THE TAMIL NADU Dr.

AMBEDKAR LAW UNIVERSITY

Dr. AMBEDKAR GOVERNMENT LAW COLLEGE,
CHENNAI

JUDICIAL PROCESS

PROJECT
ON

INDEPENDENCE OF JUDICIARY

Submitted by

KALAIVANI.D
PD17008
I YEAR LL.M.
(Property Law)
 CONTENTS
 INTRODUCTION
 DEVELOPMENT OF THE INDEPENDENCE OF JUDICIARY
 IMPORTANCE OF INDEPENDENT JUDICIARY
 BASIC COMPONENTS OF INDEPENDENT JUDICIARY
 INDEPENDENCE OF THE SUPREME COURT
 INDEPENDENCE OF THE HIGH COURT
 INDEPENDENCE OF JUDICIARY- HOW MAINTAINED UNDER
THE CONSTITUTION
 INDEPENDENCE OF JUDICIARY- SOME LATENT DANGERS
 CONCLUSION
 BIBLIOGRAPHY
 INTRODUCTION

A notable feature of the Constitution is that it accords a dignified and crucial position
to the judiciary.

Well-ordered and well-regulated judicial machinery has been introduced in the

country with the Supreme Court at the apex. The jurisdiction of the Supreme Court is very
broad. It is the general court of appeal from the High Courts, the ultimate arbiter in all
Constitutional matters and also enjoys an advisory jurisdiction. It can hear appeals from any
court or tribunal in the country and can issue writs for enforcing the Fundamental Rights.
There is thus a good deal of truth in the assertion that the Supreme Court of India has wider
powers than the highest court in any other federation.

There exists a High Court in each State. The High Courts have wide jurisdiction and
have been constituted into important instruments of justice. They are the general Court of
appeal from the Courts subordinate to them. The most significant aspect of their jurisdiction
is the power to issue writs. The writ-jurisdiction of the High Courts is invoked very
commonly to enforce Fundamental Rights and to control administrative process.

The judiciary in India has been assigned a significant role to play. It has to dispense
justice not only between one person and another, but also between the state and the citizens.
It interprets the Constitution and acts as a guardian by keeping all authorities—legislative,
executive, administrative, judicial and quasi-judicial—within bounds. The judiciary is
entitled to scrutinise any governmental action in order to assess whether or not it conforms
with the Constitution and the valid laws made thereunder. The judiciary supervises the
administrative process in the country, and acts as the balance-wheel of federalism by settling
inter-governmental disputes.

The judiciary has power to protect people’s Fundamental Rights from any undue
encroachment by any organ of the government. The Supreme Court, in particular, acts as the
guardian and protector of the Fundamental Rights of the people. A person complaining of
breach of his Fundamental Right can straight away invoke the Court’s writ jurisdiction under
Article 32 of the Constitution. Mere enumeration of a number of Fundamental Rights in the
Constitution without any provision for their proper safeguards will not serve any useful
purpose. Indeed, the very existence of a right depends upon the remedy for its enforcement.
Unless there is remedy there is no right, goes a famous maxim. For this purpose an
independent and impartial judiciary with a power of judicial review has been established
under the Constitution of India. It is the custodian of the rights of the citizens.

To enable the Supreme Court and the High Courts to discharge their functions
impartially, without any fear or favour, the Constitution contains provisions to safeguard
judicial independence. The Judges of these Courts are appointed by the Central executive on
the advice of the Judges themselves. Once appointed, the Judges hold office till they reach
the age of superannuation as fixed by the Constitution and, thus, their tenure is independent
of the will of the executive. A special procedure has been laid down for removing the Judges
on the ground of incapacity or misbehaviour.

The Constitutional provisions establishing an independent judiciary, having the power

of ‘judicial review’ go a long way in establishing within the country a government according
to law. Judicial review has been declared to be a basic feature of the Indian Constitution.

Independence of Judiciary means it is free from other organs of the State, especially
executive, and legislative body. It must be free from power pressure or other undue thing.
Independence means “the state or condition of being free from dependence, subjection, or
control. Political independence is the attribute of a nation or State which is entirely
autonomous, and not subject to the Government, control, or dictation of any exterior power.”
The word judiciary means “that branch of Government invested with the judicial power; the
system of court in a country; the body of judge, the bench that branch of Government which
is intended to interpret, construe and apply the law.”

Judicial independence is the doctrine that decisions of the judiciary should be

impartial and not subject to influence from the other branch of Government or from private or
political interests. In most cases, judicial independence is secured by giving judges long, and
sometimes lifetime, tenure and making them not easily removable. “Judicial independence
means that judges are free to decide the cases fairly and impartially relying only on the facts
and law.” Dr.Laxmimal Sindhawi clears that “concept of independence of judiciary is also
relative and not absolute. Judicial independence is not yet a finished product and there is no
perfect model anywhere in the world.

The concept of independence of judiciary has two aspects—functional and structural

independence. Functional independence means the freedom of the individual judges or
judiciary to decide the issues before it. The judiciary shall decide matters before them.
Impartially, on the basis of fact and accordance with the law without any restrictions,
improper influences, pressures, threats on interferences, direct or indirect from any quarter or
for any reason. The judiciary shall have jurisdiction over all issues of a judicial nature and
shall have exclusive authority to decision is within its competence as defined by law. There
shall not be any inappropriate unwarranted interference with the judicial process, nor shall
judicial decisions by the courts be subject to revision. The principle is without prejudice to
judicial review or to mitigation or commutation by competent authorities of sentences
imposed by the judiciary, in accordance with the law. Beside these the court must be
impartial and competent. Structural independence of the judiciary denotes mainly the
autonomy of the judiciary or it is free from other origin of the state so that all probable
interference can be exclusive. “It is the duty of each member State to provide adequate
resources to enable the judiciary to properly perform its function”. It is the duty of the State
to provide adequate financial resources to allow for due administration of justice. In this way,
judicial independence means freedom from direction, control or interference in the exercise
of judicial power by either the executive or legislature. Independent judiciary is backbone of
the democratic State. In the beginning of the development of the concept functional
independence of the judiciary was regarded as sufficient requisite. But in modern era both
structural and functional independence are equally important for independence of the
judiciary.

DEVELOPMENT OF THE INDEPENDENCE OF JUDICIARY

Judicial independence emerged slowly in the United Kingdom and later in Europe.
Under the Norman Monarchy, the King and his Curia Regis held judicial power. Later,
however, more court was created and a judicial profession grew. In the fifteenth century, the
king’s role in this feature of Government thus becomes small. Nevertheless, kings could still
influence courts, and should dismiss judge. The Stuart dynasty used this power frequently in
order to overpower parliament. After the Stuarts were removed in the glorious revolution of
1688, some advocated guarding against royal manipulation of the judiciary. Thus, King
William III finally approved the Act of settlement 1701, which established tenure for judge
unless parliament removed them. The Supreme Court Judicature Act, 1925 was introduced as
a first step toward the independent judiciary.

The concept of independence of judiciary was introduced in 18th century when the
doctrine of separation of power was formulated in the political and legal field. After the
American independence, the Constitution of USA accepted the notion of independent
judiciary. They incorporated independent judiciary in Art. 3 of the U.S. Constitution, in this
Constitution various provisions like criteria of appointment tenure, court jurisdiction etc.,
have been mentioned. The U.S. court developed the doctrine of ultra vires on the ground
when ordinary law is inconsistent with the constitutions. The conceptual development of
independence of judiciary in Nepal is not so long. Before the restoration of democracy
through the Constitution did not prioritize the judicial independence. The Constitution of
Kingdom of Nepal, 2047 laid the milestone for the independence of the judiciary in Nepal.

IMPORTANCE OF INDEPENDENT JUDICIARY

Independence and competence judiciary is necessary for the protection of civil

liberties in the democratic State. Judicial functions are always subject to public scrutiny. The
primary beneficiary of judicial independence is not the judiciary itself but the society at large.
The structural and functional independence of the judiciary have unique importance.

“The Constitution guarantees the three basic principles of the modern concept of
constitutionalism-justice, liberty and equality in addition to attempting to establish a
framework for the achievement of economic prosperity and national unity. For achieving the
objectives, various organs of the State and specialised agencies are created by the
Constitution to work towards them, one of which is the judiciary. In many ways the judiciary
is the main institution on which the responsibility of a free government rests.” Without justice
being freely, fully and impartially administered, therefore, neither individuals, nor rights, nor
the property of any person, could be protected.” The doctrine of separation of power, which
was pronounced by Moresque, insists on the exercise of the power of the Government by
three separate organs-executive, legislature and judiciary. An independent judiciary plays a
vital role to check the power of executive and legislature. Only the independent judiciary can
protect the rights of the minorities and the indigenous communities. Independent judiciary
helps to ensure rule of law in the country and protects the country from entering into anarchy.
It is universally accepted that without an independent judiciary safeguard of the right of the
people is impossible. “The judiciary plays an important role in the traditional justice
initiatives such as reconciliation, rehabilitation, and reconstruction and in ensuring respect for
human rights, combating impunity, building sense of confidence in the rule of law enhancing
effectiveness of the State institution.”
BASIC COMPONENTS OF INDEPENDENCE OF JUDICIARY

There are different model of the judiciary in the world so that no single country can
clear its judiciary is perfect. There are some basic norm, which accepted by the international
community through conferences, symposium workshop etc., they are accepted as basic
components of judicial independence, which are selection or appointment, transfer tenure
salary and privileges security of office, process of removal etc., if these components are fully
incorporated in national law judiciary will certainly be more independent. An independent
judiciary requires the following basic minimum.

(1) Adequate constitutional and legal provisions to insulate judges from illegal
pressures and influences from non judicial authorities
(2) Adequate physical infrastructure for discharge of judicial functions
(3) Well educated and well trained judges
(4) Well trained and competent court staffs
(5) Secured and adequate resources for court administration, and
(6) Proper mechanism for disciplining judges and ensuring their accountability.

INDEPENDENCE OF SUPREME COURT

The concept of independence of the Judiciary took time to grow in England. Before
1701, the Judges held their office during the Crown’s pleasure and, like any other Crown
servant, he could be dismissed by the King at will. The Judges were thus subservient to the
Executive. This subservience naturally led the Judges to favour the royal prerogative. The
most typical example of such an attitude is to be found in the Hampden’s case (the Ship
Money case) in which seven out of twelve Judges gave an award in favour of the Crown’s
prerogative to collect money without parliamentary approval. One of the Judges even
propounded the view that “Rex is Lex.” In 1616, Coke was dismissed from the office of the
Chief Justice of the King’s Bench. The judicial independence was secured by the Act of
Settlement, 1701, which declared the Judicial tenure to be during good behaviour, and that
upon the address of both the Houses of Parliament it would be lawful to remove a Judge. This
position regarding security of judicial tenure is now secured by statutes.

An independent judiciary is the sine qua non of a vibrant democratic system. Only an
impartial and independent Judiciary can stand as a bulwark for the protection of the rights of
the individual and mete out even handed justice without fear or favour. The Judiciary is the
protector of the Constitution and, as such, it may have to strike down executive,
administrative and legislative acts of the Centre and the States. For Rule of Law to prevail,
judicial independence is of prime necessity. Being the highest Court in the land, it is very
necessary that the Supreme Court is allowed to work in an atmosphere of independence of
action and judgment and is insulated from all kinds of pressures, political or otherwise.

The independence of the Indian Judiciary is one of the most significant features of the
Constitution. Any policy or decision of the Government which would undermine or destroy
the independence of the judiciary would not only be opposed to public policy but would also
impinge upon the basic structure of the Constitution.1

The members of the Constituent Assembly were very much concerned with the
question of independence of the Judiciary and, accordingly, made several provisions to
ensure this end. The Supreme Court has itself laid emphasis on the independence of the
judiciary from time to time. As the Court has observed in Thalwal:2”The constitutional
scheme aims at securing an independent judiciary which is the bulwark of democracy”.

The concept of “separation of powers between the legislature, the executive and the
judiciary”3 and “independence of judiciary”, a fundamental concept, has now been “ elevated
to the level of the basic structure of the Constitution and are the very heart of the
constitutional scheme.”4 The Court has rendered several decisions with a view to strengthen
not only its own independence but that of the entire judicial system including the subordinate
judiciary.5

As regards the relationship between Parliament and the Supreme Court, the basic
pattern of the Court, its composition, powers, jurisdiction etc., the Constitution makes
detailed provisions which cannot be touched by ordinary legislative process. But, within the
constitutional framework, Parliament has some powers vis-à-vis the Court. The minimum
number of its Judges is fixed by the Constitution but Parliament has authority to increase, not
to decrease, this number. The Constitution confers a security of tenure on the Judges subject
to Parliament moving an address for removal of a Judge. The power thus vested in Parliament
cannot be misused owing to several safeguards, viz., charges of misbehaviour and incapacity

1
Brij Mohan Lal v. Union of India, (2012) 6 SCC 502, 2012 (4) SCALE 450.
2
A.C. Thalwal v. High Court of Himachal Pradesh, (2000) 7 SCC 1, 9 : AIR 2000 SC 2732.
3
Bhim Singh v. UOI, (2010) 5 SCC 538 : (2010) 4 MLJ 1125 (SC) : (2010) 5 JT 166; State of UP v. Sanjay
Kumar, 2012 (6) All LJ 746 (SC)
4
State of Bihar v. Bal Mukund Sah, AIR 2000 SC 1296, 1317 : (2000) 4 SCC 640.
5
For example, S.C. Advocates on Record Ass. V. Union of India, In re : Presidential Reference.
against the Judge concerned have to be enquired and proved, and special majority is required
in the two Houses for the motion to be carried; the executive plays no role in this procedure.

The salaries of the Judges are fixed by the Parliament by law but it cannot be reduced
during the tenure of a judge. Parliament may prescribe the privileges, allowances, leave and
pension of a Judge, subject to the safeguard that these cannot be varied during the course of
tenure of a Judge to his disadvantage.

In the area of the Court’s jurisdiction, Parliament may provide that an appeal may lie
to the Supreme Court in civil matters from the judgment, decree or final order of a single
Judge of a High Court. Parliament can enhance the appellate criminal jurisdiction of the
Supreme Court by enabling it to entertain and hear appeal from any judgment, final order or
sentence in a criminal proceeding in a High Court over and above those cases in which the
Court can already hear appeals under Art. 134. Parliament can provide that the Supreme
Court shall not have jurisdiction and powers of the Federal Court beyond what it already has
under Article 133 and 134. Parliament can regulate the Supreme Court’s power to review its
own decisions and orders. Parliament can confer further jurisdiction (quantitatively or
qualitatively) on the Supreme Court regarding any matter in Union or Concurrent List.
Parliament can provide that the Supreme Court can have jurisdiction and powers with respect
to any matter as the Government of India and the Government of a State may by special
agreement seek to confer on it. Parliament can confer on the Supreme Court power to issue
directions, orders or writs, for any purpose other than those mentioned in Art. 32. Parliament
can confer supplementary powers on the Supreme Court so as to enable it to exercise its
jurisdiction more effectively.

It is clear from these provisions that what Parliament can do is to expand the
jurisdiction and powers of the Supreme Court in several respects over and above what the
Constitution confers. The effect of all these provisions, therefore, is that whereas the
Constitution guarantees to the Supreme Court jurisdiction of various kinds, the matter has not
been stereotyped into a rigid pattern for ever but is capable of expansion in the light of
experience and prevailing circumstances.

The rule-making power of the Supreme Court is subject to any law made by
Parliament. Parliament may regulate and prescribe the conditions of service of officers and
servants of the Supreme Court; may prescribe the manner in which a decree or order passed
by the Supreme Court may be enforced; may also pass a law to regulate the Court’s power to
make an order for securing the attendance of a person, discovery and production of
documents or investigation or punishment of contempt of itself. These are, however,
procedural matters and do not affect the Supreme Court in any substantive manner.

To enable Parliament to make laws pertaining to the above mentioned matters, Entry
77, List I, Sch. VII, confers on Parliament power to make law with respect to the constitution,
organisation, jurisdiction and powers of the Supreme Court (including contempt of the court)
and the fees taken therein and also as to persons entitled to practice before it.

The Constitution insulates the Court from political criticism, and, thus, ensures its
independence from political pressures and influence, by laying down that neither in
Parliament nor in a State Legislature the conduct of a Supreme Court Judge in the discharge
of his duties, can be discussed. In the Keshav Singh case, the Supreme Court has taken
opportunity to underline the significance of this provision. It protects a Judge of the Court
from any contempt proceedings which may be taken against him in nay house of the
Parliament or State Legislature for anything that the Judge may do in any discussion in a
House, with respect to a Supreme Court Judge. Reading Article 121 and 211 together, it is
clear that the conduct of a Supreme Court Judge cannot be discussed in a House except when
a motion to remove him is before the Parliament.

Further, the Supreme Court’s expenses are charged upon the Consolidated Fund of
India, which means that this item is non-votable in Parliament although a discussion on it is
not ruled out. It is thus not possible for Parliament, howsoever annoyed it may be with the
Court, to starve it of funds. And possibility of Parliament getting annoyed with the Court is
not just a figment of the imagination. That such occasions may arise is evidenced by the
reaction to the Supreme Court’s decision in the Golaknath case or the Kesavanada Bharthi
case and earlier in the property cases, which led to the First and the Third Amendments of the
Constitution. The extreme controversy between a State Legislature and the High Court
concerned which occurred in the Keshav Singh case has already been referred to. Therefore,
making supply of money to the Supreme Court independent of parliamentary vote is a great
step in ensuring the Supreme Court’s independence from political pressures.

As regards the Central Executive-Supreme Court relationship, the effective power to

appoint Supreme Court Judges has over the years passed from the Executive to the Judiciary
itself which has greatly strengthened judicial independence. The Executive has no power to
remove a Judge without an address from the House of Parliament, and cannot control the
Court’s jurisdiction in any manner. However, the rules made by the Supreme Court
concerning its staff members are to be approved by the Executive because of the financial
implications involved therein. Here, again, the Court has made consultation between the
Executive and the Chief Justice compulsory.

Recruitment of the Court’s staff is outside the purview of the Executive except that it
can by rules provide for consultation with the Union Public Service Commission. Salaries
and allowances of the officers and servants of the Supreme Court are to be approved by the
Executive, the reason being that ultimately they are to be met out of the Public Exchequer
which affects the tax-payer and, therefore, some governmental control over the Court’s
expenses is necessary.

From the above, it would appear that the constitutional position of the Supreme Court
is very strong relatively to the other two organs of government. A reasonable security of
tenure has been provided to the Judges which is an important condition to enable them to act
in an atmosphere of independence. The Court has been reasonably immunized from the
stresses and strains of contemporary politics in the country.

There is however a danger of the judicial independence being eroded somewhat by

the prevailing practice of the government re-employing retired Supreme Court Judges in
various capacities. The only ban imposed by the Constitution on a Supreme Court Judge is
that he should not plead or act in any Court or before any authority after retirement.

In the Constituent Assembly, an attempt to put a restriction on re-employment of a

retired Supreme Court Judge by the government did not succeed. Ambedkar stated that the
judiciary decided issues between citizens and rarely between citizen and the government and,
consequently, the chances of the government influencing the conduct of a member of the
Judiciary were very remote; in many cases employment of judicial talent in a specialised
forum might be very necessary, as for example, the Income-tax investigation Commission;
and that relations between Executive and Judiciary were so separate and distinct that the
Executive had hardly any chance of influencing the judgment of the Judiciary.

It is obvious that Ambedkar unduly minimised the importance of litigation in which

government is a party. Today a very large chunk of the Supreme Court’s work consists of
deciding cases in which the government figures as a party. Also, the retired Judges are not
always appointed, as Ambedkar envisaged, to quasi-judicial posts only. Many a time, they
are appointed to pure and simple executive posts, for example, as Governors of States.
 The Law Commission has also criticised the prevailing practice of re-employing the
retired Judges. “It is clearly undesirable that Supreme Court Judges should look forward to -
other government employment after their retirement, the government is a party in a large
number of cases in the highest Court and the average citizen may well get the impression,
that a Judge who might look forward to being employed by the government after his
retirement, does not bring to bear on his work that detachment of outlook which expected of a
Judge in cases in which government is a party. We are clearly of the view that the practice
has a tendency to affect the independence of the Judges and should be discontinued.”

The solution of the problem appears to lie in increasing the age of retirement of a
Supreme Court Judge from 65 to 70 years, to make liberal pension provisions for the retired
Judges, to put a legal ban on a Supreme Court Judge accepting an employment under any
government after retirement, and to use his judicial talent in an honorary, and not in a
salaried, capacity.

In Nixon M. Joseph v. Union of India,6a very pertinent and significant question was
raised before the Kerala High Court through a public interest litigation , viz,: should the
retired Supreme Court and High Court Judges take any job, or contest election for the
legislature. There is no specific bar in the Constitution against this. Nevertheless, K.
NARAYANA KURUP J. has expressed a firm opinion against this practice. To maintain the
dignity and independence of the judiciary as well as public confidence in the judiciary, it is
necessary that a Judge should not allow his judicial position to be compromised at any cost.
Justice must not only be done but seen to be done. KURUP, J., has made the following pithy
remarks:

“The general public reposing absolute faith in the judiciary, see in it , justifiably an
institution, that can rein in, if not eliminate, the rapacity, nepotism and corruption, especially
at high places which have come to be associated with governance. The judiciary should
continue to merit the exalted position it occupies in the minds and hearts of the people as the
“saviour of democracy”. It cannot be gainsaid that the one necessary condition for this is its
independence. Independence in the sense free from the executive, meaning the bureaucracy
and politicians interference and influence of every type. And fundamental to freedom from
such influence and pressures on the judiciary is to eschew active politics and acceptance of
positions by judges after retirement.”

6
AIR 1998 Ker 385.
 While the learned Judge was definitely of the opinion that judges be precluded from
taking up jobs, or moving into active politics after retirement, he refrained from giving a
definitive ruling in the case. As the matter is of national significance, the Judge dismissed the
petition in limine and left the matter to the Central Government for consideration and
necessary action.

In the past, at times, appointment of the Chief Justice raised controversy when a
junior Judge was appointed as the Chief Justice by-passing the senior-most Judge. This was
regarded as an attempt to interfere with judicial independence. While a rule of automatic
promotion of the senior-most Judge to the office of the Chief Justice might not always be
satisfactory, by-passing him because his because his judicial views are not palatable to the
government is to strike at the roots of judicial independence. It is hoped that such
controversies will not arise in future because of introduction of new procedure to appoint the
Chief Justice.

The Supreme Court of India enjoys far larger powers than any other Apex Court, e.g.,
House of Lords in Britain or the Supreme Court in the USA. The Court enjoys very extensive
jurisdiction. It plays a very significant role in the administration of law and justice in the
society. It is the final arbiter and interpreter of the Constitution. Judicial review is the basic
structure of the Constitution and this places a special responsibility on the Supreme Court in
the area of constitutional interpretation. It is the final court of appeal in matters of private law
as well as public law, and has a supervisory role vis-à-vis the tribunals and enjoy advisory
jurisdiction.

The Supreme Court is at the apex of the national judicial system. It constitutes a
constitutional balance-wheel acting countervailing power to the Executive and theLegislature.
The Court has played an extremely creative role in keeping the responsible and the
parliamentary system of government in proper working order,7in maintaining the federal
balance, in protecting the fundamental rights of the people. The Court has endeavoured to
promote a welfare state in India.

But the Court is faced with a serious problem, viz., load of work.8 Because of the
spate of legislative and executive activity, increase in population and explosion of economic
activity, there has been an explosion in litigation in India. Creation of tribunals, like the

7
U.N.R. Rao; Samsher Singh; S.R.Bommai v. Union of India, AIR 1994 SC 1918.
8
R. DHAWAN, THE SUPREME COURT UNDER STRAIN: THE CHALLENGE OF ARREARS (I.L.I. 1978).
Central Administration Tribunal, has further added to the load of work on the Supreme Court
as appeals from these tribunals lie directly to the Supreme Court.

There seems no possibility that the work-load on the Court will decrease in future. On
the other hand, it is possible that the load of work on the court may increase. It, therefore,
appears to be necessary to think of ways and means to expedite disposal of cases by the
Supreme Court.

One obvious step to meet the situation is to further increase the number of judges and
to select persons of calibre, aptitude and industry for the purpose. At times, filling of judicial
vacancies takes a long time. The Government should devise ways and means to cut-short this
period. The Court may also think of establishing specialised Benches according to the major
heads of litigation coming before it. If the same judges deal with the same subject-matter over
and over again, there can be quick disposal of cases and also a uniformity in decisions
making law more certain and thus rendering the number of appeals to the Supreme Court in
the long run.

Another method may be to establish all India tribunals, or a Central Appellate

Tribunal, to hear appeals from all the various tribunals in the country, leaving only an
exceptional appeal to the Supreme Court on questions of law from such a Tribunal.

The Supreme Court itself has suggested setting up of a National Court of Appeal to
entertain appeals by special leave from the decisions of the High Courts and tribunals in the
country in civil, criminal, revenue and labour cases so that the Supreme Court may concern
itself only with entertaining cases involving questions of constitutional law and public law.9

The important thing is that in a democratic country, to solve the problem of arrears of
cases pending in the courts, the solution is not to deny justice to the people but to expand the
judicial system in various ways so as to keep pace with the growth of litigation in the
country.10

9
Bihar Legal Support Society v, Chief Justice of India, AIR 1987 SC 38 ; (1986) 4 SCC 767.
10
Law Commission, Fourteenth Report, 46-63 (1958); Forty-fourth Report (1971) and Forty-fifth Report (1971);
Fifty-eighth Report on the Structure and Jurisdiction of the Higher Judiciary.
INDEPENDENCE OF THE HIGH COURTS

In a democracy governed by law, independence of the judiciary is very essential.

Judiciary constantly stands as the sentinel on the qui vive to protect the Fundamental Rights
of the people. The judiciary keeps the scales of justice even between the citizens and the
State, or between the Centre and the States, or between the States inter se.

Independence of the judiciary is an essential attribute of Rule of Law. Because of

these paramount considerations, judicial review, independence of the judiciary, and Rule of
Law have been declared as the basic features of the Constitution which cannot be deleted
even by a constitutional amendment.

As in the case of the Supreme Court, so in the case of the High Courts, there exist
provisions in the Constitution to preserve and safeguard their impartiality, integrity and
independence. In the appointment of the High Court Judges, the Chief Justice of India plays a
crucial role; they are appointed for a fixed tenure, and the process to remove them from office
before the age of retirement is very dilatory and elaborate.

The expenses of a High Court are charged on the State Consolidated Fund [Art.
202(3)(d)]. The conduct of a High Court Judge in discharge of his duties cannot be discussed
in the State Legislature or Parliament except when a motion for removal is under
consideration. The salaries of the High Court Judges are determined by Parliament by law.
The allowances, leave and pension of a High Court Judge are determined by Parliament by
law, but these cannot be varied to his disadvantage after his appointment. [Art.221]. It is laid
down in Art. 220 that after retirement, a permanent High Court Judge shall not plead or act in
a Court or before any authority in India, expect the Supreme Court and a High Court other
than the High Court in which he has held his office.

The jurisdiction of a High Court in so far as it is specified in the Constitution, as for

example, Art. 226 cannot be curtailed by the Legislature. In other respects, however, the
matter of jurisdiction has been left to Parliament and the State Legislatures. However, as
pointed out earlier, if a State law derogates from the constitutional position of the High Court,
then the Bill has to be reserved by the Governor for Presidential assent. But the constitution
and organisation of the High Courts fall under the legislative sphere of Parliament and, thus,
the High Courts have been largely insulated from local influences.
 The State Executive does not have much say vis-à-vis the High Court. It is consulted
at the time of appointment of the Judges. It also approves the rules made, and the table of the
fees prescribed, by the High Court; it also approves the rules made by the Chief Justice of
the High Courts specifying the salaries etc. of officers and servants of the High Court.

As already stated earlier, Article 224(1) provide for the appointment of additional
Judges in the High Courts. Such judges are appointed for a period of two years and may be
made permanent judges thereafter. The institution of additional judges somewhat detracts
from the independence of the judiciary. The reason is that an additional Judge may not be
able to act fully independently as he may be obsessed with the fear of losing his job after two
years. The provision in the Constitution permitting appointment of additional Judges on a
temporary tenure is however open to objections, more so as there is no limit on the number of
such Judges who can be appointed at one time. The criticism is however diluted to some
extent by the fact that the power in this respect lies with the Centre and not with the State
Executive and the power is exercisable on the advice of the Chief Justice of India. Lastly, the
dangers inherent in the re-employment of retired Judges have already been pointed out and
theses operate as much as in the case of the Supreme Court.11

Great emphasis has been laid on the independence of the High Courts by several
Judges of the Supreme Court in S.P.Gupta v. Union of India.12 It has been said that judicial
independence is one of the central values inherent in the Constitution; that the judiciary plays
a creative role in so far as it keeps government organs within legal limits and protects the
citizens against the abuse of power by them and so it is essential that the judiciary be free
from government pressure or influence.

In the S.C. Advocates-on-Record case, again, the Supreme Court has laid great
emphasis on the independence of the Judiciary in a democratic society. “Independence of the
Judiciary” has been characterised “as a part of the basic structure of the Constitution”, “to
secure the ‘rule of law’, essential for the preservation of the democratic society”.13 In Kumar

11
The question regarding the appointment of the additional Judges has been thoroughly discussed by the
Supreme Court in S.P.Gupta v. Union of India.
12
AIR 1982 SC 149.
13
AIR 1994 SC at 421 : (1993) 4 SCC 441. Also, High Court of Judicature od Bombay v. Shirish Kumar R Patil, AIR
1997 SC 2631 : (1997) 6 SCC 339.
Padma Prasad v. Union of India14 the Supreme Court has observed: “The independence of
judiciary is part of the basic structure of the Constitution.”

Emphasising upon the independence of the judiciary in a democracy, the Supreme

Court has observed in Shishir Patil :15

“In a democracy governed by the rule of law, under a written constitution, judiciary
is the sentinel on the qui vive to protect the fundamental rights and posed to keep even scales
of justice between the citizens and the state or the state inter se. Rule of Law and judicial
review are basic features of the Constitution. As its integral constitutional structure,
independence of the judiciary is an essential attribute of rule of law. Judiciary must,
therefore, be free from pressure or influence from any quarter. The Constitution has secured
to them, the independence.”

It has been judicially ruled that the Judges of the Supreme Court and the High Courts
are not government servants in the ordinary sense of the term. A Judge of any of these Courts
does not hold “a post in the service under the State”. He is not under the Government of India
as to hold so will militate against the concept of independence of the judiciary which is a
basic feature of the Constitution.16 A Judge holds a constitutional office. In Union of India v.
Sankalchand Himatlal Sheth17, the Supreme Court has described the position of a High Court
Judge as follows:

“…Judges of the High Court owe their appointment to the

Constitution and hold a position of privilege under it… They, the Judges of the High Court,
are not government servants in the ordinary significance of that expression… In fact a High
Court Judge has no employer, he occupies a high constitutional office which is coordinate
with the executive and the legislature. The independence of the judiciary is a fighting (sic)
faith of our Constitution.”

The same is true of the Supreme Court Judges. The Supreme Court has ruled in Union
of India v. Pratibha Bonnerjee18that Arts.50, 214, 217, 219 and 231 of the Constitution show
that a High Court Judge belongs to the third organ of the State which is independent of the
other two organs, the Executive and the Legislature. Therefore, a person belonging to the

14
AIR 1992 SC 1213 : (1992) 2 SCC 428.
15
HIGH COURT OF JUDICATURE AT BOMBAY V. SHIRISH KUMAR R. PATIL, AIR 1997 SC AT 2627.
16
SUPREME COURT ADVOCATES ON RECORD ASSN. V. UNION OF INDIA, (1993) 4 SCC 441.
17
ALSO, ALL KERALA POOR AID LEGAL ASS. TRIVANDRUM V. CHIEF JUSTICE OF KERALA, AIR 1990 KER 241.
18
(1995) 6 SCC 765 : AIR 1996 SC 693.
judicial wing cannot be subordinate to the other two wings of the State. A High Court Judge
occupies a unique position under the Constitution. He will not be able to discharge his duty
without fear or favour, affection or ill will, unless he is fully independent of the Executive.
Hence the relation between the Government and a High Court Judge is not that of master
servant; the Judge does not hold his office under the Government; he cannot be regarded as a
government servant; he holds a constitutional office and is able to function independently and
impartially because not being a government servant he does not take orders from anyone.

It is arguable that the increasing control that the Supreme Court has exercise not only
in the matter of appointment of High Court, their transfers to other High Courts, their
appointment as Chief Justices of High Courts and as Judges of the Supreme Court, but also in
matters which pertain to the internal administration of the High Court, has led to an unwanted
deference by the judges of the High Court to the judges of the Supreme Court. There is a
danger consequently of a lack of robust independence in the High Court, although the
Supreme Court has justified its interference on the ground of judicial independence.19

At times, sitting High Court Judges are appointed to head tribunals or commissions.
To preserve the independence of High Court Judges, the Supreme Court has now laid down
guidelines for the appointment of these Judges to tribunals, committees or commissions.20

INDEPENDENCE OF JUDICIARY- HOW MAINTAINED UNDER THE

CONSTITUTION
Only an impartial and independent judiciary can protect the rights of the individual
and provide equal justice without fear or favour. It is, therefore, very necessary that the
Supreme Court should be allowed to perform its functions in an atmosphere of independence
and be free from all kinds of political pressures. The Constitution has made several
provisions to ensure independence of Judiciary.

(1) SECURITY OF TENURE.—The Judges of the Supreme Court have security

of tenure. They cannot be removed from office except by an order of the President and that
also only on the ground of proved misbehaviour 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 the House present and voting. Parliament may, however, regulate
the procedure for presentation of the address and for investigation and proof of the

19
Tirupati Balaji v. State of Bihar. (2004) 5 SCC 1 : AIR 2004 SC 2351.
20
T. Fenn Walter v. Union of India, (2002) 6 SCC 184 : AIR 2002 SC 2679.
misbehaviour or incapacity of a Judge. But Parliament cannot misuse this power, because the
special procedure for their removal must be followed.
(2) SALARY OF JUDGES FIXED, NOT SUBJECT TO VOTE OF
LEGISLATURE.—The salaries and allowances of the Judges of the Supreme Court are
fixed by the Constitution and charged on the Consolidated Fund of India. They are not
subject to vote of Legislature. During the term of their office, their salaries and allowances
cannot be altered to their disadvantage except in grave financial emergency.

(3) PARLIAMENT CAN EXTEND, BUT CANNOT CURTAIL THE

JURISDICTION AND POWER OF THE SUPREME COURT.—In respect of its
jurisdiction, Parliament may change pecuniary limit for appeals to the Supreme Court, confer
supplementary power to enable it to work more effectively, confer power to issue directions,
order or writs including all the prerogative writs for any purpose other than those mentioned
in Art. 32. The point to be noted in all these provisions is that the parliament can exceed, but
cannot curtail the jurisdiction and power of the Supreme Court. [Article 138].

(4) NO DISCUSSION IN LEGISLATURE ON THE CONDUCT OF THE

JUDGES:-Neither in Parliament nor 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 (Art. 121).

(5) POWER TO PUNISH FOR ITS CONTEMPT:- The Supreme Court have
the power to punish any person for its contempt (Arts. 129 and 215). This power is very
essential for maintaining the impartiality and independence of the Judiciary.

(6) SEPERATION OF JUDICIARY FROM EXECUTIVE:- Art. 50 directs

the State to take steps to separate the judiciary from the executive in the public services of the
State. It emphasises the need of securing the judiciary from the interference by the executive.

(7) JUDGES OF THE SUPREME COURT ARE APPOINTED BY THE

EXECUTIVE WITH THE CONSULTATION OF LEGAL EXPERTS:-
The Constitution does not leave the appointment of the Judges of the Supreme Court
to the unguided discretion of the Executive. The Executive is required to consult Judges of
the Supreme Court and High Courts in the appointment of the Judges of the Supreme Court.
[Art 124(2)]. The independence of the Supreme Court is emphasised by Art. 229 which
provides that appointment of officers and servants shall be made by the Chief Justice or such
other Judge or officer as he may appoint.

(8) Prohibition on Practice after Retirement.—Art. 124(7) prohibits a retired Judge of

the Supreme Court to appear and plead in any court or before any authority within
the territory of India.

Thus the position of the Supreme Court is very strong and its independence is
adequately guaranteed. However, there are certain disturbing trends which are likely to
threaten the independence of judiciary at present. First, although Art. 124 vests the legal
power of appointment in the executive but the executive is required to ‘consult’ legal experts
i.e., judges of the Supreme Court and High Courts in appointing judges of the higher courts.
But unfortunately, the Supreme Court interpreted the word ‘consultation’ in such a literal
manner that it gave virtually a discretion in the matter. In Judges Transfer Case I (S.P. Gupta
v. Union of India) the Supreme Court held that the word “consultation”, did not mean
concurrence and the Executive was not bound by the advice of legal experts. Thus the power
of appointment of the Judges of the Supreme Court and the transfer of the High Court Judges
was solely vested in the Executive from whose dominance the Judiciary was expected to be
free. By conceding the power of appointment exclusively to the executive, it is submitted, the
Court has itself put the independence of the judiciary into danger. Mr. Justice Bhagwati (as
he was then) of the Supreme Court in the S.P. Gupta’s case had suggested for establishment
of a Judicial Commission for recommending the names of persons for the appointment of the
judges of the Supreme Court and High Courts. Secondly, the power of the President under
Article 222 to transfer a Judge from one High Court to another may also be used to
undermine the independence of the judiciary.

Fortunately, in Judges Transfer Case II (S. C. Advocate on Record Association v.

Union of India), 21the Supreme Court by a 7-2 majority overruled S. P. Gupta’s case and held
that the opinion of the Chief Justice of India must be given the greatest weight in the
selection of the Judges of the Supreme Court and High Courts and the transfer of the High
Court Judges. The selection should be made as a result of a participatory consultative process.
The Chief Justice was required to consult two senior most Judges of the Supreme Court
before sending his recommendations to the Government. Thus the executive element in the
appointment process was reduced to minimum and any political influence is eliminated. The

21
(1993) 4 SCC 441.
majority said that initiation of the proposal for appointment for the Judges must be started
well in time and the appointment should be duly announced soon. No appointment of any
Judge to the Supreme Court or any High Court could be made unless it was in conformity
with the opinion of the Chief Justice of India. The Judges made it clear that the opinion of the
Chief Justice of India has not mere primacy, but is determinative in the matter of transfer of
High Court Judges and the Chief Justices.

The criterion for the appointment of the Chief Justice of India shall be seniority.

In Transfer of Judges Case III,22 (Re. Presidential Reference) a nine judge Bench of
the Supreme Court has unanimously held that the recommendations made by the Chief
Justice of India on the appointment of Judges to the Supreme Court without following the
consultation process are not binding on the Government. Widening the scope of Chief Justice
of India’s consultation process, the Court gave its opinion on the 9 questions in the
Presidential Reference. The President sought the Supreme Court’s clarification under Art.
143, on the consultation process, as laid down in S.C. Advocates on Record Association case
in 1993. In that case the Court gave primacy to the opinion of the CJI formed in consultation
with two senior most Judges of the Supreme Court in regard to the appointment of Judges and
their transfers. Thus the main question on which the advisory opinion of the Court was sought
was whether the government was bound by the recommendation of CJI sent to it without
consulting his two senior most colleagues.

The Court held that the “consultation process to be adopted by the CJI requires
consultation of plurality of Judges. “The expression consultation with the Chief Justice of
India in Arts. 217(1) and 222(1) of the Constitution requires a consultation with a plurality of
Judges in the formation of the opinion of the CJI. The sole opinion of the CJI does not
constitute consultation process”. The Court, held that the recommendations made by the CJI
without complying with the norms and guidelines regarding the consultation process are not
binding on the government. The Court held that the Chief Justice of India must consult a
collegium of four senior most Judges of the Supreme Court and made it clear that “if two
Judges give adverse opinion the CJI should not send the recommendation” to the President.

“The collegium should” the Court said, “make the decision in consensus and unless
the opinion of the collegium is in conformity with that of the CJI, no recommendation is to be
made”.

22
AIR 1999 SC 1.
 In regard to transfer of High Court Judges, the Court said, in addition to the collegium
of four Judges, the CJI was obliged to consult the Chief Justices of the High Courts (one from
which the Judge was being transferred and the other receiving him).

However, the Court said in regard to the appointment of the High Court Judges, the
CJI is required to consult only two senior most Judges of the Supreme Court.

The Court held that the CJI should make recommendations in regard to appointment
and transfer in accordance with the guidelines laid down in the 1993 judgment and as per the
opinion given in the present Presidential Reference of 1999.

It is hoped that the controversy which arose regarding the recommendations made by
the former Chief Justice M.M. Punchshi without consulting the senior most Judges would not
arise in future and this would ensure the independence and impartiality of the Judiciary of
India.

We thus find that the decisions of Supreme Court in Supreme Court Advocate on
Record Association and Re Presidential Reference the process of appointment of judges of
higher judiciary has been completely reversed. As a result Art. 124 has been made redundant.
These cases have vested the powers of appointment of judges of higher judiciary completely
in the Supreme Court.

This is not a satisfactory position. The process is not transparent in this case also. The
broad consensus appears to be on the appointment of a National Judicial Commission which
would balance both sides the executive and the judiciary in this matter.

Secondly, the non-effectiveness of the impeachment proceeding under Art. 124(4) and
(5) based on political manoeuvring also causes harm to the independence of judiciaryas the
erring judge is not being afraid of any action being taken against him. The defeat of
impeachment motion in the Nineth Lok Sabha against Justice. V.Ramaswami of the Supreme
Court is a glaring example to show that there is no mechanism in the Constitution to punish a
guilty judge. In 1990, the then CJI, Justice Sabyasachi Mukharji said, that impeachment was
practically impossible……… the process is just too cumbersome “The Lok Sabha role in
Justice Ramaswamy’s case in 1993 showed the absurdity of requiring politicians
endorsement’ of finding of guilt by these judges.

On April 28, 1998 former CJI Justice J. S. Verma said “Today judges of the superior
Judiciary in India are not answerable to any one for their misconduct, as neither the
impeachment procedure nor internal machinery is workable”. Both lie discredited now,
devoid of legal sanction, the judge can refuse to participate in the charode, (riddle) of
“internal inquiry”. The Chief Justice can refuse him work, transfer him. But he survives to
cock a snook at all.

Thirdly, the recent incident of indiscipline and corruption charges levelled against
certain judges of various High Courts has also damaged the independence of judiciary and
has shaken the confidence of common man to get justice from the courts. Certain charges
were allowed against three judges of the Karnataka High Court allegedly involved or
indulging in sex scandal in Mysore, resort arrest of the Delhi High Court Judge for his links
with Land Mafia, as persons cast on some judges in the Punjab Public Service Commission
recruitment scam, and more recently 26 judges of Punjab and Haryana High Court taking
mass casual leave against the order of the Chief Justice asking them to explain why they have
accepted membership of a golf club which was discredited, a Punjab and Haryana High
Court sitting judge Nirmal Singh’s wife Paramjit Kaur contesting parliamentary election,
2001 on SAD(B) ticket from Bhatindia are the happenings which show that the higher
judiciary is suffering with is in dire need of cleaning.

The in house mechanism devised by the Supreme Court to solve Justice A.M.
Bhattacharjee’s case has proved ineffective. The procedure lacked transparency and sanction
of law.

The present practice of appointing retired Judges in Various capacities may also pose
a serious danger to judicial independence. The Law Commission has pointed out dangers of
the prevailing practice in the following words :

“It is clearly undesirable that the Supreme Court Judges should look forward to other
Government employment after their retirement. The Government is a party in large number
of cases in the highest Court and average citizens may well get the impression that a Judge,
who might look forward to being employed by the government after his retirement, does not
bring on his work that detachment of outlook which is expected of a Judge in case in which
Government is a party. We are clearly of the view that the practice has a tendency to affect
the independence of the Judges and should be discontinued.23

23
Law Commission, XIV Report p. 46.
INDEPENDENCE OF JUDICIARY—SOME LATENT DANGERS

The Constitution has tried to insulate the Judiciary from outside influence both from
the Executive and the Legislature. Independence of the judiciary constitutes the foundation
on which rests the edifice of Democratic Polity. The general concept of Judicial
Independence is that a judge should be free from any pressure from the Government or
anyone else as to how to decide any particular case; for that reason, a judges salary is not
dependent on the Executive decision and his conditions of service are secured and not to be
varied at the whim of the Executives.

Things have changed in the recent past, particularly in the last 20 years. There has
been a great upsurge in crime and criminal litigation, and equally in the number of civil
disputes. So to say, there is unmanageable docket explosion in every court. To meet this
challenge there has to be a large number of judges, court, court staffs and other infrastructure.
But no such increase has been made. Even in the existing courts, the working conditions in
most of them are unsatisfactory. The courts do not have financial independence, since finance
falls under the Executive control. The judges are not provided with the up-to-date statutes or
law books. They are generally under the mercy of lawyers to provide copies of the decisions
or enactments relied during the course of arguments. The judges are not given proper training
either at the induction level or periodical refresher courses. Commenting on the similar
conditions in the British Justice System which existed at one time, Lord Delvin opined : “If
our business methods were as antiquated as our legal system, we would have become a
bankrupt nation long back.”

These deficiencies are indeed, subtle threat to the Independence of Judicial System.
The independence of legal system depends upon the manner in which the system is operated,
and how Judges are provided for : “……. The service conditions of the Judges should not be
linked to those of the Executive and the service conditions of the Judges have to be revised to
meet the special needs of the judicial service”……”The Judicial Officers throughout the
country perform the work of the same nature and, therefore, their service conditions have to
be uniformed and it should be examined by separate Commission and the State should not
make a grievance if their service conditions are improved.”……”The exertion involved in the
duties of the Judge cannot be compared with the duties of other services and the judicial
service by its very nature stand on a different footing and should be treated as such.”
 The Judiciary’s reliance upon Government for periodic increase in remuneration
entails an obvious potential for impairment of judicial independence. As the Chief Justice of
Australia has noted : “Those who control the purse strings will always have some capacity to
influence the actions of those who are dependent upon the content of the purse…… There
can be no doubt that the executive Government control over judicial salary fixation is always
at least an incipient threat to judicial independence.”

As a Canadian Judge puts it more bluntly : “When you are reduced to begging for a
decent salary, how can you be truly independent?” The devastating effects of inadequate
remuneration of the judges in the long run can only lead to worsening morale and eroding
commitment to service. The losers are, however, not the judges in the ultimate analysis,
rather it is the public. The public have to go before the courts for critical decisions in cases
effecting law and order, cases that affect their civil and legal rights, involving their lives and
liberties, their welfare. Public cannot afford to entrust such cases in the hands of dissatisfied
judges.

Senator Henry Clay during the debate in the House of Representatives warned : “The
labourer is worthy of his hire; and if you do not give him the wages of honesty, it is to be
apprehended the wages of corruption may, in the process of time, come to be sought.”
Therefore, improving the service conditions of our judges is not in the interest of the judges
alone, but in the interest of the sound and efficient administration of justice as well. “If
Judges have to live in mean houses, wear cheap clothes…… not only would their work suffer
by reason of their mental discomfort but the present high estimation in which the judiciary is
everywhere held would also suffer. If the members of the judiciary are not regarded with
respect, their impartiality will, such is human nature, come to be doubted…..”

In the words of Churchill : “Our aim is not to make our judges wealthy men, but to
satisfy their needs and to maintain a modest and a dignified way of life suited to the gravity,
and indeed, the majesty, of the duties they discharge.”

In the Commentary ‘Justice for Judges : The road blocks on the path to Judicial
Compensation Reform’ by Kristen A. Holt : In 2005, Chief Justice John G. Roberts, Jr.
warned that, “Our system of justice suffers as the real salary of the judges continue to decline,
if Congress give judges a raise of 30% tomorrow, judges would after adjusting for inflation
be making about what judges made in 1969.” Between 1990-2005, “92 judges…. Left the
bench and 59 of them step down to enter the private practice of law.”
 These developments are disturbing in light of dramatically increasing case loads and
constantly rising cost of living. Through United States Constitution’s Compensation Clause,
salaries are guaranteed to all judges under Article III, ”which shall not be diminished during
their continuance of office.” For over 30 years, judicial compensation has been inherently
unreliable. This financial uncertainty directly relates to the steady stream of attrition of
capable Judges from the bench. The loss of judges is having a deleterious impact on the
fabric of our Judiciary. As qualified an experienced judge’s leave, current judges overextend
themselves to bear an increasing number of complex cases until replacements are found. As a
result, not only is there a problem of retention, but there is a decreasing pool of capable
individuals willing to be considered for judgeship. Moreover, concerns exist regarding the
number of applicants for federal judgeships, as well as the quality of those individuals. The
fiscal reality of current judicial compensation threatens this diversity because only
economically well situated lawyers can afford to accept an appointment as Judges. Anecdotal
evidence suggests that part of the judicial compensation grid clock problem relates to a basic
political reality. Members of Congress must run for re-election every 2 or 6 years and,
therefore, are continually fundraising and campaigning. In contrast, federal judges receive life
time appointments and a generous retirement package.

According to a new Transparency International report : Corruption undermines

judicial systems worldwide, released on 25-5-07, the majority of people in nearly all
Southeast European countries consider their judicial and legal system corrupt. “When courts
are corrupted by the greed or political expediency, the scales of justice are tipped, and
ordinary people suffer. Judicial corruption means the voice of the innocent goes unheard,
while the guilty act with impunity.”

Global Corruption Report 2007 : Corruption in Judicial Systems distinguishes two

categories of judicial corruption :

(i) political interference by the legislative or executive branch, and

(ii) bribery.
CONCLUSION

Thus, the independence of the judiciary 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 especially in relation to the appointment
and the transfer of judges. The Court have always tried to uphold the independence of
judiciary and have always upheld the fact that the independence of the judiciary is a basic
feature of the Constitution. This has been so said as the Courts believe that for the smooth
functioning of any democracy the independence of the judiciary is an important prerequisite.
The interpretation in the “Judges Case” giving primacy to the executive, as we have
discussed led to the appointment of at least some Judges against the opinion of the Chief
Justice of India. The decision of the “Judges Case” 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 Judge’s Case and the
third Judges Case is a praiseworthy step by the Court in this regard.

The importance of the independence of the judiciary was long ago realised by the
framers of the Constitution which has been accepted by the courts by marking it as a basic
feature of the Constitution. Judicial independence has to be seen with the changing dimension
of the society. Judicial accountability and Judicial Independence has to work hand in hand to
ensure the real purpose of setting up of the institution of judiciary.
BIBLIOGRAPHY:

 M.P.Jain; Indian Constitution Law; LexisNexis; 2015.

 Dr.J.N.Pandey; The Constitutional Law Of India; Central Law Agency; 2011.
 Dr.Sheetal Kanwal; Judicial Process; Amar Law Publications.
 Dr.G.P.Tripathi; Judicial Process; Central Law Publications; 2013.