Independence of the judiciary

Also called: Independent judiciary, Judicial independence · Topic: Judiciary: Independence, Structure, Judicial Review and Activism · NCERT: Class 7, Ch 9 "From the Rulers to the Ruled: Types of Governments"; Class 7, Ch 10 "The Constitution of India: An Introduction"; Class 7, Ch 6 "The State, the Government, and You"; Class 8, Ch 6 "The Parliamentary System: Legislature and Executive"; Class 9, Ch 6 "Democracy"; Class 11, Ch 1 "Constitution: Why and How?"; Class 11, Ch 6 "Judiciary"

Meaning

Independence of the judiciary means judges can decide cases freely and fairly. The government, the legislature or powerful people cannot put pressure on them, and judges decide "without fear or favour". The Constitution protects this freedom with rules on how judges are appointed, how long they serve, how they are paid and how they can be removed.

It matters because only a free judiciary can uphold the rule of law (the same law applies to everyone, including the government). It is also what lets courts protect the rights of small groups against a powerful majority.

Explanation

Why judges must be free

• A neutral referee is needed. People, groups and citizens all have disputes, including disputes with the government. A court that depends on the government cannot judge the government fairly.
• Three jobs of the judiciary (Class 11):
• it protects rights;
• it settles disputes according to law;

• it stops democracy from turning into the rule of one person or one group.

• Watchdog role (Class 7). The courts protect laws, explain laws whose words are unclear, protect rights and guard the Constitution through judicial review (the court's power to strike down a law or government action that goes against the Constitution).

• Counter-majoritarian role. This means the courts protect small groups from "the dominance of the majority". An elected majority cannot fairly judge the rights of minorities.

The three tests (Class 11)

1. The legislature and executive must not restrain the judiciary in a way that stops it from doing justice.
2. The other organs of government must not interfere with its decisions.
3. Judges must decide without fear or favour.

The six safeguards

• Appointment kept out of politics. The legislature has no role in appointing judges, and appointment depends on legal qualifications, not political loyalty.
• Security of tenure. This means a judge cannot be removed at the government's wish.
• A judge keeps the job until retirement age: 65 for the Supreme Court and 62 for High Courts.

• Removal is possible only through a very hard special procedure.

• Financial security. Judges' salaries are charged expenditure (spending Parliament can discuss but cannot vote on). Their pay and benefits cannot be cut after appointment.

• No discussion of judges' conduct in legislatures. This protects judges from political attack on the floor of a House.
• Contempt power. The courts can punish contempt of court (disobeying a court's order, or acting in a way that lowers the court's authority).
• Bar on practice after retirement. A retired judge must not appear as a lawyer before former colleagues and gain from that link.

Removal procedure, step by step (Art. 124(4))

1. Motion. A motion is moved in a House of Parliament. The only grounds are proved misbehaviour or incapacity.
2. Special majority in each House. Each House passes an address with a majority of its total membership and at least two-thirds of the members present and voting. [4]
3. President's order. The President then orders the removal.

Limits: independence is not arbitrariness

• Arbitrariness means acting on personal whim. Judges are not free to do that.
• Judges stay accountable to the Constitution, to democratic traditions and to the people.
• Real-life limits on a judge (NCERT classroom debate):
• the Constitution;
• precedent (earlier court decisions that guide later cases);
• laws made by the legislature;
• public opinion and the media;
• limited time and staff;
• fear of the executive.

In the Constitution and practice

• Art. 50 (a Directive Principle of State Policy): "The State shall take steps to separate the judiciary from the executive in the public services of the State." [3]
• It was Draft Article 39-A and was adopted on 25 November 1948. [3]
• The draft first had a three-year deadline. The Assembly removed it because Directive Principles set broad goals, not timetables. [3]

• The demand went back to the 1885 Congress session. Under colonial rule, the same officials often held both executive and judicial power. [3]

• Appointment, Art. 124(2): the President appoints Supreme Court judges "by warrant under his hand and seal after consultation with" the judges the President thinks necessary. [4]

• Dr B.R. Ambedkar said this protected independence because neither the executive nor the legislature had full control over appointments. [4]
• Collegium (a group of senior judges that recommends appointments) began with the Second Judges case (1993).

• The 99th Amendment (2014) created the National Judicial Appointments Commission (NJAC). The Supreme Court struck it down in 2015.

• Tenure:

• Supreme Court judges retire at 65 (Art. 124(2)). [4] The Constituent Assembly chose 65 on 24 May 1949. Members had proposed ages from 60 to 68. [4]

• High Court judges retire at 62 (Art. 217). The age was raised from 60 by the 15th Amendment, 1963.

• Money:

• Supreme Court salaries are charged on the Consolidated Fund of India (CFI) under Art. 112(3)(d).
• High Court salaries are charged on the Consolidated Fund of the State under Art. 202(3)(d), but High Court pensions come from the CFI.
• The Supreme Court's office expenses are charged on the CFI under Art. 146(3).
• Art. 125(2) and Art. 221(2): privileges, allowances, leave and pension cannot be changed to a judge's disadvantage after appointment.
• Only exception: during a financial emergency, the President can order judges' salaries to be cut (Art. 360(4)(b)).

• Revised pay from 1 January 2016: Chief Justice of India ₹2,80,000 a month; Supreme Court judge ₹2,50,000; High Court judge ₹2,25,000. [2] The bill passed the Lok Sabha on 4 January 2018, and the Rajya Sabha was deemed to have passed it. [2]

• Legislatures cannot discuss judges' conduct:

• Art. 121: Parliament cannot discuss it, except on a motion to remove the judge.

• Art. 211: state legislatures cannot discuss it.

• Courts of record, Arts. 129 and 215: the Supreme Court and High Courts keep their judgments as permanent records and can punish contempt.

• After retirement:
• Art. 124(7): a retired Supreme Court judge cannot plead "in any court or before any authority within the territory of India". [4]

• Art. 220: a retired High Court judge can plead only in the Supreme Court and other High Courts, not in the court where they served.

• Independence in action:

• C.B. Muthamma v. Union of India (1979): a bench led by Justice V.R. Krishna Iyer struck down Indian Foreign Service rules that were unfair to women officers.

• Niyamgiri hills, Odisha (2013): the Supreme Court left the bauxite-mining decision to the local gram sabhas (village assemblies) of the Dongria Kondh, and they rejected the mining.

• Gap in the safeguards: the framers chose not to ban government jobs after retirement. [4] Retired judges now head tribunals and commissions, and some have become Governors. Former Chief Justice Ranjan Gogoi was nominated to the Rajya Sabha in 2020.

Don't confuse with

• Separation of powers: this divides work among the three organs (make, carry out, interpret laws). Independence of the judiciary is narrower. It protects judges from pressure by the other two organs.
• Judicial review: this is a power of the courts to strike down laws and actions. Independence is the condition that lets courts use that power without fear.
• Art. 50: it is a Directive Principle about separating the judiciary from the executive in the public services. It is not a Fundamental Right, and courts cannot enforce it directly.
• Judicial accountability: independence does not mean judges answer to no one. They remain bound by the Constitution, precedent and public trust.

Prelims Hooks

• Art. 124(4): removing a judge needs a majority of the total membership plus two-thirds of members present and voting, in each House, on grounds of proved misbehaviour or incapacity.
• Salary trap: Supreme Court salaries are charged under Art. 112(3)(d). High Court salaries are charged on the state fund under Art. 202(3)(d). But High Court pensions come from the CFI.
• Art. 360(4)(b) (financial emergency) is the only route to cutting judges' salaries. Otherwise Arts. 125(2) and 221(2) block any change to their disadvantage.
• Art. 121 bars Parliament from discussing a judge's conduct, except on a removal motion. Art. 211 applies the bar to state legislatures.
• Art. 124(7): a retired Supreme Court judge cannot plead in any court in India. Art. 220: a retired High Court judge can plead in the Supreme Court and other High Courts.
• 15th Amendment (1963) raised the High Court retirement age from 60 to 62. Art. 50 began as Draft Article 39-A and was adopted on 25 November 1948. [3]

Mains Points

• Independence and accountability must be balanced.
• Tenure, charged salaries and the bars in Arts. 121 and 211 protect judges from pressure.
• But "independence is not arbitrariness". Judges must still answer to the Constitution, precedent and public trust.

• This tension explains the debate over appointments: from the collegium (1993) to the NJAC (2014) and its strike-down (2015).

• Post-retirement jobs are the weakest safeguard.

• The framers allowed such jobs on purpose. [4]
• A judge hoping for a post as a tribunal head, a Governor or a Rajya Sabha member (Ranjan Gogoi, 2020) may be tempted to favour the government in cases before retiring.

• Possible reforms: a legal cooling-off period (a fixed gap after retirement before taking a government post), appointment to such posts by independent bodies, or a higher retirement age.

• The counter-majoritarian role is the strongest argument for independence. Muthamma (1979) and Niyamgiri (2013) show courts protecting women officers and tribal communities against powerful interests. Art. 50 also shows that Directive Principles depend on ordinary laws: magistrates were separated from the executive later, through legislation.

Related concepts

• Security of tenure of judges
• Financial security of judges
• Restriction on discussing judges' conduct in the legislature

Read more

• Why an independent judiciary: rule of law and its safeguards