Constitutional view on the Independence of Judiciary

Introduction
As we are well aware of the position in India and anywhere else in the world where law stands
supreme, independence of the judiciary is indispensable. It is the very essence of democratization
of governance. Ever since the beginning of the democratic form of Governments- of the people, by
the people, for the people, in the world, there has emerged a global debate on the manifest issue
that the judiciary should be placed separately and independently, away from any type of pressures
and triggers, external or internal. The idea of judicial independence was added importance in those
nations having a well-drafted and written Constitution as the law of the land. Under these
Constitutions, the Governments have been conferred with vast powers and authority to make
policies, to run the government ideally, and for its socio-economic developmental aspects that
cannot be neglected.

When discussing functions of the Government, we may at times deliberate on the abuse of power,
especially political power by the few who has got the ‘pass’ from the citizens to sit at the helm and
rule their land. Independence of the judiciary is, thus, required to maintain the equilibrium between
the interests of individuals and society as a whole. Only then can the judicial system be considered as a sine qua non, or essential without which the unhindered, smooth working of the democracy can
be ensured. Had the judiciary been subjected to Executive or Legislative scrutiny, or the judgments
and decisions of the learned Courts were questions and looked down on, then the nation is going to
roll down a steep pit of anarchy, lawlessness and even, rebellion in the name of power.

A demand for institutional freedom had arisen earlier, and now the latest upsurge is the need for
individual choices and rights of expression. The beginning of the claim for an independent
institutional set-up was found to be endowed in the separation of power theory, which has stressed
for implementing a functional independent structure. However, the freedom of judges personally
depends upon the Constitutional provisions, with respect to their appointments, conditions of
service, transfers, benefits and even security of tenure. (1)

Apart from the working of individual judges, the Constitution gives powers to the Supreme Court
of India, and the various High Courts, which are the legal chambers of justice that work within our
nation, to ensure the people are safeguarded from violation of rights and are protected from
unguided lives of disorder.

Understanding the Concept
In a literal sense, independence means absence of external control or support. A dictionary meaning
further ascribes that the state of not being dependent on anyone or anything. The very concept of
judicial independence is of a recent, modern discussion, and is accepted as a sign-post of a modern,
free, democratic nation. The term independence, however, has neither been defined in the
Constitution of India, nor in the General Clauses Act, two places where we may check of this or
any definition. Hence, a proper, word-to-word understanding of the meaning to the word
independence has been derived from a normal, generally-used dictionary.

In legal parlance, this is a jargon, meaning 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 the administrative and executive actions of the Government. As explained in the
introductory prologue, it signifies something that is in no way dependent on or regulated by any
other agency or authority, having nothing above it to press down upon it. This is why the Judiciary
of a State should not be put in a status of subordination to another branch of the Government. With
this understanding, it is clear that the Independence of Judiciary largely depends on the powers of
Courts and permits its exercise without external or political interventions.

The Judiciary simply has to be free from the gripping control of the Executive as well as that of the
Legislature. It is in this system that Judges shall remain independent and be bestowed freedom from
any restrictions, influence, pressure, threats, in any form- direct or indirect from the other organs.
They must be free to judicial functions. It is, thus, indispensable that the Judiciary must be free to
discharge its duties and functions without letting any hindrance in that duty creep in. Importantly,
it must be noted that the concept of independence is relative in nature. It is generally applied in its
functional terms.

Hence, the obligation of a Judge to hold up the constitutional and legal norms forms the very base
and the real crux of the concept of judicial independence. An Independent Judiciary is an absolutely
necessary feature of a diverse democratic system. Only an unbiased, neutral and free Judiciary can
stand as a protector of the rights of the citizens and meet out true justice without fear or favour. The
Judiciary is known as the protector of the Constitution and, for that, it may have to strike down
some acts of the executive, administrative and legislative, both at the Union and the States levels.

The Indian Position of Judiciary
The thrust is to ensure that case disposals and adjudication is untrammeled by external controls and
Independence of Judiciary under the Constitution of India is limited to its adjudicatory functions,
and they are immunized from executives control in that behalf. A remarkable feature of the Indian Constitution is that it acclaims the dignified position of the Judiciary in India. Therefore, the
Independence of Judiciary is assured through the Constitution of India, 1950, but it may also be
assured through legislations and conventions. It stands upheld by other suitable norms and practices
as well. But these constitutional provisions are just the points of onset, or mere roots, as far as the
judicial independence in India is concerned.

A positively favouring environment created by the nation and backed by all State organs and the
public opinion is necessary for the sight of judicial independence to become normalized. This
system needs to be constantly guarded against the uncertain events and the dynamic socio-political
and economic conditions, which may be too fragile when left unattended. For many years, in our
national front, the questions of whether to accept independence of judiciary has been up for debates.
But, we are aware that the Supreme Court has the power to even remove an unconstitutional law as
ultra vires the Constitution. So, the power is there, stemming from the upper handed independence
the Judiciary holds in India.

This position of Indian Judiciary, however, must not be considered in such a way that it will go
opposing every Governmental policies and will keep correcting the ruling power of the nation.
Democracy in India proceeds on the fundamental principle that political sovereignty vests in the
people of the country ultimately. The said people, in contrast, cannot exercise monitoring,
controlling, disciplining and perform the like function. Here arises the necessity for ‘checks and
balances’, so that power vested in nay sphere may not go useless or abused, and may become
amendable as per the constitutional fundamentals in case of its inadaptability. The Constitution’s
founding fathers had kept the democratic principles of transparency and accountability in their
view, while clearly demarcating and authorizing the powers of three organs of the Government.

Their understanding of each organ and its powers to perform its assigned role also envisaged its
possible endeavour to bring to life the goals enshrined in the Preamble. They also enshrined sufficient
provisions to make the three organs of Government responsible for any act or omission committed on their part through transparent modes. India has ever been practicing constitutional governance
by way of Rule of Law. The Constitution is, therefore, the Mother of all the three instrumentalities.

In the Indian democratic scenario, the Judiciary acts as an impartial umpire, that resolves conflict
inside the boundaries laid down by a Constitution and distribution of those powers between the
three different organs. An unbiased and independent judiciary is a legitimate expectation of every
citizen of the nation and is a fundamental right, but is also a part of the Constitution’s ‘basic
structure’. It has also been marked and realized as a human right by several International
Conventions. In spite of their interconnectedness, the three wings enjoy a certain limit of
independence. Justice Krishan Iyer observed for distinction that judiciary has to draw the line
between ‘individual liberty’ and ‘social control’.

In fact, Judiciary does not only dispense justice between two individuals, or between one group of
people and the other, it also has to do justice in the controversies arising between individuals and
the State. This clearly explains the authoritative, independent and impartial role of the Judiciary
and its imperativeness and necessity in a diverse society running on democratic principles like India.
It is neither judiciary made to opposition measure nor Governments pleasure.

In the locus classicus S.P. Gupta v. Union of India, cited 1982 (2) SCC 831 (2), the 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
Hon’ble Judge in the same Judgment.

In the famous Second Judges Appointment Case, i.e., Writ Petition (Civil) 1303 of 1987 titled
Supreme Court Advocates-On-Record Association & Anr. v. Union of India (3), a Constitution
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 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 powers.”

The proposition has been reiterated that there is no requirement of prior consent of the
Judge before his transfer under Art. 222, but the opinion of the Chief Justice of India has
been given ‘not mere primacy’ but a ‘determinative’ character in the transfer process.
According to the majority opinion, the proposal for the transfer of a Judge/Chief Justice
should be initiated by the Chief Justice of India alone. The power can be exercised only
in “public interest.” The transfer ought not to be “punitive” in nature. “Any transfer in
accordance with the recommendation of the Chief Justice of India cannot be treated as
punitive or an erosion in the independence of judiciary.” (4)

It is useful to refer to certain observations by a Constitution Bench in Sub-committee on
Judicial Accountability v. Union of India and Ors.(5), as under:
“… it is necessary to take a conspectus of the constitutional provisions
concerning the judiciary and its independence. In interpreting the
constitutional provisions in this area the Court should adopt a construction
which strengthens the foundational features and the basic structure of the
Constitution. Rule of law is a basic feature of the Constitution which
permeates the whole of the constitutional fabric and is an integral part of
the constitutional structure. Independence of the judiciary is an essential
attribute of rule of law.”

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. (6)

The Courts have always tried to uphold its Independence and have always said that this aspect is a
basic structure of the Constitution of India. It is a pre-requisite for the unhindered functioning of
the Constitutional machinery and for a realization of a democratic society based on the Rule of
Law. The acts do the Executive are subject to scan, scrutiny and correction by the Higher Judiciary.
The constitutional provisions reveal that the Judiciary is an important organ of the State. It
essentially keeps every organ of the State within their limits, by preventing unwelcome encroachments on other’s business. Thus, it prevents chaos in the democratic system and works for
peace, prosperity, communal harmony and amity in India by administering justice to all. (7)

Concept of independence of the judiciary is in harmony with the “Basic principles on the
independence of the judiciary,” forming a part of the universal “Human Rights in the
Administration of Justice” envisaged by the Seventh United Nations Congress at Milan and
endorsed by the U.N. General Assembly in 1985, which provide, inter alia, as under:
“Persons selected for judicial office shall be individuals of integrity
and ability with appropriate training or qualifications in law. Any
method of judicial selection shall safeguard against judicial
appointments for improper motives….” (8)

The Present Scenario
Judicial independence and judicial accountability are parallel concepts. Some have confused
judicial independence with the proclivity to strike down legislation or executive action. Being
accountable by dispensing justice is the primary duty of the Judiciary. But some self-anointed
people feel the judiciary should be accountable by playing to the galleries. Given how they were
disappointed with the nation’s rejection of a listless political opposition; this is an understandable
position.

Some people have expressed their grief at certain Supreme Court judgments or the lack of
appointment of judges of their choice despite the government having a very limited role in such
appointments. We have certainly not witnessed an aggressive government, as we did during the
dark days of the Emergency. It would be a travesty if anyone denies that during the Emergency,
all bail applications were rejected by the courts, despite their awareness of the falsehood of those
cases. That is a classic example of when the courts abdicated their role in enforcing rule of law.

One must be able to distinguish between a narrative of distrust being peddled for personal and
political gains from reality. The Supreme Court is not a political organ of the state. It is not the
duty of the Court to appease the aspirations of political proxies and under no circumstances can
retributive attacks on its integrity and independence be condoned. To attack the independence of
the Supreme Court and to continuously attack its authority is the true unravelling of the rule of
the law. Moreover, lawyers and politicians seeking to cast aspersions on the independence of the
judiciary ought to remember that the Supreme Court is not a vessel to navigate the seas of their
personal ambitions. (9)

Conclusion
The concept of independence of the judiciary is a noble concept that inspires the constitutional
scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there
is one principle which runs through the entire fabric of the Constitution, it is the principle of the
rule of law and under the Constitution, it is the judiciary, which is entrusted with the task of keeping
every organ of the state within the limits of the law and thereby making the rule of law meaningful
and effective.

The Legislature has vast law-making powers and is functionally competent to perform an inquest
into the Administration. But when it transgresses its constitutional boundaries, the Courts can quash
its action by writs. Judges are vested with powers, and to exercise them, are oath-bound to act
without violating jural guidelines and performing their unbiased duties with exemplary good
behaviour. Judicial bounds of dignity and propriety are real and noble. The Independence of
Judiciary holds a strong and prominent position in the Indian context.

References:

Dinesh Singh Chauhan, Independence of The Judiciary: A Constitutional Response,
http://www.legalserviceindia.com/legal/article-1681-independence-of-the-judiciary-aconstitutional-response.html
S.P. Gupta v. Union of India, 1982 (2) SCC 831. https://indiankanoon.org/doc/1294854/
Supreme Court Advocates-on-Record Association & Anr. v. Union of India, WP (Civil)
1303/1987. https://indiankanoon.org/doc/753224/
Union of India v. Sankal Chand Himatlal Sheth and Anr., (1976) 1SCR 423, M.P. Jain, “Indian
Constitutional Law” with Constitutional Documents up to The Constitution 98th Amendment Act,
2012- Volume I, 9th Edition, Wadhwa Nagpur.
https://indiankanoon.org/doc/1302865/#:~:text=HEADNOTE%3A%20On%20May%2027%2C%
201976,Sankalchand%20Himatlal%20Sheth%2C%20Judge%20of
Sub-Committee on Judicial Accountability v. Union of India and Ors., AIR 1992 SC 320.
https://indiankanoon.org/doc/577348/
Dr. B. R. Ambedkar’s speech in the Constitution Assembly on June 07, 1949.
https://indiankanoon.org/doc/174535/
Kalra, Kush, “Landmark Judgments of Supreme Court- India”, Bloomsbury Publishing, 2020.
https://www.google.co.in/books/edition/Landmark_Judgments_of_Supreme_Court/DyLoDwAAQBAJ?hl=
en&gbpv=1&dq=Any+transfer+in+accordance+with+the+recommendation+of+the+Chief+Justice+of+Indi
a+cannot+be+treated+as+punitive+or+an+erosion+in+the+independence+of+judiciary.%E2%80%9D&pg=
PT421&printsec=frontcover
“Human Rights in the Administration of Justice”, Seventh United Nations Congress at Milan,
https://www.ohchr.org/en/professionalinterest/pages/independencejudiciary.aspx
Hitesh Jain, Judiciary is being disparaged for personal and political gain, September 16, 2020
https://indianexpress.com/article/opinion/columns/judiciary-independence-supreme-court-judgeschief-justice-6597581