INTRODUCTION :

Independence of the judiciary (also judicial independence) is the principle that the
judiciary should be politically shielded from the legislative and the executive
power. That is, courts should not be subjected to reprehensible influence from
the other branches of government, or from personal or adherent interests.

Nations deal with the idea of judicial independence differently, through different
means of judicial assortment, or choosing judges. One way to promote judicial
independence is by granting life tenure or long tenure for judges, which ideally
frees them to decide cases and make rulings according to the rule of law and
judicial discretion, even if those decisions are politically unpopular or opposed by
powerful interests. The officials of the judiciary should make sacrifices to maintain
the independence of the judiciary and sustain the constitutional goals

In some countries, like in India, the ability of the judiciary to check the legislature
is enhanced by the power of judicial review. This power can be used, for example,
when the judiciary perceives that legislators are jeopardizing the constitutional
rights such as the rights of the accused.

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.”

It is a well-known fact that the independence of the judiciary is the basic requisite
for ensuring a free and fair society under the rule of law. Rule of law that is
responsible for good governance of the country can be secured through unbiased
judiciary.

The doctrine of Separation of Powers which was brought into existence to draw
upon the boundaries for the functioning of all the three organs of the state:
Legislature, Executive and the Judiciary, provides for a responsibility to the
judiciary to act as a watchdog and to check whether the executive and the
legislature are functioning within their limits under they are working in
accordance with constitution and not interfering in each other’s functioning. This
task given to the judiciary to supervise the doctrine of separation of powers
cannot be carried on in true spirit if the judiciary is not independent in itself. An
independent judiciary supports the base of doctrine of separation of powers to a
large extent.

It is theoretically very easy to talk about the independence of the judiciary as for
which the provisions are provided for in our constitution but these provisions
introduced by the framers of our constitution can only initiate towards the
independence of the judiciary. The major task lies in creating a favorable
environment for the functioning of the judiciary in which all the other state
organs function in cooperation so that the independence of the judiciary can be
achieved practically. The independence of the judiciary has also to be guarded
against the changing economic, political and social scenario.

Whenever there is a talk regarding the independence of the judiciary, there is also
a talk of the restrictions that must be imposed on the judiciary as an institution
and on the individual judges that forms a part of the judiciary. In order to ensure
smooth functioning of the system there must be a right blend of the two.

MEANING – THE INDEPENDENCE OF THE JUDICIARY

The meaning of the independence of the judiciary is still not clear after years of its
existence. Our constitution by the way of the provisions just talks of the
independence of the judiciary but it is no where defined what actually is the
independence of the judiciary.
The primary talk on the independence of the judiciary is based on the doctrine of
separation of powers which holds its existence from several years. The doctrine of
separation of powers talks of the independence of the judiciary as an institution
from the executive and the legislature.

The other meaning of the judicial independence can be found out by looking at
the writings of the scholars who have researched on the topic. Scholars have
followed the “constituent mechanism” (i.e. what constitutes the judiciary) to
define the independence of the judiciary. Scholars try to define judiciary by
talking about the independence of the judges which constitutes judiciary.
Therefore the independence of the judiciary is the independence of the exercise
of the functions by the judges in an unbiased manner i.e. free from any external
factor.

So the independence of the judiciary can be understood as the independence of

the institution of the judiciary and also the independence of the judges which
forms a part of the judiciary.

Shetreet in his work tries to explain the words “Independence” and “Judiciary”
separately, and says that the judiciary is “the organ of the government not
forming a part of the executive or the legislative, which is not subject to personal,
substantive and collective control, and which performs the primary function of
adjudication”.

The final outcome that can be derived from Shetreet’s writings is that the
independence of the judiciary as an institution and the independence of the
individual judges both have to go hand in hand as the independence of the
judiciary as an institution is not possible without the independence of the
individual judges and is the institution of the judiciary is not independent, there is
no question of the independence of the individual judges.
NEED FOR THE INDEPENDENCE OF THE JUDICIARY
The basic need for the independence of the judiciary rests upon the following
points:

1. To check the functioning of the organs: Judiciary acts as a watchdog

by ensuring that all the organs of the state function within their respective areas
and according to the provisions of the constitution. Judiciary acts as a guardian of
the constitution and also aids in securing the doctrine of separation of powers.

2. Interpreting the provisions of the constitution: It was well known to

the framers of the constitution that in future the ambiguity will arise with the
provisions of the constitution so they ensured that the judiciary must be
independent and self-competent to interpret the provision of the constitution in
such a way to clear the ambiguity but such an interpretation must be unbiased i.e.
free from any pressure from any organs like executive. If the judiciary is not
independent, the other organs may pressurize the judiciary to interpret the
provision of the constitution according to them. Judiciary is given the job to
interpret the constitution according to the constitutional philosophy and the
constitutional norms.

3. Disputes referred to the judiciary: It is expected of the Judiciary to

deliver judicial justice and not partial or committed justice. By committed justice
we mean to say that when a judge emphasizes on a particular aspect while giving
justice and not considering all the aspects involved in a particular situation.
Similarly judiciary must act in an unbiased manner.
CONSTITUTIONAL PROVISIONS –
THE INDEPENDENCE OF THE JUDICIARY

“There can be no difference of opinion in the House that our

judiciary must be both independent of the executive and must also
be competent in itself. And the question is how these two objects can
be secured“. – DR. B.R. AMBEDKAR

Many provisions are provided in our constitution to ensure the independence of

the judiciary. The constitutional provisions are discussed below:

1. Security of Tenure: The judges of the Supreme Court and High Courts
have been given the security of the tenure. Once appointed, they continue to
remain in office till they reach the age of retirement which is 65 years in the case
of judges of Supreme Court (Art. 124(2)) and 62 years in the case of judges of the
High Courts (Art. 217(1)). They cannot be removed from the office except by an
order of the President and that too on the ground of proven misbehavior and
incapacity. A resolution has also to be accepted to that effect by a majority of
total membership of each House of Parliament and also by a majority of no less
than two third of the members of the house present and voting. Procedure is so
complicated that there has been no case of the removal of a Judge of Supreme
Court or High Court under this provision.

2. Salaries and Allowances: The salaries and allowances of the judges is

also a factor which makes the judges independent as their salaries and allowances
are fixed and are not subject to a vote of the legislature. They are charged on the
Consolidated Fund of India in case of Supreme Court judges and the Consolidated
Fund of state in the case of High Court judges. Their emoluments cannot be
altered to their disadvantage (Art. 125(2)) except in the event of grave financial
emergency.

3. Powers and Jurisdiction of Supreme Court: Parliament can only add

to the powers and jurisdiction of the Supreme Court but cannot curtail them. In
the civil cases, Parliament may change the pecuniary limit for the appeals to the
Supreme Court. Parliament may enhance the appellate jurisdiction of the
Supreme Court. It may confer the supplementary powers on the Supreme Court
to enable it work more effectively. It may confer power to issue directions, orders
or writs for any purpose other than those mentioned in Art. 32. Powers of the
Supreme Court cannot be taken away. Making judiciary independent.

4. No discussion on conduct of Judge in State Legislature /

Parliament: Art. 211 provides that there shall be no discussion in the legislature
of the state with respect to the conduct of any judge of Supreme Court or of a
High Court in the discharge of his duties. A similar provision is made in Art. 121
which lays down that no discussion shall take place in Parliament with respect to
the conduct of the judge of Supreme Court or High Court in the discharge of his
duties except upon a motion for presenting an address to the President praying
for the removal of the judge.

5. Power to punish for contempt: Both the Supreme Court and the High
Court have the power to punish any person for their contempt. Art. 129 provides
that the Supreme Court shall have the power to punish for contempt of itself.
Likewise, Art. 215 lays down that every High Court shall have the power to punish
for contempt of itself.

6. Separation of the Judiciary from the Executive: Art. 50 contains one

of the Directive Principles of State Policy and lays down that the state shall take
steps to separate the judiciary from the executive in the public services of the
state. The object behind the Directive Principle is to secure the independence of
the judiciary from the executive. Art. 50 says that there shall be a separate judicial
service free from executive control.

LIMITATIONS TO INDEPENDENT JUDICIARY:

Are judges above the law? Who will judge the judges? How do you make judges
more accountable? The difficulty arises from the fact that the Independence of
Judiciary is one of the most important pillar on which democracy lies. Rightly, the
framers of our Constitution had this principle uppermost in their mind while they
were creating the structures of the three most important organs of the state – the
legislature, the executive and the Judiciary. The fear is that any move to create a
mechanism to make the judges more accountable has the risk of interfering with
the judicial independence.

However, the Indian Constitution is also guided by the principle of check and
balance. What it means is that power and responsibility is distributed between
the three organs of the state in such a manner that each organ of the state keeps
a check on the other and stops the other from transgressing its authority or
working in a fashion which is opposed to or divergent from the purpose for which
it has been created. Most of us know about the role played by judiciary when
Indira Gandhi had imposed the Emergency in the country. In same manner the
legislature and the executive have played important role on a number of
occasions to persuade the other organ to do its duty in the rightful manner or
prevent it from going the wrong way. It is here that we have a hope of finding
some answer if the judiciary on its own does not to find a remedy to the malady
of corruption. However, it is not a very healthy method to root out the problem
which the judiciary is facing today as it may lead to host of other problems.

PUBLIC CRITICISM
Although there have certainly been cases of judicial weakness, partiality,
cowardice and corruption (symbolised most vividly by Judge Roland Freisler who
did Hitler's bidding) there have been many more cases of judicial integrity,
courage and principled conduct. The real test comes when judges are led by their
understanding of the law, the findings on the facts and the pull of conscience to a
decision which is contrary to what the other branches of government or other
powerful interests in society want. Something different from what "the home
crowd" wants. That is when judicial independence is put to the test.
The other aspect relates to the public criticism regarding the functioning of
judiciary. The public criticism includes among others, the delay in disposal of
cases; unsatisfactory judgments and creeping corruptions in some quarters. The
judiciary cannot afford to be indifferent to these criticisms. The cost of providing
justice is like other calls on the public revenues. All persons and departments who
utilize the public revenue are accountable to the public. The judges cannot be an
exception to this recognized principle. They are equally accountable for their acts
and omissions both on the Bench and off the Bench. It is therefore, necessary for
the judges, individually and collectively, to ensure that no criticism is leveled
against them or against the system.

“Misbehavior by any judge, whether it takes place on the Bench or off the Bench,
undermines public confidence in the administration of justice and also damage
public respect for the law of the land, if nothing is seen to be done about it, the
damage goes unrepaired.”

JUDICIAL ACCOUNTABILITY
One aspect of judicial independence which is often overlooked is that judges must
also be independent from each other. A proper system of judicial administration
will provide for presiding judges and court officials to organize the business of the
members of courts and tribunals efficiently, economically and justly as between
different members. But in the performance of the central role of decision-making,
a member of a court or tribunal will not be independent if he or she can be
directed by a superior colleague on how to decide a matter. Nor will the judge
enjoy independence of mind if he or she can be effectively removed from the
performance of the judicial function by the simple expedient of rostering the
judge off work. If that were to become common, the court or tribunal in question
would not be constituted in accordance with law. The formal procedures for
discipline and removal from office would then be set at naught.
In many states, the threat to judicial independence will not lie in direct
confrontation between other branches of government and other powerful
interests (on the one hand) and the judiciary (on the other). There are countries
of the world where judges and lawyers are intimidated, oppressed and prevented
from performing the duties necessary to their offices and even killed for doing
their duty. Those in doubt should read the Annual Reports of the Centre for the
Independence of Judges and Lawyers established by the International
Commission of Jurists, titled Attacks on Justice. Those reports collect, and
annually review, the case studies which are assembled in Geneva relating to
attacks on judges and lawyers. Those attacks can range from brutal intimidation
and murder to much more subtle and insidious interventions by the state and
other powerful interests designed to reduce the independence of mind and action
of the members of courts and other tribunals.

CONCLUSION:
The independence of the judiciary as is clear from the above discussion 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 specially in relation to the appointment and the transfer of judges.
Courts have always tried to uphold the independence of judiciary and have always
said that the independence of the judiciary is a basic feature of the Constitution.
00requisite for the smooth functioning of the Constitution and for a realization of
a democratic society based on the rule of law. The interpretation in the Judges
Case giving primacy to the executive, as we have discussed has led to the
appointment of at least some Judges against the opinion of the Chief Justice of
India. The decision of the Judges Case was 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.

There is a saying that “‘Power tends to corrupt, and absolute power corrupts
absolutely” - Lord Acton
Whenever there is a mention of the independence of the judiciary, there is always
a concern about the latent dangers of the judicial independence and there arises
the importance of “Judicial Accountability”. The recent development in this
regard is the recommendation of the Law Commission for the inclusion of a
whistleblower provision, aimed at protecting those making complaints against
judges, in a draft bill dealing with the removal of judges of the Supreme Court and
High Courts. Introduction of such a bill by the Law Commission is a major step in
the direction of making changes to the rigid procedure in our constitution for the
removing of the judges of the Supreme Court and the High Courts.

The final outcome of the above discussion is that the importance of the
independence of the judiciary was long ago realized by the framers of the
constitution which has been accepted by the courts by marking it as the basic
feature of the constitution. It is well known law has to change so as to meet to the
needs of the changing society. Similarly judicial independence has to be seen with
the changing dimension of the society. Judicial Accountability and Judicial sof the
institution of judiciary.

A special obligation to defend judicial independence falls on judges and lawyers

not because of self-interest but because they are aware of the history and
purpose of judicial independence and the myriad of ways by which it can be
attacked by powerful interests, public and private. In recent times attacks by
governments and politicians who should know better, spurred on by a media avid
for entertainment and conflict and by powerful sectors in society unused to being
thwarted, have become much more vocal than they were in earlier times 54 The
chief challenge is to spread the influence of Art 14.1 to those countries which
have never really enjoyed a culture of competent, independent and impartial
tribunals established by law. That is a challenge to which the International Bar
Association and the International Commission of Jurists should jointly commit
themselves.