NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

Constitutional Law II
Project
On

Judicial Independence

Submitted to
Prof Sushma Sharma
Submitted by
Kunal Sharma
2013 BALLB 63

ACKNOWLEDGMENTS

I take immense pleasure in thanking Prof. S.S. Singh, Director and Prof. Sushma Sharma our
respected teacher for having permitted me to carry out this project work. I express my gratitude
to them for giving me an opportunity to explore the world of information concerning my project
topic.

Words are inadequate in thanking my seniors and batch mates for their support and cooperation
in carrying out the project work.

Kunal Sharma
2013 BALLB 63

Contents
Judicial Independence: Introduction...........................................................................4
Meaning of Judicial Independence.............................................................................. 5
Need for the Independence of the Judiciary...............................................................6
Constitutional Provisions in India................................................................................7
Case Laws.................................................................................................................. 8
The Three Judges Case............................................................................................ 8
The National Judicial Appointments Commission Bill 2014.......................................11
Conclusion................................................................................................................ 14
Bibliography............................................................................................................. 15

Judicial Independence: Introduction

In the words of a former Canadian prime minister, Arthur Meighen, judges are in "a place apart"
from the other institutions of our society.
Judicial independence is the concept that the judiciary needs to be kept away from the other
branches of government. That is, courts should not be subject to improper influence from the
other branches of government, or from private or partisan interests. Judicial Independence is vital
and important to the idea of separation of powers.
Different countries deal with the idea of judicial independence through different means of
judicial selection, or choosing judges. One way to promote judicial independence is by
granting life tenure or long tenure for judges, which ideally frees them to decide cases and
make rulings according to the rule of law and judicial discretion, even if those decisions are
politically unpopular or opposed by powerful interests.
In many countries, the ability of the judiciary to check the legislature is enhanced by the power
of judicial review. This power can be used, for example, by mandating certain action when the
judiciary perceives that a branch of government is refusing to perform a constitutional duty, or by
declaring laws passed by the legislature unconstitutional.
The framers of the Indian Constitution at the time of framing of our constitution were concerned
about the kind of judiciary our country should have. This concern of the members of the
constituent assembly was responded by Dr. B.R. Ambedkar in the following words:
There can be no difference of opinion in the House that our judiciary must be both
independent of the executive and must also be competent in itself. And the question is how
these two objects can be secured.

Meaning of Judicial Independence

The meaning of the independence of the judiciary is still not clear after years of its existence.
Our constitution by the way of the provisions just talks of the independence of the judiciary but it
is nowhere defined what actually is the independence of the judiciary.
The primary talk on the independence of the judiciary is based on the doctrine of separation of
powers which holds its existence from several years. The doctrine of separation of powers talks
of the independence of the judiciary as an institution from the executive and the legislature.
The other meaning of the judicial independence can be found out by looking at the writings of
the scholars who have researched on the topic. Scholars have followed the constituent
mechanism (i.e. what constitutes the judiciary) to define the independence of the judiciary.
Scholars try to define judiciary by talking about the independence of the judges which constitutes
judiciary. Therefore the independence of the judiciary is the independence of the exercise of the
functions by the judges in an unbiased manner i.e. free from any external factor.
So the independence of the judiciary can be understood as the independence of the institution of
the judiciary and also the independence of the judges which forms a part of the judiciary.
Shetreet in his work tries to explain the words Independence and Judiciary separately, and
says that the judiciary is the organ of the government not forming a part of the executive or the
legislative, which is not subject to personal, substantive and collective control, and which
performs the primary function of adjudication.
The final outcome that can be derived from Shetreets writings is that the independence of the
judiciary as an institution and the independence of the individual judges both have to go hand in
hand as the independence of the judiciary as an institution is not possible without the

independence of the individual judges and is the institution of the judiciary is not independent,
there is no question of the independence of the individual judges.

Need for the Independence of the Judiciary

The basic need for the independence of the judiciary rests upon the following points:

To check the functioning of the organs: Judiciary acts as a watchdog by ensuring that
all the organs of the state function within their respective areas and according to the
provisions of the constitution. Judiciary acts as a guardian of the constitution and also
aids in securing the doctrine of separation of powers.

Interpreting the provisions of the constitution: It was well known to the framers of the
constitution that in future the ambiguity will arise with the provisions of the constitution
so they ensured that the judiciary must be independent and self-competent to interpret the
provision of the constitution in such a way to clear the ambiguity but such an
interpretation must be unbiased i.e. free from any pressure from any organs like
executive. If the judiciary is not independent, the other organs may pressurize the
judiciary to interpret the provision of the constitution according to them. Judiciary is
given the job to interpret the constitution according to the constitutional philosophy and
the constitutional norms.
Disputes referred to the judiciary: It is expected of the Judiciary to deliver judicial
justice and not partial or committed justice. By committed justice we mean to say that
when a judge emphasizes on a particular aspect while giving justice and not considering
all the aspects involved in a particular situation. Similarly judiciary must act in an
unbiased manner.

Constitutional Provisions in India

Many provisions are provided in our constitution to ensure the independence of the judiciary.
The constitutional provisions are discussed below:

Security of Tenure: The judges of the Supreme Court and High Courts have been given
the security of the tenure. Once appointed, they continue to remain in office till they
reach the age of retirement which is 65 years in the case of judges of Supreme Court (Art.
124(2)) and 62 years in the case of judges of the High Courts (Art. 217(1)). They cannot
be removed from the office except by an order of the President and that too on the ground
of proven misbehavior and incapacity. A resolution has also to be accepted to that effect
by a majority of total membership of each House of Parliament and also by a majority of
no less than two third of the members of the house present and voting. Procedure is so
complicated that there has been no case of the removal of a Judge of Supreme Court or
High Court under this provision.

Salaries and Allowances: The salaries and allowances of the judges is also a factor
which makes the judges independent as their salaries and allowances are fixed and are not
subject to a vote of the legislature. They are charged on the Consolidated Fund of India in
case of Supreme Court judges and the Consolidated Fund of state in the case of High
Court judges. Their emoluments cannot be altered to their disadvantage (Art. 125(2))
except in the event of grave financial emergency.

Powers and Jurisdiction of Supreme Court: Parliament can only add to the powers and
jurisdiction of the Supreme Court but cannot curtail them. In the civil cases, Parliament
may change the pecuniary limit for the appeals to the Supreme Court. Parliament may
enhance the appellate jurisdiction of the Supreme Court. It may confer the supplementary
powers on the Supreme Court to enable it work more effectively. It may confer power to
issue directions, orders or writs for any purpose other than those mentioned in Art. 32.
Powers of the Supreme Court cannot be taken away. Making judiciary independent.

No discussion on conduct of Judge in State Legislature / Parliament: Art. 211

provides that there shall be no discussion in the legislature of the state with respect to the
conduct of any judge of Supreme Court or of a High Court in the discharge of his duties.
A similar provision is made in Art. 121 which lays down that no discussion shall take
place in Parliament with respect to the conduct of the judge of Supreme Court or High
Court in the discharge of his duties except upon a motion for presenting an address to the
President praying for the removal of the judge.

Power to punish for contempt: Both the Supreme Court and the High Court have the
power to punish any person for their contempt. Art. 129 provides that the Supreme Court
shall have the power to punish for contempt of itself. Likewise, Art. 215 lays down that
every High Court shall have the power to punish for contempt of itself.

Separation of the Judiciary from the Executive: Art. 50 contains one of the Directive
Principles of State Policy and lays down that the state shall take steps to separate the
judiciary from the executive in the public services of the state. The object behind the
Directive Principle is to secure the independence of the judiciary from the executive. Art.
50 says that there shall be a separate judicial service free from executive control.

Case Laws
The position of the Constitution has further been strengthened by the higher courts of India in the
following case laws:

The Three Judges Case

The Supreme Court of India's collegium system, which appoints judges to the nation's
constitutional courts, has its genesis in, and continued basis resting on, three of its own
judgments which are collectively known as the Three Judges Cases.
First Judge Case:
S.P. Gupta v. Union of India

(AIR 1982 SC 149)

In this case, the Supreme Court had the opportunity to clarify its understanding of judicial
independence, circumscribe the executive role in appointments within constitutionally
permissible limits and in the process restore the inter-institutional equilibrium which had been
displaced by an overreaching executive. In a judgement spanning 724 pages of written text,
containing seven cross cutting opinions, the Supreme Court laid down the constitutional position
regarding appointments and its interference with judicial independence.
Each of the seven judges held that independence of the judiciary is a basic feature of the
constitution. However, only four of the seven proceeded beyond rhetorical enunciations. The
most noteworthy opinion was that of Bhagwati J.who extended his view from his earlier view in
Sankalchand case to include independence not only from executive pressures but also
fearlessness of other power centres, economic or political, and freedom from prejudices
acquired and nourished by the class to which the Judges belong1
The Court held that the President, Chief Justice of India, Chief Justice of the concerned High
Court and the Governor of the concerned state were co-ordinate authorities, all of whose opinion
would be given the greatest weight, the ultimate decision in case of disagreement lying with the
President. They held that the Executive must have primacy since it is accountable to the people
while the Judiciary has no such accountability.

Second Judge Case:

S.C. Advocate on Records Association v. Union of India
(AIR 1994 SC 268)

In this case, the Advocates on Records of the Supreme Court as an association moved the
Supreme Court challenging the S.P. Gupta judgement and the Court rejected the decision of the
case in so far as it takes the contrary view relating to the primacy of the role of the Chief Justice
of India. The Supreme Court held that the Chief Justice shall have to consult two other senior most
Judges of the Supreme Court before sending his opinion. In this Judgement, the Supreme Court laid
down certain guidelines:

Individual initiation of high constitutional functionaries in the matter of appointment of Judges

reduced to minimum. It gives privacy to the Chief Justice of India but puts a check on him to
consult at least two of his senior most colleagues.
Constitutional functionaries must act collectively in Judicial Appointments.
Appointment of Chief Justice of India by seniority only.

1 Gupta [26] (Bhagwati J.)

No Judge can be appointment by the Union Government without Consulting the Chief Justice of
India.

Therefore the Court held that primacy must be given to the Chief Justice of India in the
matter of recommendation for appointment to the Supreme Court has to be formed in
consultation with a collegium of the two senior-most judges of the Supreme Court.
Third Judge Case:
In re Presidential Reference
(AIR 1991 SC 1)

In this reference made to the Supreme Court by the President under Art 143(3), the court further
strengthened the stance of the court in the above mentioned case. However the court held that the
collegium should be of the CJI and four senior-most puisne judges. The court had made it clear
that in the appointment of the Judges of the Supreme Court and the High Court, primacy is given
to the opinion of the CJI which should reflect the opinion of the Judiciary. Further, the court
observed that the expression consultation with the Chief Justice of India in Art. 217(1) and
222(1) requires consultation with a plurality of judges. The CJI is obliged to comply with the
norms and the requirements of the consultation process in making his recommendation to the
President. Inter se seniority amongst Judges in their High Court and their combined seniority on
all India basis is of admitted significance, however merit is the predominant consideration for the
purpose of the Supreme Court held the court.
Also, the court held that Judicial Review in the case of an appointment to the Supreme Court or
High Court is available.
Therefore, over the course of the three cases, the court evolved the principle of judicial
independence to mean that no other branch of the state - including the legislature and the
executive - would have any say in the appointment of judges. The court then created the
collegium system, which has been in use since the judgment in the Second Judges Case was
issued in 1993. There is no mention of the collegium either in the original Constitution of
India or in successive amendments. Although the creation of the collegium system was viewed as
controversial by legal scholars and jurists outside India, her citizens, and notably, Parliament and
the executive, have done little to replace it. The Third Judges Case of 1998 is not a case but an
opinion delivered by the Supreme Court of India responding to a question of law regarding the
collegium system, raised by then President of India K. R. Narayanan, in July 1998 under his
constitutional powers.
Recent Development:

Further, in January 2013, the court dismissed as without locus standi, a public interest litigation
filed by NGO Suraz India Trust that sought to challenge the collegium system of appointment.
In July 2013, newly appointed Chief Justice P. Sathasivam spoke against any attempts to change
the collegium system.
On the 5th of September, 2013, the Rajya Sabha passed The Constitution(120th Amendment)
bill, 2013, that amends articles 124(2) and 217(1) of the Constitution of India, 1950 and
establishes the Judicial Appointment Commission, on whose recommendation the President
would appoint judges to the higher judiciary. The critical aspect about the new setup that the
Government through the amendment seeks to achieve is the composition of the judicial
appointment commission, the responsibility of which the amendment bill lays on the hands of the
Parliament to regulate by way of Acts, rules, regulations etc. passed through the regular
legislative process.

The National Judicial Appointments Commission Bill 2014

Hightlights of the Bill:

The National Judicial Appointments Commission Bill, 2014 was introduced in the Lok
Sabha on August 11, 2014 by the Minister of Law and Justice, Mr. Ravi Shankar Prasad.

The Bill has been introduced in conjunction with the Constitutional (121st Amendment)
Bill, 2014, which establishes the National Judicial Appointments Commission (NJAC).

The Bill provides for the procedure to be followed by the NJAC for recommending
persons for appointment as Chief Justice of India and other Judges of the Supreme Court
(SC), and Chief Justice and other Judges of High Courts (HC).

Reference to Commission for filling up of vacancies

When a vacancy arises in the SC or HCs, the central government will make a reference to
the NJAC.

Existing vacancies will be notified to the NJAC within thirty days of the Act entering into
force.

When a vacancy arises due to the completion of term, a reference will be made to the
NJAC, six months in advance.

For vacancies due to death or resignation, a reference must be made to the NJAC within
thirty days of its occurrence.

Composition of the Commission:

As per the amended provisions of the constitution, the Commission will consist of the following
persons:

Chief Justice of India (Chairperson, ex officio)

Two other senior judges of the Supreme Court next to the Chief Justice of India - ex
officio
The Union Minister of Law and Justice, ex-officio
Two eminent persons (to be nominated by a committee consisting of the Chief Justice of
India, Prime Minister of India and the Leader of opposition in the Lok Sabha or where there
is no such Leader of Opposition, then, the Leader of single largest Opposition Party in Lok
Sabha), provided that of the two eminent persons, one person would be from the Scheduled
Castes or Scheduled Tribes or OBC or minority communities or a woman. The eminent
persons shall be nominated for a period of three years and shall not be eligible for renomination.

Functions of the Commission:

As per the amended constitution, the functions of the Commission include the following:

Recommending persons for appointment as Chief Justice of India, Judges of the Supreme
Court, Chief Justices of High Courts and other Judges of High Courts.

Recommending transfer of Chief Justices and other Judges of High Courts from one High
Court to any other High Court.

Ensuring that the persons recommended are of ability and integrity.

Procedure for Selection of Supreme Court judges

Chief Justice of India: The NJAC shall recommend the senior most judge of the Supreme
Court for appointment as Chief Justice of India. This is provided he is considered fit to
hold the office.

SC judges: The NJAC shall recommend names of persons on the basis of their ability,
merit and other criteria specified in the regulations.

Veto power of members: The NJAC shall not recommend a person for appointment if any
two of its members do not agree to such recommendation.

Procedure for Selection of High Courts judges

Chief Justices of HCs: The NJAC is to recommend a Judge of a High Court to be the
Chief Justice of a High Court on the basis of seniority across High Court judges. The
ability, merit and other criteria of suitability as specified in the regulations would also be
considered.

Appointment of other HC Judges:

Nominations: Nominations shall be sought from Chief Justice of the concerned

High Court for appointments of HC judges.

Eliciting views: The Commission shall nominate names for appointment of HC

judges and forward such names to the Chief Justice of the concerned HCs for his
views.

In both cases, the Chief Justice of the HC shall consult two senior most judges of
that HC and any other judges and advocates as specified in the regulations.

Views of the Governor and CM: The NJAC shall elicit the views of the Governor
and Chief Minister of the state before making recommendations.

Veto power of members: The NJAC shall not recommend a person for
appointment if any two members of the Commission do not agree to such
recommendation.

Transfer of Chief Justices and High Court judges:

The NJAC is to make recommendations for transfer of Chief Justices and other
judges of the High Courts.

The procedure to be followed will be specified in the regulations.

Power of the President to require reconsideration

The President may require the NJAC to reconsider the recommendations made by it.

If the NJAC makes a unanimous recommendation after such reconsideration, the

President shall make the appointment accordingly.

Conclusion
The independence of the judiciary as is clear from the above discussion hold a prominent
position as far as the institution of judiciary is concerned. It is clear from the historical overview
that judicial independence has faced many obstacles in the past specially in relation to the
appointment and the transfer of judges. Courts have always tried to uphold the independence of

judiciary and have always said that the independence of the judiciary is a basic feature of the
Constitution. Courts have said so because the independence of judiciary is the pre-requisite for
the smooth functioning of the Constitution and for a realization of a democratic society based on
the rule of law. The interpretation in the Judges Case giving primacy to the executive, as we have
discussed has led to the appointment of at least some Judges against the opinion of the Chief
Justice of India. The decision of the Judges Case was could never have been intended by the
framers of the Constitution as they always set the task of keeping judiciary free from executive
and making it self-competent. The decision of the Second Judges Case and the Third Judges
Case is a praiseworthy step by the Court in this regard.
There is a saying that Power tends to corrupt, and absolute power corrupts absolutely
- Lord Acton
Whenever there is a mention of the independence of the judiciary, there is always a concern
about the latent dangers of the judicial independence and there arises the importance of Judicial
Accountability. The recent development in this regard is the recommendation of the Law
Commission for the inclusion of a whistleblower provision, aimed at protecting those making
complaints against judges, in a draft bill dealing with the removal of judges of the Supreme
Court and High Courts. Introduction of such a bill by the Law Commission is a major step in the
direction of making changes to the rigid procedure in our constitution for the removing of the
judges of the Supreme Court and the High Courts.
The final outcome of the above discussion is that the importance of the independence of the
judiciary was long ago realized by the framers of the constitution which has been accepted by the
courts by marking it as the basic feature of the constitution. It is well known law has to change so
as to meet to the needs of the changing society. Similarly judicial independence has to be seen
with the changing dimension of the society. Judicial Accountability and Judicial Independence
have to work hand in hand to ensure the real purpose of setting up of the institution of judiciary.

Bibliography
Books Referred:

Course Material as compiled by Prof. Sushma Sharma and Prof.

Kuldeep Kaur

Dacosta John, Judicial Independence in India

Kumar Raj, Essays on Judicial Independence in India

Internet Sources

www.wikipedia.com/judicialindependence
www.wikipedia.com/nationaljudicialcommissionbill
www.indiankanoon.org
www.manupatra.com