ASSIGNMENT

OF

CONSTITUTIONAL GOVERNANCE

ON
TOPIC: INDEPENDENCE OF JUDICIARY

SUBMITTED BY: SUBMITTED TO:

MEHAK ANSARI (GU19R0224) Ms.. VISHAL

SEMESTER-V (Assistant Professor)

GLOCAL LAW SCHOOL

Contents
MEANING OF INDEPENDENCE OF JUDICIARY.................................................................................3
OBJECTIVE OF INDEPEPENCENCE OF JUDICARY............................................................................4
COMPOSITION OF THE INDEPENDENCE OF JUDICIARY................................................................6
INDEPENDENCE OF SUPREME COURT...............................................................................................7
Appointment of Supreme Court Judges: - Art 124 (2).............................................................................7
IMPARTIALITY OF JUDGES...................................................................................................................8
FINANCIAL INTEREST........................................................................................................................8
OTHER BIAS..........................................................................................................................................9
JUDICIAL IMMUNITIES........................................................................................................................10
IMPLICATIONS OF INDEPENDENCE OF JUDICIARY......................................................................10
JUDICIALREVIEW..............................................................................................................................10
JUDICIAL ACTIVISM.........................................................................................................................11
CONCLUSION.........................................................................................................................................13
 Independence of Judiciary—Indian Experience
An independent judiciary is necessary for a free society and a constituent democracy. It
ensures the rule of law and realization of human rights and also prosperity and stability of the
society. The independence of the judiciary is normally assures through the Constitution but it
may also be assured through legislations, conventions and other suitable norms and practices.
Following the constitution of United States, almost all constitutions lay down at least the
foundation if not the entire edifices of an independent judiciary. The constitutions or the
foundational laws on judiciary are however, only the starting point in the process of securing
judicial independence. Ultimately the independence of the judiciary depends on the totality of
a favorable environment created and backed by all state organs including the judiciary and the
public opinion. The independence of judiciary also needs to be constantly guarded against the
unexpected events and the changing social, political, economic conditions; it is too fragile to
be left unguarded.

India has given itself a liberal constitution in the Euro- American traditions, which aims at
establishing a free and democratic society. It also aims at prosperity and safety of the society.
Its makers believed that such a society could be created through the guarantee of fundamental
rights and an independent judiciary to guard and enforce these rights. Therefore the framers of
the Indian Constitution dealt with these two aspects with maximum and identical idealism.

MEANING OF INDEPENDENCE OF JUDICIARY

The independence of judiciary is not a new concept but it’s meaning is still imprecise. The
starting and the central point of this concept is apparently the doctrine of separation of powers.
Therefore, it primarily means the independence of judiciary from legislature and executive.
But that amounts to only the independence of judiciary as an independent institution form the
other two institutions of the state without regards to the independence of the judges in
exercising of their functions. In such a case there is not much that is achieved. The
independence of judiciary does not mean just creation of an autonomous institution free from
control and influence of the legislature and the executive. The underlying purpose of
independence of judiciary is that judges must be able to decide disputes before them,
according to the law, uninfluenced by any other factor. For this reason independence of
judiciary is the independence of each and every judge. Whether such independence would be
ensured to the judge only as members of an institution or irrespective of it is one of the most
important considerations in determining and understanding the meaning of independence of
judiciary.

In a comprehensive analysis based on the contribution of leading jurists and international

bodies on independence of judiciary, Shetreet takes into account all these considerations.
Explaining the tern-is 'independence' and 'judiciary' separately, he 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 or collective control and which perform the primary function
of adjudication. Dealing with independence, he differentiates between the independence of the
individual judges and the collective independence of the judiciary that together constitutes
'independence'. To Shetreet, independence of individual judges consists of the judge's
substantive and personal independence. The former means subjection of the judge to no other
authority other than law in making of judicial decisions and exercising other official duties
while the latter means adequate security of judicial terms of office and tenure. The
independence of the individual judges also includes independence from their judicial superior
and colleagues.

Shetreet's treatment establishes that the independence of judiciary means and includes the
independence of judiciary as a collective body or organ of the government from its two other
organs as well as independence of each and every member of the judiciary-the judges- in the
performance of their roles as judges. Without the former the latter cannot be secured and
without the latter the former does not serve much purpose. Therefore the two, though
separable, must be pursued together. A system that ignores one or the other cannot make much
progress towards, much less achieve, the independence of judiciary.

OBJECTIVE OF INDEPEPENCENCE OF JUDICARY

Independence of Judiciary is sine guenon of democracy. In a democratic polity, the supreme
power of state is shared among the three principle organs constitutional functionaries namely
the constitutional task assigned to the Judiciary is no way less than that of other functionaries
legislature and executive. Indeed it is the role of the Judiciary to carry out the constitutional
message and it is its responsibility to keep a vigilant watch over the functioning of democracy
in accordance with the dictates, directives, and imperative commands of the constitution by
checking excessive authority of other constitutional functionaries beyond the ken of
constitution. So the Judiciary has to act as the sentinel sine qua vive1. Our Constitution does
not strictly adhered to the doctrine of separation of powers but it does provide for
distribution of power to ensure that one organ of the govt. does not trench on the
constitutional powers of other organs. The distribution of powers concept assumes the
existence of judicial system free from external as well as internal presses. Under our
constitute the Judiciary has been assigned the onerous task of safeguarding the fundamental
rights of our citizens and upholding the Rule of Law. Since the courts are entrusted the duty to
uphold the constitution and the laws, it very often comes in conflict with the state when it dries
to enforce orders by exacting obedience. Therefore, the need for an independent t and
impartial Judiciary manned by persons of sterling quality and character, underling courage and
determination and resolution impartiality and independence who would dispose justice without
fear fervor, ill will or affection. Justice without fear or fervor, ill will or affection, is the
cordial creed of our constitution and a solemn assurance of every Judge to the people of this
great country.

Secondly, the Judiciary, which is a repartee but equal branch of the state, to transform the
status quo into a new human order in which justice, social, economic and political will inform
all institutions of national life and there will be quality of status and opportunity for all. The
Judiciary has therefore a socio- economic distinction and creative function. It has, to use the
words of Granville Austin to become an arm of the Socio-economic revolution and perform an
active role calculated to bring social justice within the reach of common man. Approach to
judicial function is entirely different for a society pulsating with needs and urges of gender
justice, worker justice minorities justice and equal justice between chronic unequal. Where the

1
UOI v. Sankalchand Himatlal Sheth (1997) 4 SCC 193 at 212.
contest is between those who are socially or economically unequal, the judicial process may
prove disastrous from the point of view of social justice, if the Judge adopts a merely passive
or negative role and does not adopt a passive and creative approach. The Judiciary cannot
remain a mere bystander or spectator but it must become an active participant in the judicial
process ready to use law in the service of social justice through a pro-active goal oriented
approach. But this cannot be achieved unless we have judicial cadres who share the fighting
faith of the constitution and are imbued with constitutional values.

Conclusively 'Only an impartial and independent Judiciary can stand as a bulwark for the
protection of rights of the individual and mete out even handed justice without fear or
fervour. The Judiciary has to strike down executive, administration and legislative acts of
the centre and the states. Supreme Court, should it is very necessary be allowed to work in
an atmosphere of independence and is insulated from all kinds of pressures, political or
otherwise.’

COMPOSITION OF THE INDEPENDENCE OF JUDICIARY

The independence of judiciary and the protection of its constitutional provisions are not
achieved by a single act but rather over a period of time by a continuous struggle that takes
place within the framework of the ongoing and the dynamic process. Therefore it may not be
possible to lay down all the conditions in advance either in the constitution or otherwise which
will ensure and secure perpetual independence of the judiciary. Such conditions will have to
be checked and revised from time to time. A few conditions are, however, so basic to the
independence of the judiciary that without them the judicial independence will not exist. Some
of them may be assigned to the collective independence of the Judiciary as an institution,
while others may be assigned to the independence of the independence of the individual
judges.

The most important aspect in the independence of the judiciary is its constitutional position.
Just as the constitution provides the composition and powers of the legislature and, the
executive, it should also provide fro the judiciary. If the constitution vests the judicial powers
with the Judiciary, so much the better. Otherwise the constitution may provide for the
composition of the courts and their jurisdiction, and for the appointment, the term of office,
and the tenure of the judges. The constitution must ensure a constitutional position of dignity
to the judiciary. The constitution must also ensure administrative independence of the
Judiciary, such as supervision and control over the administrative staff, preparation of its
budget and maintenance of the court buildings. It must not prohibit ad hoc tribunals and
diversion of the cases from the ordinary courts, ensure the natural judge principle, ordain
respect fro and provide for separation of judge from the civil services, and prohibit diminution
of judges' service conditions. Some of these matters may be entrusted to legislation; however
there must be enough assurance in the constitution to the effect so that the judiciary is able to
command respect in the eyes of the people and is able to attract the ablest persons as the
judges.

INDEPENDENCE OF SUPREME COURT

The Independence of judiciary in particular with reference to the supremacy and Independence
of Supreme Court is implicit in a number of Articles 124 to Articles 127 in Chapter IV of
Part V of the Constitution. In fact as discussed above the objective of all this conflict
provision is made explicit in the Art. 50. So we will discuss one by one all the implicit
provisions of the Constitution, which ensure the independence of the Judiciary:
Appointment of Supreme Court Judges: - Art 124 (2)
The independence of Judiciary is inextricably linked and connected with the constitutional
process of appointment of Judges of the higher Judiciary. To expect an independent Judiciary
when executive has the power to do so is illogical. This is because centre and state
governments are parties before the courts in large number of cases where Judiciary acts as
adjudicator. So it cannot be accepted that framers of the constitution could have left the power
to appoint the Judges of the Supreme Court and High Courts in the hands of the executive. I
have an independent Judiciary to meet all challenges, unbending before all authorities and to
uphold the imperatives of the constitution at all times, thereby preserving the judicial integrity,
the person to be elevated to the Judiciary must be possessed with the highest reputation for
independence uncommitted to any prior interest, loyalty and obligation and prepared to pay
any price, bear any burden and to always wedded only to the principles of constitution and
 'Rule of Law.2 If the selected bears a particular stamp for the purpose of changing the cause of
decisions bowing to the distal of his appointing authority, then the independence of Judiciary
cannot be secured notwithstanding the guaranteed tenure of office, rights and privileges,
safeguards conditions of service and immunity. In this context mandate of Article 50 becomes
significant which, creates an obligation on the Government to refrain from any interference in
judicial appointments.

In -the matter of appointments of Judges of the Superior Judiciary, the interaction and
harmonization of Art. 74(l) with Art. 124(2) and 217(l) has to be home in mind to serve the
constitutional purpose3. In the case of Appointment of Supreme Court Judges, the
Constitutional requirement is that President is to act in accordance with advice of the Council
of Ministers as provided in Art 74(l). And the advice of the Council of Ministers is to be given
in accordance with Article 124(2) so Art.74 (l) is circumscribed by the requirements of
Articles 124 (2) and 217(l)3.

IMPARTIALITY OF JUDGES
A judge is under a duty not to adjudicate on cases in which he has either an interest- personal
or financial- or where he may be influenced by biases. A fundamental doctrine of judicial
impartiality is ‘nemo judex in sua causa’- no one should be the judge in his own case.

FINANCIAL INTEREST
In Dr. Bonham's case4, Lord Coke held that the members of a board, which determined the
physician's fine couldn't impose or receive the fine thus giving early judicial expressions to the
requirement of the freedom from bias. More recently, in the Dimes v. Grand Junction Canal
Propieter5, the propriety of Lord Cottonham, LC adjudicating was challenged on the basis that
the Lord Chancellor held shares in the canal company involved in the litigation. The House of
Lords set aside the decision of the court despite the fact that:

2
UOI v. Jyoti Prakash (I 971) 1 SCC 396
3
See Constitution of India, Bare Act
4
(1609) 77 All ER 646
5
(1852) 3 HL Cas 759.
 No one can suppose that Lord Cottonham could be in the remotest degree influenced
by the interest... it is of the last importance that the maxim that no man is to be the
judge in his own cause should be held sacred.

Thus, the mere existence of a financial interest, even where it does not in fact result in actual
bias but ay present the appearance of bias may be sufficient to disqualify a judge from
adjudication. The same position prevails in U.S.A. where law expressly covers the issue of
financial interest of federal judge. The Ethics in Government Act, 1978 requires that the
Supreme Court and the federal judges must make a public declaration of income, gifts, shares,
liability and transactions in security and real estate.

Financial interest in a case, which does not go beyond the financial interest of any other
citizen, does not disqualify them from sitting. Thus in Bromley London Borough Council v.
Greater London Council6, the fact that the judges were taxpayers and users of public
transport did not disqualify them from hearing the case.

OTHER BIAS
Judges exhibit bias by the virtue of race, sex, politics, background, associations and opinions.
When adjudicating they must, however, be demonstrably impartial. This involves that the
judge listens to each side with equal attention and comes to the decision on the arguments,
irrespective of his personal views about the litigation; and further that whatever his personal
belief, the judge should seek to give effect to the common values of the community, rather
than any sectional system of values to which he may adhere.

There has however been uncertainty and inconsistency in the interpretation of 'bias'. In R
v. Gough7, Opposing Counsel presented two different tests of bias. The first suggested criterion
was whether a reasonable and fair-minded person sitting in the court and knowing all there
relevant facts would have had a reasonable suspicion that fair trail of the defendant was not
possible. This test is known as 'reasonable suspicion' test. The second suggested test was

7
[1993] 2 All ER 724.
 whether there was a likelihood of bias. The question to be asked is whether there was a 'real
danger' that a trial may not have been fair as a result of bias - 'the real likelihood' test. The
House of Lords declared that the actual test was the real likelihood test where the judge
himself feels that he has been bias against one party; he may disqualify himself from
hearing the case, as did Lord Denning in Ex Party Church Scientology of California.8
There the council for the church requested that he disqualify himself as a result of eight
previous cases involving the Church on which he had adjudicated and in which in the eyes of
Church, he displayed against them.

JUDICIAL IMMUNITIES
Judicial independence requires that the judges should be protected against the attacks on their
conduct in court. This is secured from two branches of law. Firstly, judges are immune from
personal action for damages in respect of their personal action. Anything said by the judge in
the court by judges, advocates or witnesses is absolutely privileged against an action of libel
and slander and to this extent is similar to parliamentary privilege

Enforcing the independence of judges, convention dictate that there should be no criticism
leveled it them from the members of the executive- but not of the legislature. Parliamentary
practice prohibits the criticism of the judges other than the motion expressing criticism or
leading to impeachment of the judge.

The judges are also immune from suits if they have acted within their jurisdiction or their
powers. The situation here remains unclear. If a superior court acts beyond its jurisdiction, it
remains immune to suit till it does not come to know about the violation of jurisdiction. On the
contrary, if the magistrate acts beyond his authority, whether innocently or knowingly, lie is
not immune from a suit.

Part of the immunity enjoyed by the judiciary is extended to other participants of the judicial
proceedings. This relates to the law of defamation so that everything said in the court is
absolutely privileged. They also enjoy certain protection. They are not required to give

8
The Times, 21 Feb. 1978.
reasons for their verdict nor they will be punished for not giving a verdict.

IMPLICATIONS OF INDEPENDENCE OF JUDICIARY

Judicial Review and Judicial Activism

JUDICIALREVIEW
In many countries with written constitution, there prevails the doctrine of Judicial Review. It
means that constitution is the Supreme law of the land and any law in consistent with it is void
the courts perform the side of expounding the provisions of the constitution and exercise
power of declaring any law or administrative action which may be in consistent with the
constitution as unconstitutional and hence void this judicial function stems from the feeling
that a system based on a written constitution can hardly be effective in practice without an
authoritative, independent and impartial arbiter of constitutional issues and also that it is
necessary to restrain governmental organs from execising powers which may not been
sanctioned by the constitution. Judicial Review has two prime functions:

(i) Legitimizing governmental action;

(ii) To protect the Constitution against any under encroachments by the government by
the government.

So, under the Indian Constitution, it is the Judiciary which is entrusted with the task of
keeping organ of the state within the limits of the law and thereby making the rule of law
meaning full and effective.9 The Judiciary in India has to act as an impartial compare to reduce
the disputes between the Governments and the private individuals as well as between the
governments inter se. It has also to protect the fundamental rights of the Individuals
guaranteed under part III of the constitution. The courts in the country have already expanded
the scope of the judicial review by bringing in its ambit social, economic and political Justice.
Keeping in view this expanding horizon of judicial review, it is the paramount need of the
time that the Judiciary must be independent from executive pressure or influence.

9
Art. 13 (4).
 JUDICIAL ACTIVISM
The Supreme Court identified Art. 142 of the Constitution as an unlimited source of power, a
veritable Kamadhenu, on which it could draw for whatever the Judges felt, were the demands
of the justice. In seeking the aid of the poor, the illiterate and the disadvantaged sections of the
society, the post 1980 court emigrated upon a path of judicial activism unparalleled in the
history of any modem democracy. It became a center of political power. Activist lawyers
and Public Interest groups invoked its
jurisdiction. As a result, there was no area of political or social action into which the S.C. did
not deliver its verdict. It did with its craftsmanship, it was able to achieve those goals which the
government even was unable to achieve, and did in a year that which government would not
have been able to do in a decade it dealt with illegal mining 10, pollution in the Ganges11,
guidelines for the adoption of Indian children abroad12, forced prostitution of girls and devdasis
and jogins13, the extreme poverty and starvation in Kalahandi14, the eliminate of injurious drugs
and maintenance of approved standards in drugs15, employment of children in match factories16,
sexual harassment of women in the work place17 and numerous other serious concerns in other
areas of life in country.

10
Rural entitlement and litigation Kendra v. State of UP (1987) Sup SCC 487.
11
MC Mehta v. Kanpur tanneries (1984) 4 SCC 463.
12
Karnataka State council for child welfare v. Society of Sisters Charity (1995) 4 SCC 529
13
Vishal Jeet v. UOI (I990) 3 SCC 701.
14
Kishen patnaik v. State of Orissa (1989) Supp SCC 258
15
Vincent Panikulangra v. UOI (1987) 2 SCC 165.
16
MC Mehta v. State of TN
17
Vishakha v. State of Rajasthan (1997) 6 SCC 241
CONCLUSION
The constitution provides for a judiciary, which is independent. Independence of judiciary is
important for the purpose of fair justice. There should be no interference by the legislature or
the executive, in the proceedings of the judiciary so that it may take a judgment that seems
reasonably fair. In case of intervention, there may be an element of bias on the part of the
judges in taking a fair decision. It is difficult to suggest any other way to make the Indian
courts more self reliant and keep them away from the influence of the other two organs.

In spite of the foresaid, a growing unease is also being felt and expressed about the
accountability of the judiciary and its extensive and frequent intrusion into the supposedly
executive and the legislative domains. Although accountability of judiciary should scrutinize
the act of legislation and executive are delicate controversial issues, the judiciary should not be
left totally unchecked. The judiciary should not get attracted or tempted towards correcting
every wrong in the society, a role that society has never assigned to it and it is not expected to
perform the same. At all times the judiciary must be getting popular approbation of its
intrusion into the domain of the legislature and the executive, but in the long run it may erode
the very basis and justification of its own independence and endanger it.