Independence of Indian Judiciary:
The Constitution of India establishes an Independent Judiciary, which is a part of the basic structure of the Constitution of India.1 An Independent Judiciary is free from any dominance or control by the other two organs of the government, i.e. legislature and executive and it provides justice to everyone in accordance with the laws, without any prejudice. It provides proper safeguards for the fundamental rights enumerated under the Constitution.
– It prevents the misuse of powers by the legislature and executive.
– It protects the Fundamental rights of citizens.
– It serves as a foundation for rule of law and democracy.
To what extent is it Independent?
A Fearless and Independent judiciary is one of the main pillars of Indian democracy.2 Therefore, it is independent to a great extent, as mentioned hereunder:
1. It is the sole protector of the rights of citizens:
The judiciary is responsible for upholding the laws and enforcing the fundamental rights of citizens. Judiciary protects the Fundamental rights of citizens from the arbitrary action of the State.3 And it resolves the conflicts between the citizens and the State. Anyone can approach the court by appropriate proceedings whose fundamental rights have been violated and that person will be bestowed with a remedy by the judiciary.
2. It limits the powers of the Central and State Governments:
It is the solemn duty of the judiciary under the Constitution to determine what is the power conferred on each branch of the government, whether it is limited, what are the limits, and whether any action of that branch transgresses such limit.4 If the government exceeds the powers conferred on them by the Constitution, then judiciary will intervene and take the requisite action to protect and preserve our constitutional values and principles.
3. It determines reasonableness of restrictions imposed by the State:
The State can impose certain reasonable restrictions on the Fundamental Rights enshrined under Article 19 of the Constitution.5 These restrictions are specified under clause 2 to 6 of Article 19 of the Constitution. But, the judiciary is vested with the power to determine whether the restriction imposed adhere to the test of reasonableness and proportionality. If the restriction imposed is found to be arbitrary or of an excessive nature, then judiciary will protect the rights of citizens which is violated by such restriction.6
4. It is vested with the powers of judicial review:
The powers of judicial review are vested with the judiciary under Article 32 and 226 of the Constitution.7 Article 32 empowers the Supreme Court to review every law passed by the Parliament, and to declare it unconstitutional, if it violates the Fundamental Rights of any citizen. While even every High Court possess the same power under Article 226 of the Constitution.
5. It is vested with the powers to punish for contempt of itself:
The Judiciary is vested with the power to punish for contempt of itself. Article 129 of the Constitution confers this power to the Hon’ble Supreme Court, while Article 215 confers this power to every High Court.
6. It secures Independence of Judges:
A Judge of the Supreme Court, as well as a judge of the High Court, is constitutional machinery. And to enable the judge to effectively discharge his duties as a judge and to maintain the rule of law, the judge is made totally independent of the control and influence of the executive, as provided under Articles 124 or 217 of the Constitution. Thus, a Judge either of the High Court or of the Supreme Court is independent of the control of the executive while deciding cases between the parties including the Central Government and State Government, and is uninfluenced by the State in any manner whatsoever.8
7. The Judge of the Supreme Court or High Court can only be removed through a complex process of impeachment.
The executive can’t remove the judge from his office, except by taking recourse to procedure of impeachment as envisaged in Article 124(4) and (5) of the Constitution, which is the only mode of removal of a judge from his office on the ground of proved misbehavior or incapacity.9 Therefore, even the President can’t remove the judges of the Supreme Court or High Court, as it will do away with the independence of judiciary and will bring the judiciary under the control of the executive.
Why protect the ‘Independence of Judiciary’?
It is pivotal to protect the principle of Independence of Judiciary as it is vital for the establishment of real democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community. Even, it is the goal of the Preamble of the Constitution to secure Justice (social, economic and political) to all its citizens, thus it requires an independent and impartial judiciary so that the judges are free to decide honestly and impartially, in accordance with the laws and evidence, without any control, dominance or improper influence by anyone so as to ensure justice for everyone.
Factors which protects the ‘Independence of Judiciary’:
There are several factors which seek to protect the Independence of Indian judiciary, as enumerated hereunder:
1. Doctrine of Separation of Powers:
According to the Doctrine of Separation of Powers, the powers will be divided between three organs of the government, i.e., legislative, executive and judiciary. This ensures that the judiciary will be free from any control or dominance by the other two organs. And this doctrine is a part of the basic structure of the Constitution,10 thus it can’t be amended and it will preserve the independence of judiciary from other organs.
2. Doctrine of Rule of law:
Independence of the Judiciary is an essential attribute of rule of law, which is a basic feature of the Constitution which permeates the whole of the constitutional fabric and is an integral part of constitutional structure.11 Thus, in order to abide by the rule of law, it is essential to ensure the independence of the judiciary.
3. Doctrine of Basic structure:
The concept of Independence of Judiciary per se comes within the ambit of the basic structure of the Constitution.12 Thus it is beyond the scope of any amendability and hence the concept of Independence of judiciary will always be enshrined in the Indian constitution.
4. The Directive principle of separation of judiciary from executive:
Article 50 of the Constitution puts an obligation over the state to separate the judiciary from the executive. Therefore, even the directive principle of state policy, though not enforceable, yet advocates for the Independence of the Judiciary.
5. Certain other provisions of the Constitution:
According to the provisions of Article 121 and 211 of the Constitution, the legislatures are prohibited from discussing the conduct of a judge of the High Court or Supreme Court. Therefore, this also contributes to the strenuous task of protection of the Independence of judiciary.
The Constitution of India provides for an Independent and impartial judiciary, which is independent to a great extent and which ensures the maintenance of rule of law and the delivery of social justice to the vulnerable sections of the community and it also ensures that the judges are free from any control or dominance by anyone.
The principle of Independence of judiciary comes within the ambit of the basic structure of the Constitution, thus it can’t be amended or ousted even by way of a constitutional amendment. And despite this, there are several other factors which protect the principle of Independence of judiciary, which is the honour of the Indian constitution. Hence this principle will always be enshrined in the Constitution of India as a keystone of the Constitution of India.
However, it becomes pivotal that judiciary must always use this privilege in an affirmative way and ensure justice to everyone in accordance with the laws and in a reasonable time limit, as the justice delayed is justice denied and the judiciary must always adhere to the principles of natural justice, which will fulfill the true objectives of the Constitution behind establishing an Independent judiciary in India.
1 State of Bihar v. Bal Mukund Sah, 2000 (4) SCC 640; Kumar Padma Prasad v. Union of India, 1992 (2) SCC 428; All India Judges Association vs. Union of India, 2002 (4) SCC 247.
2 Court of its own Motion v. B.D. Kaushik, 1993 CriLJ 336.
3 Subhash Kashinath Mahajan v. The State of Maharashtra, AIR 2018 SC 1498.
4 K. Veeraswami v. Union of India, 1991 SCR (3) 189.
5 State of Madras v. V. G. Row, 1952 SCR 597.
6 Ghulam Nabi Azad v. Union of India, (2020) 1 MLJ 574.
7 Kihoto Hollohan v. Zachillhu, 1992 SCR (1) 686.
8 K. Veeraswami v. Union of India, 1991 SCR (3) 189.
10 Supreme Court (Advocates on Record) Assn. v. Union of India, (2016) 5 SCC 1.
11 Judicial Accountability v. Union of India, (1991) 4 SCC 699.
12 Kumar Padma Prasad v. Union of India, 1992 (2) SCC 428.
This article is authored by Vipul Pathak, Second-Year, B.A. LL.B, student at Center for Legal Studies-Gitarattan International Business School.