Independence of Judiciary


    In News

    • There is nothing more important than to “preserve, protect and promote” the independence of the judiciary at all levels” CJI N V Ramana said.

    What is Independence of the Judiciary?

    • Fair and neutral judicial system:
      • Which can take its decision without any interference of the executive or legislative branch of government. 
    • Mentioned  in Basic Structure of Constitution:
      • Judicial Independence is guaranteed in the constitution and reaffirmed by the Kesavananda Bharati (1973) Judgement. 
    • Principle of separation of powers:
      • The Judiciary keeps in check the executive and Legislature in accordance with the derived from Article 13.
      • Separation of judiciary from the executive (Article 50)

    Provisions that ensure Judicial Independence

    • Security of Tenure:
      • Judges continue to remain in office till they reach the age of 65 years in the case of judges of the Supreme Court (Art. 124(2)) and 
      • 62 years in the case of judges of the High Courts (Art. 217(1)).
    • Removal of Judges: 
      • They cannot be removed from the office except by an order of the President and that too on the ground of proven misbehaviour and incapacity.
      • The resolution has also to be accepted to that effect by a majority of the total membership of each House of Parliament.
        • Also by a majority of no less than two-third of the members of the house present and voting.
      • It is so complicated that there has been no case of the removal of a Judge of the Supreme Court or High Court under this provision.
    • Salaries and Allowances of Judges:
      • The judges are independent as their salaries and allowances are fixed and are not subject to a vote of the legislature.
    • Powers and Jurisdiction of Supreme Court:
      • Parliament can only add to the powers and jurisdiction of the Supreme Court but cannot curtail them. 
      • In civil cases, Parliament may change the pecuniary limit for the appeals to the Supreme Court.
    • Power to Punish for Contempt:
      • Both the Supreme Court and the High Court have the power to punish any person for their contempt.
      • Article 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.
    • Separation of the Judiciary from the Executive:
      • Article 50 states that the state shall take steps to separate the judiciary from the executive in the public services of the state.

    Need for Independent judiciary 

    • Welfare State:
      • The decisions of the constitutional courts of this country have enabled social democracy to thrive
      • To function with absolute independence and necessary boldness in the face of adversity defines the character of the Indian judiciary.
    • Live up to people’s aspirations:
      • Judiciary’s ability to uphold the Constitution sustains its impeccable character.
      • The immense trust reposed by the public at large upon the judiciary, as a last resort of hope.
    • Checks and balances in a political democracy:
      • A robust justice delivery system at the grassroots level ensures better functioning of the state.
    • Accountability to the people:
      • To uphold the democratic principle of accountability. 
      • It helps to keep the executive and legislature accountable to the people through judicial review and judicial activism.
    • Constitution interpretation: 
      • The written constitution is considered as the basic law of the land and requires some authority to interpret it without prejudice and self-interest.
    • Protection of individual rights:
      • Independent India inherited a deeply fragmented society from its colonial past
        • The stark divide between the haves and have nots is still a reality
      • Only an impartial and independent judiciary protects the rights of the individual without fear and favour.
    • Prevent autocracy: 
      • Without an independent judiciary, we will have a dictatorship, as the executive will be able to do whatever it likes.

    Issues with Judicial Independence

    • Opacity in judge’s appointment:
      • India’s judges have been appointed by a “Collegium” of judges.
      • Collegium considers the opinion of the government when appointing judges, but the final decision about who to appoint rests with the judiciary.
      • Their decisions are taken behind closed doors, and the opacity of the process has been a long-standing issue.
    • Roaster System:
      • There is opacity in the internal workings of the Court that impact independent decision-making.
      • The Chief Justice of India, as the senior-most judge of the Court, decides the allocation of certain cases to judges and benches of judges.
      • Some judges have spoken out publicly on the opaqueness and case allocation procedures of the Supreme Court.
      • Criticisms point to many issues with the procedure, which included the allocation of politically sensitive cases to favourable judges.
    • Nepotism, Favouritism and Politically Biased:
      • Often, judges who have favours or relationships with senior judges of the Supreme Court or the Executive get promoted to or appointed to more favourable positions.
    • Judicial overreach:
      • Since there is no system of checks on the Supreme Court, it can interfere with the purview of the legislature and judiciary.

    Way Forward

    • Judicial independence ensures public confidence as an institute of the last resort where justice will be served despite any opposition and Influence.
    • People place high credibility and trust in the judiciary to get justice in case of any kind of misconduct by the executive.
    • The latter clause and confidence will be meaningless if executive interference is allowed into the process of judicial proceedings as well as judicial bias over the executive.

    Source: IE