SNDT WOMENS UNIVERSITY

STELLA SEBASTIAN
BBA LLB 2nd YEAR
ROLL NO:- 12
UNDER THE GUIDANCE OF PROF JANAKI MISHRA
Independence of Judiciary in India

1. Meaning of Independence of Judiciary:

Before we discuss how independence of judiciary is maintained in India, it is essential to

explain what do we mean by the term “independence of judiciary. In the words of Dr. V.K.
Rao, “Independence of judiciary has three meanings:

(i) 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.,

(ii) 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 Income-tax Amendment
Ordinance of 1954 is an example,

(iii) 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.”

The Constitution of India envisages an independent Supreme Court. In fact, every member of

the Constituent Assembly had been eager to see that the Court was made independent, as it

could possibly be. In the words of Austin, “The members of the Constituent Assembly

envisaged the judiciary as a bastion of rights and of justice. The Assembly has been careful to
keep judiciary out of politics.”

In the words of a member of the Constituent Assembly. “This is the institution which will

preserve those fundamental rights and secure to every citizen, the rights that have been given

to him under the Constitution. Hence, it must naturally be above all interference by the
Executive. The Supreme Court is the watchdog of democracy.”
In fact, independence of judiciary is necessitated not because of eagerness on the part of the

people to treat judges as favored members of the public services. It is essential for

maintaining purity of justice in the social system and enabling them to earn public confidence
in the administration of justice.

In the words of Graham Walles, “The psychological fact behind the principle of

independence is not the immediate reaction of feeling in a man whose impulses are

obstructed but the permanent result in his conduct of the destruction of some impulses and

the encouragement of others. We make a judge independent not in order to spare him

personal humiliation but in order that certain motives shall not and certain other motives shall
direct his official conduct.”

2. Methods to Secure Independence of Judiciary:

Sincere efforts have been made to secure the independence of judiciary through the

following methods:
(a) High Qualifications:
Politics in the appointment of judges has been avoided by prescribing high minimum

qualifications for such assignments in the Constitution itself. An aspirant for such an

important office must have been a judge of a High Court, at least for five years or must an
advocate of a High Court be at least for ten years, or be a distinguished jurist.

(b) Handsome Remuneration Subject to Vote of Legislature:

As already mentioned, every judge is paid a high salary to maintain his status and dignity. As

per Act of 1986, the Chief Justice was to draw Rs. 10,000 p.m. and the other judges were

paid Rs. 9,000 p.m. However in the recent past, the salaries of Judges of the Supreme Court
were raised to Rs. 30,000 p.m. and that of Chief Justice Rs. 33,000 p.m.

Their salaries have been further hiked in view of such hikes of other top officers of the

Government as per 6th Pay Commission report and cabinets’ generosity to hike the salaries of

the top executives viz., President, Vice- President and Governor etc. as well. Three-fold hike
in case of judges (Rs. 90,000) and 1, 00,000 p.m. in case of Chief Justice. In addition, they
enjoy free residential accommodation and many other perks.

During their term of office, their salaries and allowances cannot be altered to their

disadvantage, except in grave financial emergency. The administrative expenses of the Court

are charged on the Consolidated Fund. Evidently, their salaries and allowances compare

favorably with those of judges in other courts of the world. On September 21, 2006 their

allowances after retirement were hiked. This assures more security after retirement as well as
pension will be hiked as per enhanced salaries.

(c) Security of Tenure:

The Judges of the Supreme Court enjoy security of tenure. They are not removable from

office except by an order of the President and that also only on the ground of proved

misbehavior or incapacity, supported by a resolution adopted by a majority of total

membership of each House and also by a majority of not less than 2/3 of the members of that
House present and voting.

(d) Lengthy Tenure:

Although the Constitution does not provide for life tenure, the existing provision of 65 years,

in effect amounts to nearly the same. A retiring age of 65 is, by Indian standard, very high,

considering the average span of life in India and also the average fitness of persons for work

in old age. Moreover, a retired judge according to Article 128, may be reappointed a judge by
the Chief Justice of India, with the consent of the President.

Hence, if a judge is hale and hearty, sound in mind as well as in body, capable of rendering

service, for a few years more, he can be easily accommodated. Longevity of tenure keeps him
immune from temptation to amass fortunes for the old age.

(e) Oath to Work Fearlessly:

Before assumption of office, the judges have to take an oath to perform their duties fearlessly
and to uphold the Constitution. The ruling party committed to a particular ideology expects
the judges to read the writing on the wall and act accordingly. The supersession of three

judges and appointment of a junior judge as Chief Justice raised the issue. Ex-Chief Justice

S.M. Sikri was of the view that commitment to the philosophy of the ruling party, is not the

part of the oath administered to a judge. Hence such commitment should not be expected of
him.

(f) No Practice after Retirement:

A retired judge of the Court is prohibited from practising law before any Court of authority

within the territory of India. The Constitution, however, permits the appointment of a retired

judge for a specialized form of work by the Government, for instance for conducting

enquiries and special investigations. Das Commission for conducting enquiry against Sardar
P.S. Kairon, ex-late Chief Minister of Punjab is an example of such enquiries assigned to a

judge. Khosla Commission to enquire into Netaji’s death by an air crash and more recently

Justice Pathaks’ Authoritative Report against External Affairs minister—Natwar Singh may
be quoted as such instances. In fact, such examples can be multiplied.

(g) Powers to Make Rules to Regulate their Procedure:

The Supreme Court is equipped with full powers to make rules for regulating its practice and
procedure and to take effective steps for the enforcement of its decrees and orders.

(h) Control over Establishment:

The Court is fully authorized to have its own establishment and have complete control over it.

It was, however, thought that in the absence of such a provision, the Court’s independence

becomes illusory. If for promotion, the establishment is to look to other quarters, it is likely to

affect the independence of the judiciary. Hence, all appointments of officers and servants of

the Supreme Court are made by the Chief Justice and the judges of the Supreme Court whom

he may direct for the purpose. Their conditions of service also are determined by the Supreme
Court.

(i) Denial of Political Office before or after Retirement:

The judges should not be allowed to hold political office after retirement otherwise they will

have the temptation of creating ground for becoming the political leaders or gaining some

other lucrative office through political Godfathers during their tenure as judges. Moreover,

they should not be allowed to seek election to the Parliament or contest for any other political

office during the term of their office after resigning from the office of a Judge. K. Subba Rao

ex-chief Justice of India resigned from the august office and contested for the President ship
of India.

Naturally he had to pander to the opposition parties for support. Such a step seriously impairs

the independence of Judiciary as mind for election is to be made much before election. Thus
for a favour, the favours are apt to the doled out as well.

(j) Immunities:
The actions and decisions of the judges in their official capacity are immune from criticism.

They may, however, be subject to critical academic analysis. In order to maintain the dignity

of the Court and to protect it from malicious criticism, the Court has been empowered to

initiate contempt proceedings against any alleged offender and take appropriate action. The

Court is, also authorized to stop any act that might prejudicially affect its arriving at an
impartial and independent decision.

(k) Appointment by the Executive:

Independence of judiciary to quite a great extent, depends on the method of appointment of

judges. Election of the judiciary by the people or the legislature, would make it subservient to

the whims of the masses or a tool in the hands of legislators. The “Judiciary should be above

suspicion and should be above party influences.” Hence judiciary should be appointed by the
executive.

Every judge of the Indian Supreme Court is appointed by the President, after consultation

with such of the judges of the Supreme Court, and the High Courts of the State, as the

President may deem necessary for the purpose. In the appointment of a judge other than the
Chief Justice, the President must consult the Chief Justice.
In actual practice, he is apt to be guided by ministerial advice as in all other significant

appointments. What can be its repercussion in the context of the latest thinking of having

‘committed judiciary’ is not difficult to speculate. An example established that government

imbued with socialistic ideas did not like to appoint such people as judges who impeded
socialistic progress and were reactionary in their outlook.

The supersession of three judges viz., Messers J.M. Shelat, K.S. Hegde and A.N. Grover and

elevation of a junior Judge Mr. A.N. Ray to the post of Chief Justice of the Supreme Court

led to scathing criticism by the concerned and their adherents that the President of India could
make such appointments or effect such promotions with extraneous considerations in view.

In this case three superseded judges had given verdict against the controversial 24th and 25th

Amendments on April 24, 1973. Only two days later on the retirement of Chief Justice, S.M.

Sikri, a junior judge was promoted as the Chief Justice. In the opinion of distinguished

lawyers and judicial luminaries, this was very unfortunate action on the part of the Executive
since it impaired independence of judiciary a great deal.

It was contended that Judges toeing the line of the ruling party alone could hope for

promotions. Besides, it was feared that the future appointments might be made only out of

judges or advocates or jurists who will be committing themselves to the philosophy of the
party in power.

(I) Right to Information Act:

As per 37th Chief Justice of Apex Court—Hon’ble Balakrishnan Judges are the constitutional

functionaries. Hence they are not coverable under the ‘Right to Information Act’. The Chief

Justice of India opined “…I am holding a Constitutional Office” This view has not been
accepted by the Parliamentarians.

The report of the Parliamentary Standing Committee which was presented to the Rajya Sabha
on April 29, 2008 stated, “Except judicial decisions making, all other activities of
administration and persons included in the judiciary are subject to the RTI Act. The pith and
substance of the Act is to empower people by allowing them to seek information regarding

those occupying high office and making decisions which affect their lives. Any reluctance
only accounts to dilution of people’s right to know. (EMS Natchhappan).

The Parliamentarians feel if other constitutional functionaries are covered why not the Judges

be covered by it? This will further help in maintaining independence of judiciary as they will

be accountable to the people of the country as well. Of course judicial decisions have been
exempted from ‘RTI Act’ because that could have impaired right judgements.

Some of the remarks of the legal luminaries expressing high-handedness of the Executive

impairing the dignity of the Indian Judiciary and striking at the root of its independence are
worth quoting. In the words of Mr. S.M. Sikri ex chief Justice of India, the supersession of

three judges was “a big blow to the independence of judiciary…they were superseded after
they decided against the government.”

Six eminent jurists including M.C. Setalvad and M.C. Chagla ex-chief Justice of Bombay

were of the view that the Union Government’s decision to supersede three senior most judges

of the Supreme Court was “a manifest attempt to undermine the courts’ independence…It is
the saddest day in the history of our free institutions. ”

A resolution of Supreme Court Bar Association also emphasized the same point in the words,

“it is a blatant and outrageous attempt at undermining the independence and impartiality of
the Judiciary and lowering the prestige and dignity of the Supreme Court.”

No doubt if the judges were to be committed to a particular social philosophy, a similar case

will be decided differently in different states. Moreover with the ousting of the party in

power, judges will become out of tune with the new party coming in power. This will vitiate
the whole atmosphere of the country.

The Executive and the Judiciary in that case will always be on the look out to undermine each
other’s prestige. P.A. Sangma former Lok Sabha Speaker portrayed judicial activitismviz-a-
viz Executive and the Legislature in a balanced statement: “All the three arms of the

Government are meant to be active and complimentary. The inactive role of the Executive in

the recent past has resulted in the emergence of judicial activism… executive dormancy does

trigger off judicial activism…If the people of this country find that their aspirations and

fundamental rights are not protected because of the state’s inactions, they go to the courts.
Why blame the courts it can only be blamed on the undesirable proclivity to acquiescence. ”

However acclaiming yeoman service rendered by the judiciary, he suggested a restraint based

on extraordinary understanding of the governmental system of functioning and rightly

pointed out that “the courts of last resort should not end becoming the courts of first resort. ”

The Government defending its case super-session of senior judges was however of the view

that even according to Law Commission’s recommendations; seniority alone may not be the

criterion for elevation of a judge to the post of Chief Justice. In this case, the superseded

judges were if not better at least as good, as the new Chief Justice, as opined by S.M. Sikri.

So there does not seem to be any other reason except political consideration for by-passing
these judges.

This concept of committed judiciary having dangerous consequences has given a severe set-

back to the concept of independence of judiciary. Hence Dash has remarked, “Thus the

Indian Judiciary has not been so well protected against temptations and allurements or threats

of punishments as will eliminate all possibilities of consideration of personal career in the

discharge of their duties,”

Thus it can be concluded that the Constitution and its executors have made genuine attempts

to make the Supreme Court independent and impartial. The occasional attempts to deviate
from this practice may be generalized
The constitution has made the following provisions to ensure independence of judiciary.
1. Security of Tenure: - The judges of the Supreme Court have security of tenure and they
cannot remove from office except by an order of the President by adopting the set procedure
laid down in the constitution.
2. Salary of Judges fixed not subject to vote of Legislature: - The salary and allowances
of the judges of the Supreme Court are fixed by the constitution and being paid from
Consolidated Fund of India. Salary cannot be altered.
3. Parliament can extend but cannot curtain the jurisdiction and power of the
Supreme Court:- To work more effectively the Parliament may enhance the jurisdiction of
the Supreme Court in civil cases, here the point to be noted that in all the provisions the
Parliament an exceed, but cannot curtail the jurisdiction and power of the Supreme
Court under article 138.
4. No discussion in Legislature on the conduct of Judges:- Neither in Parliament not in a
State Legislature a discussion can take place with respect to the conduct of a judge of the
Supreme Court in discharge of his duties under article121.
5. Power to punish for its contempt:- The supreme Court and the High Court have the
power to punish any person for its contempt under article 129 and 215, this power is very
essential for maintaining the impartiality and independence of the Judiciary.
6. Separation of judiciary from executive:- States have been directed by the constitution
through article 50 to take steps to separate the judiciary from the executive in the interest of
public service of the State.
7. Judges of the Supreme Court are appointed by the Executive with the consultation
of Legal experts:-Executive cannot appoint the Judges without the consultation of the Judges
of the Supreme Court as provided in Art. 124(2).
8. Prohibition on practice after retirement:- Under article 124(7) of the constitution a
retired Judge of the supreme Court is prohibited to appear and plead in any court or before
any authority within the territory of India.

Judicial independence

Judicial independence, the ability of courts and judges to perform their duties free of
influence or control by other actors, whether governmental or private. The term is also used
in a normative sense to refer to the kind of independence that courts and judges ought to
possess.
That ambiguity in the meaning of the term judicial independence has compounded already
existing controversies and confusions regarding its proper definition, leading some scholars
to question whether the concept serves any useful analytical purpose. There are in general
two sources of disagreement. The first is conceptual, in the form of a lack of clarity regarding
the kinds of independence that courts and judges are capable of possessing. The second is
normative, in the form of disagreement over what kind of judicial independence is desirable.
Practical Considerations

As a practical matter, the type of judicial independence that is widely considered both the
most important and the most difficult to achieve is independence from other governmental
actors. On the one hand, that type of judicial independence is highly valued among those who
impute to courts a special responsibility for ensuring that individuals and minorities do not
suffer illegal or unjust treatment at the hands of the government or a tyrannous majority. On
the other hand, that type is considered especially difficult to achieve because the other
branches of government ordinarily possess the power to disobey or thwart the enforcement of
judicial decisions, if not also to retaliate against the courts for decisions that they oppose.
In Alexander Hamilton’s famous formulation, the judiciary is the “least dangerous” branch,
having “no influence over either the sword or the purse,” and is therefore least capable of
defending itself against the other branches.
Formal guarantees of judicial independence from government control date to at least 1701,
when England’s Act of Settlement granted judges explicit protection from unilateral removal
by the crown in the context of a larger shift of power toward Parliament and the courts.
Today the idea of judicial independence has such broad and powerful normative appeal that
even states that do not honour it in practice are wont to profess a commitment to it. Most of
the world’s current written constitutions contain some form of explicit protection for the
independence of the judiciary, and the proportion of constitutional documents that contain
such protections has been increasing over time. Judicial independence has been
formally endorsed at the international level as well for example, in the Basic Principles on the
Independence of the Judiciary, adopted by the United Nations General Assembly in
1985. Empirical research suggests, however, that the existence of formal constitutional
guarantees of judicial independence is poorly correlated with actual respect for judicial
independence in practice.
Definition And Scope

Any comprehensive and coherent definition of judicial independence must address several
questions. The first is, “Independence for whom?”; the second is, “Independence from
whom?”; and the third is, “Independence from what?” To supply satisfying answers to those
questions, however, it is necessary to consider why judicial independence is valuable and
what it is supposed to accomplish. In other words, it is necessary to address the question,
“Independence for what purpose?”
Independence for whom?
Judicial independence can be defined as a characteristic of individual judges or as a
characteristic of the judiciary as a whole. Neither conception is indisputably preferable to the
other as a practical matter. On the one hand, if judicial independence is guaranteed at the
institutional level but not at the individual level, individual judges can be forced to obey the
wishes of the leadership of the judiciary, which may result in a less-than-wholehearted
enforcement of the rule of law. In Chile and Japan, for example, the extent to which the
judiciary as an institution commands obedience and conformity from its members has been
blamed for producing timid judges who are unwilling or unable to rule against the
government. On the other hand, if judicial independence is ensured at the individual level,
individual judges will find themselves at liberty to pursue their individual preferences.
Unchecked discretion of that kind not only invites abuse but also raises the likelihood that
judges will decide cases in inconsistent ways, with the potential effect of undermining the
predictability and stability of the law.
Independence from whom?
The existence and adequacy of judicial independence become matters of practical concern
only when a court decides a dispute involving the interests of some actor or institution with
potential or actual power over the court. Generally speaking, the more powerful the actor
whose interests are at stake, the greater the need to protect the independence of the court from
that actor. If both sides to the dispute are powerful, however, that symmetry of power may
provide part or all of the necessary protection.

The three scenarios that a court may encounter are:

1. disputes between private actors,

2. disputes between government actors, and
3. disputes between private actors and government actors.
In the first scenario, the court must strive to remain independent from the parties, who may
attempt to undermine its independence by a variety of means, such as bribery or intimidation.
In that situation the government is a friend of judicial independence: it can be expected to
defend the independence of the court from the efforts of the parties.
In the second scenario, the prospects for judicial independence are again relatively
favourable. The court is asked not to face down a powerful actor on behalf of a weak one but
rather to choose sides between two powerful actors in an impartial way. Whichever side the
court chooses, the result will be a two-against-one dynamic that ought to provide the court a
degree of protection from retaliation. The government does not pose a meaningful threat to
judicial independence in such cases, because it is at war with itself.
In the third scenario, the government does pose a potent threat to judicial independence, but
the threat may be either counteracted or compounded by the public. For instance, if a ruler
seeks to extend his or her own term of office in an illegal fashion, the court faces a threat to
its independence from the government, but its ability to withstand that threat is greatly
improved to the extent that it can count on public support if it rules against the government.
As long as the court is in the position of siding with either the government or the public, its
independence enjoys protection. Either should be capable of providing the court with the
support that it needs to withstand attacks from the other. In other situations, however, the
court may be asked to take a position that is antagonistic to both the government and the
public, as in the case of illegal government discrimination against an unpopular minority.
Here the prospects for judicial independence are at their nadir: the judiciary is called on to
demonstrate independence from both the government and the public, yet it lacks the help of a
powerful ally to withstand the pressures that it faces.
There are various ways to protect judicial independence in the face of such threats. Common
strategies include limiting government discretion over judicial salaries, placing heavy
restrictions on the removal of judges from office, fixing the minimum jurisdiction that courts
are to possess, and relieving judges of personal liability for acts performed in the course of
their duties. Less obviously, the internal organization of a judiciary can also have a profound
effect on its susceptibility to external influence. The organization of the Japanese judiciary,
for example, renders lower court judges highly obedient to an
administrative bureaucracy controlled by the chief justice of the Supreme Court of Japan. A
decentralized organizational structure that grants greater autonomy to individual judges, by
contrast, may make it harder for the government to capture or co-opt the judiciary as a whole.
In the long run, however, it is difficult, if not impossible, to create a perfectly independent
judiciary that is completely insulated from all forms of political and popular influence. The
relatively lengthy experience of the U.S. Supreme Court, for instance, suggests that even a
highly independent court is likely over time both to be reshaped by political forces and to
accommodate the wishes of a durable political majority. It is optimistic to think that a handful
of judges, lacking the power of either the purse or the sword, could consistently defy more-
powerful actors and institutions without ever suffering any consequences, no matter what
formal protections they might enjoy. There are limits to what can be accomplished simply by
adjusting the institutional characteristics of the judiciary or by enacting solemn declarations
about the inviolability of judicial independence. Ultimately, the prospects for attaining even
moderate levels of judicial independence are likely to depend on political and historical
conditions that are exogenous to the judiciary and may well lie beyond reach, such as the
existence of a stable, competitive, multiparty democracy.
Independence from what?
Not all forms of influence over judicial decision making constitute threats to judicial
independence. Whereas some activities aimed at influencing courts, such as bribery and
intimidation, may be inappropriate under any plausible conception of judicial independence,
others can be evaluated only on the basis of contestable normative judgments. In the case of
public protests in front of courthouses, for example, one view might be that such protests
should be privileged as a form of political expression and that judges in a democracy are
permitted or even obligated to take public opinion into account. Alternatively, one might take
the view that judges should be shielded from such expressions of public opinion, much as
jurors are sequestered, to ensure that their deliberations are not tainted by considerations that
ought to be irrelevant. Likewise, a public campaign to deny a judge reelection because he has
ruled in unpopular ways on controversial issues can be characterized as either a
healthy manifestation of democracy or as a threat to judicial independence.
Whether such efforts to influence judicial decision making are consistent with judicial
independence cannot be answered by fiat. Defining the requirements of judicial independence
in such cases demands instead a normative theory of what courts are supposed to take into
account when deciding cases, what judicial independence is supposed to achieve, and to what
extent judicial independence can and should be balanced against other objectives and
considerations.
Independence for what purpose?
Judicial independence is generally considered a means to an end rather than an end in itself.
Most would probably agree that the ultimate goal can be described as the fair and impartial
adjudication of disputes in accordance with law. If that is indeed the goal, however, then the
pursuit of judicial independence is open to several objections.

One objection is that the goal itself is unattainable, because it rests on a misconception of the
nature of both law and adjudication. It is a commonly held view among legal theorists that
the law is frequently indeterminate and that it is therefore impossible for judges to decide
disputes simply by applying preexisting law. Rather, it is said, the act of adjudication requires
judges to make the very law that they purport to merely apply. Yet if adjudication necessarily
entails lawmaking, then judicial independence does not simply protect the ability of judges to
decide disputes in accordance with law but instead licenses them to make and impose
whatever laws they see fit, which is a prospect that many consider incompatible with either
the appropriate role of judges in a democracy or the idea of separation of powers.
Another objection is that judicial independence is neither necessary nor sufficient to ensure
impartial adjudication in accordance with law and may even undermine that goal if left
unchecked. On the one hand, it is possible for a judge who faces potential retaliation to
nevertheless decide cases in an impartial manner. On the other hand, there is no guarantee
that giving judges the freedom to decide cases as they wish means that they will choose to do
so fairly and in accordance with law. Even if it were possible to create a judiciary that is
completely free from both popular and political control, what would then prevent the judges
from deciding cases on the basis of personal prejudice or self-interest? It is on the basis of
such concerns that many consider it essential to balance judicial independence against
judicial accountability and to distinguish appropriate forms of influence over the judiciary
from inappropriate forms. However, any mechanism that might be devised for preventing or
punishing judicial abuse of power is itself likely to prove susceptible to abuse. The resulting
question of how to oversee the judges who are responsible for overseeing the government—
quiscustodietipsoscustodes (Latin: “Who watches the watchers?”)—has long vexed
constitutional and political theorists and admits of no simple solution.

Independence of Judiciary in Indian

Constitution
Category: Indian ConstitutionOn August 29, 2013 By Vijay Jaiswal

Indian Constitution has given high importance to the Independence of Judiciary

System. Every democratic country puts a great store on the independence of the
judiciary as a guarantee of individual freedom.

What is the meaning of Independence of Judiciary or Judicial

Independence?

Judicial Independence or Independence of Judiciary refers to an environment where

judges are free to make decisions or pass judgment without any pressure from the
government or other powerful entities.

Independence of Judiciary means that the judiciary as an organ of the government

should be free from influence and control of the other two organs i.e., the executive
and the legislature of government.

Why is Judicial Independence important?

Judicial independence play an important role in maintaining the democratic set-up of

any country. An impartial and independent judicial system alone can protect the
rights of the citizens against the arbitrary powers of the executive or
legislature. Freedom from the influence and control of the executive is of crucial
importance. It is important for individual freedom that the judges give their verdict
without fear or favor. It refers to an environment where the judge can pass impartial
judgment.

Every democratic country adopts various means to ensure freedom of the judiciary
and thereby to ensure individual freedom. The U.S.A. has adopted system of
separation of powers to ensure independence of the judiciary. But in constitutional
systems based on the concept of Parliamentary sovereignty, the adoption of
separation of powers is ruled out. This is the case in England. This is also partly the
case in India, for in India, the doctrines of Parliamentary and constitutional
sovereignty are blended together.

Independence of Judiciary in India

The constitution of India adopts diverse devices to ensure the independence of the
judiciary in keeping with both the doctrines of constitutional and Parliamentary
sovereignty. Elaborated provision are in place for ensuring the independent position
of the Judges of the Supreme Court and the High Courts.

 Firstly, the judges of the Supreme Court and the High Courts have to take an oath
before entering office that they will faithfully perform their duties without fear, favour,
affection, ill-will, and defend the constitution of India and the laws. Recognition of the
doctrine of constitutional sovereignty is implicit in this oath.
 Secondly, the process of appointment of judges also ensures the independence of
judiciary in India. The judges of the Supreme Court and the High Courts are appointed
by the President. The constitution of India has made it obligatory on the President to
make the appointments in consultation with the highest judicial authorities. He of
course takes advice of the Cabinet. The constitution also prescribes necessary
qualifications for such appointments. The constitution tries to make the appointments
unbiased by political considerations.
 Thirdly, the Constitution provides for the security of tenure of Judges. The judges of
the Supreme Court and the High Court’s serve “during good behavior” and not
during the pleasure of the President, as is the case with other high Government
officials. They cannot be arbitrarily removed by the President. They may be removed
from office only through impeachment. A Judge can be removed on the ground of
proved misbehavior or incapacity on a report by both Houses of Parliament supported
by a special majority.
 Fourthly, their salaries and allowances are charged upon the Consolidated Fund of
India. Further, the salaries and allowances of Judges of Supreme court and High
courts cannot be reduced during their tenure, except during a financial emergency
under Article 360 of the constitution.
 Fifthly, the activities of the Judges cannot be discussed by the executive or the
legislature, except in case of removal of them.
 Sixth, the retirement age is 65 years for Supreme court judges and 62 years for High
court judges. Such long tenure enable the judges to function impartially and
independently.
 Seventh, a retired Supreme court judge cannot practice engage in legal practice in
any court in India. However, a retired High court judge can practice law in a state other
than the state in which he served as a High Court judge. These restrictions ensure that
a retired judge is not able to influence the decision of the courts.

The hierarchy of Judicial system in India plays an important role in maintaining the
independence of judiciary. Supreme Court is the highest court for justice. Then, there
are High Court and District Courts in every states. Then, there are People’s courts
known as LokAdalats. If no decision is reached at these LokAdalats, then the cases
move to courts.

Independence of Judiciary
‘’There can be no difference of opinion in the house that our judiciary must both be independent
of the executive and must also be competent in itself. And the question is how these two objects
could be secured. There are two different ways in which this matter is governed in other
countries. In Great Britain they appointments are made by the crown, without any kind of
limitation whatsoever, which means by the executive of the day. there that opposite system I
United States where, for instance, offices of the Supreme Court as well as other offices of the
State shall be made only with the concurrence of the senate in the United States. It seems to me,
in the circumstances I which we live today, where the sense of responsibility has not grown to the
same extent to which we find it in the united States, it would be dangerous to leave the
appointments to be made by the President, without any kind of reservation or limitation, that is to
say, merely on the advice of the executive of the day. Similarly it seems to me that to make
object to the concurrence of the Legislature is also not a very suitable provision. Apart from its
cumbrous, it also involves the possibility of the appointment being influenced by political pressure
and political consideration. The draft Article, therefore, steers a middle course. It does not make
the President the Supreme and the absolute authority in the matter of making appointments. It
does not also impart the influence of the legislature. The provision in the Article is that there
should be calculation of persons who are exhypothesis, well qualified to give proper advice in
matters of this sort, and my Judgment is that this sort of provision may be regarded as sufficient
for the moment.”

DR.B.R.Ambedkar
The people of a nation may lose confidence in the Executive (The King), or the Legislature but it
will be an evil day if they lose their confidence in its judiciary. The judiciary is the guardian of
human rights and civil liberties. The judiciary contributes vitally in the preservation of peace and
order by settling disputes between the State and Citizens and among citizens which leads to a
harmonious and integrated social existence. The quantum of its contribution, however, largely
depends upon the willingness of the people to present their problems before it and to honour its
decisions. Equity, Justice and good Conscience is an accepted principle of judicial functioning in
almost every legal system.[1] The judicial institutions i.e., the Courts are not only Courts of law,
they are also the Courts of justice.

The “Rule of law”, said, A.V. Dicey, in 1885 means, “the absolute supremacy or predominance of
regular law as opposed to the influence of arbitrary power and excludes the existence or
arbitrariness, of prerogative, or even wide discretionary authority on the part of the
Government.[2] Another significance, which Dicey attributed to the concept of Rule of law, was;
“equality before the law or the equal subjection of all classes to the ordinary law of the land
administered by the ordinary law Courts”.[3] The principle implicit in the Rule of Law that the
Executive must act under the law and not by its own decree or fiat, is still cardinal principle of the
English system.

For a democratic government, Rule of Law is a basic requirement, and for the maintenance of
Rule of Law, there must be an independent and impartial judiciary. In a State professing Rule of
Law, the aim should be to provide for a system which secures to its citizens adequate procedure
for the redress of their grievances against the State before forums which are able to administer
justice in an impartial manner without any fear and favour.

The judiciary is the final interpreter and the guardian of the Constitution. In a Federal
Constitution, the judiciary is constituted as ultimate authority to restrain any exercise of absolute,
capricious and arbitrary power. The Legislative action of majority has to undergo the scrutiny of
the legal elite, the judiciary. The human rights are secured and the tyranny of the majority is
contained by Judicial Vigilance, that is to say, the legislative and executive action is counter
balanced by judicial verdict. Democracy has no alternative but to the accept the Courts as the
sentinel and the guardian of liberty and freedom.[4]

The essence of a Federal Constitution is the division of powers between the Centre and the
State Governments. This division of power is made by the written Constitution which is the
supreme law of the Land. Since language of the Constitution is not free form ambiguities and its
meaning is likely to be interpreted differently by different authorities at different times, it is,
therefore, natural that disputes might arise between the central and constituent units regarding
their respective powers. So, an independent judiciary is required to decide dispute between the
Centre and State or the States inter se.

The judiciary in addition to the function of maintaining the supremacy of the Constitution is also
the guardian of the fundamental rights of the people. really, the judiciary safeguards the civil and
minority rights and play the role of guardian of the social revolution.[5] Mere enumeration of a
number of fundamental rights in a Constitution without any provision for their proper safeguards
will not serve any useful purpose. Unless, there is remedy, there is no right, goes a famous
maxim. For this purpose, an independent and impartial judiciary with power of judicial review has
been established it plays another significant role of determining the limits of power of the Centre
and States.[6]

In Britain, the independence of judiciary rest not on formal constitutional guarantees and
prohibitions but on an admixture of statutory and common law rules, constitutional conventions
and parliamentary practices, fortified by professional traditions and public opinion.[7]

In United States of America, the Supreme Court is the highest Court of judicial administration and
the judicial independence depends upon the supremacy of the Supreme Court. The supremacy
of judiciary developed as the Supreme Court assumed the power to perform constitutional
obligation and protect the people and their rights from the State action.

Since the case of Marbury v. Madison,[8] it has come to be considered a duty of every judge in
United States to treat as void any enactment which violates the Constitution. The Court cannot
properly decline to exercise this power. This has led the establishment of the doctrine of judicial
supremacy. The doctrine has been thus expressed by Willoughby, “the fundamental principle of
American constitutional jurisprudence is that law’s and not men shall govern”.[9]

The USSR is a community country. In USSR justice is administered by the Supreme Court of the
USSR, the Supreme Court of the Union Republics, the Courts of the other regional divisions and
special Courts.[10] Judges are independent and subject only to the law.[11] There are provisions
for a procurator General elected by the Supreme Soviet for a term of seven years.[12]

In order to have comparative position, the independence of the judiciary as it developed in

different countries would be studied. England and United States of America are two major
capitalist countries, the judicial system of which would be studied alongwith the constitutional
provisions of the USSR – a communist country, relating to the independence of judiciary. All
these being developed countries, a developing, neighbouring country along with India would be
studied for a better comparison.

The ruling political gospel of the nineteenth century was laissez-faire which manifested itself in
the theories of individualism, individual enterprises and self help.[13] But the laissez-faire
doctrine resulted in human misery in the long run. The stronger exploited the weaker and put the
common citizen into slums, unhealthy, dangerous conditions of work and wide spread poverty.
So it became imperative that the State should take interest in ameliorating the conditions of the
poor and that gave rise to the political dogma of collectivism. In course of time, the dogma of
collectivism led to concept of social welfare State, i.e., a State which promotes socio-economic
welfare of the people.[14] due to the effect of this doctrine, the democratic type of Government
evolved; having three major wings of the State i.e., the Executive, the Legislature and the
Judiciary to run its administration. These wings go hand in hand to ensure the development,
growth and stabilization of the society and its members.

In ancient India, the King was regarded as the fountain head of justice. His foremost duty was to
protect his subjects. He was respected as the Lord of Dharma. The King Court – was the highest
Court in the kingdom. Next to the king’s Court was the Court of chief Justice (Pradvivaka). In
villages, the village Local Councils or Kulani were established.
During the Muslim period, the judiciary was effected by religion. There were six types of Courts
i.e., The King’s Court, Diwan-e-Mazalim, Diwan-e-Risalat, SadreJehan’s Court, Chief Justice
Court and Diwan-e-Siyasat. The Court of Diwan-e-Subah was the final authority in Revenue
cases. Many Chief Justices of this period were famous for their independence and impartiality in
the administration of justice.[15]

During British period, Mayor’s Courts were established in Presidency Towns. In 1774, the
Supreme Court was established in Calcutta presidency town which established its independence
in the administration of justice within its jurisdiction. The High Courts founded under the Act 1861
were the highest Courts of appeal in their respective provinces. The Government of India Act,
1935 created Federal Court in India having original jurisdiction in disputes between provinces
inter se or between provinces and federation. The Federal Court, however, was not the highest
Court as appeals could lie in certain situations to the Privy Council in England. The jurisdiction of
Privy Council was however, abolished by the Abolition of the Privy Council jurisdiction Act, 1949
and appeals pending before October 10, 1949 were transferred to the Federal Court.

So far judicial system is concern during the Hindu period king with the help of pundit of his darbar
decide the disputes between the parties .During the Mughal period minor cases were decided by
the Mullan and kazis and main cases were decided by the king. During the British period cases
were decided with the help of Mullan and priests according the personal law of the parties[16] It
is submitted with respect that the manner to decide and interpretation of law was the same
during the whole period As during Hindu period if a high Verna person marries a women that was
not crime but if a low Verna person marries the women of high Verna that was consider to be a
crime. Meaning of justice was the same during Mughal and British period. There is a story which
shows how the law was interpreted by the priests and Mullans . A bullack of the head men of the
village who belong to high caste untied itself and enter in the house of Teli who belong to lower
caste and start fighting with the bullock who was tied with a tree. he the bullock of the Teli
defending itself by chance horn of the Teli’sBullack thrust into the stomach of village Head’s
bullock and Bullck of the village head died.Case was reached before the Mullan for decision.
Mulan interpret the law thus:
Lal KITAB BATAVE YOON
TELI BALAD BHIDAYA KION,
KHALL KHILA KAR, KIYA MASTAN
BALAD KA BALAD , PACHAS RUPEYA JURMANA
This is how the law is interpreted.
Before 1947, India was a “Police State”. The foreign rulers were interested in strengthening their
own domination. After independence India framed its own Constitution. The framers of the
Constitution adopted democratic form of government and introduced the philosophy of welfare
State in the Constitution. The Constitution adopted Federal System and provided for the
distribution of powers between the Centre and the States. If there is any dispute between the
Centre and States relating to distribution of powers or if there is any encroachment by one into
the jurisdiction of the other, then the judiciary maintains the balance acting as an arbiter between
them or as an interpreter of the constitutional provisions. Thus, the need for strong and
independent judiciary was realized by the framers of the Constitution.

The judiciary was to be an arm of the social revolution upholding the equality and liberty that
Indian longed for, during colonial days, but not had gained – not simply because the regime was
colonial and perforce repressive, but largely because the British had feared that social change
would endanger their rule. During British period, Indian had neither law nor Courts of their own
and both the Courts and the law had been designed to meet the power of colonial power. The
Constituent Assembly members, therefore, tried to ensure the independence of the Courts with
full power of judicial review. The Assembly went to great length to ensure that the Courts must be
independent, devoting more hours of debate to this subject than to any other provision. If the
beacon of the Judiciary was to remain bright, the Court might be above reproach, free from
coercion and from political influences.[17]
In order to strengthen the walls of the Fortress of Judiciary from the influence of politics with
constitutional provisions, the attitude of Sapru Committee just have greatly influenced Assembly
members. This Committee made its recommendation regarding the tenure, salary, allowances,
retirement age, removal of judges, appointment and transfer etc., of the judges.[18]

Under our Constitution the hierarchy of the Courts is established. The Supreme Court, High
Courts and other subordinate Courts in States from the uniform legal system in India. The
Supreme Court is the highest Court. It has wider jurisdiction than the Federal Court. It has
original jurisdiction in disputes between Union and State and States inter se. Under Article 32 it
exercises original jurisdiction for the enforcement of fundamental rights. It is the highest Court for
civil and criminal appeals. It has over riding power to grant special leave to appeal from any
judgment, decree, determination, sentence or order in any matter passed or made by any Court
or tribunal in India.

The framers of the Constitution enshrined various provision in our Constitution to secure
the independence of the judiciary. Some of them are as under:
The judges are appointed by the President after consultation with judicial authority.[19] The
security of tenure is guaranteed to every judge. A judge of Supreme Court or High Court can be
removed only on the ground of proved misbehavior or incapacity. The President can remove a
judge after an address presented to him by each house of Parliament.[20] The privileges, rights
and allowances of the judges cannot be altered to their disadvantages after appointment.[21] The
Supreme Court and High Courts are given authority to recruit their staff and frames rules. The
salaries and allowances of the judges are not put to the vote of the Legislatures.[22] The
administrative expenses including salary allowances and pensions of the Supreme Court and
High Court judges are charged to the consolidated fund of India and the states respectively.[23]
The judges of the Supreme Court are debarred from pleading after retirement before any Court
or judicial authority in India.[24] The conduct of the judges of Supreme Court and High Courts in
discharge of their duties shall not be discussed in legislature.[25]

The framers of the Constitution established independent and impartial judiciary in India. But the
image of judiciary in its functional aspect is not fully independent. The establishment of
independent judiciary remains more in the text book of our Constitution. The judges of the
Supreme Court of India are appointed by the President of India. The Chief Justice of Supreme
Court is appointed by the President with consultation of such of the judges of the Supreme Court
and High Courts as he deems necessary for the purpose. But in appointing other judges, the
President always consults the Chief Justice of India. he may consult such other judges of the
Supreme Court and High Courts as he may deem necessary.[26] But practically the power of
President to appoint judges is purely formal because in this matter he acts on the aid and advice
of Council of Ministers.[27] So there is the apprehension that Ministers may bring politics in the
appointment of judges. The practice upto 1973 was to appoint the seniormost judge of the
Supreme Court as the Chief Justice of India. but on April 25, 1973, this 22 years practice was
suddenly bidden good bye by the Government within few hours of the delivery of the judgment in
the Fundamental Rights case.[28] Justice A.N. Ray was appointed as Chief Justice of India
superceeding three of his senior colleagues, justices, Shetal, Hegde and Grover who later on
resigned from the Supreme Court.

The transfer of judges of higher judiciary also affects the independence and functioning of the
judiciary. The Constitution provides for the transfer of a judge from one High Court to another
High Court.[29] But there is no effective safeguard against the abuse of this power by the
Government. During emergency[30] a list of 56 judges, to be transferred without their consent,
had been prepared, but in first instance 16 judges were transferred and the names of the other
State judges on the list deliberately were looked in order to shake the never of the judges of the
High Courts.[31] One of the judges so transferred was Mr. Justice S.H. Seth, of Gujarat High
Court who with commendable courage, filed a writ petition against the Union of India and the
Chief Justice of India (Justice A.N. Ray). This case is popularly known as Sankal Chand’s case.
In this case, the Supreme Court by majority held that prior consent was not necessary to transfer
a judge. However, Bhagwati (as was then) and Untawalia, JJ. Gave dissenting judgement stating
that transfer without consent of the Judge impedes the independence of judiciary.[32]

In the Judges case,[33] where the constitutional validity of a circular issued by the Law Minister
on March 18, 1981, seeking the consent of additional judges for appointment as permanent
judges in other High Courts, and transfer of certain High Court judges was questioned on the
plea that the circular was an indirect method of affecting transfers and constituted a threat to the
independence of judiciary. Following the Sankal Chand’s case,[34] the Supreme Court by
majority upheld the validity of the circular as well as the transfers. In the same case the Supreme
Court also discussed the word ‘consultation’ of legal experts by the executive while appointing
judges. The Court held that the ‘consultation’ does not mean ‘concurrence’ and the executive is
not bound by it. The Government may completely ignore the advice of legal experts. It is
submitted that by this ruling the Court itself endangered the independence of Judiciary.

The superior judiciary must be free from executive influence and pressure. The transfer of the
judges on rumours and suspicion violate elementary principles of Natural justice. The alternative
is to hold an enquiry into the conduct of a judge for transfer. But there is no provision in our
Constitution for such an enquiry. The fear of transfer causes in many cases a good deal of
harassment to the judge concerned. It affects the social, family life and education of the children
of the judge. Therefore, a judge in order to be able to discharge his social, family and official
duties has to understand the psychology, the sociology and the climate of State in which he
functions. In many cases these transfers are made on disciplinary grounds and considered as
punishment. There are certain examples which shows the influence of executive on the judiciary
in the matters of appointments, transfers and promotions etc. As National Emergency ended, the
Janta Government came into power and the weather was set fair for the judiciary.

The Janta Government repealed almost all the changes made in our Constitution by 42nd
Amendment which has taken to the brink of a totalitarian form of Government. Statutory
conventions for the appointment of judges and Chief Justices were, by and large, recognized and
accepted. Mrs. Gandhi had superseded Mr. Justice Khanna the senior-most Judge for the office
of Chief Justice of India because of his brave judgment in the A.D.M. Jabalpur v. Shukla (the
Habeas Corpus) case, but the Janta Government appointed the senior most judge of Supreme
Court to the office of Chief Justice of India.[35] As Mrs. Gandhi returned to power in 1980, the
attack on the judiciary was removed, which resulted in litigation in judges case.[36] In this case
the wound inflicted by the majority judgement on the judiciary was even deeper, because the
judgment sub-ordinated the High Courts and Supreme Court to executive in the matter of
appointments and transfers of judges.

The removal of Mr. Justice O.N. Vohra, Additional Judge of Delhi High Court, as he gave
judgment against Mr. Sanjay Gandhi, son of Late Prime Minister Mrs. Indira Gandhi which was
not liked by her in the case of KisaKursiKa, brought our judiciary back to the stuarts period. (as
on 14.11.1616 an enemy of Chief Justice Coke, supplied King James I with judgments
determined the Coke from the office).[37] In another case, Mr. Justice R.N. Aggarwal was
promoted to additional judge in Delhi HC, subsequently a vacancy occurred on the retirement of
a performance judge. His name was recommended for the permanent post. But he was neither
appointed a permanent High Court Judge nor re-appointed as an Additional Judge, but reverted
back as a Session Judge. Because the part played by Justice R.N. Aggarwal and Justice
Rangarajan in KuldipNayyar’s case and delivered a judgment which criticized the Government.
So it may be added that Justice Rangarajan was transferred to the Assam High Court and
Aggarwal was made Session Judge. In another case, Justice Lalit of Bombay High Court was
refused to be re-appointed as Additional Judge of High Court of Bombay inspite of his
recommendation to the office by the Chief Justice of Bombay High Court. The Government of
Maharashtra and the Chief Justice of India. But his appointment was denied by the Late Prime
Minister Mrs. Indira Gandhi.[38]

The salary and allowances of the Judges of Supreme Court and High Court are secured in our
Constitution. But there is no time schedule for revision of their salary and allowances. It effects
the economic condition of judges in the developing society. A permanent judge of Bombay High
Court resigned his office in July, 1966, stating publically that having regard to the rising cost of
living, it was no longer possible for a judge to maintain his position and status of the salary fixed
sixteen years earlier, and that a judge could not honestly discharge his duties with a feeling all
the time of being treated unfairly by the State.[39] Recently the Government revised the salary
and other benefits of judges after 37 years.

The judicial independence seems to have suffered erosion due to the practice which has been
developed by the Government of employing judges in various capacities after retirement. The
talent of retired judges may be used for discharging judicial functions and improvement of judicial
system in public good. It is shameful and undesirable, if the Supreme Court judge has to look
forward to government employment after retirement. If a judge wishes to have Government job or
any government appointment after his retirement, then a normal citizen and litigant may well get
the impression that judge is not fully detached in a case where the government is a party. The
Law Commission has expressed that this practice has a tendency to effect the independence of
the judges and should be discontinued.[40]

The members of the judicial services should not act in such executive capacity which evolve any
control of the executive over them or which make them legal advisors to the executive on the
questions which are likely to be dealt with by them when they go back to their judicial work.
Sometimes judicial officers are appointed to post like those of Legal Remembrances etc., under
the Executive with the consent of the High Court. These appointments affect the judicial
functioning in the country. The Supreme Court in Orissa v. SudhansuSekharMishara,[41]
observed:
Except for very good reasons, we think the High Court should always be willing to spare for an
agreed period the services of any of officers under its control for filling up such executive posts
as may require the services of the judicial officer. The Government in its turn should appreciate
the anxiety of the High Court that such judicial officers should not be allowed to acquire vested
interest in the Secretariat.

It is alleged that things have not change even after about 68 years of independence of India.
Only the method is change. Hons. Judges of higher judiciary are thinking more about their future
than their present. Excepting a few Hons. judges there is a competition among the Hons. judges
to please the government without thinking about the common man. Law is very simple but now it
is confused in the technicalities. This made easy for the Hons. judges to interpret law according
to their convenience. Judges serve longer period on commissions than their actual service on the
bench as a Hons. judge of the apex court or the High Court.It is said that possessor seems to be
the owner and the law protect the interest of deemed owner at first. Have the judiciary protect the
interest of deemed owner in BabryMusjid demolition case. BabryMusjid was demolished before
the eyes of the judiciary and in that place a Ram temple was erected.Have the Apex Court
protect the right of the deemed owner. .What the Allahabad High Court did? .In its judgment the
honourable Court divide the disputed place in two or three shares.FinalVedict of the Apex Cour is
still awaited.But we also remember that justice delayed justice denied.

This proves the following observation of Justice Holm true:

“Judges commonly are elderly men ,and more likely to hate at sight any analysis to which they
are accustomed, and which disturbed repose of mind, than to fall in love with novelties”.

Hons Libran Commission get seventeen extensions the period seems to be more than the actual
service of the Hon'ble Judge. What this delay did The case lost its impotence and it give a tool in
the hands of politicians to get the votes. Same is the position of the Gujarat riot case where
thousands of innocent Muslims were killed oe shoots in false encounters. The saying that
politicians are never punished proves to be true. In I.P.C. Bail is granted on the condition that
accused will not influence the witness .How the court presume that the politicians in power will
not pressurize the witnesses. And grant the bail. Employees cases relating to their services are
decided after their retirement. In Badal’s disproportionate assets case 20 witnesses hostile when
there are example where one witness hostile the court order for the prosecution of the hostile
witness. have the court prosecute the hostiles witnesses?
 Judgment of the Court proves true the following wording of Goldsmith true:
“Laws grind the poor, and
Rich men rule the Law”
We can also explain it as:
“ The law locks up both men and women
Who steals the goose from off the common
But lets the the greater felon loose”.

Who steals the common from the goose” .[42] That is why it is alleged there is a nexus of judges
and politician in India and both are following the policy of give and take Home Judges react
against the politicians/Government only where their own interest is affected as in the case of
Judges appointment commission case. This is the story of Judiciary from independence till today.

Recently water dispute case between Punjab and Haryana was referred by the president to the
Apex Court. When the hearing is going on what the Punjab did? . It passes a bill in the Punjab
VidanSabha a bill denotifying the notification of land aqisition for SatlujYamunas Link
canal.Punjab did not stop here.It goes beyond this.Without waiting the completion of the
procedure of becoming the bill in to law Punjab Akali leaders order their activists to fill the canal
without applying their mind for the financial loss to the nation.Surpassing the all limit of bankrupty
of wisdom Punjab Assembly unanimously passed a resolution that they will not obey the
judgement of the Supreme Court on S.Y.L. . The reason for their act is coming Punjab Vidhan
Sabha election in the next year.same is the in the case of centre keeping mum itself.aCotroversy
is goingon these days. That is who is a “deshdarohi” Both politicians and the persons opposing
the wrong act of the politicians. both saying to each other that they are deshdarohi. Seeing the
act of politician in relation to Punjab politicians unanimously crossing party lines pass a resolution
that they will not obey the judgement of the Supreme Court. Thus trying to damage one of the
pillar Democracy .People should decide whether the politicians are deshdarohi or the opponents
of their wrong acts.

This proved true the following saying true:

“The difference between a politician and a statesman is: a politician thinks of the next election
And a statesman thinksof the next generation.”

Inspite of the bringing notice of the Apex Court through the argument of Haryan the Hons. Court
reject the Haryana argument for relief Later on wisdom prevail on the Apex Court and the Apex
court grant the stay to maintain status quo. If The claim of Punjab on river water ,which Punjab is
arguing, based on Riparian Right to use the water of a river.

Indian Easement Act Define the term Riparian Right as: Reparian Right “ means the right of
the adjoining land owners of the land on both side of the river to use the water of the river from
where the river passes” The riparian right start when the river start to flow on the land. So this
riparian right lied from the time of joint Punjab. So both Punjab and Harayana have equal right in
the rivers water ; Yamuna, Satlu, Bias and Ravi. The of dispute is not whether Punjab can spare
water for Haryana or not . But question is of the legal right which the Haryana And Punjab have
in the rivers water of the old Punjab which include both Punjab and Haryan.And not of this newly
created Punjabi Suba only. Resently speaking on the Foundation day of the Allahabad High
Court Hons. T. S. Thakur observed that The Bar is not co-operating in clearing the backlog of
cases. This shows how the judiciary feel helpless in thierworking.I Bar is dominating the Bench.
Senior advocate of the bar thought their right to have the judgement in their favour. I also quote
the experience of Hos. Justice V.R.KrishnaIyer When he was on the Bench in SmtIndra Gandhi
V/s Raj Narayan case. He said , “

In all humility, I take the liberty to quote from tha address presented to me by L.M.Sighvi, Sri
F.S.Nariman and DanelLatifi. On behalf of the members of the Bar,in Nov.1980. as I bid farewell
to the Bar.
Hons’able Shri Justice Iyer,
“ Permit us to remind you that Bar is the judge of judges and no judge can avoid or escape the
verdict of the Bar” [43].”Judges of the highee judiciary accept costly gift from the Bar and attend
the levish parties of the politicians”[44] It is submitted with respect that when the Hons.Bench
accept the costly gifts from the Bar on occasions and join the levish parties of politicians naturally
the have to face the rath of the Bar and have to obliged the politicians.

I remember the following observation of Hons. Justice Khanna Hon. Judge of the Apex
Court:
“ No paper reform of the judicial system would prove effective unless such reform is implemented
and translated into reality. For this purpose, we need the active co-opration of the members of
Bench and the Bench and the Bar. It would also, in great measure, depend upon the personality
of the judges. You may have hundred and one reforms but unless you have officers of the right
calibre to preside over the courts, the reform would prove illusory and thus fail to deliver the
goods. It is , therefore, essential to take every care to ensure that the persons of the right caliber
are selected to preside over the courts”[45] .

Things are not stoped here in a public Interest litigation appeal when it was argued that the
repondant is not applied the order of the court The Court observed “We are not the Boss to
enforce the Order” Perhaps Hons. Judges forget the Following observation of NirodMukherji:
“Afterall , there is only one thing worse than injustice, and that is justice without her sword in her
hand”

Previously an amendment was made in the Civil Procedure Code whereby the adjournment of
the case was fix to two hearing. On this the Bar went on strike and the Govt have to withdraw the
amendment. It is alleged that cases are decided not infavour of the litigants but infavour of the
advocates. In the wording of Hons. Justice Krishna Iyer “Our judicial system is 18th century
old……. it put the horse before the cart ”The above remarks shows how the judiciary is
independent .The judiciary have bellied the hopes of the and trust of the constitution maker.
Judiciary have deceive the constitution maker. Indian judiciary is loosing the faith of the people
as the people are geting nothing from the judiciary except the next date of hearing