Critically, examine the constitutional provisions which ensure the independent judiciary in India.

Question: Critically, examine the constitutional provisions which ensure the independent judiciary in India. [BJS 1980]

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Answer:

Independence of the judiciary means a fair and neutral judicial system of a country, which can take its decision without any interference of the executive or legislative branch of government. Judicial Independence is guaranteed in the constitution and cemented as part of the ‘Basic Structure of Constitution’ by the Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461 Judgment. The Judiciary keeps in check the executive and Legislature in accordance with the ‘principle of separation of powers’ derived from Article 13.

The constitution has made the following other provisions to ensure the independence of the judiciary:

1. Separation of judiciary from executive [Article 50]: States have been directed by the constitution through article 50 to take steps to separate the judiciary from the executive in the interest of public service of the State.
2. Parliament can extend but cannot curtain the jurisdiction and power of the Supreme Court [Article 138]: To work more effectively the Parliament may enhance the jurisdiction of the Supreme Court in civil cases, here the point to be noted that in all the provisions the Parliament an exceed, but cannot curtail the jurisdiction and power of the Supreme Court under article 138.
3. No discussion in Legislature on the conduct of Judges [Article 121]: No discussion can take place in Parliament or State Legislature with respect to the conduct of a judge of the Supreme Court in the discharge of his duties under article 121.
4. Power to punish for its contempt [Article 129 and 215]: The Supreme Court and the High Court have the power to punish any person for its contempt under article 129 and 215, this power is very essential for maintaining impartiality and independence of the Judiciary.
5. Judges of the Supreme Court are appointed by the Executive with the consultation of Legal experts [Art. 124(2)]: Executive cannot appoint the Judges without the consultation of the Judges of the Supreme Court.
6. Prohibition on practice after retirement [Article 124(7)]: Under the constitution, a retired Judge of the Supreme Court is prohibited to appear and plead in any court or before any authority within the territory of India.
7. Security of Tenure: The judges of the Supreme Court have the security of tenure and they cannot remove from office except by an order of the President by adopting the set procedure laid down in the constitution.
8. Salary of Judges fixed not subject to vote of Legislature: The salary and allowances of the judges of the Supreme Court are fixed by the constitution and being paid from Consolidated Fund of India. Salary cannot be altered.

The independence of the judiciary is one of the basic structures of the Indian Constitution. In S.P. Gupta v. Union of India (1993) 4 SCC 441, the Supreme Court held that the concept of independence of the judiciary is a notable concept that inspires the constitutional scheme and constitutes the foundation on which the edifice of our democratic polity rests. It is the judiciary that is entrusted with the task of keeping every organ of the state within the limits of the law thereby making the rule of law meaningful and effective.

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