The place of Justice is a hallowed place, and therefore not only the
Bench, but also the foot space and precincts and purpose thereof ought to be
preserved without scandal and corruption
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 pulls i.e., 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 emphasises this need time and again. Initially, there
was a demand for institutional independence. now the trend is towards the
independence of individual Judges. The genesis of institutional independence we
found in the theory of separation of powers which stress for functional
independence. But the independence of individual Judges depends on the
provisions of the Constitution pertaining to their appointment, conditions of
service, transfers, benefits and security of tenure.
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
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
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.
The Independence of Judiciary is normally assured through the
Constitution of India but it may also be assured through legislations,
conventions and other suitable norms and practices. The constitutional or the
foundational laws on Judiciary are, however, only the starting point in the
process of securing Judicial independence.
Ultimately the Independence of Judiciary depends on the totality of a
favorable environment created and backed by all State organs including the
Judiciary and the public opinion. The Independence of Judiciary also needs to
be constantly guarded against the unexpected events and the changing social,
political, economic conditions; it is too fragile to be left unguarded. In
India, the question of Independence of Judiciary has been a subject of heated
national debate over the last many years. This question assumes great importance
whenever the Supreme Court holds a particular Act or particular Clause of an Act
passed by Parliament ultra virus of the Constitution of India.
Judicial Independence in India
The Independence of Judiciary is not to be determined in all its ramifications
as some apriori concept but it has to be determined within the framework of the
Constitution of India. The thrust is to ensure that adjudication is untrammelled
by external or controls and Independence of Judiciary under the Constitution
of India is confined to the adjudicatory functions of the Courts or Tribunals
and they are insulated from executives control in that behalf. A notable feature
of the Constitution of India is that it accords a dignified and crucial position
to the Judiciary in India.
The existence of a fearless and Independence of Judiciary is thus founded in
the constitutional structure in India. Independence of Judiciary is not genuflexion; nor is it opposition to every proposition of Government.
Democracy, as envisaged in Constitution of India proceeds on the fundamental
postulate that ultimately political sovereignty vests in the people of the
country. This sovereignty gains social reality and dynamic viability only of the
constitutional instrumentality submits tacitly to the broad oversight of the
sovereign people. But the people in general obviously cannot exercise
monitoring, controlling, disciplining and perform the like function.
Therefore, need is for checks and balances so that power vested anywhere may not
go haywire and may become amendable to the constitutional fundamentals and
answerable to those who are the ultimate masters or donors of the power. The
founding fathers of the Indian Constitution, keeping democratic principles
(transparency and accountability) in view, demarcated and delineated powers of
three organs of the Government with an understanding that each organ will power
perform its assigned role and will endeavour to bring life to the goals
enshrined in the Preamble. They also enshrined sufficient provisions to make the
three instrumentalities of Government accountable for any act of omission or
commission committed on their part through transparent methods. 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 Constitution of India.
Independence of Judiciary is one of the basic structures of the Constitution
of India and has also been recognised as a human right by International
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. Justice Krishan Iyer observed for
distinction that judiciary has to draw the line between individual liberty and
social control. 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, States State. All the
above responsibilities can be discharged only when the country has an
authoritative, independent and impartial Judiciary.
It is neither judiciary made to opposition measure nor Governments pleasure. In
the celebrated decision of the Supreme Court in S.P. Gupta Vs Union of India,
1982 (2) SCC 831the Constitution Bench of the Supreme Court held that;
Judges should be of stern stuff and tough fibre, unbending before power,
economic or political, and they must uphold the core principle of the rule of
law which says Be you ever so high, the law is above you. This is the principle
of independence of the judiciary which is vital for the establishment of real
participatory democracy, maintenance of the rule of law as a dynamic concept and
delivery of social justice to the vulnerable sections of the community. It is
this principle of independence of the judiciary which we roust keep in mind
while interpreting the relevant provisions of the Constitution.
...While the administration of justice draws its legal sanction from the
Constitution, its credibility rests in the faith of the people. Indispensable to
that faith is the independence of the judiciary... the framers of the
Constitution took great pains to ensure that an even better and effective
judicial structure was incorporated in the Constitution, one which would meet
the highest expectations of judicial independence...., held another Honble
Judge in the same Judgment.
Later in 1993, another Constitution Bench in the Second Judges Appointment Case
i. e Writ Petition (Civil) 1303 of 1987 titled Supreme Court
Advocates-on-Record Association & Anr. Vs Union of India declared:
431. Independence of Judiciary is the sine qua non of democracy. So long as the
Judiciary remains truly distinct from both the Legislature and the Executive,
the general power of the people can never be endangered from any quarters.
Montesquieu in his book Spirit of Laws observed there is no liberty, if the
power of judging be not separated from the legislative and the Executive
The framers of the Constitution made it known in an emphatic-voice that
separation on Judiciary from Executive, which is the life-line of independent
Judiciary, is a basic feature of the Constitution. Dr. B. R. Ambedkar in his
speech in the Constitution Assembly on June 07, 1949 observed as under:
I do not think there is any dispute that there should be separation between the
executive and the judiciary and in fact all the articles relating to the High
Court as well as the Supreme Court have prominently kept that object in mind.
Isolation, independence and matters of principle
Courts are understood as being isolated from short term political pressures.
Unlike elected legislators, who are accountable to their constituents and
respond to their immediate needs, unelected judges with fixed tenures and
salaries can deliberate in a ‘neutral’ manner and render decisions that may be
politically unpopular but necessary for the long term preservation of human
rights and democracy.
Judges are not bound by party ideology or the need to garner the popular vote,
so they can arrive at substantively ‘better’ decisions. For example, after a
terrorist attack, public sentiment may overwhelmingly favour the torture and
public execution of a captured terrorist.
The Government, acting on the demands of the electorate, may decide to torture
and execute the terrorist (after all, good Government responds to what the
people want). The Courts however, isolated from public sentiment and
understanding the long-term benefits of upholding the Rule of Law and human
rights, can ensure the captured terrorist receives a fair trial.
A second assumption underpinning the public trust in Courts is that Courts rely
on precedent (Stare Decisis) and settled legal principles to decide cases.
Therefore, once Courts construe the phrase ‘equality’ or ‘liberty’
as having an expansive meaning, the same expansive interpretation will
subsequently be applied irrespective of how politically significant or
insignificant the facts of a case.
This is often why progressive Judgements are celebrated, because we presume that
the reasoning of these Judgements will bind future Benches of the Court and
Lower Courts. The last, and perhaps most significant, assumption about Courts is
that they stand independent from the elected Government. Coupled with their
isolation from short-term political pressures and their commitment to decide
cases on legal principles, this leads to the overarching argument that Courts
stand as a check against the abuse of Government power.
The Constitution of India has created a democratic Republic and a trinity of
instrumentalities to enforce its paramount provisions without fear or favour,
affection or ill will. The Executive echelons, when they exceed their power as
inscribed and circumscribed in the Suprema Lex, are subject to scan,
scrutiny and correction by the Higher Judiciary.
The Legislature has vast law-making powers and is functionally competent to
perform an inquest into the Administration. But when it transgresses its
constitutional bounds, the Court can quash its action by writs or command fresh
operation by appropriate directions.
However, Judges, vested with considerable power, are oath-bound by the
Constitution of India, without violating jural parameters and performing with
exemplary good behaviour. Judicial bounds of dignity and propriety are real and
noble. The Independence of Judiciary holds a prominent position as far as the
institution of Judiciary is concerned.
Courts have always tried to uphold the Independence of Judiciary and
have always said that the Independence of Judiciary is a basic feature of the
Constitution of India. Courts have said to so because the Independence of
Judiciary is the pre-requisite for the smooth functioning of the
Constitution of India and for a realization of a democratic society based on the
Rule of Law. The comparative study of the constitutional provisions reveals that
the judicature is no less important than the other organ of the State. It keeps
every organ of the State or other constitutional and non-constitutional bodies
within their limits assigned to them and prevent encroachment on the sphere of
each other. Thus, it prevents chaos and works for peace prosperity communal
harmony and amity.
Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature,
Email: [email protected], [email protected]