Independce of Judiciary in India

The independence of the judiciary is considered a fundamental principle of democratic societies and is essential for protecting the rights and freedoms of citizens. It ensures that individuals have a fair and impartial forum for resolving disputes and that the government is held accountable to the rule of law.

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.

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.

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.

The Constitution of India provides for the separation of powers between the three branches of government: the executive, the legislature, and the judiciary. Under the Constitution, the judiciary is a separate and co-equal branch of government and is independent of the executive and the legislature.

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.

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.

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.

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.

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.

Some of the key provisions of the Indian Constitution that pertain to the independence of the judiciary are:

• 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.
• 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.
• 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.
• 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.
• Article 50 : This Article provides principle of the separation of powers between the judiciary, the executive and the legislature.  

The article lays down the following key points:

• The President of India has the power to appoint the judges of the Supreme Court.
• 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.
• 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.
• 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.
• The article does not provide for any role for the executive or the legislature in the appointment of judges.
• 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.
• 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.

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.

The article lays down the following key points:

• The President of India has the power to appoint the judges of the High Court.
• 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.
• 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.
• 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.
• The article does not provide for any role for the executive or the legislature in the appointment of judges.
• 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.
• 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.

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.

1. Institutional independence: This type of independence refers to the separation of the judiciary from the other branches of government and the protection of the judiciary’s autonomy in terms of its budget, staff, and infrastructure.
2. Personal independence: This type of independence refers to the protection of the individual judge’s freedom from external pressures and influences. This includes the protection of the judge’s security of tenure, salary, and pension.
3. Functional independence: This type of independence refers to the ability of the judiciary 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.
4. Financial Independence: This type of independence refers to the judiciary’s autonomy in terms of its budget, staff, and infrastructure. This includes the protection of the judge’s salary, pension and freedom to decide on the budget of the court.
5. Subject-matter independence: This type of independence refers to the ability of the judiciary to hear and decide cases in a fair and impartial manner, without interference from external forces, such as the executive or the legislature.
6. Appointment independence: This type of independence refers to the ability of the judiciary to make appointments in an impartial and independent manner, without interference from external forces, such as the executive or the legislature.

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.

The article lays down the following key points:

• The State shall take steps to separate the judiciary from the executive in the public services of the State.
• The article is an implementation of the doctrine of separation of powers which is a fundamental principle of democratic governance.
• 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.
• 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.
• 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.
• 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.

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.