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<span style="color: var(--dark-color); font-family: var(--primary-font); font-weight: var(--font-weight);">The independence of the judiciary refers to the concept that the judiciary should be independent from the other branches of government and free from external influences. This means that the judiciary should be able to make decisions based on the law and the facts of a case, without fear or favor, and without being swayed by political, social, or economic pressures.</span>
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In most countries, the independence of the judiciary is protected by a range of legal and constitutional measures, such as the separation of powers between the different branches of government, the appointment of judges through a transparent and impartial process, and the protection of judicial salaries and pensions.
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In India, the Constitution of India under Article 124, 124A, 217, and 222 lays the foundation of the independence of the judiciary. The constitution makes it clear that the judiciary is a separate and co-equal branch of government, and that the judges are appointed through a process that is designed to be independent and impartial.
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It’s worth noting that the independence of judiciary is also a check on the functioning of the other branches of government, and also provides an avenue for citizens to seek justice when their rights and freedoms are violated.
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<span style="color: var(--dark-color); font-family: var(--primary-font); font-weight: var(--font-weight);">In India, the independence of the judiciary is protected by the Constitution of India and several laws and judicial precedents.</span>
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Article 124 of the Constitution lays down the procedure for appointment of judges to the Supreme Court, and Article 217 and Article 222 lays down the procedure for appointment of judges to the High Courts. These articles provide for the appointment of judges through a process that is designed to be independent and impartial, with the involvement of the judiciary in the appointment process.
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In addition, the Constitution guarantees the security of tenure of judges, and provides for the removal of judges only through a process of impeachment, which is difficult to initiate and requires a high standard of proof.
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The judiciary also has the power of judicial review, which allows it to examine the constitutionality of laws and actions of the executive and the legislature. This power helps to ensure that the judiciary can uphold the rule of law and protect the rights and freedoms of citizens.
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The judiciary also enjoys financial independence, as the constitution provides for the protection of judicial salaries and pensions, and the judiciary is not subject to the control of the executive in terms of its budget.
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India has a well-established tradition of judicial independence, and the judiciary has been able to assert its independence and protect the rights of citizens throughout the years. However, there are still instances of political pressure and executive interference that threatens the independence of the Judiciary.
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<span style="color: var(--dark-color); font-family: var(--primary-font); font-weight: var(--font-weight);">The Indian Constitution guarantees the independence of the judiciary as a fundamental principle of democratic governance. The Constitution lays down the legal framework that establishes the judiciary as a separate and co-equal branch of government and provides for the protection of the independence of the judiciary through several provisions.</span>
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Article 124: This Article lays down the procedure for the appointment of judges to the Supreme Court. It provides for the appointment of judges by the President of India, in consultation with the Chief Justice of India and such other judges of the Supreme Court and High Courts as the President may deem necessary.
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Article 217: This Article lays down the procedure for the appointment of judges to the High Courts. It provides for the appointment of judges by the President of India, in consultation with the Chief Justice of India, the Governor of the state, and the Chief Justice of the High Court.
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Article 222: This Article lays down the procedure for the transfer of judges from one High Court to another. It provides for the transfer of judges by the President of India, in consultation with the Chief Justice of India and the Chief Justice of the High Court concerned.
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Article 124A: This Article provides for the establishment of the National Judicial Appointments Commission (NJAC) for the purpose of appointments and transfers of judges of the Supreme Court and High Courts. However, in 2015, The Supreme Court of India declared the National Judicial Appointments Commission (NJAC) Act, 2014 and the 99th Constitutional Amendment Act, 2014 as unconstitutional and void.
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<span style="color: var(--dark-color); font-family: var(--primary-font); font-weight: var(--font-weight);">Article 50 : This Article provides principle of the separation of powers between the judiciary, the executive and the legislature. </span>
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<span style="color: var(--dark-color); font-family: var(--primary-font); font-weight: var(--font-weight);">Article 124 of the Indian Constitution lays down the procedure for the appointment of judges to the Supreme Court of India. The article states that the President of India shall appoint the judges of the Supreme Court, including the Chief Justice of India, in consultation with such of the judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.</span>
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The President of India has the power to appoint the judges of the Supreme Court.
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The President shall appoint the judges in consultation with the Chief Justice of India and such other judges of the Supreme Court and High Courts as the President may deem necessary.
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The consultation process is not defined in the Constitution, and it is left to the President to decide how many judges should be consulted and how the consultation should be conducted.
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The Chief Justice of India has a special role in the appointment of judges as the Chief Justice’s opinion carries significant weight in the appointment process.
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The article does not provide for any role for the executive or the legislature in the appointment of judges.
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The article also does not provide for any role for the judiciary in the appointment of judges, however, in the landmark case of Supreme Court Advocates-on-Record Association v. Union of India (1993) 4 SCC 441, the Supreme Court held that the judiciary should have a say in the appointment of judges to ensure the independence of the judiciary and the protection of the rights of citizens.
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The article does not provide for any specific qualifications for appointment as a judge of the Supreme Court, but it is generally understood that the appointee should be a person of high legal learning and should have had a distinguished career as a lawyer or a judge.
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In summary, Article 124 of the Indian Constitution lays the foundation for an independent and impartial appointment process for judges of the Supreme Court, by providing for the appointment by the President of India, in consultation with the Chief Justice of India, and other judges of the Supreme Court and High Courts. It also provides a mechanism that ensures the independence of the judiciary and the protection of the rights of citizens.
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<span style="color: var(--dark-color); font-family: var(--primary-font); font-weight: var(--font-weight); font-size: 2.5rem;">Article 217 </span><span style="font-family: var(--primary-font); font-size: 2.5rem; font-weight: var(--font-weight); color: var(--dark-color);">Indian Constitution</span>
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<span style="color: var(--dark-color); font-family: var(--primary-font); font-weight: var(--font-weight);">Article 217 of the Indian Constitution lays down the procedure for the appointment of judges to the High Courts in the states of India. The article states that the President of India shall appoint the judges of the High Court, in consultation with the Chief Justice of India, the Governor of the state, and the Chief Justice of the High Court.</span>
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The President of India has the power to appoint the judges of the High Court.
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The President shall appoint the judges in consultation with the Chief Justice of India, the Governor of the state, and the Chief Justice of the High Court.
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The consultation process is not defined in the Constitution, and it is left to the President to decide how many judges should be consulted and how the consultation should be conducted.
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The Chief Justice of India and the Chief Justice of the High Court has a special role in the appointment of judges as their opinion carries significant weight in the appointment process.
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The article does not provide for any role for the executive or the legislature in the appointment of judges.
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The article also does not provide for any role for the judiciary in the appointment of judges, however, in the landmark case of Supreme Court Advocates-on-Record Association v. Union of India (1993) 4 SCC 441, the Supreme Court held that the judiciary should have a say in the appointment of judges to ensure the independence of the judiciary and the protection of the rights of citizens.
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The article does not provide for any specific qualifications for appointment as a judge of the High Court, but it is generally understood that the appointee should be a person of high legal learning and should have had a distinguished career as a lawyer or a judge.
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In summary, Article 217 of the Indian Constitution lays the foundation for an independent and impartial appointment process for judges of the High Court, by providing for the appointment by the President of India, in consultation with the Chief Justice of India, Governor of the state, and the Chief Justice of the High Court. It also provides a mechanism that ensures the independence of the judiciary and the protection of the rights of citizens.
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<span style="color: var(--dark-color); font-family: var(--primary-font); font-weight: var(--font-weight); font-size: 2.5rem;">Types of judicial Independence</span>
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<span style="color: var(--dark-color); font-family: var(--primary-font); font-weight: var(--font-weight);">There are several types of judicial independence that are commonly recognized in democratic societies. These include:</span>
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It’s worth noting that these types of independence are interrelated and mutually reinforcing, and that the protection of one type of independence is typically dependent on the protection of the others.
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<span style="color: var(--dark-color); font-family: var(--primary-font); font-weight: var(--font-weight);">Article 50 of the Indian Constitution lays down the principle of the separation of powers between the judiciary, the executive and the legislature. The article states that the State shall take steps to separate the judiciary from the executive in the public services of the State.</span>
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The State shall take steps to separate the judiciary from the executive in the public services of the State.
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The article is an implementation of the doctrine of separation of powers which is a fundamental principle of democratic governance.
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The separation of powers is a system of checks and balances that prevents any one branch of government from becoming too powerful and helps to ensure that the rights and freedoms of citizens are protected.
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By separating the judiciary from the executive, the article helps to ensure that the judiciary can act independently and impartially in the discharge of its duties, without fear or favor, and without being influenced by the executive.
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The article also helps to ensure that the executive is held accountable to the rule of law and that the rights and freedoms of citizens are protected by an independent and impartial judiciary.
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The article does not specify how the separation of powers should be achieved, but it is generally understood that it should be done through the creation of a separate and independent system of recruitment, appointment, promotion, transfer, and disciplinary action for judges and judicial officers.
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In summary, Article 50 of the Indian Constitution lays the foundation for the separation of the judiciary from the executive in the public services of the State. It is an important provision for ensuring the independence of the judiciary and the protection of the rights and freedoms of citizens.
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Challenges to judicial independence in India
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There are several challenges to the independence of the judiciary in India. Some of the most significant challenges include:
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Executive interference: The Indian judiciary has faced allegations of interference from the executive branch of government in the past. This can take the form of attempts to influence the appointment of judges, to influence the outcome of cases, or to control the budget of the judiciary.
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Political Pressure: The Indian judiciary has faced political pressure from political parties and politicians in the past. This can take the form of attempts to influence the appointment of judges, to influence the outcome of cases, or to control the budget of the judiciary.
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Lack of judicial independence in lower courts: In many parts of India, the lower courts are not independent and are subject to political and executive pressures. This can lead to a lack of impartiality and fairness in the dispensation of justice.
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Overcrowding and lack of resources: India’s court system is facing significant problems with overcrowding and lack of resources, which can lead to delays in the dispensation of justice and can undermine the independence of the judiciary.
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Corruption: Corruption is a significant problem in the Indian judiciary, and it can lead to the erosion of public trust in the judiciary and can undermine the independence of the judiciary.
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Transparency and accountability: There have been calls for more transparency and accountability in the appointment and transfer of judges, as well as the functioning of the judiciary.
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Lack of diversity: The judiciary in India has been criticized for lack of diversity in terms of representation of women, minorities and people from the marginalized section of the society.
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Lack of education and training: Many judges in India are not adequately educated or trained, which can lead to errors in judgment and can undermine the independence of the judiciary.
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It’s worth noting that India has a strong tradition of judicial independence and the judiciary has been able to assert its independence and protect the rights of citizens throughout the years. However, these challenges still exist and the judiciary, the executive and the legislature, as well as the society need to work together to address these challenges and to ensure the independence and integrity of the judiciary.
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Case laws on Independence of Judiciary
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<span style="color: var(--dark-color); font-family: var(--primary-font); font-weight: var(--font-weight);">There are several notable case laws in India that pertain to the independence of the judiciary. Some of the most significant cases include:</span>
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S. P. Gupta v. Union of India (1981) 2 SCC 365: This case established the principle of “independence within limits” for the judiciary, and held that the judiciary has the power to protect its own independence and that of its members.
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Supreme Court Advocates-on-Record Association v. Union of India (1993) 4 SCC 441: This case, also known as the Second Judges Case, established the principle of “collegium system” for the appointment of judges to the Supreme Court and High Courts, which gives the judiciary a significant role in the appointment of judges.
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In Re: Special Reference 1 of 1998 (1998) 7 SCC 739: This case expanded on the “collegium system” established in the Second Judges Case and held that the judiciary has the final say in the appointment of judges, subject to the President and the Governor of a state being consulted.
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Special Reference 1 of 1998 (1998) 7 SCC 739: This case expanded on the “collegium system” established in the Second Judges Case and held that the judiciary has the final say in the appointment of judges, subject to the President and the Governor of a state being consulted.
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S. R. Bommai v. Union of India (1994) 3 SCC 1: This case established the principle of secularism and the separation of powers between the judiciary, the executive and the legislature, and held that the judiciary has the power to review the actions of the executive and the legislature to ensure that they conform to the Constitution.
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In Re: NJAC Judgment,2015: The Supreme Court of India declared the National Judicial Appointments Commission (NJAC) Act, 2014 and the 99th Constitutional Amendment Act, 2014 as unconstitutional and void, re-established the principle of “collegium system” for the appointment of judges to the Supreme Court and High Courts.
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