Why an independent judiciary: rule of law and its safeguards

Detail

1. Why we need a judiciary

• Disputes need a neutral referee. People quarrel with each other. Groups quarrel with groups. Citizens also quarrel with the government. A neutral body must settle all of these.
• Rule of law means the same law applies to everyone: rich and poor, men and women, and every caste. Nobody is above the law, and that includes the government.
• Three jobs of the judiciary (Class 11):
• it protects rights;
• it settles disputes according to law;
• it stops democracy turning into the rule of one person or one group (a dictatorship).

2. The judiciary as 'watchdog' (Class 7)

• Four functions of the watchdog:
• protects and defends laws;
• interprets laws, which means it explains what a law means when the words are unclear;
• protects rights and liberty;

• guards the Constitution through judicial review. This is the court's power to strike down a law or a government action that goes against the Constitution.

• Counter-majoritarian role. This means it protects small groups from "the dominance of the majority".

• RWA delivery ban: a Residents' Welfare Association ban on certain workers is used as a classroom example. It shows how the courts' rule of equal rights can be invoked against a powerful local group.
• Dongria Kondh and the Niyamgiri hills (Odisha): in 2013 the Supreme Court did not decide the bauxite-mining question itself. It left the decision to the local gram sabhas (village assemblies). The gram sabhas rejected the mining.
• 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 biased against women. C.B. Muthamma was the first woman officer in the service. The rules had treated married women officers unfairly.

3. Judiciary inside checks and balances (Class 8)

• Separation of powers: the work of government is divided among three organs. The legislature makes laws, the executive carries them out, and the judiciary interprets them.
• Checks and balances: each organ keeps a watch on the others so that none becomes too powerful.
• The judiciary's checks:
• it tests laws made by the legislature against the Constitution;

• it tests executive action when laws are carried out.

• Article 50 (a Directive Principle of State Policy) says: "The State shall take steps to separate the judiciary from the executive in the public services of the State." [3]

• It began as Draft Article 39-A. It was debated on 24–25 November 1948 and adopted on 25 November 1948. [3]
• The draft first set a three-year deadline. The Assembly removed the deadline because Directive Principles state 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, and this hurt the fairness of courts. [3]

4. What "independence of the judiciary" means

Independence of the judiciary means judges can decide cases freely, without pressure from the government, the legislature or powerful people. Class 11 gives three tests:

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

• Independence does not mean arbitrariness. Arbitrariness means acting on personal whim. The judiciary is still accountable to the Constitution, to democratic traditions and to the people (see §12, accountability).
• What limits a judge in real life? NCERT's classroom debate lists:
• the Constitution;
• precedent, meaning 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.

5. Constitutional safeguards of independence

(a) Appointment kept out of politics

• The legislature has no role in appointing judges.
• Appointment depends on legal qualifications, not political loyalty.
• Art. 124(2): the President appoints every Supreme Court judge "by warrant under his hand and seal after consultation with" the Supreme Court and High Court judges the President thinks necessary. [4]
• Dr B.R. Ambedkar, Chairman of the Drafting Committee, told the Assembly that the clause protected independence. His reason was that neither the executive nor the legislature had full control over appointments. [4]
• Later practice:
• The collegium system started with the Second Judges case (1993). Under it, a group of senior judges recommends appointments.
• The 99th Amendment (2014) created the National Judicial Appointments Commission (NJAC). The Supreme Court struck it down in 2015.

(b) Security of tenure of judges

Security of tenure means a judge cannot be removed at the government's wish. A judge keeps the job until the retirement age, unless removed by a very hard special procedure.

Court	Retirement age	Legal basis
Supreme Court	65	Art. 124(2) [4]
High Court	62 (60 earlier)	Art. 217; raised by the 15th Amendment, 1963

• Why 65? In the Constituent Assembly debate of 24 May 1949, members proposed ages anywhere from 60 to 68. The Assembly settled on 65 as a reasonable age. [4]
• Removal procedure, Art. 124(4) (details in §5): 1. A motion is moved in a House of Parliament. The ground must be proved misbehaviour or incapacity. 2. Each House passes an address with a special majority: a majority of the total membership of that House, and at least two-thirds of the members present and voting. [4] 3. The President orders the removal.

(c) Financial security of judges

Financial security means the government cannot use money to put pressure on judges. Parliament does not vote every year on judges' pay, and their pay cannot be cut after appointment.

Item	Supreme Court	High Court
Salaries and allowances	Charged on the Consolidated Fund of India (CFI), Art. 112(3)(d)	Charged on the Consolidated Fund of the State, Art. 202(3)(d)
Pensions	Charged on the CFI	Charged on the CFI, not the state fund (Art. 112(3)(d))
No cut after appointment	Art. 125(2)	Art. 221(2)
Court's office expenses	Charged on the CFI, Art. 146(3)	—

• "Charged" expenditure is spending that Parliament can discuss but not vote on. The money is paid automatically.
• Art. 125(2) and Art. 221(2): a judge's privileges, allowances, leave and pension cannot be changed to the judge's disadvantage after appointment.
• Exception, the financial emergency (Art. 360(4)(b)): during a financial emergency, the President can order the salaries of Supreme Court and High Court judges to be reduced.
• Current salaries, fixed by Parliament under the Salaries and Conditions of Service Acts of 1954 (High Courts) and 1958 (Supreme Court):

Post	Old pay per month	Revised pay per month (from 1 Jan 2016)
Chief Justice of India	₹1,00,000	₹2,80,000 [2]
Supreme Court judge	₹90,000	₹2,50,000 [2]
High Court Chief Justice	₹90,000	₹2,50,000 [2]
High Court judge	₹80,000	₹2,25,000 [2]

• The revision bill was introduced in the Lok Sabha on 21 December 2017 and passed there on 4 January 2018. The Rajya Sabha was deemed to have passed it. [2]

(d) Restriction on discussing judges' conduct in the legislature

This rule protects judges from political attack on the floor of a legislature.

• Art. 121: Parliament cannot discuss how a Supreme Court or High Court judge behaved while doing their duties. The only exception is a motion to remove that judge.
• Art. 211: a state legislature cannot discuss the conduct of any Supreme Court or High Court judge in the discharge of their duties. State legislatures have no part in removing judges.

(e) Contempt power

• Arts. 129 and 215: the Supreme Court and the High Courts are courts of record. Their judgments are kept as permanent records and are followed as precedent.
• Contempt of court means disobeying a court's order, or acting in a way that lowers the court's authority. The courts can punish it (see §6).

(f) Bar on practice after retirement

• Art. 124(7): a retired Supreme Court judge "shall not plead or act in any court or before any authority within the territory of India". [4]
• Art. 220: a retired permanent High Court judge cannot practise in the High Court where they served. They may plead only in the Supreme Court and other High Courts.
• Why: a retired judge must not appear before former colleagues and gain from that link.

6. Open question: jobs after retirement

• The Constitution does not ban government jobs after retirement. In the Constituent Assembly, the framers rejected a ban on retired judges holding public office. They felt experienced judges could still serve the public. [4]
• The worry: retired judges often head tribunals and commissions, and some have become Governors. Ranjan Gogoi, a former Chief Justice of India, was nominated to the Rajya Sabha in 2020.
• A judge may hope for a post after retirement.
• That hope may affect how the judge decides cases involving the government before retiring.

• This raises doubts about whether the judge acted "without fear or favour".

• Reform idea: a cooling-off period, meaning a fixed gap of time after retirement before a judge can take a government post.

Prelims Hooks

• Art. 50: a Directive Principle on separating the judiciary from the executive. It was Draft Article 39-A, adopted on 25 November 1948. It is not a Fundamental Right.
• 15th Amendment (1963): raised the retirement age of High Court judges from 60 to 62. Supreme Court judges retire at 65 (Art. 124(2)).
• Supreme Court judges' salaries are charged under Art. 112(3)(d). High Court judges' salaries are charged on the state fund under Art. 202(3)(d). High Court judges' pensions come from the CFI. This is a common trap.
• Art. 360(4)(b) is the only route to cutting judges' salaries: a financial emergency.
• 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, but not in the court where they served.
• Arts. 129 / 215: the Supreme Court and High Courts are courts of record with contempt power.
• Removal (Art. 124(4)) needs a majority of total membership plus two-thirds of members present and voting in each House.
• C.B. Muthamma v. Union of India (1979): gender-biased Foreign Service rules were struck down. The bench was led by Krishna Iyer.
• Chief Justice of India's salary: ₹2,80,000 a month, effective from 1 January 2016.

Mains Points

• Independence and accountability must go together. Security of tenure, charged salaries and the Art. 121 and Art. 211 bars protect judges from pressure. But "independence is not arbitrariness": judges are still bound by the Constitution, precedent and public trust. This tension underlies the move from the collegium (1993) to the NJAC and its 2015 strike-down.
• The counter-majoritarian role is the strongest reason for independence. Examples are Niyamgiri (2013), where gram sabhas decided on mining in their own forests, and Muthamma (1979), which struck down gender bias. An elected majority cannot be the judge of minority rights.
• Post-retirement jobs are the weakest safeguard. The framers deliberately allowed such jobs. Today, retired judges head tribunals and commissions, become Governors, and one former Chief Justice entered the Rajya Sabha in 2020. Possible reforms include a statutory cooling-off period, appointment through independent bodies, or a higher retirement age to reduce the pull of post-retirement posts.
• Art. 50 shows how Directive Principles work in practice. It was a freedom-movement demand from 1885 and was written without a deadline. Separating magistrates from the executive was done later through ordinary law, which shows that Directive Principles depend on legislation.