Independence of Supreme Court

Independence of Supreme Court
 The Supreme Court is a Federal court, the highest

court of appeal, the guarantor of the fundamental
rights of the citizens and guardian of the
Constitution. Therefore, its independence
becomes very essential for the effective discharge
of the duties assigned to it. It should be free from
the encroachments, pressures and interferences
of the executive (council of ministers) and the
Legislature (Parliament). It should be allowed to
do justice without fear or favour.
DR.B.R.Ambedkar
 The people of a nation may lose confidence in the Executive or

the Legislature but it will be an evil day if they lose their
confidence in its judiciary. The judiciary is the guardian of
human rights and civil liberties. The judiciary contributes
vitally in the preservation of peace and order by settling
disputes between the State and Citizens and among citizens
which leads to a harmonious and integrated social existence.
The quantum of its contribution, however, largely depends
upon the willingness of the people to present their problems
before it and to honor its decisions. Equity, Justice and good
Conscience is an accepted principle of judicial functioning in
almost every legal system. The judicial institutions i.e., the
Courts are not only Courts of law, they are also the Courts of
justice.
A.V. Dicey
 The “Rule of law”, said, A.V. Dicey, in 1885 means, “the
absolute supremacy or predominance of regular law as
opposed to the influence of arbitrary power and excludes
the existence or arbitrariness, of prerogative, or even wide
discretionary authority on the part of the Government.
 Another significance, which Dicey attributed to the
concept of Rule of law, was; “equality before the law or the
equal subjection of all classes to the ordinary law of the
land administered by the ordinary law Courts”.
 The principle implicit in the Rule of Law that the
Executive must act under the law and not by its own
decree or fiat, is still cardinal principle of the English
system.
Democracy Mandates
 For a democratic government, Rule of Law is a
basic requirement, and for the maintenance of
Rule of Law, there must be an independent and
impartial judiciary. In a State professing Rule
of Law, the aim should be to provide for a
system which secures to its citizens adequate
procedure for the redress of their grievances
against the State before forums which are able
to administer justice in an impartial manner
without any fear and favour.
Substantive independence of the Judges refers to -
 A. Functional or decisional independence which means the

independence of judges to arrive at their decisions without
submitting to any inside or outside pressure;
 B. Personal independence which means the judges are not
dependent on government in any way in which might influence
them in reaching at decision in particulars cases;
 C. Collective independence which means institutional
administrative and financial independence of judiciary as a
whole vis-a-vis other branches of the government namely the
executives and the legislative; and
 D. Internal independence which means independence of
judges from the judicial superiors and colleagues. It refers to, in
other words, independence of a judge or judicial officer from
any kind of order, indication or pressure from his judicial
superiors and colleagues in deciding cases
Independence of Supreme Court of India
 A notable feature of the Indian Constitution is that it

accords a dignified and crucial position to the judiciary in
India. The existence of a fearless and independence judiciary
is thus founded in the constitutional structure in India. In
the celebrated decision of the Supreme Court in S.P. Gupta
v. Union of India,20 the court held that "the concept of
independence of the judiciary is a notable concept which
inspires the constitutional scheme and constitutes the
foundation on which the edifice of our democratic polity
rests. If there is one principle which runs through the entire
fabric of Constitution, it is the principle of the rule of law
under the Constitution; it is the judiciary which is entrusted
with the task of keeping every organ of the state within the
limits of the law thereby making the rule of law meaningful
and effective".
The Constitution has made the following provisions to safeguard and ensure the
independent and impartial functioning of the Supreme Court:
 Mode of appointment
 Security of tenure
 Fixed service conditions
 Expenses charged on the consolidated fund
 Conduct of judges cannot be discussed
 Ban on practice after retirement
 Power to punish for its contempt
 Freedom to appoint its staff
 Its jurisdiction cannot be curtailed
 Separation from Executive
Mode of Appointment
 Independence of judiciary to quite a great extent,
depends on the method of appointment of judges.
Election of the judiciary by the people or the
legislature, would make it subservient to the
whims of the masses or a tool in the hands of
legislators. Every judge of the Indian Supreme
Court is appointed by the President, after
consultation with such of the judges of the
Supreme Court, and the High Courts of the State,
as the President may deem necessary for the
purpose. In the appointment of a judge other than
the Chief Justice, the President must consult the
Chief Justice.
Cont….
 This provision curtails the absolute discretion
of the executive as well as ensures that the
judicial appointments are not based on any
political or practical considerations.
Security of Tenure
 The Judges of the Supreme Court enjoy
security of tenure. They are not removable
from office except by an order of the President
and that also only on the ground mentioned in
the constitution of proved misbehavior or
incapacity, supported by a resolution adopted
by a majority of total membership of each
House and also by a majority of not less than
2/3 of the members of that House present and
voting.
Cont…..
 This means that they do not hold their office
during the pleasure of the president, though
they are appointed by him. This is obvious
from the fact that no judge of the supreme
court has been impeached so far.
Fixed service condition
 During their term of office, their salaries,
allowances, privileges, leaves and pension are
determined from time to time by the
parliament and cannot be altered to their
disadvantage, except during grave situation
that is, financial emergency. Thus the
conditions of service of the judges remains to
be the same.
Expenses charged on Consolidated Fund
 The salaries allowances and pensions of the
judges and the staff as well as the
administrative expenses of the Supreme Court
are charged on the consolidated fund of India.
Thus they re non- votable by the
Parliament(though they can be discussed by it).
Conduct of Judges cannot be discussed
 Neither in Parliament not in a State Legislature a
discussion can take place with respect to the conduct of a
judge of the Supreme Court in discharge of his
duties under article121.
 The actions and decisions of the judges in their official
capacity are immune from criticism. They may, however,
be subject to critical academic analysis. In order to
maintain the dignity of the Court and to protect it from
malicious criticism, the Court has been empowered to
initiate contempt proceedings against any alleged offender
and take appropriate action. The Court is, also authorized
to stop any act that might prejudicially affect its arriving
at an impartial and independent decision.
Ban on Practice after Retirement
 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. This
ensures that they do not favor anyone in the
hope of future gains.
Power to punish for its contempt
 The Supreme Court and the High Court have
the power to punish any person for its
contempt under article 129 and 215, this power
is very essential for maintaining the
impartiality and independence of the Judiciary.
The actions and the decisions of the Supreme
Court cannot be criticized or opposed by
anybody and ensures the dignity, honor and
authority of the Supreme Court.
Freedom to appoint staff
 The chief justice of India can appoint officers
and servants of the Supreme Court without any
interference from the Executive. He can also
prescribe their conditions of service
Its jurisdiction cannot be curtailed
 Parliament can extend but is not authorized to

curtail the jurisdiction and power of the
Supreme Court. The constitution has
guaranteed to the Supreme Court, jurisdiction of
various kinds. To work more effectively the
Parliament may enhance the jurisdiction of the
Supreme Court in civil cases, here the point to be
noted that in all the provisions the Parliament
can exceed, but cannot curtail the jurisdiction
and power of the Supreme Court under article
138.
Separation from Executive
 States have been directed by the constitution

through article 50 to take steps to separate the
judiciary from the executive in the interest of
public service of the State. This means that the
executive authorities should not possess the
judicial powers. Consequently on its
implementations, the role of executive
authorities in judicial administration ends.
Conclusion
 The Indian Constitution protects the citizens from any partial
judgment. And, this gives the power to the judiciary to make decisions
based on the rules of the law, in case of any dispute. Due to such
authority, the judiciary of the country is an independent body. The
courts of India are not controlled by the government and do not
represent any political authority. Such independence allows the
judiciary to ensure that there is no misuse of power by any section of
the government.
 The independence of judiciary calls for ‘separation of powers’. This
basically means that both the legislature and the executive branches of
the government, cannot interfere with the functions and decisions of
the judiciary. So, in order to successfully execute their independent
authority, the judges of both high courts and the Supreme Court must
be appointed without any influence or interference from other branches
of the government. Also, it is very difficult to remove a judge from
his/her office, once appointed by the judiciary.
End note
 In the words of Graham Wallas, “The
psychological fact behind the principle of
independence is not the immediate reaction of
feeling in a man whose impulses are obstructed
but the permanent result in his conduct of the
destruction of some impulses and the
encouragement of others. We make a judge
independent not in order to spare him personal
humiliation but in order that certain motives
shall not and certain other motives shall direct
his official conduct.”

Independence of Supreme Court

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Independence of Supreme Court

 The Supreme Court is a Federal court, the highest

 The people of a nation may lose confidence in the Executive or

 A. Functional or decisional independence which means the

 A notable feature of the Indian Constitution is that it

 Parliament can extend but is not authorized to

 States have been directed by the constitution

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