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Constitutional framework for Independence of Judiciary in India

India practices constitutional governance by rule of law. Be it legislature, executive or judiciary; all are creatures of the Constitution of India, 1950. In this democratic set up, the judiciary is an impartial umpire that resolves disputes within the boundaries laid down by a Written Constitution and distribution of constitutional powers between different organs, namely, Parliament, State Legislatives and Executive. An independent judiciary is expected by every citizen of the country and is not only a fundamental right, but is also a part of the basic structure of our Constitution.

Independence of the judiciary is one of the basic structures of the Indian Constitution and has also been recognised as a human right by international conventions. In our Constitution, three wings of Government are enshrined, and each of these three wings of government has to work independently in spite of the fact that they are inter connected with each other. The objective of justice is deeply enshrined in the Preamble of the Constitution of India.

In fact, judiciary does not only dispense justice between one individual and the other or between one group of people and the other, it also does justice in the controversies arising between individuals and States, State's State. All the above responsibilities can be discharged only when the country has an authoritative, independent and impartial judiciary.

Necessity for independence of judiciary:

In democratic countries, the judiciary is given a place of great significance. The architects of the Indian Constitution were conscious of the very significant and special role assigned to the judiciary in the scheme of the Constitution.

It was envisaged as the organ for protecting the rights of the citizens, guaranteed under the Constitution. There was the recognition that Judges, particularly the judges of the superior courts, who have been given the power of judicial review of administrative and legislative actions, should function without fear or favour and that the judiciary should remain totally independent and fully insulated from any external interference.

It is a function of the courts to uphold the rule of law and to ensure that the government runs according to the law. In a country with a Written Constitution, courts have the additional function of safeguarding the supremacy of the Constitution by interpreting and applying its provisions and keeping all authorities within the constitutional framework. For the maintenance of the rule of law and fair judicial administration, an independent judiciary is of utmost importance.

Independence of judges refers to as:

  1. Functional or decisional independence which means the independence of judges to arrive at their decisions without submitting to any inside or outside pressure;
  2. Personal independence which means the judges are not dependent on government in any way in which might influence them in reaching at decision in particulars cases;
  3. Collective independence which means institutional administrative and financial independence of judiciary as a whole vis-a-vis other branches of the government namely the executives and the legislative; and
  4. Internal independence which means independence of judges from the judicial superiors and colleagues. It refers to, in other words, independence of a judge or judicial officer from any kind of order, indication or pressure from his judicial superiors and colleagues in deciding cases.

The Indian Constitution, unlike the Constitution of USA, expressly conferred power of judicial review by Article 32 on the Supreme Court of India and Article 226 and 227 by the State High Courts. The judiciary is the protector of the Constitution and guardian of the rights of the citizens. Therefore, it may even strike down the Executive, Administrative actions or Legislative Acts as unconstitutional. For rule of law to prevail judicial independence is of absolute necessity.

Institutional independence:

It is true that the quality of justice depends upon the independence enjoyed by the judiciary. It is very necessary that the court should be allowed to perform its function in an atmosphere of independence and it should be free from all kinds of political pressures. Therefore, founding fathers of the Constitution added a provision in Part-IV of the Constitution which directs the State to make all out efforts to keep judiciary out of politics.

This directive warns the government for the future, because the independence of the judiciary means the independence of the judges also. Thus, the judges should make them accountable and ensure that their actions are transparent and within the parameters set by the Constitution.

Independent judiciary is a tributary of the doctrine of separation of powers for cooperation as well as co-ordination, in particular amongst and between the organs of the Government. The Constitution of India has made several provisions to ensure independence of the judiciary. These provisions include:-

(1) Judicial Appointments:
Independence and impartiality of judiciary is the hallmark of democratic set-up of the government. Independence of judiciary starts from appointment of judges.

Article 124 deals with the appointment of Judges to the Supreme Court and Article 217 regarding appointment of Judges to High Courts. Articles 124 to 147 in Chapter IV of Part V under the caption Union Judiciary deals with the establishment and constitution of Supreme Court, the appointment of judges and their powers rights, jurisdiction and service conditions, etc., whilst Article 214 to 231 in Chapter V of the Part VI under the caption The High court's in the states deals with the constitution of High Court, the jurisdiction, the appointment and conditions of the office of a Judge of a High Court, his powers, rights, service conditions, including transfer from one High Court to another etc. The power to appoint a judge to the Supreme Court or to a High Court vests in the President.

The power of appointment of judges of the Supreme Court is to be found in clause (2) of Article 124 and this clause provides that every Judge of the Supreme Court shall be appointed by the President after consultation with such of the Judges of the Supreme Court and the High Courts in the states as the President may deem necessary for the purpose, provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.

It is obvious on a plain reading of clause (2) of Article 124 that it is the President, which in effect and substance means the Central Government, which is empowered by the Constitution to appoint Judges of the Supreme Court. Also Article 217, clause (1) vests the powers of appointment of Judges of High Courts in the Central Government, but such power is exercisable only after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court.

It is clear on a plain reading of these two Articles that the Chief Justice of India, the Chief Justice of the High Court and such other Judges of the High Court and of Supreme Court as the Central Government may deem it necessary to consult, are merely constitutional functionaries having a consultative role and the power of appointment resides solely and exclusively in the Central Government.

It is not an unfettered power in the sense that the Central Government cannot act arbitrarily without consulting the constitutional functionaries specified in the two Articles but it can act only after consulting them and the consultation must be full and effective consultation.

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 (Article 124(2)) and 62 years in the case of judges of High Courts (Article 217 (1)).

Also the subordinate courts fall with in control of High Court of the State under the Article 235 of the Constitution, and the appointment of judges of these courts is made by the Governor of the State in consultation with the High Court, exercising jurisdiction in relation to the State.
  1. First Judge's Case: S.P. Gupta v. Union of India (1982)
    The Supreme Court held that consultation is a mere suggestion not concurrence and is not binding on the President as the Chief Justice of India is also a man with the flaws and failings of a common man, hence making his view bindings on the President and the executives may be dangerous idea.
  2. Second Judge's case: Supreme Court Advocates on record v. Union of India (1993)
    The judgement in S.P. Gupta's Case is now reversed that the court has held that the opinion of the Chief Justice shall be binding on the President as he is more competent than other constitutional machineries to accrue the merit of a candidate.
  3. Third Judge's case
    The Second Judge' case left an area of uncertainty as regards the collectively opinion of the Chief Justice and his senior colleagues. It presumed that the Chief Justice would consult his senior colleagues and that generally his recommendation would be acceptable and not controversial. However during eight months of Chief Justice Punchhi's tenure as the Chief Justice of India, a number of recommendations for the appointments were found controversial. In these circumstances, the Central Government decided in July, 1998 to make reference to the Supreme Court under Article 143 (1) seeking the opinion of the Supreme Court.

    The Court opinioned that the Chief Justice must make a recommendation to appoint the Judge of the Supreme Court in consultation with four senior most puisne Judges of the Supreme Court, and in so far as the appointment to the High Court was concerned, the recommendation must be in consultation with senior most puisne Judges of Supreme Court (collegium). Moreover it stated that if the Chief Justice of India makes a recommendation without any complying with the norms and requirements of the consultation process, it would not be binding on the Government of India.
  4. The National Judicial Appointments Commission Bill, 2014
    The National Judicial Appointments Commission Bill, 2014 was introduced in the Lok Shabha on August 11, 2014 by the Minister of Law and justice, Mr. Ravi Shankar Prasad. The Bill has been introduced in conjunction with the Constitutional (121^^ Amendment) BILL, 2014 which establishes the National Judicial Appointments Commission (NJAC). The bill provides for the procedure to be followed by the NJAC for recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court (SC), and Chief Justice and other judges of High Courts (HC).
  5. Fourth Judge's case:
    When the 121st Constitution Amendment which created the National Judicial Appointment Commission (NJAC) was passed by both the houses of the Parliament with 2/3rd (special) majority, it was subsequently sent to the states for ratification after 16 states approved the amendment, it was finally sent to the President for his assent. But before the amendment could become fully effective, it was declared to be unconstitutional by the SC as it violated the independence of judiciary as a basic structure in the Supreme Advocates on Record Association & Anr. V Union of India, also known as the 4th Judge's Case.

2. Qualifications:
The next issue which has a direct bearing on the Independence of judiciary is the quality of the person who are asked to serve in the courts. The quality of the judges depends on the conditions necessary for the appointment of judges.

Article 124(3) prescribes qualifications of a person who can be appointed as a Judge of the Supreme Court and reads as follows:
A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and
  1. has been for at least five years a Judge of a High Court or of two or more such court in succession; or
  2. has been for at least ten years an advocate of a High Court or of two or more such courts in succession; or
  3. is, in the opinion of the President, a distinguished jurist.

The qualification of a High Court judge is set out in Article 217(2) which read a s under:
�A person shall not be qualifled for appointment as a Judge of a High Court unless he is a citizen of India and
  1. has for at least ten years held a judicial office in the territory of India; or
  2. has for at least ten years been an advocate of a High Court or of two or more such courts in succession.�

(3) 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 (Article 125 (2)) except in the event of grave financial emergency.

Article 112 (3) (d) (i) of the Constitution required that budget shall contain a provision for payment of salaries and allowances and pensions to Judges of the Supreme Court and Article 202 (3) (d) deals with the salaries and allowances of High Court.

(4) Removal Of Judges:
In India, both the Supreme Court and High Court Judges are appointed by the President under Article 124 and 217, and they enjoyed a fixed tenure and are removable under Articles 124(4) and 217 on proved misbehaviour or incapacity after an impeachment motion passed by each house supported by a stipulated majority. Their tenure and different process of removal are also in tune with their independent function.

In India a judge may be removed from his office by an order of President. The President can pass or order only when it has been addressed to the both Houses of Parliament in the same session. The address must be supported by a majority of the total membership of that House and also by a majority of not less than two third of the members of that house present and voting. The Constitution prescribes the procedures for investigating and proof of the misbehaviour incapacity of a Judge of the Supreme Court or of a High Court and for the presentation of an address by Parliament to the President.

(5) Transfer Of Judges:
Article 222(1) empowers the President after consultation with Chief Justice of India transfer a judge from one High Court to another. The Constitution makes provisions for granting compensatory allowances when a judge is transferred from one High Court to another. The power of transfer of a judge is vested with the President is not absolute. He takes into consideration two things: (i) public interest (ii) effective consultation with Chief Justice of India.

(6) Power To Punish For Its Contempt:
The rationale behind Contempt of court is that courts must have the power to secure obedience to their judgements, in order to serve this purpose of administering justice. Contempt of Court can refer to both civil and criminal contempt.

Contempt of Court finds a place in the Indian Constitution under Article 19(2), Article 129 and Article 215. According to Article 19(2) of the Constitution, contempt of Court' is one of the grounds on which the State can legislate to place reasonable restrictions on freedom of speech. Article 129 of the Constitution of India says that the Supreme Court shall be a 'court of record'. Article 215 grants a similar status to the High Courts.

(7) Prohibition On Practice After Retirement:
The Constitution debars the Judges of the Supreme Court from pleading or appearing before any court or tribunal or judicial authority in India after retirement. A retired Judge of the High Court is also prohibited from practising before a court where he had been a Judge. A High Court Judge, however, can after retirement, practice in the Supreme Court or in a High Court in which he had not been a Judge according to Article 220. However, Article 124(7) does not create a bar or disqualification for a Judge of the Supreme Court to offer his candidature for membership or to become a Member of Parliament.

(8) Condition Of Service:
The another important point which require attention for independence of judiciary is the conditions of service. The conditions of service have direct concern with the day to day functioning of the judge as well as the security in its diverse dimensions after retirement. By conditions of service here we mean those terms and conditions within which a judge has to act during and after his service as a judge.

The conditions of service for Supreme Court Judges, there is The Supreme Court Judges (Conditions of Service) Act, 1958 as amended in 2009 and for the High Court Judges, The High Court Judges (Conditions of Service) Act, 1954 as amended in 2009. These two enactments lay down conditions of service regarding leave, pension, housing facility, conveyance and sumptuary allowance, gratuity and family pension and after retirement medical facility.

(9) Establishment Of Court:
Apart from independence of judges the other factor which is necessary for the independence of judiciary is the establishment of court. By establishment of court we mean the administrative set-up of the court. The Constitutional of India contains specific provisions for establishment of court.

According the provisions of the Constitution, there shall be officers, servants and other persons with the courts for administrative work. The Constitution empowers the Chief Justice of India to make appointments to the administrative staff of the Supreme Court. Similarly, the Chief Justice of the various High Courts have been empowered to make recruitment to the establishment of the respective High Courts. Not only this, appointments to lower judiciary are also made by the High Court.

The person so appointed are under the complete control of courts as for as their services are concerned. At the same, the Constitution also protects the salaries and allowances of the persons those who have joined the administrative services of the court. Their salaries are to be paid from the Consolidated Fund of India.

Thus, the provisions of the Constitution provide for the effective and full control of the Chief Justice over the administrative staff of the court. These provisions of the Constitution apart from Judges Independence are further in consonance with the philosophy of the independence of the judiciary.

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. Courts have said to so because the independence of judiciary is the pre-requisite for the smooth functioning of the Constitution and for a realization of a democratic society based on the rule of law.�

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