Independence of the Judiciary

Independence of Judiciary


There have been occurrences since long where we see the public losing faith in the Legislature or the Executive but now, we can witness the public losing faith in its judiciary. In the words of DR. B. R. Ambedkar, such days can be considered as ‘evil days’. It is evident that the judiciary acts as a guardian of human rights and civil liberties. The judiciary holds the power to uphold the constitution and maintain its dignity. In the days of corruption and disbelief, the judiciary is the only hope. In the past, the problem was very few people were courageous enough to bring their matters to the court and the reason for this resistance was a shame but now the reason is doubt in the functioning of the judiciary. It is to remember that the Courts are not only Courts of law they are also the Courts of justice.

Indian judiciary and Separation of power

In India, we do not practice Separation of Power but believe in coexistence. The framers of the constitution realised the importance of the judiciary while laying down powers of centre and state government. They saw an independent judiciary as key to resolve the problems that may arise among the governments or among citizens and the government. It acts as an interpreter of the constitution and shall find out solutions and establish peace with justice.

Such important tasks seek no interference in the working of the judiciary but that is not the case in India. Under Article 124(2) the president appoints the judges after the consultation with judicial authority. As we just saw the appointment of judges is in the hands of the President so is the impeachment. President can remove a judge on the grounds of misbehaviour and incapacity under Article 124(4). The salary and other allowances are given from the consolidated fund of the centre or state respectively. Apart from this transfer of judges is also in the hands of the government and is an important factor in the impartial functioning of the judiciary.

Also Read: The Genesis and the Proliferation of Public Interest Litigation in India

Courts in India are divided into three levels starting from the lowest one, subordinate or district courts, High Courts, and then the Supreme Court. The apex court has the widest jurisdiction than other Federal courts. It also covers enforcement of fundamental rights and settlement of disputes among state and union governments in its original jurisdiction. It has the power of overruling any judgement by any other court or tribunal.

The topic of salaries and allowances given to the judiciary is not put up for a vote in the parliament. The Supreme Court judges are debarred from pleading after retirement before any Court or judicial authority in India. The constitution framers did establish an independent and impartial judiciary but this image has changed over time. Many instances throw light on the changes, which are mentioned in the next segment of the article.

Instances where independence of the judiciary was under threat

Until 1973 the senior-most judge of the Supreme Court was appointed as Chief Justice of India but on April 25, 1973, Justice A. N. Ray was appointed as CJI superseding three senior judges, Justice Shetal, Justice Hegde, and Justice Grover. This was done just after the delivery of judgement in the Fundamental Rights case. The other three senior judges resigned from the Supreme Court after such an act against them.

The Constitution of India provides that a High Court judge can be transferred to another High Court but put no limitations on the power of government even when they are abusing such power. During the emergency, 56 judges were shortlisted to transfer without their consent. Although 16 judges were transferred but this acted as a threat to other judges on the list. Out of 16 one judge, Justice S.H. Sheth of Gujarat High Court, came forward to file a writ petition against the Union government.

Read: Custodial Torture

In Union of India vs Sankal Chand Himatlal Sheth[1], also known as Sankal Chand’s Case, Supreme Court by majority held that there was no need for prior consent to transfer a judge. However, Justice Bhagwati and Justice Untawalia differed and said that the transfer of judges without consent impedes the independence of the judiciary. Also, they discussed the term ‘consultation’ in this case and the apex court said that the Government can ignore the advice of legal experts. In this case, the Court ruled in favour of loosening the independence of the judiciary itself.

Also Read: The Search for balance between Judicial Accountability and Judicial Independence in the Indian context

Justice Khanna, the senior-most judge, was suspended because of his decision in the Additional District Magistrate v. S. S. Shukla[2] case, under Indira Gandhi Government. This trend was followed by the suspension of Justice O. N. Vohra, Additional Judge of Delhi High Court, as he ruled against Mr. Sanjay Gandhi. In another case, Justice R. N. Aggarwal and Justice Rangrajan faced complications because of their judgments. Justice R. N. Aggarwal was promoted as an additional judge of Delhi High Court but could not face the chambers ever. Neither he was appointed there nor anywhere else. After many days of waiting, he was reverted back as Session Judge. Justice Rangrajan was transferred to Assam High Court.

In addition to these problems, there is one more aspect which forces judges to resign from their posts. The salaries and allowances received by judges sometimes fall short and there is no time scheduled in the constitution to review this matter. After 37 years salary and other benefits given to judges were revised by the government.

Cases where the judiciary exercised its power

There are indeed many factors that hinder the autonomy of judges. Some unfortunate events show us how certain acts drive the decisions of judges. They have to manage both their existence as well as justice but sometimes to save other justice falls short. However, there are cases in which the Supreme Court and other courts have shown their power and gave their decision without the fear of repercussions.

One of such cases is the renowned case of Kesavananda Bharati vs State of Kerala And Anr[3]In this case, the Supreme Court held a firm decision and stood erect against the government to protect the basic structure of the constitution of India. It showed the meaning of safeguarding the constitution and proved that citizens can still hold faith in the judiciary. It is a landmark case that has even been referred to in many future cases.

In Indira Gandhi v. Raj Narain & Anr.[4], the Supreme Court held Indira Gandhi liable and also asked her to resign from the post of Prime Minister. It once again proved its sincerity towards the constitutional validity of all the laws which are brought up by any government.

Such instances and many more show us even though few problems are saying that the judiciary is not reliable would be wrong. Many long coming cases and cases against popular personalities have also seen the face of justice.

Check Out : Indira Gandhi v. Raj Narain & Anr.

Judicial review and judicial activism

The Judiciary must ensure that all the laws formed by any government should be following the Constitution of India. The concept of Judicial review highlights the power of the judiciary to state any law unconstitutional in case it violates the essence of the Constitution. As DR. B.R. Ambedkar said that in case the constitution is misused he would be the first person to burn the whole thing up. To avoid such situations, courts need to focus on judicial review with utmost sincerity.

Another concept is Judicial Activism, judiciary uses this concept to set aside the government’s acts. As mentioned earlier, we do not follow Separation of Power in India and we have seen how it resulted in the legislature hindering the work of Judiciary but vice versa is also possible. By Judicial Activism, Judiciary functions certain activities which are under the duties of the legislature.

Also Check : VIRTUAL COURTS- A way forward?


India has come a long way since independence and has seen the misuse of power in many forms but misuse of power which leads to the dependency on the judiciary is not affordable. Judiciary is the only weapon in the hands of the citizens and the death of independence of the judiciary leads to the death of democracy. The public can exercise its power as promised under democracy only when they have the support of the judiciary. If Judiciary cannot protect the citizens then the country has started its journey towards darkness.


Written by Rudrakshi Sharma

(Writer, The Legal State)

Edited by Aaditi Rohilla




[1] Union of India vs SankalChand Himatlal Sheth 1977 AIR 2328, 1978 SCR (1) 423

[2] Additional District Magistrate vs S. S. Shukla 1976 AIR 1207, 1976 SCR 172

[3] Kesavananda Bharati vs State of Kerala And Anr W.P.(C) 135 OF 1970

[4]  Indira Gandhi v. Raj Narain & Anr.975 AIR 2299 = 1976 (2) SCR 347 = 1975 Suppl. SCC 1 Civil Appeals Nos. 887 and 909 of 1975

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