INTEGRAL UNIVERSITY

Assignment of Constitutional Law II.

TOPIC: The Judiciary in India: Independence of the

Judiciary.

SUBMITTED BY: SUBMITTED TO:

Kais Ahmed Ansari Dr Mirza Juned Beg
COURSE: BB.A.LL. B Law Faculty
COURSE CODE: LW363
ENROLLMENT NO: 2100102767

1|Page
 ACKNOWLEDGMENT
I would like to express my special thanks of
gratitude to my teacher Dr Mirza Juned Beg Sir,
who gave me the golden opportunity to do this
wonderful assignment. This assignment also helped
me in doing a lot of research and I came to know
about so many new things. I am really thankful to
him.

2|Page
Introduction
An independent judiciary is necessary for a free society and a constitutional democracy. It
ensures the rule of law and realization of human rights and also the prosperity and stability of
a society. The independence of the judiciary is normally assured through the constitution but it
may also be assured through legislation, conventions, and other suitable norms and practices.
Following the Constitution of the United States, almost all constitutions lay down at least the
foundations, if not the entire edifices, of an independent judiciary. The constitutions or the
foundational laws on judiciary are, however, only the starting point in the process of securing
judicial independence.
India has given to itself a liberal constitution in the Euro-American traditions which aims at
establishing a free and democratic society. It also aims at the prosperity and stability of the
society. Its makers believed that such a society could be created through the guarantee of
fundamental rights and an independent judiciary to guard and enforce those rights. Therefore,
the framers of India's Constitution dealt with these two aspects with maximum and identical
idealism.

Meaning of Independence of Judiciary

The independence of the judiciary is not a new concept but its meaning is still imprecise. The
starting and the central point of the concept is apparently the doctrine of the separation of
powers.1 Therefore, primarily it means the independence of the judiciary from the executive
and the legislature. But that amounts to only the independence of the judiciary as an institution
from the other two institutions of the state without regard to the independence of judges in the
exercise of their functions as judges. In that case it does not achieve much. The independence
of the judiciary does not mean just the creation of an autonomous institution free from the
control and influence of the executive and the legislature.
The underlying purpose of the independence of the judiciary is that judges must be able to
decide a dispute before them according to law, uninfluenced by any other factor. For that
reason, the independence of the judiciary is the independence of each and every judge.2 But
whether such independence will be ensured to the judge only as a member of an institution or
irrespective of it is one of the important considerations in determining and understanding the
meaning of the independence of the judiciary.

CONSTITUTIONAL PROVISIONS AND PRACTICE

A. Constitutional Provision
Around the world, the independence of the judiciary has been a debate. However, as India has
a written Constitution, the independence of the judiciary is mentioned in writing, hence,
making this concept even more important. Independence of the judiciary means that the legal
fraternity has all the powers to make their own decisions, without any external influence. The
judiciary is not only important in dispensing justice but also, in solving disputes arising

1
While the doctrine of separation of powers ensures liberty by preventing concentration of powers in one
person or body and thereby puts a restraint on the executive and legislative, it also ensures the exercise of
judicial power that is unhindered by the other two branches.
2
See Siracusa Draft Principles on the Independence of the Judiciary, reprinted in CIJL Bulletin No. 25-26, at 59
(Apr.-Oct. 1990).

3|Page
between the States. This can only be done if the judiciary is free from all outside pressures.
Judges play one of the most important roles in the legal system. Hence, independence of the
judiciary also means independence of the judges. This means that the judges can submit their
reports and take decisions without any influence, they are not dependent on the Government,
and they are not dependent on any of their superior judicial officers. Part 5 of the Indian
Constitution deals with the Union Judiciary.
The independence of the judiciary starts with the appointment of the judges in the courts.
Article 124 to Article 147 deal with the appointment of the Supreme Court judges and, Article
214 to Article 231 deal with the appointment of judges in the High Courts. Further, the
Subordinate courts are mentioned under Article 233 to Article 237 of the Constitution.
The highest subordinate court is that of the court of District Judge. The framers of the
Constitution divided the judiciary, legislature, and the executive into three separate organs, so
as to ensure that each organ will perform its roles independently and not interfere with the
functioning of the other, and also that this will help in justifying the principles mentioned in
the Preamble.
Appointment of Judges as Constitutional Provision
The Collegium
According to the First Judges case, the Chief Justice of India’s (CJI) proposal for judge
appointments and transfers might be rejected for “cogent reasons.” For the following 12 years,
the executive had priority over the judiciary in making judicial appointments. However, the
Supreme Court held in the Second Judges case (and subsequently the Third Judges case, which
was a clarification) that the judiciary had supremacy in appointing judges. According to it, the
Supreme Court’s senior-most judges and the Chief Justice of India will have a major influence
on judicial recruitment decisions. Regarding judicial appointments, rules and procedures were
established. The executive’s position was drastically diminished, and the judiciary now
controlled a major function.
NJAC
With the passage of the Constitution (Ninety-ninth Amendment) Act of 2014 as well as the
National Judicial Appointments Commission Act of 2014, the NDA government proposed the
establishment of the National Judicial Appointments Commission in 2014. The Commission
would be made up of the Chief Justice of India, two senior judges, the Law Minister, and “two
eminent personalities” chosen by the Prime Minister and Leader of the Opposition. The NJAC
Act and Constitution (Ninety-ninth Amendment) Act, 2014 were, however, declared illegal by
the Supreme Court in a case brought by the Advocates-on-Record Association as according to
them it undermined the separation of powers and intruded on the independence of the judiciary.

B. Constitutional Practice
The Indian Constitution makers believed that they had done everything to secure the
independence of the judiciary and hoped that those who had to work with the constitution
would make its operation successful. Their hopes have not been belied but the course has not
always been easy. As will be noted, some of the difficulties arose soon after the commencement
of the constitution while others have arisen later. Some of them have been resolved amicably

4|Page
and, hopefully, for good, but others persist. Noteworthy, however, is that the above
constitutional scheme has stood the test of time and survived without any significant changes.
The constitution assumes judicial review of legislative and executive acts and, therefore, from
the initial litigation soon after the commencement of the constitution the courts started
exercising it without anybody entertaining any doubts in this regard.3 At the same time, from
the very beginning invalidation of legislative and executive acts by the courts in some matters,
particularly in matters of property expropriation, was not viewed sympathetically by the
government.4 Therefore, the constitution was frequently amended in its early stages.
In 1967 the Supreme Court restricted this trend by deciding that no amendment of the
constitution could be made in the future which abridged or restricted the Fundamental Rights.5
Later, in 1973, the Court overruled this decision and upheld the amendments abrogating it, but
the Court laid down a much broader restriction on the power of amendment that the basic
structure of the constitution could not be amended.6 This continues to be the law and has been
applied several times to invalidate amendments to the constitution.7
The independence of the judiciary and judicial review have been held part of the basic structure
or basic features of the Indian Constitution and, therefore, amendments which directly or even
indirectly take away these features have been invalidated by the Court.8 The Court has also
invalidated a constitutional amendment which subjected the decision of a tribunal, which was
not a court in the strict sense, to confirmation or rejection by the government.9 Similarly, laws
merely abrogating a judicial decision without retrospectively changing the legal basis of that
decision have also been invalidated.10 The courts have also expanded the scope of judicial
review by liberalizing the requirement of locus standi and developing the concept of public
interest litigation and by rejecting the concept of political questions.11
Few case laws which explain the concept of independence of the Indian Judiciary
In the case of S.P Gupta v Union of India (1982), the court held that the judges should be
fearless and should uphold the principle of rule of law. This is the basis of the concept of
independence of the judiciary.
In the case of Supreme Court Advocates-on-Record Association & Anr. Vs Union of India
(1993), the court observed that the independence of the judiciary is necessary for democracy
to function effectively. The court further concluded by stating the powers and rights can never
be hampered as long as the judiciary remains independent from the executive and the
legislature.

3
A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27
4
State of Madras v. Champakam Dorairajan, A.I.R. 1951 S.C. 226.
5
Golak Nath v. State of Punjab, A.I.R. 1967 S.C. 1643
6
Kesavananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461
7
L. Chandra Kumar v. Union of India, A.I.R. 1997 S.C. 1125
8
S.C. Advocates on Record Association v. Union of India, A.I.R. 1994 S.C. 268
9
P. Sambhamurthy v. State of Andhra Pradesh, A.I.R. 1987 S.C. 663.
10
In the matter of Cauvery Water Disputes Tribunal, A.I.R. 1992 S.C. 522.
11
S. P. Gupta v. Union of India, A.I.R. 1982 S.C. 149

5|Page
Relevant rulings where the independence of the Indian Judiciary has been challenged
The Rafale deal case
In this case, the Indian Government announced a deal with the French Government to purchase
36 Rafale fighter jets from the French company Dassault Aviation in 2015. The deal also
included a 50% offset clause which meant that the French company had to invest 50% of the
contract value in India by purchasing Indian goods and services. Next year, the company and
Reliance Group announced a joint venture. Dassault specified that it wants to invest $115
million to fulfil its offset obligation partially. Hence, the matter went to the Supreme Court
where the litigants’ alleged irregularities in the deal. The Court turned down the corruption
charges on the grounds that it had less scope for judicial review in defence matters. This
decision of the Court proved to be controversial as the government stated that the judgment
had some factual errors. The judgment consisted of the CAG (Comptroller and Auditor
General) report and the Parliamentary Accounts Committee report which were submitted to the
Court by the government and were termed as misinformation. The Court decided to review the
petitions on merit, hence closing the controversy.
The Bhima Koregaon case
In 2018, the celebrations for the bicentenary anniversary of the Bhima Koregaon battle were
interrupted due to violence leading to the death of a person and several injuries. The police
investigated and arrested several activists claiming that inflammatory speeches were made by
them eventually leading to the violence. Hence a PIL was filed seeking an investigation by the
SIT (Special investigation team) over the Unlawful Activities (Prevention) Act charges against
the arrested activists. The litigants alleged that the Mumbai Police were biased in their decision.
The case went to the Supreme Court who dismissed the case with a 2:1 majority. While the two
judges who were Chief Justice of India Dipak Misra and Justice Khanwilkar were satisfied
with the investigation done by the Mumbai Police, Whereas, Justice D.Y Chandrachud was
not. Justice Chandrachud dissented, alleging that the arrests were made targeting political
dissent.
Aadhar Act as a money bill case
In this case, the issue was whether the Aadhar Act in 2016, was passed as a money bill. The
court held that it was a money bill again with a majority. Justice A.K Sikri accepted the act as
a money bill and referred to Section 7 of the Act which states that the Aadhar based
authentication can be used for benefits or services charged on the Consolidated Fund of India,
hence it can be used as a money bill. Whereas, Article 110 of the Constitution stated that the
money bill can be used only on services related to spending and receiving of money by the
Union Government. Hence, the judgment was criticized and Justice Chandrachud who had
dissented to the judgment termed it as a fraud on the Indian Constitution.
The CBI-Alok Verma case
In this case, the judgment was delayed. The government had divested the CBI director Alok
Verma of all his powers. This needed sanctions from a high-powered committee under the
Delhi Special Police Establishment Act. The Supreme Court examined the details of the
corruption charges against the CBI director. Later, the Court directed the reinstatement of
Verma as the CBI director on the basis of the sanctions of the selected committee. However,

6|Page
the reinstatement was ordered when Mr. Verma had just three weeks left for his tenure. Hence,
this raised criticism once again.
Is India’s judicial independence at stake
The above-mentioned court rulings were criticized on the grounds that they had political
interests. However, there have been instances where the judges after retirement have enjoyed
certain benefits. Former Chief Justice of India Ranjan Gogoi was made a member of the Rajya
Sabha after stepping down from the post of CJI. Similar instances in the past have occurred.
In 1991, Justice Ranganath Mishra stepped down as the CJI and was later made the Chairman
of the National Human Rights Commission. Justice M. Hidayatullah was the Chief Justice of
India who retired in 1970. He later became the Vice President of India. There have also been
instances where the members of Parliament have become judges. Due to the COVID 19
pandemic, the courts are shut and all physical hearings are done online. This has made things
difficult because there is already a huge pendency of cases. Hence the courts decided to deliver
judgments on cases that are very urgent. However, the listing of urgent cases for hearing has
been controversial. A petition was filed in the case of Jagdeep Chokkar v Union of India
(2020), for the return of the migrant workers who were helpless and stranded amidst the
lockdown to their homes. This matter was not heard immediately, whereas a petition filed in
the case of Arnab Goswami v Union of India (2020), for quashing the FIRs against him, was
heard on the next day. Hence this was controversial as to which case the court found more
important.
Further, the internet in Jammu and Kashmir was shut down for nearly 6 months. The Court
took a long time to hear this matter. The people in Jammu and Kashmir were deprived of the
internet and cut off from the rest of the world. As we have touched on the cases where the court
has faced criticism for having political interests, there have been many landmark judgments
that were assumed to have political interests but the judiciary stood strong.
In the case of Indira Gandhi v Raj Narain (1975), Raj Narain, an activist challenged the
appointment of the then Prime Minister Indira Gandhi on the grounds that it was faulty. This
case was just before the emergency was implemented. The Court found out that the
appointment of Indira Gandhi was faulty and she was ordered to leave her office. This judgment
proved to be one of the major judgments in the context of judicial independence. However, in
recent times, the judiciary has had to face a lot of criticism due to the cases they give more
priority to, and also the post-retirement stint of the judges.

Conclusion
The work that the justice system does is very difficult. Hence, the judiciary has been given the
power of judicial independence which is mentioned in the Constitution of India. The judges do
a phenomenal job of administering impartial justice to the people. However, while doing this,
there are bound to be people who are not happy with the decision. Hence, this is where the
independence of the judiciary is challenged. Now, no one can ever prove whether there is any
sort of influence on the justice system in India. However, the above-mentioned case laws and
the examples of judges acquiring jobs after retiring from the judiciary, call for some serious
reforms in the country’s justice delivery system.

7|Page
References
• https://theprint.in/opinion/indian-politicians-get-favourable-outcome-in-courts-when-
party-is-in-power-data-shows/283103/
• https://www.ideasforindia.in/topics/governance/the-politics-of-post-retirement-
appointments-corruption-in-the-supreme-court.html
• https://thewire.in/law/restoring-public-trust-in-the-indian-judiciary-calls-for-more-
scrutiny-not-less
• D.D. Basu, Introduction to the Constitution of India (LexisNexis, 23rdedn., Reprint
2015).
Mahendra Pal Singh, V.N. Shukla’s Constitution of India (Eastern Book Co., 12thedn.,
Reprint 2015).
• P.M. Bakshi, The Constitution of India (Universal Law Publishing, 13thedn., Reprint
2016).

8|Page