Constitutional Provisions that safeguard the Independence of Judiciary

The constitutional provisions that safeguard the independence of the judiciary

The independence of the Judiciary is an indispensable part of our democratic system of governance. Since the establishment of democratic forms of government in the world, it has been a demand by parties that the judiciary should be free from any types of pressure and pulls, both within the country as well as from international organizations. Demand for the independence of the judiciary has also got added importance in countries having written constitutions, where the government has been conferred with wide powers required for running the government.

In-country like India, where the government has to follow a welfare policy and has to make policies for the socio-economic development of the people, it is always a policy that the government may abuse political power. Independence of judiciary is thus required to maintain a balance between the interest of individuals and society. It is also a need of all leading democracies of the world like India and they emphasize this again and again. The genesis of judicial independence can be found in the theory of separation of power which lays down stress on judicial independence. The founding fathers of the Constitution, keeping democratic principles in mind, demarcated and delineated the powers of the three organs of the Government. The independence of the Judiciary is within India is determined within the framework of the Constitution of India and the Constitution of India provides a dignified and crucial position to the Judiciary in India. The constitutional ethos of an independent judiciary cannot be permitted to be diluted by acts and actions of implied intervention or undue interference by the executive in the impartial administration of justice, directly or indirectly.

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The existence of a fearless and independent Judicial System is found in the Constitutional structure of India. Democracy as mentioned in our Constitution proceeds on the fundamental postulate that the ultimate political sovereignty lies in the people of India. But people of India cannot exercise monitoring, controlling, disciplining, and take up various functions of the country in their own hands. According to Justice Krishna Iyer, the Judiciary has to draw a distinction between individual liberty and social control, thus following the objective of Justice which is deeply enshrined in the Preamble of our Constitution.

The Judicial System not only solves disputes between two or more individuals or two or more groups of people but also does justice in the controversies arising between individuals and states and States and States. This responsibility of Justice can be fulfilled by the Judicial System only when the country has an authoritative, independent, and impartial judiciary.  For the judiciary to be independent to serve the goals of the constitution, the Judges need to act fairly, reasonably, free of any fear and favor.

In the case of S.P.Gupta vs Union of India, the constitution bench of the Supreme Court held “Judges should be of stuff and tough fiber, unbending before power and must uphold the core principle of the rule of law which says Be you ever so high, the law is above you. This is the principle of independence of the judiciary which is important for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept, and delivery of social justice to the vulnerable sections of the community. It is this principle of independence of the judiciary which we should keep in mind while interpreting the relevant provisions of the Constitution.”


In 1993, the Constitution Bench of the Supreme Court held “Independence of Judiciary is the sine qua non of democracy. So long as the Judiciary remains truly distinct from both the Legislature and the Executive, the general power of the people can never be endangered from many quarters and there is no liberty if the power of judging is not separated from the legislative and the Executive powers.”

Separation of power is the basic feature of the constitution which is essentially the lifeline of our independent judicial system. This feature of the Constitution has also been mentioned by our Constitution makers numerous times. Dr. B.R.Ambedkar in his speech in the constituent assembly observed that “I do not think there is a dispute that there should be a separation between the executive and the judiciary and in fact, all the articles relating to the High Court as well as the Supreme Court have prominently kept that object in mind.”

The idea of separation of powers comes to light by deconstructing the failure of NJAC. There was a legislative body that brought amendments in the subject matter of the judiciary. This amendment received the assent of the President. But ultimately, the Supreme court successfully exercised its judicial independence to strike down what dictates their branch. It can be deduced that the judiciary is the only organ that has been able to assert its independence. But does it exercise this authority without failure?

In recent times, the independence of the Judiciary has been a matter of debate and a question that has been doing rounds is that whether the Indian judiciary is still independent anymore? Whether the judges have been successfully been able to provide justice to common citizens of India without any interference from the Executive or Legislature? Moreover, the post-retirement benefits to the judges strengthen the doubts in the minds of people. The nomination of Justice Ranjan Gogoi, to the Rajya Sabha, evoked a great amount of criticism from the opposition who termed it as ‘quid pro quo.’

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To maintain the independence of the judiciary, so that they can remain impartial to serve the constitutional goals, act fairly, reasonably, free of any fear or favor, it is important that there should be a certain cooling-off period between the retirement of judges and his next appointment on a certain post which will make sure that there were no political or executive involvements in the decision-making of the judge. The remuneration of judges, both in form of salary and pension should be increased so that they do not get involved in illegal activities for any monetary benefits.

Author: Yatharth Tripathi,
1st year, Faculty of Law, University of Delhi/ Student

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