Author: Shivani Vyas
3rd Year B.A.LLB (HONS)
Manipal University, Jaipur
Abstract: The autonomy of legal executive doesn’t mean only formation of a self-sufficient foundation liberated from control and impact of the lawmaking body and the official. Ultimately the Independence of Judiciary depends on the totality of a favorable environment created and backed by all State organs including the Judiciary and the public opinion. Independence of the Judiciary is multi-faceted. It begins with ensuring that the Executive, Legislature and the Judiciary function in conformity with the cardinal principle of Separation of Powers. But, true Judicial Independence flows from a system wherein its independence co-exists with Judicial Accountability.
“So long as we may have an independent Judiciary, the great interests of the people will be safe.” –John Rutledge
The common phrase that “where there is a right there is a remedy” is a crucial aspect when handling the concept of judicial independence. An independent and impartial judiciary is sine qua non if, democracy supported the rule of law and fundamental freedoms are to sustain. The autonomy of legal executive is anything but another idea yet its importance is so far loose. The start and therefore the main issue of this concept is clearly the teaching of partition of forces. The hidden reason for the autonomy of legal executive is that judges must have the choice to settle on questions before them, as per the law, uninfluenced by another factor. For this reason, freedom of legal executive is that the autonomy of every single appointed authority. Judicial independence could also be construed as a group of protections for judges narrowly or broadly as a pledge of the integrity of the judiciary. Judges have a responsibility to guard their independence and impartiality. Independence of the judiciary is one of the basic structures of the Indian Constitution and has also been recognised as a human right by international conventions. But this scene of corruption within the judiciary will certainly lead the Deity of Justice to cry. Corruption within the higher judiciary is a secret, as, at one point of your time, the previous judge Sam Piroj Bharucha lamented over the rampant corruption within the higher judiciary.
2. ITS ORIGIN IN INDIA
The principle of judicial independence is a fundamental and widely cherished element of democracy which is made more prominent in many international legal instruments. Hence the responsibility of a Judge to constitutional and legal norms forms the foundation and the real rationale for judicial independence. In S.P. Gupta vs. Union of India, the court held that “The concept of independence of the judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of the Indian democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law under the Constitution; it is the judiciary which 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.” Having briefly stated the nature of Judiciary independence. The Indian Constitution also includes a variety of provisions to make sure judicial independence and to empower the judiciary to control itself. Article 124(2) sought to insulate courts from political interference by dividing the judicial appointment power between the chief and therefore the judge. Article 50 expresses a general commitment to the separation of powers, declaring, “The State shall take steps to separate the judiciary from the chief within the public services of the State.” Article 136 allows the Supreme Court to “grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal within the territory of India”.
3. CONSTITUTIONAL BASIS
The power of appointment of Judges of the Supreme Court is to be found in Clause (2) of Article 124 and this clause provides that each Judge of the Supreme Court shall be appointed by the President after consultation with such of the Judges of the Supreme Court and therefore the High Courts within the States because the President may deem necessary for the: as long as within the case of appointment of a Judge aside from the judge, the judge of India shall always be consulted. Prof. Shibban Lal Saksen of the members of the constituent assembly had suggested that the appointment of Judges should be confirmed by 2/3rd majority of the parliament. The most significant viewpoint within the freedom of the legal executive is its protected position. Similarly, because the constitution gives the organization and forces of the council furthermore, the official, it needs to likewise give fro the legal executive. On the off chance that the constitution vests the legal forces with the Judiciary that might be preferable. In any case, the constitution may accommodate the creation of the courts and their ward, and for the arrangement, the term of office, and therefore the residency of the appointed authorities. After the lifting of emergency in 1977 which was a blow to the independence of judiciary and with a background of interference in judicial appointments by the executive, the Supreme Court was called upon to safeguard the independence of the judiciary from undesirable appointments and arbitrary transfers by the chief. This it did in three cases- the primary, Second, Third Judges case.
- Judges Transfer Case 1
On account of S P Gupta versus Union of India, 1982 SC consistently concurred with the importance of the word ‘meeting’ as decided within the Sankalchand’s case. It further held that the most ground on which the selection of the government. Will be tested is that it depends on mala fide and unessential thought. In doing in this way, it generously decreased its own capacity in selecting the appointed authorities and gave control to the official
- Judges Transfer Case 2
Ten years later in 1993, the Supreme Court in the case of Supreme Court‟s Advocates on Record Association v. Union of India constituted a bigger bench of nine judges to think about the correctness of the primary Judge’s case, which had held the judge of India didn’t have primacy of his opinion. By a majority, overruling the primary Judge’s case, it had been held that CJI was best equipped to access the worth of a judge and since it had been also necessary to eliminate political influence on the judiciary.
- Judge Transfer Case 3
Contention emerged again when the CJ suggested the names for an arrangement without talking with different adjudicators in 1999. The president searched for exhortation from the SC (re Presidential Reference 1999) and a 9 part seat held that an exhortation given by the CJ without an appropriate interview with other judges isn’t official on the govt. As of now, thanks to the choice in Judges Transfer Case 2, the appointment of the judges in SC and High Courts are fairly free from executive control. This is often a crucial factor that ensures the independence of the judiciary.
4. WHY DO WE NEED INDEPENDENT JUDICIARY?
Independence of Judiciary is sine guenon of democracy. during a democratic polity, the supreme power of the state is shared among the three principal organs constitutional functionaries namely the constitutional task assigned to the Judiciary is no way less than that of other functionaries legislature and executive. Needless to say, it’s the work of the Judiciary to finish the sacred message and it’s its obligation to stay a cautious watch the working of vote based system as per the directs, mandates, and imperative commands of the constitution by checking the excessive authority of other constitutional functionaries beyond the ken of constitution. Under our constitution, the Judiciary has been assigned the onerous task of safeguarding the elemental rights of our citizens and upholding the Rule of Law. In this way, the need for an autonomous and unprejudiced Judiciary kept an eye fixed on by people of authentic quality and character, subordinate mental fortitude and assurance also, goals unprejudiced nature and autonomy who might arrange equity unafraid intensity, malevolence or fondness. The Judiciary cannot remain a mere bystander or spectator but it must become a lively participant within the judicial process able to use law within the service of social justice through a pro-active goal-oriented approach. The judiciary that Dr B. R. Ambedkar envisioned for India finds an area of eminence within the following provisions of the Indian
- Constitution of the Supreme Court and the High Courts.
- Security Of Tenure.
- Salaries And Allowances.
5. SCOPE FOR REFORM AND CONCLUSION
It is clear from the historical overview that judicial independence has faced many obstacles within the past especially in reference to the appointment and therefore the transfer of judges. There should be no interference by the legislature or the chief, within the proceedings of the judiciary in order that it’s going to take a judgment that seems reasonably fair. Just in case of intervention, there could also be a component of bias on the part of the judges in taking a good decision. The Constitution of India has created a democratic Republic and a trinity of instrumentalities to enforce its paramount provisions without worrying or favour, affection or ill will. The chief echelons, once they exceed their power as inscribed and circumscribed within the Suprema Lex, are subject to scan, scrutiny and correction by the upper judiciary. In future studies, it might also be interesting to check for the independence not of constitutional courts, but of economic courts. It might be the case that non-public investors are primarily curious about how commercial and not constitutional disputes are resolved. Further, one might want to fine-tune a number of the variables of the de facto indicator: immediately, any deviation between expected and effective term-length will cause a discount of a country’s score.
 This phrase is derived from the maxim “ubi jus ibi remedium” and widely used and illustrated in the following Indian case law: Bhagwati Developers v. Peerless General Finance, AIR 2013 SC 1690, Sardar Associates v. Punjab and Sind Bank AIR 2010 SC 218, Rajasthan State Road Transport Corporation v. Bal Mukund Bairwa(2009) 4 SCC 299
 Cameron, Charles M. “Judicial Independence: How Can You Tell It When You See It? And, Who Cares?” Judicial Independence at the Crossroads: An Interdisciplinary Approach.
 Subhojit Sadhu, Judicial Accountability of the Indian Judiciary, Supreme Court Journal, July 2007, p.27
 See, Article 10 of the Universal Declaration of Human Rights, Article 14(1) of the International Convention on Civil and Political Rights, Article 6(1) of the European Convention on Human Rights, Article 26 of the African Charter and Article 25(1) of the American Convention on Human Rights.
 AIR 1982 SC 149.
 Constituent Assembly Debate on 24 May 1949.
 The infamous supersession of Justice H.R.Khanna when the office of CJI became vacant, hinted herein, in 1976.
 (1993) 4 SCC 441; AIR (1994) SC 268
 Independence of The Judiciary: A Constitutional Response.” Legal Service India – Law, Lawyers and Legal Resources,www.legalserviceindia.com/legal/article-1681-independence-of-the-judiciary-a-constitutional-response.html.
 Feld, Lars P. and Voigt, Stefan, Economic Growth and Judicial Independence: Cross Country Evidence Using a New Set of Indicators (April 2003). CESifo Working Paper Series No. 906. Available at SSRN: https://ssrn.com/abstract=395403