DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

Final Project

SUBJCT: CONSTITUTION

TOPIC: Judicial Independence

Submitted To: Submitted By:

Mr. Atul Kumar Tiwari Mohd. Aamir
Ms. Ankita Yadav Siraj
Assistant Professor's Roll no. 81
Dr. RMLNLU, Lucknow Section: B
JUDICIAL INDEPENDENCE CONSTITUTIONAL LAW

ACKNOWLEDGEMENT

I would like to extend special thanks and gratitude to my teacher, Dr. Atul Kumar Tiwari and Ms.
Ankita Yadav who gave me this opportunity to work on Judicial Independence.

Id also like to convey my regards to Library Staff of my university for helping me out and
getting relevant material for me.

I would also like to thank my parents, mentors and well-wishers who have been a constant
support and have time and again reviewed my work and have provided their insights on the
matter.

- Mohd Aamir Siraj

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JUDICIAL INDEPENDENCE CONSTITUTIONAL LAW

TABLE OF CONTENTS

Introduction.................................................................................................3
Definition....4
Importance of Judicial Independence.6
What Judicial Independence Represents7
Need for the Independence of Judiciary.9
Conclusion.10
Bibliography..11

INTRODUCTION

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JUDICIAL INDEPENDENCE CONSTITUTIONAL LAW

Under the scheme of the Constitution, the final interpreter of the law is the court, not the
legislature or the executive. Judicial independence is, therefore, central to democracy because it
is the judiciary which helps the realization of the Rule of Law and protection of human rights.
But the concept of independence is a complex one which subsumes in it concepts like
impartiality, accountability, efficiency and respect for other institutions of governance. In this
regard, one has to distinguish individual independence from institutional independence,
adjudicative independence from administrative independence, as well as actual independence
from perceived independence. These relationships have to be factored in while appointing judges
to the higher judiciary. Admittedly, a judges personal independence is incomplete unless it is
accompanied by the institutional independence of the judicial branch. The idea of a separation of
powers is related to the latter aspect of independence.

The framers of the Indian Constitution at the time of framing of our constitution were concerned
about the kind of judiciary our country should have. This concern of the members of the
constituent assembly was responded by Dr. B.R. Ambedkar in the following words:

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

The question that arises at first instance in our minds is that what made the framers of our
constitution to be so much concerned about providing the separate entity to the judiciary and
making it competent.

DEFINITION
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JUDICIAL INDEPENDENCE CONSTITUTIONAL LAW

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

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) 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.

The final outcome them can be derived is that the independence of the judiciary as an institution
and the independence of the individual judges both have to go hand in hand as the independence
of the judiciary as an institution is not possible without the independence of the individual judges
and is the institution of the judiciary is not independent, there is no question of the independence
of the individual judges.

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JUDICIAL INDEPENDENCE CONSTITUTIONAL LAW

IMPORTANCE OF JUDICIAL INDEPENDENCE

Judicial independence plays 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.

TRANSPARENCY AND ITS OBEJECTIVE PROCESS

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The pool of eligible candidates for judicial selection is partly determined by the Constitution.
The Constitution does not speak about standards of integrity, propriety, competence,
independence, etc. as qualifications essential for judicial selection. Apparently, they are taken for
granted and left to the selectors to assess them by whatever means available to them. Collegium
judges say they know the qualities of the men and women practicing before them and no one else
can claim better knowledge about this. One may then ask how wrong appointments have been
made by the collegium judges; what the procedures they employed were to verify their
knowledge on attitudes and values of prospective candidates and how fair they were; what the
pool of candidates from among whom they made their selection was, whether it was fair to those
outside the pool, and whether they were still eligible. If these justifiable questions have to be
addressed in the selection process, there has to be a verifiable method of creating a pool of
eligible persons for consideration. The system of examination and interview employed in the
selection to the lower judiciary is perhaps not acceptable either to judges or to advocates. In the
circumstances, a transparent procedure is to prescribe the norms and standards expected of
candidates seeking to be appointed as judges and invite applications from them. Alternatively,
they can be nominated by retired judges, senior advocates, bar councils or bar associations, etc.,
testifying to their possession of qualifications prescribed. On receipt of applications, a system of
shortlisting based on comparative merit, again according to pre-determined norms and
procedures can follow to identify those who are meritorious. Both the original list of
applicants/nominees and those shortlisted along with their details can be posted on the website of
the court for a reasonable period to elicit objections, if any, from the government as well as the
public. There can be a technical committee of retired judges to shortlist the applications and to
respond to objections/grievances in the initial stage of selection. This part of the procedure
should be open to Right to Information Act queries as well.

WHAT JUDICIAL INDEPENDENCE REPRESENTS

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As judicial independence is both an individual and collective responsibility, it is important to

involve the full court in the selection, appointment and transfer processes of judges. Towards this
end, it is necessary to broad base the membership of the collegium. As most High Courts have
nearly 50 or more judges, and their numbers are increasing, it is not possible to have the entire
body of judges sitting in the collegium to deliberate on issues of appointments. At the same time,
it is not acceptable to have the Chief Justice and two or three of his senior colleagues only
deciding the issues which are of importance to the entire body of judges. As such, broad basing
the collegium by accommodating all judges on a rotational basis is something that has to be
evolved. It is possible to enlarge membership of the collegium in each High Court and Supreme
Court to a third of the total strength of the court. Such an enlarged body has possibilities of being
inclusive of women, minorities, Scheduled Castes and Scheduled Tribes, and therefore promotive
of the constitutional goal of social justice in judicial appointments as well. A third of members
can retire every two years thus bringing into the collegium fresh minds and wide representation.

It is difficult to accept the theory that all advocates selected through the processes prescribed will
turn out to be competent judges from the day they join the high bench. According to a study, it
takes five to 10 years for an advocate to transform himself/herself into becoming a competent
judge. The duration can possibly be reduced through institutionalized education and training.
This was the idea with which judicial academies have been established in various States and at
the national level. Unfortunately, the lack of trained judicial trainers and the absence of clear
policies on human resources management in the judiciary have led to a situation where the
development of the capabilities of individual judges has been neglected. The result is a poor
quality of judgments, an inordinate delay in the processing of cases and judges retiring without
delivering judgments on cases which they have heard. The trend has been a threat to institutional
independence and not addressed by the judiciary adequately. The collegium has to find a way to
assess the professional competence and productivity of the candidate at the time of appointment
and insist on training for those who are inadequately equipped to handle adjudicative tasks.

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The executive and legislative branches have to bring in immediate reforms that are essential to
supplement efforts at strengthening the collegium system. There must be a uniform age of
retirement for judges at all levels; it could be 65 or even 70. Of course, there must
simultaneously exist a system of weeding out the dead wood after the age of 50. What is the
rationale of retiring efficient judges at 62 or 65 when there is an inadequate supply of competent
judges to fill the vacancies?

In addition, the time for an All India Judicial Service has come and the government should
legislate for the purpose. Because of the Five Year Integrated LLB programme and the National
Law Schools experiment, the country now has a steady supply of bright young lawyers every
year to look after the legal services needs of the nation. They are technology savvy and are also
amenable to modern methods of adjudication, if trained suitably. Within 10 to 15 years of serving
the lower judiciary, they will acquire the expertise and the experience to fill in the expanding
needs of the higher judiciary. The difficulties of finding suitable candidates for the high courts
will disappear within a decade of establishing the All India Judicial Service.

Let the window of opportunity provided by the Supreme Court in looking at suitable procedures
for selecting judges be utilized to push for other structural changes necessary in order to give the
country a judicial system which will decide disputes competently, and in reasonable time and
expense.

NEED FOR THE INDEPENDENCE OF THE JUDICIARY

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

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

2. Interpreting the provisions of the constitution: It was well known to the framers of the
constitution that in future the ambiguity will arise with the provisions of the constitution so they
ensured that the judiciary must be independent and self-competent to interpret the provision of
the constitution in such a way to clear the ambiguity but such an interpretation must be unbiased
i.e. free from any pressure from any organs like executive. If the judiciary is not independent, the
other organs may pressurize the judiciary to interpret the provision of the constitution according
to them. Judiciary is given the job to interpret the constitution according to the constitutional
philosophy and the constitutional norms.

3. Disputes referred to the judiciary: It is expected of the Judiciary to deliver judicial justice and
not partial or committed justice. By committed justice we mean to say that when a judge
emphasizes on a particular aspect while giving justice and not considering all the aspects
involved in a particular situation. Similarly judiciary must act in an unbiased manner.

CONCLUSION

I conclude my project on saying that according to me Independence of judiciary is important for

the purpose of fair justice. There should be no interference by the legislature or the executive, in
the proceedings of the judiciary so that it may take a judgment that seems reasonably fair. In case
of intervention, there may be an element of bias on the part of the judges in taking a fair

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decision. It is difficult to suggest any other way to make the Indian courts more self-reliant and
keep them away from the influence of the other two organs.

But I would like to support my project by saying that it has an independent status in our country
as per the following points:

1) In the time when India got independence and the Supreme Court has given many
judgments against the government of the time from 1950 to the late 1980 and most of
them were regarded as a landmark judgment in our judicial system and it is till date
regarded as the base of Indian Judicial System.

BIBLIOGRAPHY

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1) http://hanumant.com/Judiciary.html
2) http://mulnivasiorganiser.bamcef.org/?p=482
3) http://en.wikipedia.org/wiki/Supreme_Court_of_India#cite_ref-6
4) http://www.publishyourarticles.org/knowledge-hub/political-science/what-are-the-powers-of-
supreme-court-of-india.html
5) http://www.importantindia.com/2146/independence-of-judiciary-in-indian-constitution/
6) http://www.thehindu.com/opinion/lead/a-way-to-judicial-independence/article7896653.ece
7) http://www.jurist.org/forum/2015/07/manoj-mate-judicial-independence.php

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