State in international law is defined as an independent political entity
occupying a defined territory, the members of which are united together for the
purpose of resisting external force and preservation of internal order. This
means the objective of the first-generation State was that of the need of food,
clothes and shelter.
Further it evolved its objectives to the need of eradicating poverty and having
proper heath to education as a need and then further into the defense of the
State and its law and order. But the modern State does not restrict itself to
the former objectives only and is much more than that. It looks into the
sustainable development and social welfare of the State.
With such objectives to achieve, the State needs to have organized organs with
powers and functions to perform on behalf of the State, authorized by the State
itself and a predictable body that has the regulatory power. This is exactly
where the need of constitution comes into play. The sole purpose of the
constitution is to establish a government with a frame work to look into the
working of the State with the constitution itself being the ultra vires.
This government is organized by dividing it into three organs namely the
legislative I.e. law-making body; the Judiciary I.e. law interpreting body in
accordance to the constitution and the executive I.e. law implementing body
where the constitution holds the Judiciary to be independent of the interference
from the legislative and the executive which this article tries to discuss and
assess its real independence in India.
The constitution of India is an amalgamation of the doctrine of rule of law,
separation of powers, federalism, accountability of the organs, decentralization
of powers, judicial review and Independence of the Judiciary.
The doctrine of rule of law States that there should be no presence of arbitrary
powers i.e. no man is above law and should not be punished by personal whim but
only by any reason and rules of the system; there should be equality before law
i.e. no person will be treated according to his position and treated like all
others. Equals should be treated equally and the unequal's should be treated
equally; and there should be individual liberties i.e. the rights of a person
are determined by the courts in the cases brought before the Judiciary. Thus,
lies the importance of Judiciary to assure that the government runs according to
The federal system in India States a distinctive distribution of legislative,
administrative and financial powers between the center and the State, making the
State and every other subordinate organ accountable to the center. This often
leads to disputes between the State inter se and the center and the State for
which the Judiciary plays an essential role by assuring that the organs perform
their function while being in their allotted legislative domain.
The constitution of India mentions judicial review as the basic feature of the
constitution which means that the Judiciary can review both the legislative and
the executive. Any statue made by the legislative can be invalidated by the
Judiciary for violating the constitutional terms and provisions. At the same
time, any law implemented or any decision made by the executive can be
invalidated by the Judiciary for being unlawful. Thus, Judiciary is Stated as
the watch tower and the guardian of the constitution of India. It is the 3rd
most important pillar of the union as it protects, preserves and enforces our
fundamental and legal rights.
Meaning of Judiciary:
The Judiciary in India does not follow the duel system of Judiciary but a
unified one which means that India has the Supreme Court as its apex court under
which exists the High court and other subordinate court, all as a single,
unified Judiciary having jurisdictions over all the cases arising from any law
enacted by the parliament or the State legislature. thus, this leads to
transparency in the remedial procedures and no confusion regarding the
jurisdiction of the cases.
The Supreme court enjoys all the advisory, original and appellate jurisdiction
and is the ultimate court of appeal in civil and criminal matters while the
final interpreter of the law and being a court of record, which means to have
the power to determine its own jurisdiction. The Chief Justice of the supreme
court is known as the chief justice of India.
The high court enjoys civil, criminal and original jurisdiction in the cases of
testamentary, matrimonial, company and guardianship matter and in certain cases
as mentioned in the statute; extra-ordinary jurisdiction to issue write under
the article 226 of the constitution; advisory jurisdiction over all the
sub-ordinate courts. The chief justice is the administrative authority of the
Meaning of the Independence of the Judiciary:
As per the Article 50 of the directive principle of State policy, The basic
meaning of the phrase is that the Judiciary is free from the interference,
influence and control of the other two organs of the government, namely the
legislative and executive.
Further it also means that the Judiciary is free to make decision and pass
judgments without any pressure from other governmental entities. The absence of
judiciary independence will lead to the fall of the doctrine of rule of law and
federal system of the government and will assure the Judiciary decision being
made without any fear, pressure and biasedness by political ideology and
The independence of Judiciary also means that the Judiciary is free from the
influence of politics, corruption and personal predilections of the judges and
the Judiciary shall strive for the welfare of the society as Stated in article
38(1) of the directive principle of State policy.
Importance of the Independence of the Judiciary:
The Independence of the Judiciary is very crucial for its existence will lead to
the protection of the fundamental rights of the citizens against the arbitrary
powers of the legislative and the executive and will assure the constitutional
validity of the laws and regulations and the mandatory performance of the
constitutional duty by all the organs.
The Constitution of India makes adequate provisions for the Independence of the
Judiciary which was first seen in the pronouncement of the judgment of Bachan
Singh v. State of Punjab
by the supreme court. Justice Bhagwati emphasized
on the doctrine of rule of law stating that, it is necessary to have a
democratic legislature to make laws, but its power should not be unfettered and
that there should be an independent Judiciary to protect the citizen against the
excesses of the legislative and the executive powers.
The constitution provides with certain provisions which ensure the independence
of the judiciary.
The following provisions are:
The Judiciary is independent of the legislative and the executive and at the
same time the constitution of India provides with provisos stating the codes of
ethics, norms in the various acts as a watchdog over the Judiciary where the
apex acts as a watchdog over the high court and other subordinate courts. thus,
it enjoys full autonomy in its working which can be seen by the judgment made in
the A.C, Thalwal v. State of Himachal Pradesh
The chief justice of India is appointed according to the seniority among the
judges while the judges of the supreme court and high court are appointed by the
president in consultation with the chief justice of India. The judges of the
subordinate court are recruited through competitive examinations. thus, it sees
transparency and ensures no tampering by the government and is evident by the
1973 protest against the appointment of justice A.N.Ray as the chief justice for
being appointed being the 4th in seniority. the first 3 judges had resigned in
The constitution of India provides for an educational qualification for the
judges with them being an Indian citizen and having experience a sa judge of the
high court for at least of five years or as an advocate of the high court for at
least of ten years or by being a distinguished jurist. thus, high qualification
and experience makes the judges sound enough to take decisions on their own
without getting driven away by external reasons and the judges will not be
appointed by biased political considerations.
Judges of the supreme court remain in the office till they attain the age of 65
years and for high court judges is 62 years. the judges can be removed from
their office only be means of impeachment at the accusation of misbehavior which
is approved by a majority of the total membership of both the houses present and
it shall not be less than two third of the members present of each house as
evident in the Keshav Singh case
. thus, this makes them work fearless of
being removed nor any external reasons affect their working because of their
personal grievances. impartial and independent working.
Every judge of the supreme court gets high salary along with accommodation,
medical allowances and several other perks in which the salaries and allowances
cannot be reduced during their term until or unless at the time of the
emergency. SC from consolidate fund thus, it sees no corruption and no role of
legislature affecting their pay scale.
A judge of the supreme court cannot practice after the completion of its tenure.
It was held in the case of Nixon M. Joseph v. union of India by Justice. K.
Narayana Karup that:
to maintain the dignity and Independence of the Judiciary as well as public
confidence in the Judiciary, it is a necessary that a judge should allow his
judicial position to be compromised where the justice might not have been done
because of this but it will definitely seen to be done.
Thus, this will maintain the dignity of the judge as well the courts and the
The supreme court and the high court can punish the contempt of court. thus, it
maintains justice and equality by punishing anyone who tries to be a hindrance
in the working of the court or tries to fidget with the facts of a case in the
The basic feature of judicial review maintains the constitutional validity of
every law as held in the case of State of Madras v. row where is was Stated
While the court naturally attaches great weight to the legislative judgment, it
cannot desert its own duty to determine finally the constitutionality of an
The Independence of the Judiciary being maintained is evident by the case of
NJAC (National Judicial Appointment Commission):
Article 124A was introduced in the constitution of India which provided for the
National Judicial Appointment commission (hereinafter referred to as NJAC) that
would be replacing the old collegium system used for appointing judges. The old
collegium system had the process of the president appointing or transferring of
the judges in consultation with the chief justice of India and other judges of
the supreme court on the basis of the seniority of the judge which has not been
mentioned anywhere in the constitution as a criterion of appointing but has been
This particular collegium system was first challenged in the S.P. Gupta v. Union
of India case,1981 also known as the first judges' case where it was held that
the opinion of the chief justice did not have the primacy and the union
government was not bound to act in accordance with the opinion of the chief
justice. But few years later in the second judges' case in 1993, a nine-judge
bench held that the opinion of the chief justice is of primacy and in case of
any dispute in the process of consultation of the appointment or transfer of the
judges, the opinion of the chief justice will be considered and the executive
will only be able to appoint or transfer any judge only with the conformity of
the chief justice regarding it.
It's after 21years of the old collegium system being followed, it was again in
question and asked for a change when the 121st amendment bill of NJAC Act was
put up and received its assent from the president, becoming the 99th amendment
of the constitution. The NJAC comprised of the chief justice of India, two
seniors most judges of the supreme court, the union law minister and two eminent
persons nominated by the prime minister, chief justice of India and the leader
of the opposition in the Lok Sabha.
The 99th amendment was made in the constitution and several public interest
litigations were filed against NJAC. The supreme court finally struck down the
99th amendment because the presence of NJAC would have shaken the basic feature
of the constitution i.e. the Judiciary being independent from the legislative
and the executive as NJAC gave the power of appointments and transfer of the
judges to the executive almost with the inclusion of executive heads and by not
stating the reasons for nominating two eminent persons or their accountability
which would have led to abuse of power through politics and personal
But is the Judiciary independent for real?
The constitution of India provides with certain provisions which will ensure the
Independence of the Judiciary but unfortunately, those provisions are getting
adulterated in the contemporary world because of corruption, politics, religion
and personal predilections.
In the aforementioned case of NJAC where we State that NJAC had drawbacks which
affected the Independence of the Judiciary, at the same time we cannot overlook
the fact that even the old collegium system has its own flaws. The old collegium
system does not check the reasonableness of the appointments, there is lack of
proper implementation which is evident by the fact that there are a lot of
vacancy in the courts with a statistic of 13 judges per million population.
The major flaw lies in the interpretation made regarding the appointment of the
judges where the constitution States that the judge shall be appointed by the
president in consultation with the chief justice of India and was even Stated in
the 1973 protest against the appointment of A.n ray as the justice that the word
consult does not mean that the president mandatorily, has to act in accordance
to the opinion of the chief justice of India. but in practical, the vice versa
happens where the opinion of the chief justice has all the primacy.
The parliament has powers vis-a-vis the court. The judiciary does not have
absolute powers. the parliament has the authority to increase the number of
judges in the court, to even decide the allowances, pension and privileges of
the judges during their tenure but before the tenure commences, to provide that
the court shall not have the powers of federal court beyond what the court has
under the article 133 and article 134, to regulate the court to review its own
judgments, to regulate the jurisdiction of the court regarding the union list
and the concurrent list, to confer powers to the supreme court for issuing
directions, orders and writs other than that what has been mentioned in the
article 32 of the constitution and to provide with complementary powers to the
court to enable it to exercise its jurisdiction more effectively. The financial
aid and development of Judiciary depends upon the legislative and even rule
making power of the judiciary is subjected to the legislative
These all provisions provides for a solution to the judicial accountability
which is a better concept than that of judicial independence because in the
former, the judiciary will be answerable for its actions and provide with
reasons to it while in the latter, the Judiciary has no watchdog over it and
even with a lot of provisions made in the constitution to keep a check upon the
Judiciary and its actions, because of the presence of loopholes, it has been
proved hollow due to the lack of implementation and nepotism inside the
Judiciary which leads to acquittal.
There is not an iota of doubt that the powers of the Judiciary are independent
and stronger than the other two organs but the Judiciary seems to be independent
but in reality, it is not. Let's look into the appointments where the president
appoints the judges and is it not evident that the president being chosen from
the political parties itself and works at the recommendation of the prime and
minister and the council of ministers, will not be influenced by the executive
or is indirectly the central government having a say in it?
Not just the judges but if we consider other organizations that form a major
part of the judiciary as of the CBI, CAG or the government officers, all of them
are suppressed by the legislative power of deciding the jurisdiction where the
involvement in a particular case by CBI is decided by the government which is
usually reluctant to hand over cases of ministers to CBI or even the appointment
of CAG which is even dependent on the cabinet's discretion but was ought to be
independent of legislative and judiciary or the sudden transfers given to the
government officers by the administrative heads when at the verge of exposing a
Let's look into the case of Justice Ramaswamy's impeachment where he was
impeached with a two third majority of the total members present from each house
still the motion failed and he continued to be the judge of the apex court. This
proves how corruption is evident in the Judiciary and how the investigating is
even an accomplice in such cases as it itself comprises of the colleagues of the
judges against whom the motion has commenced.
Another case would be that of Justice K. Veernaswamy's where he was held guilty
of corruption but was acquitted because of the Independence of the Judiciary as
no FIR can be lodged against a judge during his tenure and also because
Judiciary was concerned as to what impact would be there on the public.
The objective of the Judiciary should be the welfare of the society and its
citizen by using its independence from legislative and the executive in a way
which is not affected by politics, corruption and personal predilections. But
certain cases show that the Judiciary does get affected by the former aspects.
The case of Arundhati Roy
proves how Judiciary does not grant an
opportunity to the accuse for its justification and applies contempt of court,
thus infringing the rights of a person, here the right of freedom of speech and
expression against increasing the height of Sardar Sarovar dam by 90m. The most
heard case of four judges speaking against Deepak Mishra that the chief justice
of India uses the concept of master of roaster adopted by India in 2018 for his
personal predilections by giving the cases to specific benches, thus bringing in
corruption by fixing the judgments of the cases.
The judiciary presently works on the system of personal contacts and
predilections where lawyers exhorbit high prices for the case with a surety of
winning because of the confidence that the judge being a person know or of any
relation will definitely give a decision in favor or where the Judiciary family
in itself in not united and stands divided because of personal benefits and
cases are not decided based on law but by the external factors affecting it
which is evident by certain observations where it is seen that no man received
death sentence during the tenure of Justice M.B Saha or no tenant lost a case
during the tenure of D.A. Desai and many more cases as such prove the
defaultaries of the Judiciary.
The recent case of Triple Talaq and decriminalizing homosexuality, Even if there
has been a significant judgment made for these areas by the Judiciary, the
legislative has clearer Stated that no law would be made against them. Thus, the
landmark steps taken by judiciary cannot be backed by any legal principle.
India follows the concept of constitutional and parliamentary sovereignty which
means that where the parliament has the right to amend the constitution, the
amendments are subjected to judicial review and its constitutional validity by
the Judiciary. It is not Stated that the judciary does not have independence,
but it is surely affected by external factors which makes the Judiciary seen to
be independent where it actually is not independent for real in the present
And for this, the need of the hour is a proper system of judiciary where the
Judiciary can openly make criticism and judgments which has an accountability to
the public in a way which does not cause political polarization and has a
balanced methodology of judicial activism and judicial restraint. There are a
lot of countries like France and America who have found a proper methodology to
Independence of the Judiciary and India with proper methodology will ensure a
solution for this.
- M.P. Jain, Introduction to the Indian Constitutional Law, pages.
- Arun Shourie, Incite into the Indian Judiciary.
- https://thewire.in/law/former-cji-lodha-says-independence-of-judiciary-is-under- challenge
- https://jlsr.thelawbrigade.com/index.php/2017/04/21/the-debate-between-the-judicial- independence-and-the-judicial-accountability/