Constitutional Law- II

ORGANISATION AND INDEPENDENCE OF JUDICIARY

A final draft submitted in partial fulfillment of the course Constitutional law- II during the
Academic Session 2020-21, 6th Semester

SUBMITTED BY:
NAME: Rahul Kumar Barnwal
ROLL NO. 2033
BATCH: B.B.A. LLB
SUBMITTED TO:
Prof. Dr. Anirudh Prasad

CHANAKYA NATIONAL LAW UNIVERSITY

Nyaya Nagar, Mithapur, Patna

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DECLARATION
I hereby declare that the work reported in this Project Report entitled ―ORGANISATION AND
INDEPENDENCE OF JUDICIARY” submitted at CHANAKYA NATIONAL LAW UNIVERSITY,
PATNA, for the fulfillment of the B.B.A.LL.B. (Hons.) Course, is an authentic record of my work
carried out under the supervision of DR. ANIRUDH PRASAD. I have not submitted this work
elsewhere for any other degree or diploma.

I am fully responsible for the contents of my Project Report.

NAME:

SIGNATURE :

DATE :

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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ACKNOWLEDGEMENT

I would like to thank my faculty, Dr. Anirudh Prasad

whose guidance helped me a lot with structuring my project.

I owe the present accomplishment of my project to my friends, who helped me immensely with
materials throughout the project and without whom I couldn‘t have completed it in the present
way.

I would also like to extend my gratitude to my parents and all those unseen hands who helped me
out at every stage of my project.

Rahul Kumar Barnwal

ROLL NO. 2033

B.B.A. LLB.

6th semester

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Contents

1. INTRODUCTION:ORGANISATION OF JUDICIARY ....................................................... 5

AIMS & OBJECTIVES .................................................................................................................. 8

HYPOTHESIS ................................................................................................................................ 8

RESEARCH METHODOLOGY.................................................................................................... 8

LIMITATION OF THE STUDY ................................................................................................ 9

2. Judicial independence: Meaning and Method ....................................................................... 10

Methods for securing independence of judiciary ...................................................................... 11

Right to Information Act ........................................................................................................... 13

3. The principle of ―Independence of Judiciary‖ ....................................................................... 16

Recent controversies on judicial independence ........................................................................ 17

Establishment of National Judicial Appointments Commission ............................................... 19

99th Amendment and NJAC Act quashed by the Hon‘ble Supreme court ............................... 19

4. Need for judicial independence ............................................................................................. 20

4. CONCLUSION ..................................................................................................................... 22

BIBLIOGRAPHY ......................................................................................................................... 23

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1. INTRODUCTION:ORGANISATION OF JUDICIARY

The Supreme Court as the highest court of the country came into existence on the 26th January
1950, i.e. the date of commencement of the Constitution. Under the Constitution, the Supreme
Court is the highest court of civil and criminal appeal and is also vested with original and
advisory jurisdiction. In view of its importance to the working of constitutional system, the
Constitution itself has specified the jurisdiction and powers of the Supreme Court.

The Indian judicial system follows the common law system based on recorded judicial
precedents as inherited from the British colonial legacy. The court system of India comprises the
Supreme Court of India, the High Courts and subordinate courts at district, municipal and village
levels.

I. Hierarchy of courts

The Indian judiciary is divided into several levels in order to decentralize and address matters at
the grassroots levels. The basic structure is as follows:

1. Supreme Court: It is the Apex court of the country and was constituted on 28th January
1950. It is the highest court of appeal and enjoys both original suits and appeals of High Court
judgments. The Supreme Court is comprised of the Chief Justice of India and 25 other judges.
Articles 124-147 of the Constitution of India lay down the authority of the Supreme Court.

2. High Courts: High Courts are the highest judicial body at the State level. Article 214 lays
down the authority of High Courts. There are 25 High Courts in India. High Courts exercise civil
or criminal jurisdiction only if the subordinate courts in the State are not competent to try the
matters. High Courts may even take appeals from lower courts. High Court judges are appointed
by the President of India upon consultation with the Chief Justice of India, the Chief Justice of
the High Court and the Governor of the State.

3. District Courts: District Courts are established by the State Governments of India for every
district or group of districts based on the caseload and population density. District Courts are

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under the direct administration of High Courts and are bound by High Court judgments. Every
district generally has two kinds of courts:

a. Civil Courts

b. Criminal Courts

District Courts are presided over by District Judges. Additional District Judges and Assistant
District Judges may be appointed based on the caseload. Appeals against District Court
judgments lie in the High Court.

4. Lok Adalats/Village Courts: these are subordinate courts at the village level which provide a
system for alternate dispute resolution in villages.

5. Tribunals: the Constitution provides the government with the power to set up special
Tribunals for the administration of specific matters such as tax cases, land cases, consumer cases
etc.

Parliament is given the power to enlarge its jurisdiction or confer special jurisdiction. The salient
features of its jurisdiction and powers are:

1. Original jurisdiction for enforcement of fundamental rights under Article 32. Under this
Article any person (even non-citizens) can directly approach the highest court, to seek
enforcement of any of the fundamental rights guaranteed under the Constitution. Art. 32 finds its
place in the Chapter on Fundamental Rights — and is hence itself a fundamental right.

2. Exclusive jurisdiction to decide Centre-State and inter-State disputes.1

3. Appellate jurisdiction against judgements of High Courts on certificate by the High Court in
any case involving substantial question of law relating to interpretation of the provisions of the
Constitution2 and in any matter involving a substantial question of law.3

1
Article 131, Shaheen Welfare Association V. Union of India AIR 1996 SC Supplement 2957.
2
Article 132..
3
Article 133.

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4. Appellate jurisdiction against judgement in any criminal matter in which the High Court has
reversed an order of acquittal into one of conviction and has imposed death sentence, or the High
Court has withdrawn a case for trial and imposed death sentence or certified that the case is a fit
one to appeal to the Supreme Court.4

5. Appeal against any judgement, decree, determination, sentence or order of any court or
tribunal (final or interlocutory).5

6. Power to transfer cases pending in one High Court to another or to withdraw cases involving
similar questions and pending in more than one High Court and decide on such cases itself.6

7. Advisory jurisdiction to furnish opinion on important questions of law or fact on a reference

by the President.7

Articles 138 and 139 empower Parliament to make laws enlarging the jurisdiction of the
Supreme Court. Art. 141 provides that the law declared by the Supreme Court shall be binding
on all courts within the territory of India. Art. 144 provides that all the civil and judicial
authorities in India shall act in support of the Supreme Court. An analysis of the provisions
referred to above indicates that under the scheme of Constitution the Supreme Court is
constituted to function:

1. As the protector of the fundamental rights and liberties of the individuals in exercise of its
original as well as appellate jurisdiction.

2. As the ultimate authority to interpret and enforce the provisions of the Constitution and the
laws.

3. Final court of appeal in all matters constitutional, civil, criminal, revenue, etc., against
decisions and orders of all courts and tribunals in the country.

4. The sole tribunal to decide Centre-State and inter-State disputes;

4
Article 134, State of Maharashtra vs. Prabhakar Pandurang, AIR 1966 SC 424.
5
Article 136.
6
Article 139 A.
7
Article 143.

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5. To give opinions in an advisory capacity on important questions of law or fact on reference by

the President.

Thus the Supreme Court occupies a most vital and exalted position under the constitutional set-
up, entrusted with the power to interpret and finally decide on all matters and disputes pertaining
to the state, its various organs and the people of India. Further, its decision is binding on all
courts throughout India.

AIMS & OBJECTIVES

The researcher through this project work aims to:

 Gain greater knowledge of the Organisation of Judiciary.

 Find out the importance of independence of Judiciary.

HYPOTHESIS

The researcher is of the prior belief that

 There is an independence of Judiciary is fundamental for any Democracy.

RESEARCH METHODOLOGY

The researcher intends to adopt a doctrinal method of research for the purposes of this research
work. The doctrinal research methodology provides an ample scope to examine the existing
literature from both primary and non-primary sources.

SOURCES OF DATA

In order to complete the research study, the researcher will collect the material through various
primary and secondary sources of data.

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PRIMARY SOURCES such as the occasional policy papers of the State, statutes, commentaries,
case-law, juristic opinions, policy formulations of various governmental bodies, the reports
published by governmental, non-governmental and international organisations.

SECONDARY SOURCES reviewing the text books, existing literature on the area, the views
and perspectives of stake holders, policy makers and all other relevant sections of the society
which includes the efforts of charitable organizations, non-governmental organizations and
philanthropists.

LIMITATION OF THE STUDY

Since the researcher is a student of law, she has access to a limited area and knowledge. The
researcher having only a preliminary knowledge of CONSTITUTIONAL LAW could understand
the problem clearly but was faced with constraints.

The researcher has limited time for the project. The historical need and background is also
necessary for having a bird‘s eye view of the particular topic and it gets developed only by
effective and extended reading over a long period of time.

However the researcher only has access to limited amount of work that is available in the library.
The researcher has a restricted access to information and sources for reasons beyond her control.
But the researcher will still attempt to take out the best possible work.

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2. Judicial Independence: Meaning and Method

Before we discuss the concept of independence of judiciary in India, it is essential to explain

what is 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.
(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 provides for 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.8 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 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
8
HM Seervai, Constitution Law of India, 3rd Vol. II, page 2454.

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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.‖

Methods for securing independence of judiciary

Indian constitution tried to secure the independence of judiciary through the following methods:
(a) High Qualifications

Politics in the appointment of judges is tried to be 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 By offering high salaries the independence is tried to be maintained
as every judge is paid a high salary to maintain his status and dignity. 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.

(c) Security of tenure

The Judges of the Hon‘ble Supreme Court enjoy security of tenure. They cannot be removed
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

The Indian constitution prescribes the retiring age of a judge as 65 years which is considerable
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.

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(e) Oath to work fearlessly

Before joining of office, every judge has to take an oath to perform their duties fearlessly and to
uphold the constitution. The supersession of three judges and appointment of a junior judge as
Chief Justice raised the issue. Further a judge is expected to be very impartial.

(f) No practice after retirement

A retired judge of the court is prohibited from practising law before any court below the rank in
which he served as a judge however the constitution permits the appointment of a retired judge
for a specialized form of work by the government, for instance for conducting enquiries and
special investigations.

(g) Powers to make rules to regulate their procedure

The Hon‘ble Supreme Court is empowered 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 would
have been 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
Hon‘ble Supreme Court are made by the Chief Justice and the judges of the Hon‘ble Supreme
Court whom he may direct for the purpose. Their conditions of service also are determined by
the Hon‘ble Supreme Court.

(i) Denial of political office before or after retirement

The judges are not expected to hold political office after retirement otherwise it could be possible
that it may bring into danger the independence of judiciary.

(j) Immunities

The actions and decisions of the judges in their official capacity are immune from criticism.
However, they may, be subject to critical academic analysis. In order to maintain the dignity of

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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. Further, the court
authorized to stop any act that might prejudicially affect its arriving at an impartial and
independent decision.

The ―Judiciary should be above suspicion and should be above party influences.‖ Hence
judiciary should be appointed by the executive. Every judge of the Hon‘ble Supreme Court is
appointed by the president, after consultation with such of the judges of the Hon‘ble 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.

The Indian judiciary has seen the dark day of appointing a committed judge which is termed as
‗black day‘ in Indian judiciary where an elevation of a junior Judge namely Mr. A.N. Ray to the
post of Chief Justice of the Hon‘ble Supreme Court by superseding three judges viz., Messers
J.M. Shelat, K.S. Hegde and A.N. Grover. In this case three superseded judges gave 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
to the post of Chief Justice. In the opinion of distinguished lawyers and judicial luminaries, it
was very unfortunate action on the part of the executive since it impaired independence of
judiciary a great deal. It was criticised 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.

Right to Information Act

Hon‘ble Balakrishnan , 37th Chief Justice of Apex Court stated that 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 is not accepted by the
parliamentarians. Parliamentary Standing Committee presented the report to the Rajya Sabha on

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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. According to parliamentarian if
other constitutional functionaries are covered why not the judges be covered by it? Further it will
help in maintaining independence of judiciary as they will be accountable to the people of the
country as well. Of course judicial decisions are exempted from ‗RTI Act‘ because that could
have impaired right judgments. 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 Hon‘ble 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 are 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 activitism viz-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

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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. ‖ Considering the
case of super-session of senior judges, the Law Commission‘s recommended that seniority alone
may not be the criterion for elevation of a judge to the post of Chief Justice.

This concept of committed judiciary is dangerous which gives 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
Hon‘ble Supreme Court independent and impartial but still history suggests that attempts are
made to tamper with the judicial independence.

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3. The principle of “Independence of Judiciary”

The principle of ―Independence of Judiciary‖ is adopted by most democratic nations in the world
but the meaning of independence of the judiciary is not explained anywhere. Our constitution by
way of incorporating the provisions provide for judicial independence but it has not been defined
as to what actually constitutes judicial independence.9 The constitutional provisions which
ensure the independence of judiciary in India are:-

1. Article 50 mentioned under the Directive Principles of State Policy provides for the
provision for separation of judiciary from executive. It states that ―The State shall take
steps to separate the judiciary from the executive in the public services of the State.‖ The
object behind the Directive Principle is to secure the independence of the judiciary from
the executive.
2. Art. 211 of the constitution states that ―No discussion shall take place in the legislature of
a state with respect to the conduct of any Judge of the Hon‘ble Supreme Court or of a
High Court in the discharge of his duties.‖ In the same way provision made in Art. 121
states that ―No discussion shall take place in parliament with respect to the conduct of
any Judge of the Hon‘ble Supreme Court or of a High Court in the discharge of his duties
except upon a motion for presenting an address to the president praying for the removal
of the Judge.‖ Thus, the constitution of India separates the Hon‘ble Supreme Court and
the High Court‘s from political criticism, and thus accords their independence from
political pressures and influence.10
3. Article 129 provides the Hon‘ble Supreme Court the power to punish for contempt of
itself. Similarly, Article 215 provides every High Court the power to punish for contempt
of itself.
4. Article 125 speaks about the salaries of the judges. The salaries and allowances of the
judges are one of the factors which show that judges are independent as their salaries and

9
B Shiva Rao, The Framing of India‘s Constitution. A Study, Page 483; N A Palkhiwala, ‗A Judiciary Made to
Measures‘. In: Kuldip Nayyar, ed; Supersession of Judges New Delhi, 1973, Page 22.
10
. B Shiva Rao, The Framing of India‘s Constitution, Select Documents, Vol. IV Page 194;Kuldip Nayyar ed.
Supersession of Judges, New Delhi, Indian Book Company,1973, Page 38. 4. Id at page 32. 5. Id at pp 16-17. 6.

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allowances are fixed. The salaries of judges of the Hon‘ble Supreme Court and High
Court are paid from the Consolidated Fund of India and states respectively.

Article 125(1) states that ―There shall be paid to the Judges of the Supreme Court such
salaries as may be determined by parliament by law and, until provision in that behalf is
so made, such salaries as are specified in the Second Schedule.‖And Article 125(2) states
―Every Judge shall be entitled to such privileges and allowances and to such rights in
respect of leave of absence and pension as may from time to time be determined by or
under law made by parliament and, until so determined, to such privileges, allowances
and rights as are specified in the Second Schedule: Provided that neither the privileges
nor the allowances of a judge nor his rights in respect of leave of absence or pension shall
be varied to his disadvantage after his appointment.‖

Article 124(2) states that the retirement age of a Supreme Court Judge is 65 years
whereas Article 217(1) mentions that the retirement age of a High Court Judge is 62
years .In addition, Article 124(4) runs as ―A Judge of the Supreme Court shall not be
removed from his office except by an order of the president passed after an address by
each house of parliament supported by a majority of the total membership of that house
and by a majority of not less than two-thirds of the members of the house present and
voting has been presented to the president in the same session for such removal on the
ground of proved misbehaviour or incapacity.‖

5. Article 138 (1) states that the powers of the Hon‘ble Supreme Court cannot be taken
away by the parliament. Parliament can only add to the powers andjurisdiction of the
Supreme Court but cannot curtail them, making the judiciary independent from
legislature.

Recent controversies on judicial independence

The issue of judicial independence has been raised in number of cases from Sakalchand to
National judicial appointment commission Bill. Recently there is a controversy on National
judicial appointment commission Bill which tried to change the settled collegiums system in case
of appointment of judges. The Hon‘ble Supreme Court of India's collegium system for

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appointment of judges to the nation's constitutional courts, has its origin in three of its own
judgments which are collectively known as the ‗Three Judges Cases ‘.Those three cases are:

1. S. P. Gupta v. Union of India - 19814 (also known as the Judges' Transfer case)11
2. Supreme Court Advocates-on Record Association vs Union of India5 – 199312.
3. In re Special Reference13

Over the course of these three cases, the court evolved the principle of judicial independence to
mean that no other branch of the state - including the legislature and the executive - would have
any say in the appointment of judges. The court created the collegium system, which has been in
use since the judgment in the Second Judges Case was issued in 1993.

If we peruse the whole Indian constitution, we won‘t find any mention of the collegium either in
the original constitution of India or in successive amendments. Though the creation of the
collegium system was viewed as controversial by legal scholars and jurists outside India, her
citizens, and notably, parliament and the executive, have done little to replace it.

The Third Judges Case of 1998 is not a case but an opinion delivered by the Hon‘ble Supreme
Court of India responding to a question of law regarding the collegium system, raised by then
president of India K. R. Narayanan, in July 1998 under his constitutional powers. Moreover, in
January 2013, the court dismissed on the ground of locus standi, a public interest litigation filed
by NGO Suraz India Trust which sought to challenge the collegium system of appointment.

In July 2013, Chief Justice of India P. Sathasivam spoke against any attempts to change the
collegium system. On the 5th of September, 2013, the Rajya Sabha passed The
Constitution(120th Amendment) bill, 2013, which amends articles 124(2) and 217(1) of the
Constitution of India, 1950 and establishes the Judicial Appointment Commission, on whose
recommendation the president would appoint judges to the higher judiciary.

The criticism about the new setup is that the government through the amendment seeks to
achieve is the composition of the judicial appointment commission, the responsibility of which
the amendment bill lays on the hands of the parliament to regulate by way of Acts, rules,
regulations etc. passed through the regular legislative process.
11
AIR 1982 SC 149
12
(1993) 4 SCC 441
13
1 of 1998

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Establishment of National Judicial Appointments Commission

The Lok Sabha and the Rajya Sabha, on 13 August 2014 and on 14 August 2014 respectively
passed the National Judicial Appointments Commission (NJAC) Bill, 2014 to scrap the
collegium system of appointment of Judges. The president of India gave his assent to the
National Judicial Appointments Commission Bill, 2014 on 31 December 2014, after which the
bill has been renamed as the National Judicial Appointments Commission Act, 2014.

99th Amendment and NJAC Act quashed by the Hon’ble Supreme court

On 16 October 2015, by a majority opinion of 4:1, the Hon‘ble Supreme Court struck down the
constitutional amendment and the NJAC Act restoring the twodecade old collegium system of
judges appointing judges in higher judiciary. The Hon‘ble Supreme Court declared that NJAC is
interfering with the autonomy of the judiciary by the executive which amounts to tampering of
the basic structure of the constitution where parliament is not empowered to change the basic
structure. However the Hon‘ble Supreme Court has acknowledged that the collegial system of
judges appointing judges is lacking transparency and credibility which would be rectified/
improved by the Judiciary.

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4. Need for judicial independence

The concept of ―Independence of the judiciary‖ is mainly based on the doctrine of ―Separation of
Powers‖. The doctrine speaks about the independence of the judiciary from the interference of
the executive and the legislature as the judiciary has got power to interpret the laws and render
judicial decisions; the independence of judges is necessary for its appropriate working as
sometimes it could happen that judges may be subjected to improper influence, inducement,
pressures, threats or interference by litigants or any other criminal elements of society.

The judiciary is the scale through which one can measure the actual development of the state. If
the judiciary is not independent then it is the first step towards a tyrannical form of government
i.e. power is concentrated in a single hand and if it is so then there is a cent percent chance of
misuse of power. Therefore, it is necessary to discuss what constitutes independence of judiciary.
The concept of independence of the judiciary may be defined as ―the independence of judges
from any external factors which interfere with the performance of their functions in an unbiased
manner.‖

So the independence of the judiciary can be considered as the independence of the institution and
also the independence of judges which forms a part of the judiciary. The constitution provided
immunities to judges to ensure judicial independence which is intended for the benefit of the
citizens and not for the fulfillment of their personal interests.

To sum up it may be said that these immunities provide unrestrained and boundless powers
which further may lead to the probability of arbitrary and unfair use of these constitutional
powers, privileges and immunities. But recently, it is called for better accountability from the
judiciary The independence of the judiciary is an important concomitant of the power of judicial
review under a democratic constitution.

The origin of judicial review without a specific provision under the American Constitution was
laid by Marshall, C.J. in 1803 in Marbury v. Madison; though much earlier in 1608 Lord Coke
opined it in Dr. Bonham‘s case. The Indian Constitution provides for judicial review under
Articles 13, 32, 136, 141, 142, 226 and 227 of the Indian constitution.

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It further recognizes it as a basic feature forming an indestructible part of the constitution of

India pursuant to the decision in Keshavananda Bharti ,. Part IV of the Indian constitution
provides for the directive principle of State policy in which Article 50 mandates separation of
judiciary from the executive in order to maintain its independence which is essential for its
function as the watchdog under the constitution.14

However, like every other organ of the state and every public institution in a democracy the
judiciary as an institution where every judge is a public functionary and is accountable to the
political sovereign—the People. The only difference lies in the form or nature of the mechanism
which is required to enforce their accountability.

To sum up, judicial accountability is a facet of the independence of the judiciary; and the
mechanism to enforce judicial accountability should also preserve the independence of the
judiciary. The rule of law is the base of democracy which will be adversely affected if the
independence of the judiciary is compromised by the erosion of the integrity of the judiciary.

14
Upendra Baxi ‘Supremed Politics’ and Rajeev Dhawan ‘Indian Supreme Court: Socio Legal Critique.

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4. CONCLUSION

In India the judiciary is relied upon by the citizen to solve many of their difficulties and therefore
consistent standards of accountability that give the Indian judiciary this strength are of utmost
importance. Lack of judicial accountability reduces the credibility of the judiciary whereas, an
accountable judicial institution can only lead to a stable political atmosphere as well as a far
more efficient system of governance.

However, it is also acknowledged that judicial accountability if stretched too far can seriously
hamper judicial independence and thus it is essential that we strike the right balance between the
two. The final outcome of the above discussions 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 one of the basic features of the constitution.

It is well known that law has to change so as to meet to the expectations of a changing society.
Similarly judicial independence too has to be seen keeping in mind the changing dimension of
society. Judicial Accountability and Judicial Independence have to work hand in hand
symbiotically to ensure that the real purpose for setting up of the institution of judiciary is
achieved.

Transparency is facilitated through the process of accountability. It is best achieved when one is
accountable to law. Thus, judicial accountability and judicial independence are two most
important aspects with the help of which the tension between two wings of the government i.e.
legislature and judiciary can be reduced as these two aspects help to facilitate the smooth
functioning of the government and prevents to create judicial autocracy.

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BIBLIOGRAPHY

 B Shiva Rao, The Framing of India‘s Constitution. A Study, Page 483. 2.

 B Shiva Rao, The Framing of India‘s Constitution, Select Documents, Vol. IV Page
194. 3.
 Kuldip Nayyar ed. Supersession of Judges, New Delhi, Indian Book Company,1973,
Page 38. 4. Id at page 32. 5. Id at pp 16-17. 6.
 N A Palkhiwala, ‗A Judiciary Made to Measures‘. In: Kuldip Nayyar, ed;
Supersession of Judges New Delhi, 1973, Page 22.
 Alladi Kuppuswami, ‗Some thoughts on Judicial Reforms.‘ Indian Bar Review Vol.
70,1983 Page 433.
 Government of India Report, 1987-88, P32, Ministry of Law, Justice and Company
Affairs.
 Govt of India, Annual Reports, 1988-89 page 29 and 1994-95, page 25 Ministry of
Law Justice, and Company affairs.
 Govt. Of India Annual Report 1988-89, page 29, 1992-93, page 23, 1993-94 page 27.
 Information supplied by Minister of State for Law and Justice in Parliament in reply
to unstarred question No. 1646 on 10th March 1988.
 LCJ, 14th Report on Reform of Judicial Administration, 1958. Pranjape N.V.,
Jurisprudence and Legal Theory, Central Law Agency, Ed. 6th (2011), pp 16 – 17.
 Upendra Baxi ‗Supremed Politics‘ and Rajeev Dhawan ‗Indian Supreme Court: Socio
Legal Critique

 Austin, J. (1832). The Province of Jurisprudence Determined. Ed. W.E. Rumble,

1995. Cambridge: Cambridge University Press

 Dworkin, R.M. (1978). Taking Rights Seriously. Cambridge MA: Harvard University
Press.

 Friedman, R. (1973). ―On the Concept of Authority in Political Philosophy,‖ in R.

Flathman, ed. Concepts in Social and Political Philosophy. New York: Macmillan.

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