Independence of Judiciary

Independence of Judiciary is indispensable in democratic system of governance. Since the

establishment of the democratic form of Governments in the world there is a worldwide debate
on the issue that the Judiciary should be independent from any type of pressures and pull from
within and outside. The Independence of Judiciary got added importance in the countries having
Written Constitutions. Under the Written Constitution, the Government has been conferred with
wide powers required for the running of the Government. But where the Constitutions contain
the welfare philosophy there the Government has to make policies for the socio-economic
development of the people. In such type of functioning Government may at times abuse the
political power. Independent Judiciary is required to maintain balance between the interests of
individuals and society. In this way an independent judicial system was considered sine qua non
for the smooth functioning of democracy. And all leading democracies of the world emphasizes
this need time and again.
Concept of Independence of Judiciary
The concept of Independence of Judiciary is of modern origin and accepted as a hall-mark of a
liberal democratic state. But the term independence has neither been defined in the Constitution
of India nor in the General Clauses Act. Hence for a proper comprehension of the meaning of the
term independence it is necessary, first to examine its etymological and dictionary meaning and
then its legal meaning.
A dictionary meaning ascribes to it, the state of being not dependent on another persons or things
for support or supplies. In a literal sense, independence means absence of external control or
support. In other words, it signifies something that it is not dependent on or controlled by any
other agency or authority. In legal parlance Independence of Judiciary mean the power of
upholding without fear or favour, the Rule of Law, personal freedom and liberty, equality before
law and impartial and effective judicial control over administrative and executive actions of the
Government.
Hence the Judicial organ of the State should not be in a position of subordination to another
organ or branch. In this sense the Independence of Judiciary depends on the power of the Courts
and allows to be exercised without executive interference. The Judiciary has to be free from the
control and subordination of the executive as well as the legislature. In this way Judges should be
independent and free from any restrictions, inducement, influence, pressure, threats direct or
indirect from executive and legislature. Not only this Judges must be independent and free of
their colleagues and superiors in discharge of their judicial functions. They must be free to
judicial functions. They must be free to discharge their duties and functions without let or
hindrance.
However, the concept of independence is relative one and is generally applied in its functional
terms. Hence the responsibility of a Judge to constitutional and legal norms forms the foundation
and the real rationale for judicial independence. 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 individuals and meet 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 Government and the States. For
Rule of Law to prevail, Judicial independence is of prime necessity.
Constitutional Provisions
The Constitution of India is the fundamental law of the land from which all other laws derive
their authority and with which they must conform. All powers of the state and its different organs
have their source in it and must be exercised subject to the conditions and limitation laid down in
it. The constitution provides for the parliamentary form of government which lacks strict
separation between the executive and the legislature but maintains clear separation between them
and the judiciary. The Indian Constitution specifically directs the state "to separate the judiciary
from the executive in the public services of the State. The Supreme Court has used this provision
in support of separation between the judiciary and the other two branches of the state at all
levels, from the lowest court to the Supreme Court. Although the nature of the Indian
Constitution-whether it is federal or unitary-is doubtful, basically it provides for a federal
structure of government consisting of the Union and the States. The Union and the States have
their distinct powers and organs of governance given in the constitution. While the Union and
States have separate legislatures and executives, they donot have a separate judiciary." The
judiciary has a single pyramidal structure with the lower or subordinate courts at the bottom, the
High Courts in the middle, and the Supreme Court at the top. For funding and some
administrative purposes, the subordinate courts are subject to regulation by the respective States,
but they are basically under the supervision of the High Courts. The High Courts are basically
under the regulative powers of the Union, subject to some involvement of the States in the
appointment of judges and other staff and in the finances. The Supreme Court is exclusively
under the regulative powers of the Union. Subject to territorial limitations, all courts are
competent to entertain and decide disputes both under the Union and the State laws. The unitary
character of the judiciary is not an accident but rather conscious and deliberate act of the
constitution makers for whom a single integrated judiciary and uniformity of law were essential
for the maintenance of the unity of the country and of uniform standards of judicial behavior and
independence.
Appointment and Transfer of Judges
Although no public controversies were raised for quite some time on the appointment of judges
to the Supreme Court and the High Courts, dissatisfaction in this regard was expressed from
almost the very beginning. Scholars have already noted the dissatisfaction expressed by the
judges on the appointment of High Court judges within six months of independence under
procedure which was definitely different from the procedure provided under the constitution. But
within less than nine years of the commencement ofthe Indian Constitution greater
dissatisfaction was expressed by the Law Commission of India with respect to the appointment
of judges both to the Supreme Court as well as to the High Courts."' In respect of the High
Courts, the Commission even recommended an amendment of the constitution exactly along the
lines recommended by the judges in the Draft Constitution. "The controversy seems to have
arisen in another form even earlier when after the death of the first Chief Justice of India, the
Union executive intended not to appoint the senior most puisne judge as the Chief Justice of
India. It is said that the executive had to give up its plan because all the then judges of the
Supreme Court threatened to resign en block if the executive did not appoint the senior most
puisne judge as Chief Justice of India. The controversy did not become public because the senior
most puisne judge was appointed the Chief Justice of India. "' A similar situation arose and
averted almost unnoticed in 1971 with respect to the appointment of the Chief Justice of India.
Earlier, in 1967 a Study Team on Centre-State Relations of the Administrative Reforms
Commission reiterated the dissatisfaction expressed by the Law Commission in 1958 with
respect to the appointment of the judges, particularly in the High Courts. The appointment of
judges became a public issue in April 1973 when, in breach of an established convention, instead
of appointing the senior most puisne judge of the Supreme Court, its Chiefly Justice on the
retirement of the then Chief Justice, the Union executive appointed the fourth most senior judge
as Chief Justice, superseding his three senior colleague
Cases
In Justice Sheth ‘s Case, ittle after the first supersession under the same government, another
threat to the independence of the judiciary was wielded through the mass Transfer of High Court
judges, again apparently for the reason that these judges gave judgements inconvenient to the
government during the internal emergency of 1975-77. These transfers brought the matter to the
courts. One of the judges-Justice S. H. Sheth-who was transferred from the Gujarat High Court
to the Andhra Pradesh High Court, challenged, among other things, the constitutionality of his
transfer in the Gujarat High Court, on the grounds that it was without his consent and without
consultation between the President and the Chief Justice of India.’ The petition was allowed on
thelatter ground. One of the judges also allowed it on the former ground but the majority of two
rejected. An appeal in the Supreme Court was disposed of in accordance with an assurance by
the Union of India to withdraw thetransfer. However, a majority of three judges in the Supreme
Court refused to accept consent of the transferred judge as a condition precedent for transfer and
emphasized that transfers must be in the public interest and not as punishment. One judge found
that consent was a necessary condition, while the pfifth one held that transfer was a new
appointment and, therefore, consent was necessary. The important point to be noted is that all the
judges, both in the High Court as well as in the Supreme Court, unanimously proceeded on the
assumption that the independence of the judiciary is a basic feature of the Indian Constitution
and therefore the judiciary must be immune from the influence of the executive
In S.P. Gupta v. Union of India which is popularly known as judges transfer case I. The Supreme
Court after being agreed with its earlier decision was given in Sankal chand Sheth’s case held
again that word ‘consultation’ meant ‘mere consultation of views’ and it does not means ‘
concurrence of views’ and thus the President is not bound to act in accordance with such
consultation and has a right to take a contrary view.
This decision of the Supreme Court means that power of appointment of judges was “solely and
exclusively” vested in the central government and other constitutional functionaries had merely a
consultative role. Hence this case laid down the ‘executive supremacy’ in matters of appointment
of Supreme Court judges.
Then came the Supreme Court Advocates on Record Association v. UOI: Judges transfer case II:
In this case, a nine-judge bench of the Supreme Court by a 7:2 majority overruled its earlier
judgement given in the judge’s Transfer case I and held that in the matter of appointment of the
judges of the Supreme Court and High Court, the Chief Justice of India should have primacy.
The appointment of Chief Justice of India shall be on the basis of seniority but the greatest
significance should be attached to the view of the Chief Justice of India formed after taking into
account the views of two senior-most judges of the Supreme Court. It, thus, reduces to the
minimum individual discretion of constitutional functionaries. So as to ensure that neither
political bias nor personal favouritism nor animosity should play any part in the appointment of
the Supreme Court judges. It is for this reason that the word ‘consultation’ instead of
‘concurrence’ was used in the constitution to indicate that the absolute discretion was not given
to anyone neither to executive head nor judicial head.

The majority held that no appointment of any judge to the Supreme Court can be made unless it
is in conformity with the opinion of the Chief Justice of India. This decision thus laid down the
judicial Supremacy in the matter of appointment of judges of the Supreme Court.
After this came, the Judges transferred case III which was not a case but a ‘presidential
reference’ raised by the president of India K.R. Narayana used his consultation power under
article 143. The President had sought the Supreme Court’s clarification on the ‘collegium
system’ as laid down in judges Transfer case II, following a controversy over the
recommendation by then Chief Justice of India M.M. Punchhi.
In which, the Court held that the ‘collegium system’ requires consultation of the plurality of
judges. The sole individual opinion of the Chief Justice of India does not constitute
‘consultation’ within the meaning of the said articles. It was held that under Article 124(2), the
Chief Justice of India should consult “a collegium of four senior-most judges of the Supreme
Court” and made it clear that if “two judges give an adverse opinion the Chief Justice should not
send the recommendation to the government”. The opinion of the collegium must be in writing
and the Chief Justice of India should send the recommendation to the President along with his
own recommendations.
The Court also held that the President can send back the recommendation of ‘collegium system’
but if again the same name is proposed by ‘collegium’, the president is bound to accept it.

This is how the ‘collegium system’ developed gradually on the basis of Precedence established
by three separate cases of the Supreme Court of India. The judges were appointed to the
Supreme Court according to this system.
But in 2014, after the constitution 99th amendment act which amended articles 124(2), 127 and
128 and also inserted article 129 A,124 B and 124 C changes were done in the procedure of
appointment of judges of Supreme Court let’s see what changes were brought by 99th
amendment of the constitution

Current Procedure of Appointment

In Supreme Court Advocates on Record Association v. Union of India, the Court held that the
‘collegium system’ as it existed before NJAC, would again become operative. But the Court also
ordered for the introduction of appropriate measures in order to improve the 21 years old
‘collegium system’ resultantly inthe memorandum of the procedure is brought into working i.e
now ‘collegium system’ will work as per ‘MOP’.
• The MOP may indicate eligibility criteria such as the minimum age.
• In order to bring transparency in the appointment process, the appointment procedure of
judges as detailed in MOP ought to be made available on the website of the concerned
Court.
• The MOP may provide for the establishment of the secretariat for better management of’
collegium system’.
• The MOP may provide for an appropriate mechanism to deal with complaints against
anyone who is being considered for appointment as a judge.
These were the broad suggestions that were given by the Court to enhance the ‘collegium
system’ Till date, this mechanism is being followed to appoint judges of the Supreme Court.

Till 1973, from appointing senior-most judge of Supreme Court as CJI to gradually developing a
‘collegium system’ through precedence established by the Supreme Court judgements in three
Judges’ case to appoint judges of the Supreme Court, the ‘collegium system’ evolved so far has
ensured ‘independence of the judiciary’. Further, the working of the collegium system under the
protocol of MOP is hitherto the best possible way to appoint a judge of the Supreme Court of
India. However, with the need of time, a more efficient system surely needs to be found so that
appointment procedure could be fairer and the judiciary will have the best possible minds as
judges

Judges being appointed post-retirement

Justice Ranjan Gogoi is not the first Chief justice to accept post retirement benefits from the
government. Justice Ranganath Mishra retired as CJI in 1991 was appointed as the Chairman of
the National Human Rights Commisssion and later after some years was sent to Rajya Sabha on
the Indian National Congress’s ticket. Justice P. Sathasivam was appointed as the governer of
Kerala after his retirement in the first regime of the Bharatiya Janata Party (BJP)-led government
in 2014. Justice M. C. Chagla, Chief justice of Bombay high court was appointed as Ambassador
to the US and then High Commissioner to the UK an then appointed as Minister of Education
and subsequently of External Affairs in Nehru’s regime. Justice M. Hidayatullah retired as CJI in
1970 was elected as Vice-President of India. Justice Baharul Islam was Member of Parliament
from Rajya Sabha then he became a Judge of the Supreme Court and then again became MP of
Rajya Sabha.
Judges being appointed post retirement is a clear scar on Independence of Judiciary.

Suggestions to Maintain Reliability in the Judiciary

A certain cooling off period should be imposed, which needs to be completed before reinstating
any public office. It will make sure that there were no political or executive involvements in
decision-making of the judge. In my opinion, the cooling off period should be at least 10 years so
as to make sure that 2 terms of the Lok Sabha are completed, which will mitigate the chances of
external interference.

In India remuneration of judges is far less compared to other countries, this is considered to be a
reason that almost all judges after retirement get involved in some kind of activity for financial
gain, some in the private sector and some in the public. Increasing the salary and pension of
judges may mitigate their involvement in the financial sector, but this is not a reliable solution
because greed has no end.

Critical Analysis of Recent Post-Retirement Appointments and Demeaning incidents

Former Chief Justice of India Ranjan Gogoi was nominated to Rajya Sabha after less than 6
months of his retirement. In the last year of his tenure, he was involved in many crucial
judgments including the Rafale Deal case, the Ayodhya case and the Assam NRC case, which
were directly connected to the then-BJP led government and more importantly all the judgments
were ruled in the way that the government wanted. The former CJI P. Sathasivam was appointed
as Governor of Kerala within 6 months of the start of his retirement. He was lead of the bench
that dismissed the second First Information Report (FIR) against Amit Shah in the fake
encounter Sohrabuddin Sheikh case. These appointments totally question the credibility as well
as independence of the judiciary. The question remains whether the nomination was made
because of his credibility or as a favor that he might have made to the government.

This is not something new and this should not be incorporated into a political party, but there
were many such incidents in the past under the government of Congress when Rangnath Mishra
and M.C. Chagla did the same thing. That these mistakes were made in the past does not justify
these appointments now.

There have been instances in the past where members of parliament go on to become judges.

Due to lockdown, the Supreme Court decided to hear only urgent cases. Amid this catastrophe,
where tens of millions of migrant worker were stuck without jobs, money and resources at the
place of their work, the government didn’t find the petition filed by Jagdeep Chokkar for the
return of stranded workers to their homes urgent. On the other hand, the Supreme Court heard
the petition filed by journalist Arnab Goswani, known to be close to the BJP government, for
quashing of an FIR’s on the very next day. Is this the justice which the judiciary strives to
deliver?

The report of the investigation of a sexual harassment complaint against the CJI was not even
made public citing Indra Jaising Vs. Supreme Court. The judgment was delivered by the Hon’ble
bench on the basis of a report which was not shown to anyone. It is clear infringement, in my
view, of the principle of natural justice that the report on which the allegations were denied was
not even shown to the accused.

Internet services were curtailed in state of Jammu and Kashmir for nearly 6 months. The
Supreme court procrastinated this matter of utmost importance. Around 12.5 million people were
deprived of functional internet for nearly 6 months. They were totally cut-off from the rest of the
world.

Conclusion

The Constitution of India provides justice for all. Members of the Judiciary are the
administrators of justice. The judges strive to ensure free and impartial administration of justice
in order to provide its citizens fairness in application of law. The duty of judges is considered to
be very pious, therefore the constitution has provided for independence of judiciary so that they
can remain impartial to serve the constitutional goals, act fairly, reasonably, free of any fear or
favor. The problem starts when the other organs, i.e. the legislature and the executive start to
interfere with them. The external interference not only erodes the piousness of the profession, but
curtails individuals of their rights. In the recent past it has been seen that retired judges takes
public office within a very short span of time after their retirement. Amazingly, it was found that
they were involved in many decisions important to the government in their tenure and more
surprisingly they ruled in favor of the government. These early-retirement appointments are a
real issue to worry about. The decision of the court of hearing a useless political petition urgently
and refusing to consider an urgent petition, involving real problems of needy people is not
understandable.