JUDICIAL INDEPENDENCE THE INDIAN PRESPECTIVE: AN ANALYTICAL STUDY

Suvarna is a 2nd year LLM (Criminal Law) student at Bharatha Matha School of Legal Studies, Choondy, Aluva,

INTRODUCTION

The authors of the Indian constitution placed emphasis on the judiciary as an autonomous and potent institution, as quoted by the eminent jurist Dr. L.M. Singh the independence of judiciary is described as follows “the principle of impartiality and independence of judiciary does not depend on the existence of a particular kind or manner or breadth of judicial review; it is characteristic of the judicial function and it depend on certain basic institutional and structural conditions, on the culture and ethos of society and the legal system, and on character , temperament and ability of the individual judge and judiciary as a whole. …. Independence and impartiality are, in the ultimate analysis, personal virtues and a matter of mental attitude and temperament, but they are also norms of institutional as well as professional ethos which nature and sustain them.

The Doctrine of Separation of power is the corner stone of Indian Constitution. The doctrine mean that the organs should be given separate powers.

JUDICIAL INDEPENDENCE, INFLUENCE BY B.R. AMBEDKAR

The concept of Independence of Judiciary found it origin in the United Kingdom , and In the context the concept was first introduced as a constitutional debate on Nov 25 1948, and introduced as an article (article 39 A at that time and now in Article 50 ) but the article was criticized by Dr. B.R. Ambedkar and he moved by other amendment for erasing the limitation period of three years and he was also against the appointment of judges by the president as there may be influence political influence. He stated that the executive and judiciary have separate and distinct relationships. There is likelihood of influencing the judiciary, According, to him judiciary is concerned with the adjudication of people’s right and not with the executive.
In terms of judicial appointments, B.R. Ambedkar was presented with three primaries, first and the foremost, the chief justice must agree before the president, appoints a judge to the Supreme Court. Second president must receive two thirds vote of the parliament to confirm the appointment and thirdly the council of states must be consulted before the appointment is made.

The provisions of Supreme Court and High court were heavily debated before the drafting committee. Mr Kamath proposed the subject in Amendment N0 1845, which said that “even the jurists may be appointed as the judge of Supreme Court, he made the necessary change by replacing the word ‘distinguished’ with the more appropriate and pertinent word ‘eminent’ would have improved the provision. On this, B.R. Ambedkar admirably gave the drafting committee, the power to decide whether or not the aforementioned language should be amended.

Ultimately the drafting committee choose to pass the change in flying colours after being persuaded by the amendment.

MEANING OF JUDICIAL INDEPENDENCE

• The judiciary must be free from encroachment from other organs in its sphere. In this respect, it is called separation of powers. Our constitution makes the judiciary absolutely independent except in certain matters where the executive heads are given some powers of remission etc.

•  It means the freedom of the judgments and free from legislative interference. In this respect, our constitutional position is not very happy because the legislature can in some respects override the decisions of the judiciary by legislation.

• The decisions of the judiciary should not be influenced by either the executive or the legislature – it means freedom from both, fear and favour of the other two organs.”

HISTORICAL ASPECT OF JUDICIAL INDEPENDENCE PRE AND P0ST INDEPENDENCE ERA

The Indian legal system as it is now did not appear overnight. It is now did not just appear overnight. It is the end result of a long, laborious process and shows the marks of the various eras in the Indian history. The pre independence period and the post independence are two significant time periods that have been explored in the history of Judicial system.

i) PRE-INDEPENDENCE PERIOD
The administration of justice was the most important function in ancient Hindu and Muslim Periods, with king as the source of justice. There were several examples in classical where the need of brahmins as judges was emphasised. Manu, for the instance supported the choice of a brahmin to serve as chief justice. kashtriya or Vaishya judges may be appointed in extra ordinary cases, but Shudra judges should never be appointed. Even though a man of calibre and integrity can be appointed as judges, a judge, in accordance with the Shrimad Bhagavad Gita, is a person endowed with excellence.

During the regime of Muslim, the administration of law was vested with persons named as Quazis. although the qualification of quazi was not specified the primary qualifications were honesty, virtuousness and impartiality. Despite the fact that the judicial officials were chosen by the emperors, they have their own autonomy when performing their tasks. The executive held the authority to choose judges. The executive branch and the judicial branch were not distinct, the executive had some degree of authority over the judiciary, but only insofar as it related to judiciary.

During the British regime , Through a charter issued in 1726, the EIC, established corporations in each of three presidency towns and a Mayor’s Court was setup in each presidency which was governed by a governor and five senior official called justices of peace and they were directly elected by the crown, however the operations of Mayor’s Court started to be impeded by the governor in council in each of the presidential towns, As a result there was ongoing conflict between the two as the Mayor’s Court attempted to maintain independence. By the enactment of Regulation Ac t 1773, all the presidency towns received Supreme Courts in the place of Mayor’s Court. Even while each Supreme Court had a variety of powers of jurisdictions, they were all heavily under the influence of government. A chief justice and three puisne judges were to make up each Supreme Court. The British monarch appointed the judges. Judges may be selected from among the barristers with at least five years of experience. After being appointed, Judges were permitted to serve for as long as the sovereign pleased. In addition to the Supreme Court Adalat system was also established in presidency towns, Adalat system were established in Bihar, Orrisa and Bengal by Warren Hastings in the 1772 judicial plan. He established Sadar Nizamat Adalat and Mofussil Fozadari Adalat as Criminal Court, while Sadar Diwani Adalat and Mofussil Diwani Adalat were civil co urts in the mofussil districts.

Sardar diwani Adalat’s Court was made up of the governor and two council members. It demonstrates that the executive and judicial branches of government were combined into one. The judges would be unable to make an impartia l decision in such a situation. In each district, a Mofussil Diwani Adalat was established with the Collector serving as the judge. And the Collector had to oversee the administration of this Adalat’s. This kind of plan has put judicial administration in jeopardy and Daroga, who was chosen by the nawab to preside over the Sadar Nizami Adalat, was subpported by the chief Quazi, chief mufti and three maulvis. Although some degree of judicial independence had been promised to this courts, in reality they opera ted under the direction of Governor in Council. The Collector was granted overall supervisory
authority over the Mofussil Fozdari Adalat, which was presided over at district level by Muslim
law officials including Kazi and Muftis. So, neither civil nor criminal court established by Warren Hastings could freely exercise judicial functions.

The situation with regard to judicial independence didn’t significantly Change until the Government of India’s Acts oof 1915 and 1935 were passed. For judicial independence and the impartial independence of judges, certain clauses have been included to these two acts.

ii) POST INDEPENDENCE PERIOD
Regular courts have been established in India Since its independence. The Indian Constitution has many clauses like tenure security and allowances that are made to guarantee their independence, The constitution now provides that the salaries of judges must be paid out of consolidated fund of India. Further, neither judges’ behaviour nor their ease of removal from their chairs are permitted for discussion on the floor of the house of parliament. Judicial independence in India is ensured by such clauses in the Indian Constitution.

INDEPENDENCE OF SUPREME COURT

Numerous Articles from 124 to 127 in chapter IV of part V of the constitution implicitly relate to the independence of judiciary, particularly with regard to supremacy and the independence of the Supreme Court.

The interplay and harmonisation of Articles74 ( l), 124(2) and 217(1) with regard to appointments of judges in the Superior judiciary must be kept in mind in order to fulfil the constitutional mandate. The president must follow the recommendation of the Council of Ministers as stated in Art. 74(l) of the constitution when making Supreme Court Judge appointments. Art 74 (l) is constrained by the requirements of Articles 124 (2).

MAJOR CASE LAWS

A) JUSTICE SHETH’S CASE
In this case justice Sheth challenged the constitutional validity of his transfer from Gujarat High court to Andhra pradhesh High court it was his consultation and consultation with the president and chief justice of India. An appeal in the Supreme Court w as dismissed of, but majority of the three judges refused to accept consent as a matter of transfer. All the judges unanimously proceeded that the independence of judiciary is the basic structure of Indian constitution.

B) S.P GUPTA v. UNION OF INDIA
The court ruled in 1982 in this case ruled out that judges should be fearless and should upheld on the principle of rule of law. This is the basic concept of Indian judicial independence.

C) ADVOCATES ON RECORD CASE
In 1993 in the case of Supreme Court Advocates on record v. Union of India the court observed that the independence of Judiciary is necessary for the functioning of democracy and further said by stating the powers and rights cannot be hampered as long as judiciary is independent from executive and legislature.

CASES WHERE THE INDEPENDENCE IS CHALLENGED

AADHAR CASE
In this case court held with a majority that Aadhar bill is a money bill referring to section 7 and stated that as the Aadhar based authentication can be used for benefits or services charged on the basis of consolidated fund of India it can be treated as as money bill and Justice D. Y. Chandrachud who dissent to the opinion termed it was a fraud to India Constitution.

BHIMA KOREGAN CASE
In 2018 the bicentenary anniversary of Bhima turned to violence and lead to death of a person and several persons were injured and so many activists were arrested after police investigation and a PIL was filed When the case came to Supreme Court justice Chandrachud dissented to the view of other two judges including the Chief justice alleging that the arrestees were made targeting dissents, while other two was satisfied on the police investigation.

CONCLUSION

The task of maintaining independence is a difficult task however, now days, the judiciary is more active, even in Kerala we can see the activist role of courts in involving issues affecting the basic human rights. The immediate interference in the case of Dr. Vadhana and Thanoor Boat case are best examples in front of us.