Judiciary is one of the three most important organs of a political
organization. It is the body of independent officials who interpret and enforce
the law of the state. Judiciary has a very significant role to play. In every
state, the citizens expect justice at the hands of their administrators who are
entrusted with the task of maintaining a good government in the country.
words of Laski:
"The judiciary of state may be defined as that body of officials whose work
consists in the resolution of a complaint, whether between subjects or between
state and subject, that the laws of the state have been a matter of fairly
common agreement among thinkers that the judicial power should be regarded in
its nature and even more in the persons who administer it as separate from other
Protection of an individual's rights should be the primary concern of the state.
For the realization of this, the presence of an independent judiciary is
Independence of the judiciary means a fair and impartial judicial system of a
country, which makes its decisions without any interference from the executive
or legislative branch of government. The Indian constitution guarantees judicial
independence, which was enshrined in the Kesavananda Bharati (1973)
part of the 'Basic Structure of Constitution.
' The executive and legislative
branches of government are held in check by the judiciary, which is in
accordance with Article 13's principle of "separation of powers".
For the survival of liberal democracy, an impartial and independent judiciary is
essential. Without it, liberal democracy cannot flourish. Under the scheme of
the constitution, the court is the final interpreter of law. As a result,
judicial independence is essential to democracy because it is the judiciary that
aids in the implementation of the Rule of Law and the safeguarding of human
rights. However, the concept of independence is a broad one that encompasses
concepts such as impartiality, accountability, efficiency, and respect for other
According to James Bryce,
"There is no better test of excellence of a government
than the efficiency of its judicial system."
Some important conditions for the independent working of a judiciary are listed
- Guarantee of fixed tenure, subject to a limited process of removal or
discipline for misconduct or disability;
- Fixed and adequate compensation;
- Sufficiently high minimum qualifications in education and experience;
- Limited judicial immunity.
The most important element is an assurance that judges will not be removed or
disciplined because of their decisions. Tenure, either for life or until the
specified retirement age, is the strongest way to provide this assurance. The
tenure should be fairly long as that 20 to 30 years so that the judges may act
in a free and fair manner. Since the beginning of the eighteenth century, Judges
in a few American states, Canada, France, Germany, India, and other common and
civil law countries have had permanent tenure. Protection against arbitrary
removal is unquestionably vital during these limited terms.
Accountability necessitates a mechanism that is specifically intended to
discipline or remove judges who have engaged in substantial poor behavior or
have become mentally or physically incapacitated.
Judges' salaries and allowances must be high enough to allow them to live well
without having to rely on undesirable sources of income, such as fees for side
work or bribery.
Furthermore, pay must be competitive enough to attract the most
capable and qualified members of the legal profession to the judiciary.
The judges should not be entrusted with executive or administrative duties. The
liberty of the people is in peril if the administration and adjudication work is
in the same hands. One of the Directive Principles of State Policy (Article 50)
established in the Indian Constitution demands the separation of the judiciary
and the executive.
Their appointment as a judicial officers should be free from any political
interference. Their accountability to the executive would take away their
liberty in respect of their judicial functions. The simplest approach to avoid
such problems is to appoint judges after a process of selection by independent
commissions, ensuring that only people of high caliber and integrity are
appointed to crucial judicial positions. High educational standards must be
established in order for only deserving applicants to be appointed to positions
in the judiciary.
Finally, judges must avoid public contact in order to avoid being subjected to
public pressure. It is believed that the judges would succumb to the social
courtesy temptations that the public may build for their personal gain.
The independence of the judiciary is dependent on the creation and support of a
conducive environment by all state institutions, including the judiciary, as
well as public opinion. The independence of the judiciary must also be
constantly protected against unforeseen events and changing social, political,
and economic conditions. For many years in India, the question of judicial
independence has been a source of fervent national discussion.
When the Supreme
Court declares a particular Act or a specific Clause of an Act passed by
Parliament to be ultra vires of the Indian Constitution, this question becomes
crucially significant. The goal is to ensure that adjudication is free of
external or executive influences and that the independence of the judiciary
under the Indian Constitution is limited to the adjudicatory responsibilities of
the courts or tribunals which are protected from becoming a puppet in the hands
of the executive.
The fundamental premise of democracy, as envisioned in the Indian Constitution,
is that political sovereignty belongs to the people of the country. This
sovereignty achieves social reality and dynamic sustainability only when the
constitutional instrumentality submits quietly to the sovereign people's broad
oversight. However, it is clear that the general public is incapable of
monitoring, and disciplining this function.
As a result, checks and balances are required to ensure that power vested in
anyone does not go astray and that it remains amendable to constitutional
essentials and accountable to those who are the ultimate masters or givers of
power. With democratic principles (transparency and accountability) in mind, the
founding fathers of the Indian Constitution demarcated and delineated the powers
of the three government organs, with the understanding that each organ will
power perform its assigned role and strive to bring life to the goals enshrined
in the Preamble.
In the case of S.P. Gupta v. Union of India
(1981), the Constitution Bench of
the Supreme Court held that "Judges should be stern stuff and tough fire,
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 idea of judicial independence, which is essential for the
development of true participatory democracy, the preservation of the rule of law
as a dynamic notion, and the provision of social justice to the most vulnerable
members of society.
Later in 1993, in the Second Judges Appointment Case, Supreme Court
Advocates-on-Record Association & Others Vs Union of India, another
Bench declared, "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
In his speech in the Constitution Assembly on June 07, 1949, Dr. B.R.
"I do not think there is any dispute that there should be a 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
Listed below are the major areas where an independent judiciary plays a key
- Rule of law:
An independent judiciary is important for the protection of state
law and fair judicial administration. The judiciary's function is to interpret
the Constitution and laws and ensure that the executive and legislature make
decisions in accordance with them.
- Protection of citizens' rights:
An impartial and independent judiciary
safeguards individual rights and delivers impartial justice without any fear of
- Prevent arbitrary acts:
The independent judiciary plays a critical role in
regulating the administration's arbitrary actions. It provides redressal to
those who have been harmed by the administration's unlawful actions.
- Prevent autocracy:
Judicial independence is necessary to prevent a democracy
from turning into a dictatorship. A democracy would turn into a dictatorship
because the government would be able to do whatever it wishes without checks on
- Fair elections:
The judiciary's role in determining the legitimacy of
presidential, vice presidential, parliamentary, and state legislative elections
needs its independence. Therefore, it safeguards the principle of universal
- Accountability to the people:
The democratic principle of accountability relies
heavily on judicial independence. It helps to keep the executive and legislature
accountable to the people of the country through judicial activism and judicial
- Interpretation of Constitution:
Without an independent and impartial arbiter of
constitutional issues, a written constitution can hardly be effective in
practice. Also, it is necessary to restrain governmental organs from exercising
powers that may not be sanctioned by the Constitution.
While an independent and impartial court is one of a democracy's cornerstones,
the practical ways in which it is implemented are sometimes viewed with
suspicion. For example, judges are immune from prosecution for any conduct
performed in the course of their judicial duties. They also enjoy immunity from
defamation lawsuits for comments they make regarding parties or witnesses during
the course of hearings.
Some have suggested that judges are somehow "above the
law" because of these notions. However, claiming that judges are above the law
is wrong. Judges, like every other citizen, are subject to the law. They can be
removed from office on proven grounds of misbehavior or incapacity through the
procedure of impeachment.
In the past, there have been instances where the courts have been accused of
improper conduct. On January 12, 2018, Former Supreme Court Judge J.
Chelameswar, along with his three colleagues from the apex court's collegium -
Justices Ranjan Gogoi, Madan B Lokur, and Kurian Joseph, addressed a press
conference and questioned the manner in which the court was being administered
by the then Chief Justice of India Dipak Misra.
He claimed that the judges were
forced to speak in front of the media because democracy was in peril and that
democracy could not exist without an independent and impartial judiciary. The
comment implied that the executive was interfering with the judiciary's ability
to function independently. Every decision taken by courts impacts the lives of
the citizens and in no way can judicial independence be compromised.
The concept of judicial independence is also essential to justice for each
individual because, as Hamilton also said, "No man can be sure that he may not
be tomorrow the victim of a spirit of justice, by which he may be a gainer
today." Citizens must understand that it is ultimately in their best interest
for judges to be unaffected by their policy preferences because they may one day
find themselves in a situation where their own cherished rights are politically
The judiciary is tasked with keeping all governmental institutions within the
confines of the law, thus ensuring that the rule of law is meaningful and
effective. When the Legislature breaches its constitutional bounds, the Court
can issue writs to halt the proceeding or issue appropriate orders to resume
This is the idea of judicial independence, which is essential for the
development of true participatory democracy, the preservation of the rule of
law, and the provision of social justice to the most vulnerable sections of
society. It is the prerequisite for the smooth functioning of the constitution
and for the realization of a democratic society.
- H.J. Laski, "Judiciary" in E.A.R. Seligman (ed.), VII Encyclopedia of
the Social Sciences, (New York, 1967
- James Bryce, Modern Democracies, Vol. II, p. 421.
- Judicial Independence, available at: https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1465&context=wmborj (Last
visited on July 2, 2021).
- J.C. Johari, Principles of Modern Political Science 311 (Sterling Publishers
Pvt. Ltd., New Delhi, 2nd Edition, 2009).
- Independence of the Judiciary, available at: http://www.legalserviceindia.com/legal/article-1681-independence-of-the-judiciary-a-constitutional-response.html (Last
visited on July 6, 2021).
- Dushyant Dave, The unassailable keywords for the judiciary,
at: https://thehindu.com/opinion/lead/the-unassailable-keywords-for-the-judiciary/article30906480.ece (Last
visited on June 21, 2021).
- Justice Sandra Day O'Connor, "The Importance of Judicial Independence"
Stanford Lawyer, May 15, 2008.