independence of the judiciary as an institution is not possible without the independence
of the individual judges and is the institution of the judiciary is not independent, there is no question
of the independence of the individual judges.

NEED FOR THE INDEPENDENCE OF THE JUDICIARY

The basic need for the independence of the judiciary rests upon the following points:
 To check the functioning of the organs: Judiciary acts as a watchdog by ensuring that all the
organs of the state function within their respective areas and according to the provisions of
the constitution. Judiciary acts as a guardian of the constitution and also aids in securing the
doctrine of separation of powers.

 Interpreting the provisions of the constitution: It was well known to the framers of the
constitution that in future the ambiguity will arise with the provisions of the constitution so
they ensured that the judiciary must be independent and self-competent to interpret the
provision of the constitution in such a way to clear the ambiguity but such an interpretation
must be unbiased i.e. free from any pressure from any organs like executive. If the judiciary
is not independent, the other organs may pressurize the judiciary to interpret the provision
of the constitution according to them. Judiciary is given the job to interpret the constitution
according to the constitutional philosophy and the constitutional norms.

 Disputes referred to the judiciary: It is expected of the Judiciary to deliver judicial justice
and not partial or committed justice. By committed justice we mean to say that when a
judge emphasizes on a particular aspect while giving justice and not considering all the
aspects involved in a particular situation. Similarly judiciary must act in an unbiased manner.

COMPONENTS – THE INDEPENDENCE OF THE JUDICIARY: The components of the independence of

the judiciary as talked of here refers to some of the requisite terms and conditions which are so
necessary that if they are absent, the independence of the judiciary also cannot exist.
It is very difficult to lay down certain set conditions as law is dynamic in itself and of the changing
economic, political and social scenario

CONSTITUTIONAL PROVISIONS – THE INDEPENDENCE OF THE JUDICIARY

Many provisions are provided in our constitution to ensure the independence of the judiciary. The
constitutional provisions are discussed below:

 Security of Tenure: The judges of the Supreme Court and High Courts have been given the
security of the tenure. Once appointed, they continue to remain in office till they reach the
age of retirement which is 65 years in the case of judges of Supreme Court (Article 124(2))
and 62 years in the case of judges of the High Courts (Article 217(1)). They cannot be
removed from the office except by an order of the President and that too on the ground of
proven misbehavior and incapacity. A resolution has also to be accepted to that effect by a
majority of total membership of each House of Parliament and also by a majority of no less
than two third of the members of the house present and voting. Procedure is so complicated
that there has been no case of the removal of a Judge of Supreme Court or High Court under
this provision.

 Salaries and Allowances:The salaries and allowances of the judges is also a factor which
makes the judges independent as their salaries and allowances are fixed and are not subject
to a vote of the legislature. They are charged on the Consolidated Fund of India in case of
Supreme Court judges and the Consolidated Fund of state in the case of High Court judges.
Their emoluments cannot be altered to their disadvantage (Article 125(2)) except in the
event of grave financial emergency.

 Powers and Jurisdiction of Supreme Court: Parliament can only add to the powers and
jurisdiction of the Supreme Court but cannot curtail them. In the civil cases, Parliament may
change the pecuniary limit for the appeals to the Supreme Court. Parliament may enhance
the appellate jurisdiction of the Supreme Court. It may confer the supplementary powers on
the Supreme Court to enable it work more effectively. It may confer power to issue
directions, orders or writs for any purpose other than those mentioned in Article 32. Powers
of the Supreme Court cannot be taken away. Making judiciary independent.

 No discussion on conduct of Judge in State Legislature / Parliament: Article 211 provides

that there shall be no discussion in the legislature of the state with respect to the conduct of
any judge of Supreme Court or of a High Court in the discharge of his duties. A similar
provision is made in Article 121 which lays down that no discussion shall take place in
Parliament with respect to the conduct of the judge of Supreme Court or High Court in the
discharge of his duties except upon a motion for presenting an address to the President
praying for the removal of the judge.

 Power to punish for contempt: Both the Supreme Court and the High Court have the power
to punish any person for their contempt. Article 129 provides that the Supreme Court shall
have the power to punish for contempt of itself. Likewise, Article 215 lays down that every
High Court shall have the power to punish for contempt of itself.

 Separation of the Judiciary from the Executive: Article 50 contains one of the Directive
Principles of State Policy and lays down that the state shall take steps to separate the
judiciary from the executive in the public services of the state. The object behind the
 Directive Principle is to secure the independence of the judiciary from the executive. Article
50 says that there shall be a separate judicial service free from executive control.

 Prohibition on practice after retirement:- Under article 124(7) of the constitution a retired
Judge of the supreme Court is prohibited to appear and plead in any court or before any
authority within the territory of India.

CONCLUSION: The independence of the judiciary as is clear from the above discussion hold a
prominent position as far as the institution of judiciary is concerned. It is clear from the historical
overview that judicial independence has faced many obstacles in the past specially in relation to the
appointment and the transfer of judges. Courts have always tried to uphold the independence of
judiciary and have always said that the independence of the judiciary is a basic feature of the
Constitution. Courts have said so because the independence of judiciary is the pre-requisite for the
smooth functioning of the Constitution and for a realization of a democratic society based on the
rule of law. The interpretation in the Judges Case giving primacy to the executive, as we have
discussed has led to the appointment of at least some Judges against the opinion of the Chief Justice
of India. The decision of the Judges Case was could never have been intended by the framers of the
Constitution as they always set the task of keeping judiciary free from executive and making it self-
competent. The decision of the Second Judges Case and the Third Judges Case is a praiseworthy step
by the Court in this regard.