Independence of Judiciary: Constitutional Organs

Independence of judiciary—Under the Constitution:

Only an impartial and independent judiciary can protect the rights of the individual and provide equal justice without fear or favor. It is, therefore, very necessary that the Supreme Court should be allowed to perform its functions in an atmosphere of independence and to be free from all kinds of political pressures. The Constitution has made several provisions to ensure independence of Judiciary.

Security of tenure:

The Judges of the Supreme Court have security of tenure. They cannot be removed from office except by an order of the President and that also only on the ground of proved misbehavior or incapacity, supported by a resolution adopted by a majority of total membership of each House and also by a majority of not less than 2/3 of the members of the House present and voting.

Parliament may, however, regulate the procedure for presentation of the address and for investigation and proof of the misbehavior or incapacity of a Judge. But Parliament cannot misuse this power, because the special procedure for their removal must be followed.

The following are some of other important grounds explaining independence of Judiciary:-

Salary of Judges fixed, not subject to vote of Legislature,

Parliament can extend, but cannot curtail the jurisdiction and power of the Supreme Court,

No discussion in Legislature on the conduct of the Judges,

Power to punish for its contempt,

Separation of Judiciary from executive,

Judges of the Supreme Court are appointed by the Executive with the consultation of Legal Experts,

Prohibition on Practice after Retirement.

Thus the position of the Supreme Court is very strong and its independence is adequately guaranteed. However, there are certain disturbing trends which are likely to threaten the independence of judiciary at present.

Although Article 124 vests the legal power of appointment in the executive but the executive is required to ‘consult’ legal experts i.e., judges of the Supreme Court and High Courts in appointing judges of the higher courts. But unfortunately, the Supreme Court interpreted the word ‘consultation’ in such a literal manner that it gave virtually discretion in the matter. In judges transfer case I (S.P.Gupta Vs Union of India) the Supreme Court held that the word “consultation”, did not mean concurrence and the Executive was not bound by the advice given by the judges.

The Government may completely ignore the advice of legal experts. Thus the power of appointment of the Judges of the Supreme Court and the transfer of the High court Judges was solely vested in the Executive from whose dominance the Judiciary was expected to be free. By conceding the power of appointment exclusively to the Executive, it is submitted, the court had itself put the independence of the judiciary into danger.

Mr. Justice Bhagwati of the Supreme Court in the S.P.Gupta’s case had suggested for establishment of a judicial commission for recommending the names of persons for the appointment of the Judges of the Supreme Court and High Courts.

The power of the President under article222 to transfer a judge from one High Court to another may also be used to undermine the independence of the judiciary.