Dr.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

JURISPRUDENCE

PROJECT

SECURING THE INDEPENDENCE OF JUDICIARY- INDIAN

EXPERIENCE:ANALYSIS

SUBMITTE BY: SUBMITTED TO:

KAUMUDI UMRAO MR MANWENDRA TIWARI

BA LLB(H) ASSISTANT PROF(LAW)

V SEMESTER DR RML NLU

ENROLLMENT NO- 150101098

The framers of the Indian Constitution were very particular about keeping the Judiciary
independent and powerful and free from the control of the Legislature and the Executive. This is
because administration of justice has a special significance on the rights of an individual, and
needs to be protected from the influence of the executive as well as administrative functions.
Also, there was a need for neutral and impartial dispensation of justice, if the judgments were to
go against the Government. Hence, the Judiciary was kept independent to ensure the protection
of human rights, that is very essential for democracy. Otherwise if not kept kept independent
from the clutches of executive and legislature we will keep on facing disappointments like that in
ADM Jabalpur case. This concern of the members of the constituent assembly was responded by
Dr. B.R. Ambedkar in the following words:

“There can be no difference of opinion in the House that our judiciary must be both
independent of the executive and must also be competent in itself. And the question is how
these two objects can be secured”.

Judicial independence means the judges are independent to exercise their functions in an
unbiased manner. Judiciary derives its independence from the 'Doctrine of separation of powers'
that draws the boundaries for the functioning of the three organs of state : legislature, executive
and judiciary. Here judiciary acts as a watch dog and checks whether the executive and
legislature are functioning within their limits and are not encroaching one other. This task of
judiciary can not be carried out efficiently if judiciary is not independence in itself.
Independence of the judiciary is an important constitutional principle in a liberal democracy. In
indian context it is often reiteriated that the primacy of the judiciary is indispensable for its
independence as can be seen in the NJAC judgement. The honourable SC of india had brought
about a collegium system in the second judges case in 1993 where the primacy of the judiciary in
appointment process was introduced. It was furthered in the third judges case making it a
sacrosanct and permanent feature of the constitution. The primacy of judiciary is founded on the
principle that judges can best determine the capability, ability and competency of young aspiring
judges in a just, fair and transparent manner. Moreover in primacy they are free from political
pressures and extraneous considerations, making decisions without fear and favour.

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Independence of judiciary is vital and most essential component of true democracy. It ensures
faithful and unbiased discharge of duties by judges toward its citizen. Thereby our constitution
laid down some features to avoid interference by Executive and Legislature in appointment,
selection and transfer of judges. But resignation of Karnataka High Court judge because of his
transfer to Allahabad High Court and many past events related to transfer and appointment of
judges by collegium raised the question mark about the procedure and parameter that is being
followed by SC. National judicial appointment committee (NJAC) was a earlier move in
direction to introduce more transparent and standard way for appointment and transfer of judges.
But unfortunately it was struck down by SC because it infringes independence of Judicial
Review, which is basic structure of Indian constitution.

Current collegiums has certain inherited flaws that is-

1. Formation and selection of member judges in collegiums system itself is not transparent
2. Narrow representation by selected judges as member of collegium
3. Lack of transparent mechanism for promotion of judges
4. No specific guidelines for transfer
5. Lack of standard operating procedure that must be adhere wile transfer and promotion

Memorandum of Procedure(MOP) is ongoing move in direction to address aforesaid flaw but it

should also include independence of judiciary so that
1. The judges give their verdict without fear or favor.
2. Judge can pass impartial judgment.
3. To check the functioning of the organs
4. Interpreting the provisions of the constitution

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“Power tends to corrupt, and absolute power corrupts absolutely”

- Lord Acton

Whenever there is a mention of the independence of the judiciary, there is always a concern
about the latent dangers of the judicial independence and there arises the importance of Judicial
Accountability. Independence of judiciary should be balanced with transparency and
accountability provision so that true spirit of judiciary can be realized. Since the advent of Right
to Information Act, 2005 in our legal system, transparency has been the order of the day, with
citizens gaining access to a wide range of information and accountability to the policies and
actions of Public offices including those of the Central and State Governments and cases like
that of Subhash Chandra Agarwal case are more awareness spreading and an example of how
people cannot blindly follow and accept every facet under and in the name of judicial
independence,it clearly shows that some level of accountability and transparency is expected by
the people of the country from the guardians and protectors of their rights. It needs to be noted
here that judiciary is not an exception under RTI whose details like appointments, transfers or
complaints against judges are not covered under any exemptions in RTI. Personal details though
are exempted from RTI under Section 8 (1) (j). Certain institutions like RAW, CRPF, CISF etc.
are exempted from RTI for obvious reasons but judiciary doesn’t find place there.

The Judiciary has recently taken this a notch further with the Supreme Court collegium’s
decision to disclose the reasons for its recommendations.
• Transparency and Accountability in Transfer and appointment of Judges and the
Collegium/SC’s decision of the same are always a welcome move to ensure accountability with
the General Public.
• It will act as a check on malpractice and misconduct of Judges.
• Greater degree of care and caution in Appointments body expected.
• As Judges serve on Basis of “Good Behavior” and can be removed only on grounds of “Proven
Misbehavior or Incapacity”, this is a monumental change toward the accountability for the same.

The judiciary’s primary concern here is that its independence might be at stake if the details are
disclosed. Up to what extent information should be disclosed is also a matter of discussion as it
might damage the reputation of a person. There is an issue of threat to national security as well.
Sometimes, the details of appointments are also closely linked with personal details like medical

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conditions. Now, under these circumstances what should be disclosed and what not has to be
decided.

Does this step really serve the purpose of both simultaneously gaining faith in the eyes of people
where in the era of step forward like RTI where everyone wants transparency and also at the
same time an effective measure for the judiciary to adopt and also be independent and safeguard
itself. In my opininon this could not be the apt step to be taken at this point of time as-
• Appointment of judges or their transfer range from reasons from Past Experience, Seniority,
Reports of Intelligence Bureau- a detailed reason published on online sites can have many
drawbacks such as unwarranted media attention, false news etc.
• While appointing a Judge from a plethora of Practicing Advocates, questions and allegations
may be raised on grounds of Seniority, appearance in matters, efficiency of the appointed over
the others, leading to controversy.
• Invites question on appointments/transfers tarnishing the Image/Independence of Judiciary as
provided in the Constitution of India.
• Judges may be affected by External Factors such as Media Role play, Public opinion while
delivering judgment which may amount to decline in quality and fine thinking.

FINAL OUTCOME

The final outcome is that the importance of the independence of the judiciary was long ago
realized by the framers of the constitution which has been accepted by the courts by marking it
as the basic feature of the constitution. It is well known law has to change so as to meet to the
needs of the changing society. Similarly judicial independence has to be seen with the changing
dimension of the society. Judicial Accountability and Judicial Independence have to work hand
in hand to ensure the real purpose of setting up of the institution of judiciary.

A holistic and clear understanding of the concept of independence of judiciary also leads to the
conclusion that the destination of independence of judiciary, which has several milestones to be
crossed, can be reached only with the consistent and conscious efforts of all stakeholders. Legal
institutions play a pivotal role in the distribution of power and rights and in the overall
development of the country. They also underpin the forms and functions of other institutions that

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deliver public services and regulate market practices. But inequitable justice system may
perpetuate inequality traps. Therefore, building a more equitable justice system is very
important. The need of the hour is a Memorandum for Appointment as a part of the Collegium
system which will put in place a detailed procedure for appointment and transfer of Judges.
There is an immense burden on HC’s and SC in the form of Pending cases and judicial
appointments. If not anything else this will serve as a step forward in that sphere.

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