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Divya Swami


In a democratic set up, the judiciary is an impartial umpire that resolves disputes within the boundaries
laid down by a Written Constitution and distribution of constitutional powers between different organs, namely,
Parliament, State Legislatives and Executive.1 An independent judiciary is expected by every citizen of the
country and is not only a fundamental right, but is also a part of the basic structure of our Constitution. 2

Independence of the judiciary is one of the basic structure of the Indian Constitution and has also been
recognised as a human right by international conventions.3 In our Constitution, three wings of Government are
enshrined, and each of these three wings of government has to work independently in spite of the fact that they
are inter connected with each other.4 Justice Krishan Iyer observed for distinction that judiciary has to draw the
line between individual liberty and social control. The objective of justice is deeply enshrined in the Preamble of
the Constitution of India. In fact, judiciary does not only dispense justice between one individual and the other
or between one group of people and the other, it also does justice in the controversies arising between
individuals and States, State and State, States and States. All the above responsibilities can be discharged only
when the country has an authoritative, independent and impartial judiciary. 5

The independence and impartiality of the judiciary is one of the hallmarks of the democratic system of
the government. Only an impartial and independent judiciary can protect the rights of the individual and can
provide equal justice without fear and favour. The Constitution of India provides many privileges to maintain
the independence of judiciary.6 If the Preamble of our Constitution be regarded as the reflection of the
aspirations and spirit of the people, then one thing that even a layman will not deny is that among the various
goals that the Constitution-makers intended to secure for the citizen" JUSTICE-Social, Economic and Political"
has been mentioned before the rest.7


The nature and concept of independence of judiciary is of modern origin and accepted as a hall-mark of
a liberal democratic state". Independence of judiciary means a fair and neutral judicial system of a country,
which can afford to take its decision without any interference of executive or legislative branch of government.
In other words, judges should be independent and free from restrictions, inducement, influence, pressures and
threats direct or indirect from executive or legislative. Not only this, judges must be independent and free of
their colleagues and superiors in discharge of their judicial functions. 8

The term 'independence' is not defined in the Constitution of India. Hence, for a proper comprehension
of the meaning of the term 'independence' it is necessary, first to examine its dictionary meaning and then its
legal meaning. A dictionary meaning ascribes to it, "the state of being not dependent on another persons or
things for support or supplies".9 In a literal sense, independence means absence of external control or support.10
In other words, it signifies something that it is not dependent on or controlled by any other agency or authority.

(S.B., Sinha, Judicial Independence, Fiscal Autonomy and Accountability, Nyaya Deep, January 2006, p. 21.)
(S.B., Sinha, Judicial Independence, Fiscal Autonomy and Accountability, Nyaya Deep, January 2006, p. 22.)
( Subhojit Sadhu, Judicial Accountability of the Indian Judiciary, Supreme Court Journal, July 2007, p.27.)
( Nidhi Bansal, Accountability and Justice Delivery System of Judiciary- An Analysis, Kurukshetra Law Journal, 2001-2006, p. 102.)
( Nidhi Bansal, Accountability and Justice Delivery System of Judiciary- An Analysis, Kurukshetra Law Journal, 2001-2006, p. 102.)
(H.M., Seervai Constitutional Law of India, 147(1991).
(Preamble to the Constitution says- "We, the People of India having solemnly resolved to secure to all its citizens: JUSTICE, social,
economic and political; LIBERTY of thought ; EQUALITY of…. ; FRATERNITY….. ;)
Sunil Deshta, Independence and Accountability of Judiciary in India: Problems and Solutions, Orient Journal of Law and Social Science,
March 2009, Volume III, Issue 4, p. 49
Webster's Third New International Dictionary of the English Language, Volume II, Encyclopaedia Britanica Inn., London 1148(1966).
Oxford Advanced Learner's Dictionary of Current English, 432-433 (1987).
In legal parlance, independence of judiciary mean the power of upholding without fear or favour, the rule of
law, personal freedom and liberty, equality before law and impartial and effective judicial control over
administrative and executives actions of the government. 11

Substantive independence of the Judges refers to as:

(i) Functional or decisional independence which means the independence of judges to arrive at
their decisions without submitting to any inside or outside pressure;
(ii) Personal independence which means the judges are not dependent on government in any way
in which might influence them in reaching at decision in particulars cases;
(iii) Collective independence which means institutional administrative and financial independence
of judiciary as a whole vis-a-vis other branches of the government namely the executives and
the legislative ; and
(iv) Internal independence which means independence of judges from the judicial superiors and
colleagues. It refers to, in other words, independence of a judge or judicial officer from any
kind of order, indication or pressure from his judicial superiors and colleagues in deciding
cases. 12

Satisfactory implementation of these conditions enables the judiciary to perform its due role in the
society thus inviting public confidence in it. The independence of judiciary is not to be determined in all its
ramifications as some apriori concept but it has to be determined within the framework of the Constitution. The
thrust is to ensure that adjudication is untrammelled by external or controls and independence of judiciary under
the constitution is confined to the adjudicatory functions of the courts or Tribunals and they are insulated from
executives control in that behalf.13

In the celebrated decision of the Supreme Court in S.P. Gupta v. Union of India,14 the court held that
"the concept of independence of the judiciary is a notable concept which inspires the constitutional scheme and
constitutes the foundation on which the edifice of our democratic polity rests. If there is one principle which
runs through the entire fabric of Constitution, it is the principle of the rule of law under the Constitution; it is the
judiciary which is entrusted with the task of keeping every organ of the state within the limits of the law thereby
making the rule of law meaningful and effective".


The architects of the Indian Constitution were conscious of the very significant and special role
assigned to the judiciary in the scheme of the Constitution. It was envisaged as the organ for protecting the
rights of the citizens, guaranteed under the Constitution.15 There was the recognition that Judges, particularly the
judges of the superior courts, who have been given the power of judicial review of administrative and legislative
actions, should function without fear or favour and that the judiciary should remain totally independent and fully
insulated from any external interference.16 The judges of the superior courts have been confessed with the power
and jurisdiction to review both the executive actions and the legislative actions of the state on the touchstone of
the constitutional provisions and relevant statutory provisions.17

For the maintenance of the rule of law and fair judicial administration, an independent judiciary is of
utmost importance. Thus, independent judiciary plays an important role in controlling the arbitrary acts of the
administration. If the arbitrary act of the administration causes injury to any person, it provides relief to them.
Independence of judiciary is the sine qua non of democracy. Only an impartial and independent Judiciary can

L.M., Singhvi, Independence of Justice, Indian Bar Review, 1987, Volume 14, pp. 515-517.
Id at 49-50
Sunil Deshta, and Kamal Jeet Kaur; Sooch, Philosophy of Judicial Accountability: An Introspection, Civil and Military Law Journal,
April-June 2009, pp. 54-55.
1982(2) sec 831
Saisana Bhat, Right to Information v. Independence of the Judiciary; A Relook, Indian Bar Review, (4) 2012, Volume XXXIX, p. 188.
Id at 187
stand as a bulwark for the protection of the rights of the individual. The Judiciary is the protector of the rights of
the Constitution and, as such, it may have to strike down executive, administrative and legislative acts of the
Centre and the State. For Rule of Law to prevail, judicial independence is of prime necessity.18.

The Indian Constitution, unlike the Constitution of USA, expressly conferred power of judicial review
by Article 32 on the Supreme Court of India and Article 226 and 227 by the State High Courts. In 9th November,
1948, Dr. Ambedkar declared in the Constituent Assembly that Article 32 is the "soul" and "Conscience" of the
Constitution implying thereby that the rights given to the citizens remain nebulous without judicial remedy
which Article 32 does give remedy. Judicial review is sine qua non for the constitutional governance by the
organs of the State and its instrumentalities. Only an impartial and independent judiciary can stand as a bull
work for the protection of the rights of the citizens and mete out even handed justice without fear or favour. The
judiciary is the protector of the Constitution and guardian of the rights of the citizens. Therefore, it may even
strike down the Executive, Administrative actions or Legislative Acts as unconstitutional. For rule of law to
prevail judicial independence is of absolute necessity. 19

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

(i) To check the functioning of the Organs:

Judiciary acts as a watch dog by ensuring that all the organs of the state function within their
respective area and according to the provisions of the Constitution. Judiciary acts as a
guardian of the Constitution and also aid in securing the doctrine of separation of power.

(ii) 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 as 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.

(iii) 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 emphasized 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.

(iv) Institutional Independence:

Before the advent of democracy, sovereign powers encompassing Legislative, Executive and
Judicial functions, were exercised by a single authority. With the advent of democracy which
implies governance with the consent of the governed, the need for Written Constitution was
felt. The Constitution of India is modelled extensively on the Western Legal traditions
reflected in the Constitutions of the British, American and French nations. The wisdom and
intellectual foresightedness of the founding fathers of our Constitution under the chairmanship
of Dr. B.R. Ambedkar is evident from the fact that models they chose were of those Nations
where, in the words of the great Statesman and the miost outstanding President of U.S.A
Abraham Lincoln, the Rule of the People, by the People, for the People were the most

Supra n. 22 at 284
G.M. Manoher Rao, & G.B, Reddy Judiciary in India Constitutional Perspectives 272 (2009).
enduring and enlighting20 achievement of the State and where human rights and Rule of Law
had evolved as sacrosanct instruments of Nation Building.21


The judges are appointed by the President after consultation with judicial authority. 22 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 misbehaviour or incapacity. The President can remove a judge after an address presented to
him by each house of Parliament.23 The privileges, rights and allowances of the judges cannot be altered to their
disadvantages after appointment.24 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.25 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.26 The judges of the Supreme Court are
debarred from pleading after retirement before any Court or judicial authority in India.27 The conduct of the
judges of Supreme Court and High Courts in discharge of their duties shall not be discussed in legislature.28

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. 29 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. 30 So there is
the apprehension that Ministers may bring politics in the appointment of judges. The Constitution provides for
the transfer of a judge from one High Court to another High Court.31

Judicial independence is not a matter of compromise, it is the soul and inner strength of the judiciary,
which helps it in safeguarding the Fundamental Rights and civil liberties of the people against executive actions
and encroachment by other powerful groups. Only an impartial and independent judiciary can protect the rights
of the individual and provide equal justice without fear or favour. the judges should make them accountable and
ensure that their actions are transparent and within the parameters set by the Constitution. Independent judiciary
is a tributary of the doctrine of separation of powers for cooperation as well as co-ordination, in particular
amongst and between the organs of the Government.


There are different model of the judiciary in the world so that no single country can clear its judiciary is
perfect. There are some basic norms, which accepted by the international community through conferences,
symposium workshop etc. They are accepted as basic components of judicial independence, which are selection
or appointment, transfer, tenure, salary and privileges, security of office, process of removal etc. If these
components are fully incorporated in national law, judiciary will certainly be more independent. An independent
judiciary requires the following basic components:

Supra n. 30 at 15.
Id at XII
Articles 124(2), 127 of the Constitution of India.
Articles 124, 128 of the Constitution of India.
Articles 125, 221, 360 of the Constitution of India.
Articles 146, 229 of the Constitution of India.
Articles 146, 229 of the Constitution of India
Articles 124(7), 220 of the Constitution of India.
Articles 121, 211 of the Constitution of India.
Articles 124(2) of the Constitution of India.
Article 74 of the Constitution of India.
Article 222 of the Constitution of India.
(i) Adequate constitutional and legal provisions to insulate judges from legal pressures and
influence from non-judicial authorities,
(ii) Adequate physical infrastructure for discharge of judicial functions,
(iii) Well educated and well trained judges,
(iv) Well trained and component court staff,
(v) Secured and adequate resources for court administration and
(vi) Proper mechanism for disciplining judges and ensuring their accountability. 32


Adopted by 7th United Nations Congress on the Prevention of Crime and Treatment of Offenders held
at Milan from 26th August to September 1985 and endorsed by General Assembly resolution 40/32 of 29 th
November 1985 and 40/146 of 13 December 1985. These include:

(1) Legal authority:

The independence of judiciary should be guaranteed by the Constitution or law of the country. The
judiciary shall decide matters before them impartially based on facts and in accordance with the
law without any restrictions, improper influence, inducements, pressures, threat or interferences,
direct or indirect from any other quarter or for any reason. All issues of judicial nature must come
into the ambit of jurisdiction of the court.

(2) Freedom of expression and association

According to the Section 8 and 9 of the basic of the independence of judiciary freedom of
expression, belief, association and assembly of the members of the judiciary like other ordinary
citizens. The judge should exercise this freedom in such a manner as to preserve the dignity of
their office and the impartiality and independence of the judiciary. This freedom for the judge is to
promote their professional training and to protect their judicial independence.

(3) Qualification, selection and training

Persons selected for judicial office shall be individuals of integrity and ability with appropriate
training or qualification in law. Any method of judicial selection shall safeguard against judicial
appointments for improper motives. In the selection of judge, there shall be no discrimination
against a person on the grounds of race, colour, sex, religion, political and other opinion national
on social origin, property, birth or status, except that a requirement must be a national of the
country concerned, shall not be concerned discriminatory.

(4) Condition of service and tenure

The term of office of judge, their independence, security, adequate remuneration and conditions of
service, pensions and the age of retirement must be adequately secured by law. The tenure of the
judges except their voluntary retirement must be fixed by law. Promotion of judge must be based
on objective factor, in particular ability, integrity and experience. The promotion proceedings
should be in the initiation of the judiciary itself or of a board or commission where there is a
majority of judicial person. The judges should maintain profession secrecy and immunity in the
course of their duty.

(5) Discipline, suspension and removal

Judges have a right of fair hearing when a charge is against him. The examination of the matter at
its initial stage shall be kept confidential, unless otherwise requested by the judge. All disciplinary,
suspension or removal proceedings shall be determined in accordance with established standards
of judicial conduct.

Dr. J.P. Tripathi: Judicial Process, edition 2013, p. 400
(6) Transfer of Judge
Improper transfer of the judge may affect the independence of the judiciary though timely transfer
is essential sometimes for fair and impartial justice. Judge must not be transferred by the executive
from one jurisdiction or function to another without their consent, but when a transfer is in
pursuance of an uniform policy formulated by the executive after due consolation with the
judiciary, such consent shall not be unreasonably with held by an individual judge.

(7) Autonomy
Unless there is a judicial autonomy, there can be no judicial independence. Judicial autonomy has
various dimensions i.e. financial autonomy, administrative autonomy and rule-making autonomy.
Financial autonomy includes the self-regulatory right of the judiciary for its annual budget. The
judiciary must have right to submit its budget directly to the Legislature. It must be able to allocate
its budget internally within the judiciary. Administrative autonomy means right to regular
organizational structure, improvement of its staffing and remuneration system, filling up of
positions, disciplinary actions of the employers subject to the personal management policies and
civil service rules.

The Constitution of India focuses on the individual independence of the judge. Fundamental freedom
of the judge is the means to protect the judicial independence but the Constitution has not spoken about the
freedom of expression and association of the judges. Some of internationally recognized principles have been
incorporated in our Constitution but basic principles i.e. judicial autonomy, freedom of expression and
association, professional immunity are not incorporated. Our judiciary lack functional immunity to determine
jurisdiction of the court, selecting its support staff. Another issue concerning is the financial independence of
judiciary which is a must for the independent judiciary. 33


The general concept of Judicial Independence is that a judge should be free from any pressure from the
government or anyone else as to how to decide any particular case; for that reason, a judge’s salary is not
dependent on the Executive decision and his conditions of service are secured and not to be varied at the whim
of the Executive.

Things have changed in the recent past, particularly in the last 20 years. There has been a great upsurge
in crime and criminal litigation, and equally in the number of civil disputes. To meet these challenges there has
to be a large increase in the number of judges, court, court staffs and other infrastructure. But no such increase
has been made. Even in the existing courts, the working conditions in most of them are unsatisfactory. The
courts do not have financial independence, since finance falls under the Executive control. The judges are not
given proper training either at the induction level or periodical refresher courses. 34

These deficiencies are indeed, subtle threat to the Independence of Judicial Systems. The independence
of legal system depends upon the manner in which the system is operated, and how judges are provided for:
“……The service condition of the judges should not be linked to those of the Executive and the service
conditions of the judges have to be revised to meet the special needs of the judicial service…..” The Judicial
Officers throughout the country perform the work of the same nature and, therefore, their service conditions
have to be uniformed and it should be examined by separate Commission and the State should not make a
grievance if their service conditions are improved……” “The exertion involved in the duties of the Judge cannot
be compared with the duties of other services and the judicial service by its very nature stand on a different
footing and should be treated as such” 35

Dr. J.P. Tripathi: Judicial Process, edition 2013, p. 400- 403
Id at 403-404
Id at 404
The other aspect relates to the public criticism regarding the functioning of judiciary. The public
criticism includes among others, the delay in disposal of cases: unsatisfactory judgments and creeping
corruption in some quarters. The judiciary cannot afford to be indifferent to these criticisms. The cost of
providing justice is like other calls on the public revenues. All persons and departments who utilize the public
revenue are accountable to the public. The judges cannot be an exception to this recognized principle. They are
equally accountable for their acts and omissions both on the Bench and off the Bench. It is therefore, necessary
for the judges, individually and collectively, to ensure that no criticism is levelled against them or against the

“Misbehaviour by any Judge, whether it takes place on the Bench or off the Bench, undermines public
confidence in the administration of justice and also damage public respect for the law of the land, if nothing is
seen to be done about it, the damage goes unrepaired.”37

According to a new Transparency International Report: Corruption undermines judicial systems

worldwide, released on 25-5-07, the majority of people in nearly all Southeast European countries consider their
judicial and legal system corrupt. “When courts are corrupted by the greed or political expediency, the scales of
justice are tipped, and ordinary people suffer. Judicial corruption means the voice of the innocent goes unheard,
while the guilty act with impunity.” 38

Global Corruption Report 2007: Corruption in Judicial Systems distinguishes two categories of judicial

(i) Political interference by the legislative or executive branch, and

(ii) Bribery.

According to the survey conducted between June and September 2006, the group said that the majority
of respondents in 33 of the 62 countries poll described their national judiciary and legal system as corrupt. 39

Former Chief Justice of Supreme Court, J. S. Verma said regarding the accountability of the judges,
“there is no point in saying that there is no corruption in the judiciary. No one is going to say it is much less
accepted. One cannot go on sweeping it under the carpet and not accept it to show”….. “When moral sanction
does not work, then legal sanction is required.” Justice Verma said that accountability of judiciary is a key to its
independence. “Judicial independence means independence from your own infirmities. Latent dangers are more
lethal. Unless you have fearless and independent judges, judicial independence is a myth….. If in a court of 20,
there are 2 judges whose integrity for good reason is doubtful, I think it is a very serious threat” 40

‘In most present day Western political systems, the authority of Government institutions is no longer
self-evident. The role of modern judiciaries has changed over the years; its bearing and weight as a law maker
has increase vis-à-vis the administration and the Legislature due to the growing complexity of society. The
original legitimization of judicial action lies in the independent role of judge as an arbiter operating under the
rule of law, judging conflicts, supervising and reviewing State actions, this new judiciary is activist, with new
responsibilities in the field of law making and even policy making. New judiciaries like this, partly performing
on the political platform, can no longer be totally shielded by judicial independence from public control and
public accountability. If we want the rule of law values to be effective in a new setting, new forms of control
and accountability for the judiciary may be warranted. Transparency, openness, a more efficient delivery of
justice, and new forms of interaction between politics and judiciary are the modern buzzwords in debates on the
accountability and legitimacy of non-elected organisations.41

Dr. J.P. Tripathi: Judicial Process, edition 2013, p. 406
Id at 407
Supra note 36
According to the Charter of the United Nations, the people of the world affirm, inter alia, their
determination to establish conditions under which justice can be maintained to achieve international co-
operation in promoting and encouraging respect for human rights and fundamental freedom without any
discrimination. Whereas Universal Declaration of Human Rights enshrines in particular the principles of
equality before the law, of the presumption of innocence and of the right to a fair and public hearing by a
competent, independent and impartial tribunal established by law. International Covenant on Economic and
Cultural Rights and on Civil and Political Rights both guarantee the exercise of those rights, and addition, the
Covenant on Civil and Political Rights further guarantees the right to be tried without undue delay. The sixth
United Nations Congress on Prevention of Crime and the Treatment of Offenders, by its Resolution 16, called
upon the Committee on Crime Prevention and Control to include among its priorities the elaboration of
guidelines relating to the independence of judges and the selection, professional training and the status of judges
and the prosecutors.42

The Law Commission in its XIV Report stated that “the Supreme Court Judges should look forward to
other Government employment after their retirement. The government is a party in a large number of cases in
the highest court and average citizen may well get the impression that a Judge, who might look forward to being
employed by the government after his retirement, does not bring to bear on his work that detachment of outlook
which is expected of a Judge in case in which Government is a party. We are clearly of the view that the practice
has a tendency to affect the independence of the Judges and should be discontinued.” 43


In order to make judiciary more independence in the judiciary and to ensure fair and impartial justice is
delivered, some suggestions may be noted:

(1) State should provide adequate resource for the due administration of justice. The judiciary should
be allocated a fixed percentage of the national budget by law.
(2) The provisions of appointment of ad hoc and additional judge and the chief justice assigned to
another work than his regular job are against the international standards of independent judiciary.
So, it should be revised in the constitutional provisions.
(3) State should provide reasonable remuneration and other privileges for the judge and it would be
subject to periodic change.
(4) Judges must have guaranteed tenure until retirement of the expiration of their term of office: no
fresh engagement under government thereafter.
(5) The Constitution should provide the judges immunity from all risks that come in the course of
carrying the official duty.
(6) The composition of judicial council must be redesigned by the majority members of the judiciary.
(7) The process of appointment of the judges should be transparent.
(8) The judges must be accountable and responsible. 44


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 especially in relation to the appointment and 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 to 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. If the constitutional authorities and the executives have the interest of the judiciary at heart, there
can be no difficulty in ensuring that best possible persons are appointed to the high office of Supreme Court or

Id at 408-409
Id at 540
Id at 410-411
High Courts. An independent judiciary can keep every organ of the State or other constitutional and non-
constitutional bodies within their limits assigned to them and can prevent encroachment on the sphere of each
other. Thus, it prevents chaos and works for peace prosperity communal harmony and amity.