NAME :

CLASS. : LLM I
PRN :
SUBJECT : COMPARATIVE CONSTITUTION
TOPIC : INDEPENDENT JUDICIARY CAN
PROTECT THE RIGHTS OF THE
INDIVIDUALS
 INDEX

1. Introduction
2. Historical Background Of And Independent
Judiciary
3. Concept Of Independent Judiciary
4. Type Of Judicial Independence
5. International Instruments To secure Judicial
Independence
6. The Necessity Of An Independent Judiciary
7. Judicial Independence In India
8. Challenges To Judicial Independence In India
9. Conclusion
 1)Introduction:-
Judicial independence is the principle that the judiciary should be free from any external
influence or interference in its functioning. It is essential for ensuring the rule of law,
protecting fundamental rights, and maintaining checks and balances in a democratic system.
“There can be no difference of opinion in the House that our judiciary must both be
independent of the executive and must also be competent in itself. And the question is
how these two objects could be secured.” – Dr B.R. Ambedkar
Judiciary is the system of courts of law that helps to ensure the supremacy of laws in any
nation. It plays a crucial role in the functioning of democracy.
Under the doctrine of separation of powers, the judiciary is one of the principal organs of the
state along with the executive and legislature. While the legislature and executive is
concerned with making the law and executing them respectively, the judiciary supervises
whether the law is properly followed and also interprets and applies the laws in various legal
issues. The separation of power further dictates that the judiciary should act independently
without any outside influences.
An independent judiciary is extremely important for a democracy to prosper. Hence, it is
expected that the judiciary should remain impartial and neutral. However, due to some
external factors and pressure from various influential quarters, the independence of the
judiciary is often compromised. Various features of an independent judiciary, why it is
necessary and most importantly why the independence of the judiciary often faces uncertainty
as well as the status of the independent judiciary in an Indian perspective are further explored
in the article.

2) Historical background of an independent

judiciary:-
The concept of judicial independence has stemmed from the subject matter of the doctrine of
“Separation of Powers”, coined by the 18th-century French philosopher Montesquieu.
However, the concept of an independent judiciary was formally adopted by England in the
Act of Settlement, 1701, though the concept of an independent judiciary took time to flourish.
Before the enactment of the Act of Settlement, 1701, the Judges used to hold the position as
per the decision of the ruler. Like any other civil servant, the judges could also be dismissed
by the Crown when decided. Thus, the judges had to act subordinately to the executive and
legislature. This led the judges to favour the interests of the royal family and other influential
persons. The judicial independence was secured by the Act which formally recognised the
principles of security of judicial tenure, formal mechanisms for the impeachment of a judge
etc. Because of the Act of Settlement, 1701, it has been possible to impeach a senior judge
from office through an official address to the Queen after agreement by both Houses of
Parliament.
Other common law countries such as Canada and Australia also adopted the British model of
an independent judiciary.
The Act of Settlement was used as a foundation by the Founding Fathers of the Constitution
of the United States to formulate Article III of the US Constitution, which acts as a base of
American judicial independence.

3) Concept of an independent judiciary:-

An independent judiciary implies that the executive and legislature should not interfere in the
work of the judiciary. The judiciary is expected to be free from all the influences and interests
of the government and the ruling party and should not act on its behalf. The judges, in an
independent judiciary, should have the freedom to exercise the judicial powers conferred
upon them without any influence, pressure or fear. The impartial judges play the most vital
role to ensure the independence of the judiciary and act as a foundation of a fair and impartial
system of courts.
In other words, an independent judiciary is a political principle that states that the judiciary
should interpret the law and the Constitution of the respective country while being
completely free from the influence of other branches of government, political parties or
public opinion or any partisan interests.
The separation of powers is a fundamental guarantee of the independence of the judiciary. In
the decision-making process, judges should have the freedom to decide cases impartially, in
accordance with their interpretation of laws and facts. They should be able to act without any
restriction, improper influence, fear or favour.
In an Indian case of State Of U.P v. Raj Narain & Ors (1975), the Allahabad High Court
declared the then Prime Minister of India Indira Gandhi guilty of electoral malpractices and
therefore ordered to set aside the election.
In India, to ensure the independence of the judiciary, judges in the High Courts, as well as the
Supreme Court, are appointed with very little interference from other branches of the
government. Once appointed, it is also very difficult to remove a judge.
An independent judiciary is the sine qua non to ensure the vibrant democratic spirit of any
nation.
4) Types of judicial independence:-
Judicial independence is mainly of two types.
I. Institutional or functional judicial independence:-
Institutional or functional judicial independence refers to the fact that the other organs of
the government should not interfere in the judiciary by any means. It is solely based on
the degree of separation of power. The judiciary is free to decide the appointments,
transfers and salaries and amenities provided to the judicial officer or the judges. It is the
independence of the judiciary from the other institutions or organs of the State.
Institutional or functional judicial independence includes protection from interference and
freedom from influences of powerful individuals, groups and lobbies. Institutional or
functional independence of the judiciary from the executive and the legislature is
fundamental to the idea of rule of law.

II. Decisional judicial independence:-

Decisional judicial independence refers to the idea that a judicial officer should be
impartial, neutral and free from prejudices and any biases while deciding any particular
case. The independence of an individual judge is termed decisional judicial independence.
It also includes the fact that a judge should decide a case based on the concerning facts
and laws only without being affected by the opinions of the media, politics, pressure or
interference or influence from any quarter and fear of any penalty in their own careers.

III. Decisional judicial independence is again of two types:

Substantive judicial independence which means that while deciding a case and exercising
judicial powers conferred upon them, the individual judges are not subordinate to any
other authority but are the law themselves.
Personal judicial independence refers to the fact that judges should be impartial or neutral
without any influence or fear and they should decide the case based on the facts of the
case and existing laws.
5) International instruments to secure the
independence of a judiciary:-
Maintaining an independent judiciary has been the key focus of international instruments.
Some of the most prominent international instruments are as follows:

I. UN Basic Principles on the Independence of the Judiciary

(1985)
The UN Basic Principles on the Independence of the Judiciary was adopted on 6 th September
1985 by the Seventh United Nations Congress on the Prevention of Crime and the Treatment
of Offenders held in Milan, Italy.
The idea behind the adoption of the principles was to provide a framework to administer an
independent judiciary in every country and enable a judge to do his duty impartially by
following the principles.
The principles emphasised the selection, appointment, conduct and training of the judges
since they play the most important role in running the judiciary.
Following are the basic principles which were formulated to guide the governments of the
member states to secure and promote an independent judiciary:

II. Independence of a judiciary:-

The State should guarantee the independence of the judiciary by enshrining the following in
its Constitution and the laws of that country. The duty of the government is to ensure an
independent judiciary by removing all interference from the organs of the government.
On the other hand, the judiciary should observe all the cases based on facts and the
concerning laws relating to the cases without being influenced. The jurisdiction of the
judiciary is extended up to all judicial matters and matters contain serious questions of law.
There should not be any kind of unsolicited interference in the judiciary and judicial
decisions should not be subjected to random revision. However, an individual can always
approach judicial reviews and also can appeal to reduce any sentences ordered by the judicial
officers.
Every member of society should have the right to approach the judiciary whenever required.
An independent judiciary should ensure that the judicial proceedings are being performed
without any prejudices and biases toward any of the litigant parties.
The Member state should ensure that the judiciary has enough resources to run its function
properly.

III. Freedom of expression and association:-

According to the Universal Declaration of Human Rights (UDHR), every individual has the
right and freedom to express, believe and associate etc. The judicial officers, as members of
the society, also have the same rights as any other common citizen. However, while
exercising those rights, the judges should maintain and preserve dignity and impartiality.
The judges are also free to form any kind of association with fellow judges for representing
their own interests as well as promotion of judicial independence.

IV. Qualifications, selection and training of the judicial officers:-

The judicial officers should be persons with high morale and integrity as well as should have
appropriate qualifications in law and proper training.
The selection of judicial officers should not be done following any method with “improper
motives”.
The judges should be selected based on their qualifications and should not be discriminated
against on any grounds such as “race, colour, sex, religion, political or other opinions,
national or social origin, property, birth or status”. However, the candidate should be a citizen
of the concerned country and this requirement should not be termed discriminatory.

V. Conditions of service and tenure:-

The conditions of service and tenure of the judges such as the term of office, security, salary
and pensions and also the age of retirement should be secured by the law.
The appointed or elected judges should have a particular retirement age or the end of the term
as a judge.
The promotion of the judges should be based on the ability, integrity and experience of an
individual judge instead of any other preferences.
The internal judicial administration should decide the types of cases to be assigned to a
particular judge.
 VI. Professional secrecy and immunity:-
In the judiciary, the maintenance of professional secrecy should be prioritised. Under no
circumstances, a judge should be forced to testify any confidential information other than the
information acquired in public proceedings.
Judges, while exercising their judicial powers, should have personal immunity from civil
suits for monetary damages. However, any disciplinary proceedings, right to appeal or the
compensation provided by the State are not subject to this.

VII. Discipline, suspension and removal:-

In case of any complaint against any judge, he should have the right to a fair hearing. The
complaint should be examined ‘expeditiously’ and be kept confidential initially.
A judge should only be suspended or removed in accordance with proper judicial conduct
only if he is found unfit to discharge concerned duties.
However, these should be subjected to an independent review. But it is not applicable in cases
of the decisions of the highest court and in impeachment.

VIII. Bangalore Principles of Judicial Conduct (2002):-

The Bangalore Principles of Judicial Conduct (2002) was officially adopted at the Peace
Palace in The Hague, Netherlands. The Principles established the basic ethical standard for
working of the judiciary and provided a framework of judicial conduct. It dealt with six
mandatory ethical values namely judicial independence, impartial discharge of judicial duties,
integrity, propriety, equal treatment to all and lastly performance of judicial duties with
competence and due diligence and the ways to implement them.

IX. Latimer House Principles:-

Latimer House Principles (2008) are the principles adopted by Commonwealth countries
dealing with the three branches of the government. It also emphasises the independence of
the judiciary to strengthen democratic values.
6) The necessity of an independent judiciary
Judiciary is the most important organ of the government and it keeps the overreach and abuse
of power by the Executive and Legislature in check. Judicial independence is vitally
important in a democracy. Individual judges and the judiciary as a whole must be impartial
and independent of all external pressures and of each other so that those who appear before
them to seek justice and the public, in general, can have the confidence that their cases will
be decided fairly and in accordance with the law.
While carrying out their judicial function, judges must be free from any improper influence.
Such influence can come from any number of sources such as the executive, legislators, the
media as well as the particular litigants, especially the particular pressure groups.
The responsibilities of individual judges have increased with the growth in the role of the
government in our daily lives over the last century. Disputes between the citizens and the
state have also increased together with the growth of governmental functions. Now, the
judiciary, apart from providing justice, also protects the common citizen from the unlawful
acts of the government. Thus, the requirement for an independent judiciary has increased ever
since.

7) Judicial independence in India:-

In the post-independent era, the concept of judicial independence has been enshrined in the
Constitution of India itself. There are several constitutional provisions that help in securing
the independence of the judiciary. The provisions are discussed below:

I.Security of the tenure of judges:-

Article 217 of the Constitution states the conditions and appointing a judge of a High Court.
Once appointed, the Supreme Court and high court judges have the tenure to continue their
services until reaching the age of sixty-five years and sixty-two years respectively.
However, the age of retirement of the High Court judges was proposed to increase to 65
through the Constitution (114th Amendment) Bill, 2010. But it was not passed.
Article 124(2) lays down that the President should appoint every Supreme Court judge and
they will remain in office until the age of sixty-five years.
For the appointment of the judges in the High Court and Supreme Court, the President shall
consult the Chief Justice of India and here consultation means concurrence and this was held
in the case of Supreme Court Advocates on Record Association v. Union of India (1993), also
known as the Second Judges Case (1993).

II. Salaries and Allowances of judges:-

Article 125 of the Constitution of India deals with the salaries and allowances of judges. The
salary is specified in the Second Schedule and may be decided to change by the Parliament
by law.
In the cases of judges in the Supreme Court, their salaries are provided by the Consolidated
Fund of India and the judges of the High Court of the respective states are paid by the
consolidated fund of that state.

III. Powers and Jurisdiction of the Supreme Court:-

Under Article 32, the Supreme Court of India has the power to issue writs and an individual
may move to the Supreme Court to access proper justice. Though the Parliament can change
the pecuniary jurisdiction in civil matters, it cannot curtail any powers of the Supreme Court.

IV. No discussion of judicial conduct in the Parliament or state

legislatures:-
Article 211 of the Constitution states that there should be no discussion of the judicial
conduct of any High Court or Supreme Court held in the Legislature of a State.

V. Contempt of Court:-
Under Article 129, the Supreme Court has the power to punish for contempt of itself.
Similarly, Article 215 confers the power to the High Court to punish for contempt.

VI. Complete independence of the judiciary:-

Article 50 of the Constitution ensures complete independence of the judiciary and frees it
from executive control. It contains one of the Directive Principles of State Policy and states
that the state shall take steps to separate the judiciary from the executive.
One of the most recent and landmark cases regarding judicial independence is the case of
Supreme Court Advocates-on-Record Association and another v. Union of India (2015), the
constitutionality of the Constitution (99th Amendment Act), 2014 was challenged by the
Supreme Court Advocates-on-Record Association. The amendment sought to form the
National Judicial Appointment Commission (NJAC) to appoint judges. National Judicial
Appointment Commission would have been a body containing the following six persons:
Chief Justice of India acting as ex officio Chairperson;
Two other senior judges of the Supreme Court acting ex officio;
The Union Minister of Law and Justice also acting ex-officio; and
Two eminent persons are to be selected by a committee consisting of the Chief Justice of
India, Prime Minister of India, and Leader of Opposition in the Lok Sabha for a period of
three years once only. One such person would be from the Scheduled Castes or Scheduled
Tribes or OBC or minority communities or a woman.
The Supreme Court held it unconstitutional and struck it down since the amendment is a
threat to the independence of the judiciary.

8) Challenges to judicial independence in India:-

An independent judiciary cannot be taken for granted. It is important to keep in check that the
judiciary is not politicised and is free from political influences as much as possible.
Otherwise, judicial independence will be at stake. The basic challenges faced by the judiciary
are as follows:

I.Possible biases:-
It is expected that the judges should be completely impartial and free from biases while
declaring any verdict. The maxim Nemo Judex In Causa Sua originated from this idea. It
means ‘no one should judge their own cause’ because this is the main reason for biases.
However, there are mostly three types of biases of the individual judge which may hamper
the impartiality of judicial proceedings. The biases are listed below as follows:
Personal bias in the judiciary is the bias created due to a relation (friendship, grievance or
egoism) between both the parties, adversely affecting the verdict. In the case of Nanjundappa
(B.N.) vs State Of Mysore (1964), the Karnataka High Court declared that while appealing a
case on the ground of personal bias, it must be proved effectively.
The issue of pecuniary bias arises when the deciding party has any kind of monetary or
financial interest in the subject matter of the dispute.
Subject matter bias arises when the authority is directly involved in the subject matter of the
case. In the case of M/s Chetak Construction Ltd. V. Om Prakash & Ors. (1998), the court set
aside an impugned order and assigned the appeal to another judge to decide without being
influenced.
II. Judicial corruption:-
Judicial corruption is the exertion of inappropriate influences and situations which affect the
impartiality and neutrality of the judicial system. An increase in judicial corruption leads the
general public to lose their trust in the judiciary and weakens public morale.
According to the Central government, over 1600 complaints have been received on the
functioning of the judiciary, some of which are on judicial corruption.

III. Influence of political parties:-

Political influences on the judiciary are a matter of grave concern. The political parties often
try to malign and disparage the Indian judiciary for personal and political interests. The
members of any political party often interfere to stop the working of the judiciary if their
interest is not satisfied. Recently, the members of the ruling party in West Bengal protested in
front of the court of a judge in Calcutta High Court and blocked the litigants from entering
the courtroom, apparently because they were not satisfied with the judgements passed by the
Hon’ble judge.

IV. Security issues while discharging judicial duty:-

The judges are also human beings and naturally, they are concerned with the safety and
security of their families. It is not uncommon for a judge to receive threats for the honest
discharge of judicial duties.
Life-threatening situations faced by individual judges for mere discharging of judicial duties
are not uncommon. There have been several instances where a judge has been murdered in
open daylight for passing an unfavourable verdict.
In 1989, Justice Neelkanth Ganjoo, a judge in the Jammu & Kashmir High Court was
assassinated by militants. In 2021, Additional Sessions Judge Uttam Anand in Jharkhand was
brutally murdered in an open street. The Supreme Court took suo moto cognisance of the
issue of the safety of judges and the persons involved in his murder have been awarded
rigorous life imprisonment till death. These incidents raise serious concerns regarding the
safety of the judges while performing their judicial duties.

V.Interference of other two organs:-

Even though the doctrine of separation of powers is followed in India, the other two organs of
the government often try to encroach on and limit judicial powers. Alternatively, the judiciary
also tries its best to keep the executive and legislature in check. However, the functional
overlap of the organs may take place sometimes which hampers the impartial working of the
judiciary.

VII. Lack of transparency in the appointment of judges:-

The appointment of a judge is done following the collegium system in India to safeguard
judicial transparency. However, there are flaws in the collegium system that need to be
rectified. Former Chief Justice P.N. Bhagwati, known for introducing Public interest litigation
(PIL) was not satisfied with the collegium system for appointing the judges because of the
involvement of the Executive. A former Supreme Court judge AK Sikri stated that the
appointment of judges is mostly done based on personal “impressions” rather than the
qualifications and integrity of the individual judge.

VIII. Influence on the judiciary from powerful quarters:-

The influence exerted by powerful quarters for personal and private gains greatly hampers the
working of the judiciary. Examples of offering bribery to judges are very common. A Senior
Civil Judge Rachna Tiwari Lakhanpal of Tis Hazari Court, Delhi and her husband have been
booked by the CBI for disproportionate assets under the Prevention of Corruption Act. Apart
from that, the personal political or ideological influences of the individual judges may affect
the nature of the verdict passed.

9) Conclusion:-
An independent judiciary is the base of a thriving democracy and acts as the last recourse for
people to secure justice. It is important to remember that the ultimate responsibility to
maintain the independence of the judiciary is on the shoulders of the individual judges.
Despite all the existing flaws in the judicial system, it serves as the last recourse for common
people to seek justice. Without an independent judiciary, a democracy cannot function
properly since there will be no institution to protect and supervise the rights of the common
people. Hence, the independence of the judiciary must be upheld at any cost.