LLM Projects: Independence Of Judiciary

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Appointment Of Judges (Position After 1993)

Position After 1993 :

While the plurality ensured eradication of arbitrariness and larger participation in the selection process. “Consultation” ensures meaningful involvement of both parties in the selection process. Which effectively reduces the changes of a differing opinion or advice to the President under Act 74(1) of the Constitution and there by smoothens the process of selection with responsibility there for cast on both, the Government and Judiciary. The voice of Judiciary would ensure that competent and independent persons are appointment to the superior Judiciary and the Government would have its say in the choice made so far as the integrity and other desirable character traits of the candidate are concerned.

The Government contended in the S.P.Gupta’s case, Supra, their greater weight was given to the opinion of the Chief Justice of India in the matter of making appointment to the Superior Judiciary and except on rare occasions, appointments are always made on the advice of the Chief Justice of India. The Constitutional primary of the Chief Justice of India (C.J.I) has been respected and accepted by the Government. As regards the Primacy of the Chief Justice of India, he has both institutional and constitutional primacy in respect of appointments of higher Judiciary.

The words used in Article 124(1) and 217(1) –as-consisting the Chief Justice and other Judges, what the constitution conferred upon the Chief Justice of India is not only – “Pater families” of the Indian Judiciary, but also its – “Primus inter-pares”, – meaning first among the equals whole functioning Judicially and in matters other than Judicial. He enjoys unique position of primacy in status, rank and authority by virtue of the highest Judicial Office. His role was restored back in the Judges-case-2 i.e, AIR 1994 SC 268. The opinion of the Chief Justice of India is always shared by and arrived at in consultation with his other senior colleagues, which would carry with it – the creditability, acceptance and discipline; that could be readily accepted by the executive without grievance or rancour. But a Peculiar Situation may arise, when the views of the Chief Justice of India are deferred by his senior Judges in the collegiums, the same has to be referred to the President. In case, the President accepts the opinion of the other Judges in the Collegium.

Then the Chief Justice of India has to withdraw his own opinion. Now in the guise of interpretation Judiciary has abdicated power of appointment of Judges to itself. After the Judges Case AIR 1994 SC 268, it is well established that the appointment is actually done by a collegiums, comprising of the Chief Justice of India and other Judges. The recommendation of the collegiums is binding on the President. [ In President’s reference case AIR 1999 SC-1]. It is noteworthy that in no democracy. Such system of appointment exists, be it U.K. or U.S. Even no transparency is maintained in appointment process. Former Chief Justice of India Justice.Varma, regarding appointment of Judges, said – “For fairness of the process, it is fine to maintain confident ability when the appointment process is on. However, when the process has been finalized and appointments done, the reasons for appointments and rejections should be made public.

Appointment and Accountability are closely related, in certain sense, if proper persons are appointed who are men of integrity and character. Then the proceedings will be fair, away from corrupt practices. In European Union, Judges are elevated to the higher Judiciary purely on concrete basis of merit, no political or Judicial considerations they look to the quality of decisions rendered and the past record of the Judge, so that the best of the best, may go to the higher courts which will ensure the best results. Fairness and Non-arbitrariness are essential requirements in the acts of Judges.

APPOINTMENT OF JUDGES (Position before 1993)

Position before 1993 :

In India, there are 31 Judges in the Supreme Court, 750 Judges in 21 High Courts. At the time of drafting the Constitution, the Original strength of Judges in Supreme Court was Chief Justice and 7 Judges. Now, the total strength is raised to 31 in due cause of time. The strength of Judicial Officers in Subordinate Courts was 13,204 in the year 2005. There is an alarming demand from the Judiciary to increase the strength of Judges proportionate to the population by comprising the position of appointments of Judges in America, Australia, England etc. In our country, the Judge-Population ratio is 10.5 Judges per Million People, whereas in Australia, this figure is 47, in UK 50, in Canada 75, in America 107. The Supreme Court in its Judgement reputed in “All India Judges Association”[1] case, it was held that the Judges Population Ration must be increased to 50 per Million People within 5 Years. Apart this, there are large number of vacancies in various High Courts. There was a demand for 300 Judges in High Courts, 65,000 Judges in Subordinate Courts.

Earlier, The Supreme Court in its Judgement[2] in AIR 1991 SC 631 regarding fixation of Judges strength, it is a matter to be considered. Suggestions were made to government to determine Judges-strength in a pragmatic way on the basis of existing need and keep it under constant review.

The Bar Council of India, its (a) 14^th Report, 1958 much earlier, recommended that every appointment of a Judge of High Court or Judge of Supreme Court should be made with the concurrence of Chief Justice of India, in its (b) 121^st Report, the Law Commission, further recommended for constitution of a broad-based National Judicial Service Commission, it suggested that such commission should have chairman with Chief Justice of India, four senior-most Judges of Supreme Court, Union Law and Justice Minister as a member of the Commission. It was further opined that the appointment of the Chief Justice of High Court of a state must be from outside the state.

For appointment of Judge of High Court, there Judges of High Court as collegiums to recommend the name from the High Court, similarly, three Judges of Supreme Court collegiums should consider the recommendation proposal on the recommendation of the High Court. In this matter, there is a President reference in 1998 regarding the procedure to be followed for appointment of Judges of the High Court. It was vastly felt that collective exercise from the Judiciary as well as the Executive is required.

In the S.P.Gupta Vs Union of India[3], this is called the Judges case no.1, which was later appealed before a larger bench which dealt with the procedure for appointment of Judges to the High Court. Then the Judges Case (2) Report in AIR 1994 SC 268. It was further laid down the procedure for appointment of High Court Judges in the year 1998, the Government of India returned the recommendations made by the Chief Justice of India, M.M.Punchi with respect to appointment of Judges and Chief Justice of Supreme Court, and Chief Justice and Judges of High Court. For the purpose of our study about the procedure of appointment of Judges in Higher Judiciary, we have to consider the All India Judges Association Vs Union of India cases which are reported in case (1) 1992 SCC 119 Case, (2) 1993 (4) SCC 288, (3) 2002 (4) SCC 247, The law commission report in 171^st and 230^th are much helped for this subject matter.

The Supreme Court drew a list of basic qualities required of a Judge at Higher Judiciary level as reported in 2009 (5) SCJ 205. The need for an independent and impartial Judiciary manned by persons of sterling quality and character, undoubting courage and determination with resolute impartiality and independence, who would dispense Justice without fear or favour, ill-will or affection, is the cardinal creed Judge to the people of this great country. There can be no two opinions at the Bar that an independent and an impartial Judiciary is the most essential characteristic of a society.

After 1993, 9 Judges Constitution-Bench in regard to the process of appointment of Judges and their transfers held the matter elaborately. It was held that unwanted influences flourished well. From the Judgement in 1993, after 5 years there was a two-tier system introduced in the appointment of Judges, A collegiums consisting senior Judges of the Supreme Court, would recommend the names in the panel. The names were again scrutinised by another committee. This caused saviour criticism. Recently, the Supreme Court collegiums recommended the name of Justice P.D. Dinakaran for his elevation when there were discussions going on, in the motion for his impeachment in Parliament. It highlights the matter. If efficient and persons of quality are selected as Judges, it will add to the reputation of the Judiciary.

The Chief Justice of India Justice.Lahoti warned that if people once lost confidence in the Judiciary, the centre system of Democracy would ultimately collapse. But on the other hand, when a senior advocate of the Supreme Court Sri.Prashant Bhushan pointed out that same of the Judges in the Judiciary are stepping out of their track. For his comments, contempt of court proceedings were initiated against him. But it should not be a health trend to initiate contempt proceedings under the Contempt of Court Act 1971. This contempt of courts act is being pressed into service even when honest opinions by the Persons, Media and Press are expressed in good faiths which are supported by facts.

The contempt of court proceedings are used to crush down such honest opinions. But Justice Kirpal declared that because of misconduct by same Judges, the entire Judiciary is losing its credential. Ever smile then, the Supreme Court collegium has cleared 98 recommendations for the appointment of Judges of the High Court. 36 recommendations are being processed. It was hoped that these would be no vacancy in any High Court to be filled up. Every recommendation for appointment in constitutional courts is subjected to rigorous scrutinized under consultation. It will not be in-appropriate to claim that the performance of the Supreme Court collegiums during the last 18 years and the quality and quality of recommendations, made by it, would pre-empt a relook for any proposal for establishment of National Judicial Commission.

1) 116^th Report of law commission recommended for setting up an All India Judicial Service.

2) For setting up an Academy for Training Judicial Officers at all levels. It also recommended for establishing National Judicial Service Commission. However, having an element of Plurality, in its information, opinion framed in any other manner is not binding on the Government Under Act 124 (2) for appointment of Judge of the Supreme Court, the opinion of the Chief Justice of India to be in-consultation with a collegiums of 4 senior Judges of Supreme Court. Similarly, Under Act 217(1) for appointment of Judge of a High Court, the opinion of Chief Justice of India to be formed in consultation with collegiums of two senior most Judges of the Supreme Court. The parameters to be considered for appointment of Judges, the following cases are to be taken into consideration :

Case Law Referred :

1) AIR 1994 SC268

2) AIR 1994 SC 1207

3) AIR 1992 SC 149

4) 200(4) SCC 524

A recent controversy arose in the case of Justice P.D.Dinakaran, who questioned the constitutional validity of Judges Inquiry Committee in two cases 1) 2011(8) SCC 474, 2) 2011(8) SCC 380 P.D.Dinakaran Vs Judges Inquiry Committee.

The court of law is respected, when it rules by authority of its reason and not by reason of its authority.

In S.P.Gupta case[4], Supra, the Majority Judgment of the Supreme Court held inter-alia, the opinion of the Chief Justice of India does not have primary in the matter of appointment to the superior Judiciary that such primary is with the central government, the Executive, which is to take the decision after consulting all constitutional functionaries. But, the Central Government is not bound to act in accordance with the opinion of the constitutional functionaries, consulted even if their opinion is Unanimous or Identical. The literal meanings of “Consultation” in Article 124(2) and Article 217(1) in relation to all consult together with the final authority given to the Central Government, which gives rise to the occasion to its consideration. But, the decision in S.P.Gupta case has an impact on the Independence of Judiciary and it was noticed with grave, concern in Subhash Sharma Vs Union of India, which pointed out that an independent, non-political Judiciary is Crucial to the Sustenance of our chosen Political System. The quality of Judiciary cannot remain unaffected and in turn the process of selection of Judges took the view that the primary of the Chief Justice of India in the Judicial setup of the country was seriously detracted and whittled down the very significance of the “Consultation” in the whole constitutional scheme, read in the context of separation of Powers and the Cherished Values of Judicial Independence. The term “Consultation” in effect meant for concurrence. But however, the matter of appointments to the Superior Judiciary should not be left to the exclusive discretion of the Executive.

The due consultation will ensure the independence of the Judiciary at the time of appointment and to prevent any political consideration in this regard. The provisions of the constitution expressly provide for consultation with the Chief Justice of India, since his role cannot be of any lesser significance than that of Lord Chancellor. The consultation also assures un-impeachable integrity for appointment and elimination of doubtful persons. However, the stress is that the Superior Judiciary must necessarily comprise of Men of Competence and integrity, who can be trusted to deliver Justice according to the constitution and the laws. The provisions of Articles 124(2), 217(1) expressly contemplate that the candidate selected for appointment to the superior Judiciary is one, who is selected by the common consent of both. The selection process is fairly representative of the general section of the society.

So far as the aspect of Primary of the Chief Justice of India (C.J.I) is concerned that the Central Government, are both required to participate in the selection process for the Superior Judiciary. The requirement of consultation and weight given to the opinion of the Chief Justice of India would eliminate political influence at the initial stage of the appointment itself. The process of consultation would reduce the executive element to the minimum and eliminate political influence.

[1] 2002 (4) SCC 247

[2] AIR 1991 SC 631

[3] AIR 1982 SCC 149

[4] AIR 1982 SC 149

APPOINTMENT OF JUDGES

They feel so co placement, secure of tenure of the court till the age of 65 or 62 and also securing some other like chairman a member of the board, tribunals of income tax administrative tribunals banking tribunals and other committees or commissions. The Judge of lower Judiciary and Higher Judiciary have became a separate affluent class at higher strata of the society. They and their families are now feeling as a separate class by themselves.

Incorruptibility should be the quality of a Judge. If any doubt or suspicion is raised from any corner against a Judge / Judges. They must be sacked wedded out, corrupt, inept and inefficient to purse the system in order to preserve its glorious qualities, recognized and applauded by the other countries in the world. Since the Indian Judiciary is estimated so high in its efficiency working, protecting and above all successfully preserving the democracy in the country. Judiciary in India is acting –

· The Judiciary has been given an exalted status.

· Unfortunately the provisions relating to accountability of higher Judiciary have not come up to the expectations of the people. The expectation of the frames of the Constitution has been belied.

Position of Pre-Second Judges Transfer Case

Position of Pre-Second Judges Transfer Case :

1. These writ petitions filed in different High Courts and transferred to this Court under Article 139* of the Constitution raise issues of great constitutional importance affecting the independence of the judiciary and they have been argued at great length before us. The arguments have occupied as many as thirty five days and they have ranged over a large number of issues comprising every imaginable aspect of the judicial institution, Voluminous written submissions have been filed before us which reflect the enormous industry and vast erudition of the learned Counsel appearing for the parties and a large number of authorities, Indian as well as foreign, have been brought to our attention.

We must acknowledge with gratitude our indebtedness to the learned Counsel for the great assistance they have rendered to us in the delicate and difficult task of adjudicating upon highly sensitive issues arising in these writ petitions. We find, and this is not unusual in cases of this kind, that a considerable amount of passion has been injected into the arguments on both sides and sometimes passion may appear to lend strength to an argument, but, sitting as Judges, we have to be careful to see that passion does not blind us to logic and predilections pervert proper interpretation of the constitutional provisions. We have to examine the arguments objectively and dispassionately without being swayed by populist approach or sentimental appeal. It is very easy for the human mind to find justification for a conclusion which accords with the dictates of emotion. Reason is a ready enough advocate for the decision one, consciously or unconsciously, desires to reach.

We have therefore to rid our mind of any pre-conceived notions or ideas and interpret the Constitution as it is and not as we think it ought to be. We can always find some reason for bending the language of the Constitution to our will, if we want, but that would be rewriting the Constitution in the guise of interpretation. We must also remember that the Constitution is an organic instrument intended to endure and its provisions must be interpreted having regard to the constitutional objectives and goals and not in the light of how a particular Government may be acting at a given point of time. Judicial response to the problem of constitutional interpretation must not suffer from the fault of emotionalism or sentimentalism which is likely to cloud the vision when Judges are confronted with issues of momentous importance.

In the first place in the very nature of things it is difficult to accept the submission that all the three consulting functionaries under Article 217(1)[1] must be regarded as of co-ordinate authority for the simple reasons that on aspects like capacity, character, merit, efficiency and fitness which converge on the suitability of the person proposed for appointment the Governor of the State will be least informed and will have nothing to say whereas the Thief Justice of the High Court and Chief Justice of India, being best informed, are well equipped to express their views and tender advice; further it is an accepted position which has been alluded to by the Law Commission in its 14th Report, that it is because of the financial aspect (salary and emoluments of a High Court Judge being charged on the Consolidated Fund of the State) and information about the antecedents, local affiliations and like other matters, capable of objective proof, concerning the proposed appointee which the State Executive would be possessing, that consultation with the Governor has been provided for.

It is, therefore, difficult to regard the Governor of the State as being of co-ordinate authority with the other two consulting functionaries especially on the aspect of suitability which is the primary thing in the matter of making appointment of High Court Judges. Secondly, in my view, Mr. Pocker Saheb's rejected amendment has nothing to do with the primacy question at all because it was concerned with the effort at complete exclusion of the executive interference in the matter of appointment of the High Court Judges. If the amendment had been accepted the result would have been that the appointment shall have been made with the initiation of the proposal by the Chief Justice of the High Court, the consultation with the State Executive being retained because of the financial aspect and information regarding antecedents, etc. and only upon the concurrence of the Chief Justice of India, which, in other

words, means the Chief Justice of India would have had the power to veto any proposal. In my view, conferring a power of veto on the Chief Justice of India is entirely different from the primacy being given to his views or advice over and above the views or advice of the other consulting functionaries, as a limiting factor on the President's discretion. The rejection of the amendment, therefore, has no bearing whatsoever on the question of primacy with which the Court is concerned at the moment Thirdly, once it is realised that the scope and ambit of full and effective consultation requires that all the material facts and records concerning the proposed candidate must be made available to both these consulting functionaries by placing the same before each during the consultative process and that each consulting functionary must consider the same or identical material and exchange each one's views thereon with the other there is no merit left in the argument that the Chief Justice of the High Court has a closer opportunity to assess the suitability of the proposed appointee; surely it is not a case of watching the demeanour of a witness so as to put the assessment of the Chief Justice of the High Court on any higher footing.

Having regard to these aspects, particularly the last one, one will have to consider whether any primacy could be and should be given to the views and advice tendered by the Chief Justice of India to the President in the matter of appointing High Court Judges. I must confess that the Article does not expressly suggest that any primacy is to be accorded to his advice during the consultative process undertaken in Article 217(1) but, in my view, the scheme of consultative process contemplated by that Article envisages consideration of identical facts and materials bearing on the suitability of the candidate by both the consulting functionaries, namely, the Chief Justice of the High Court and the Chief Justice of India, as also an exchange of their views on such material, and thereafter placing of the entire material together with each one's views thereon and the tendering of the advice or final recommendation by the Chief Justice of India to the President whose decision should be guided by such advice or final recommendation so tendered.

Where the duty sought to his (SIC)-forced is imposed on a public official or a public body for the benefit of a specific class of persons, persons within the class are competent to apply for mandrel (SIC) mug without further ado, Per eons out the class may have locus stoned they have a special interest in its performance i.e. an interest over and above that of the general public. These cases have made us think about ourselves and our learned brothers in the superior judiciary of the country. We are made to realise that we are all mortals with all the human frailties and that only a few know in this world the truth behind the following statement of Michel De Montaigne: "Were I not to follow the straight road for its straightness, I should follow it for having found by experience that in the end it is commonly the happiest and the most useful track". It is true that the Judges of the High Courts and the Supreme Court hold their tenure not at the pleasure of the President but till they attain the prescribed age of retirement; that their removal is possible only after following an elaborate procedure: that their salaries and allowances and pension are charged on the consolidated funds of the States or of the Union; that no discussion can take place in the legislatures with respect to their conduct in the discharge of their duties except on a motion for their removal; that they have the power to punish a person for contempt of court and they are protected by a host of other provisions of law which are intended to make them feel and to remain independent of any external agency such as the executive. These, as far as they go, are necessary for ensuring the independence of the judiciary. But if the judiciary should be really independent something more is necessary and that we have to seek in the Judge himself and not outside,

A Judge should be independent of himself. A Judge is a human being who is a bundle of passions and prejudices, likes and dislikes affection and ill-will, hatred and contempt and fear and recklessness. In order to be a successful Judge these elements should be curbed and kept under restraint and that is possible only by education, training, continued practice and cultivation of a sense of humility and dedication to duty. These curbs can neither be bought in the market nor Injected into human system by the written or unwritten laws. If these things are there even if any of the protective measures provided by the Constitution and the laws go the independence of the judiciary will not suffer. But with all these measures being there still a Judge may not be independent. It is the inner strength of Judges alone that can save the judiciary.

[1] Article 217 (1) – Appointment and conditions of the office of a Judge of a High Court.

Appointment of Judges Cases :

Justice is not a cloistered virtue. It must be allowed to suffer the scrutiny and control spoken comments of ordinary men – Lord Atkin in Andre Paul Vs Attorney general of Trinidad[1].

In Supreme Court Bar Association Vs Union of India[2] and another plenary power and contempt jurisdiction of the Supreme Court came up for the consideration of this court and in that context Article 129, 142, 144 and 215* of the constitution were noticed. This court held that their inherent jurisdiction. The existence and availability of such power being essential to enable the courts and to uphold the majority of law and prevent interference in the due administration of Justice.

No act of Parliament can take away that inherent jurisdiction of the court of record to punish for contempt and Parliament power of legislation on the subject cannot be so exercised as to stultify the status and dignity of the Supreme Court and / or the High Court’s though such a legislation may serve as a guide for their determination of the nature of punishment which a Court of Record may impose in the case of established contempt.

This contempt of courts is an act of defiance of court authority or dignity. It is a conduct that is disobedient, obstructive or contemptuous to the court. The alleged contempt has to be weighed against the words of Justice Atkn in Ambard Vs Attorney General for Trinidad[3] who observed – Justice is not a clustered virtue, it must be allowed to suffer the scrutiny and Control, even if outspoken, comments of ordinary men. In Helmore Vs Smith [4]according to Justice Bowen wrote “the object of discipline enforced by the court in case of contempt is not to vindicate the dignity of the court or the person of the Judge, but to prevent undue interference with the administration of Justice” of contempt of court Lard Denning wrote this in Moris Vs Crown Office[5] “of all the places where law and order must be maintained, it is here in these courts.

The courts of Justice must not be deflected or interfered with. Those who strike at it, strike at the very foundations of our society, to maintain law and order. The Judges have, and must have, power at once to deal with those who offend against it. It is a great power, a power instantly to imprison a person without a trial – but it is a necessary power. “In Austman and Oddson Vs BJarnason[6] contempt is a disobedience to the court, an opposing or despising the authority, Justice, or dignity”. “It commonly consists in despising a party’s doing something otherwise than he is enjoined to do, or not doing what he is commanded or required by the process, order to decree of the court.

[1] AIR 1936 PC 141

[2] 1998 (4) SCC 409

* Article 129 – Supreme Court to be a Court of Record.

* Article 142 – Enforcement of decrees and orders of Supreme Court and orders as to discovery.

* Article 144 – Civil and Judicial Authorities to act in aid of the Supreme Court.

* Article 215 – High Courts to be courts of record.

[3] 1936 AC 322

[4] 1887 35 CH.D 449

[5] 1970 (2) QB 114

[6] 1932 (2) WWR 20

* Article 139 – Conferment on the Supreme Court of powers to issue certain writs.

Judges Transfer Case

Judges Transfer Case :

Reported in

1. 1999 (3) LLN 175.

2.1998 (3) SCC 192

3. 1999 SCC (L&S) 1299

4. 1993 (2) SCC 56

5. 1995 AIR SCW 1555 & 3768

All India Judges Association took up the matter of transfer of Judges of the High Court’s yet, it is not a finality the entire matter can be looked in to in view of the present circumstances High Court Judges are appointed from among the practising Advocates of the High Court, having 10 years of practice in High Court and by promotion from the District Judges on the basis of seniority. In case of an Advocate appointed as Judge of a High Court and posted in the same High Court the general presumption is that he is not free from bias, influence, favours of caste, relations, associate advocates, his clients (when he is in practice) all of them are potential sources of exerting influence over the Judge in his decision making.

The Judge so appointed of a High Court is also a human being and he is not above passions and we cannot also expect him to become a saint or sage all along the way free from such short comings. Today Indian citizen hope that speedy Justice as well as quality of Justice under no circumstances quality of Judgements can be allowed to be eroded. Higher standards are expected by the common man at the higher levels of the Judiciary. The transfer of Judges is still a matter to be finalised and an acceptable solution can be found out.

There are no specific rules of conduct for Higher Judiciary or lower Judiciary. In respect of lower Judiciary is concerned. The High Courts are following the C.C.A rules (Classification, Control and Appeal) Rules of Government subordinate services in the State. But for Higher Judiciary services there are no separate set of conduct rules. The Judges are also Judicial Functions. Any service cannot be left without specifying a Code of conduct under a set of rules.

The frames of the constitution did not visualise the present position regarding the conduct of the Judges in Judiciary. Moreover, the legislature or Executive did not evince any interest on this aspect and right from 1950 this matter of conduct of the Judges was left to the self-introspection. This has become apathy on the part of the Executive and Legislature and the Judges are taking advantage of this position.

Transfer of Judges of the High Courts

Transfer of Judges of the High Courts :

The transfer of Judges of High Court from one High Court to another otherwise than by way of disciplinary action has been a knotty issue. This issue was prominently discussed and the principles governing the issue laid down in the 1993 decision of the Supreme Court in SCAORA, and supplemented in Ashok Reddy Vs Union of India[1].

C. Subordinate Courts :

Under Article 235 the Subordinate Courts will have District Judges who are appointed by Direct Recruitment and Promotion by the High Court of the State under the warrant of hand and seal of the Governor. The Subordinate Courts include Civil and Criminal Courts, Junior Civil Judge / Magistrate.

In Shamsher Singh Vs State of Punjab[2], the Constitution Bench of the Supreme Court observed “In all Conceivable Consultation with Highest Dignitary of Indian Justice will and should be accepted by the Government of India”

Transfer of Judges :

For the subordinate courts the Judicial Officers will not be posted to their native Districts. According to their study certificate. They are liable for transfers within the state periodically. The High Court of the State shall exercise that power of transferring the Subordinate Judges. It is significant to note. That there is no provision in the Constituent regarding transfer of Judges of High Courts. There is the Supreme Court of India situated only in Delhi, and it has no benches anywhere in the country. Whereas in case of High Court in some states, the High Courts have benches at more than one place. Example :

Maharashtra – Mumbai (Main High Court)

Nagpur – Bench

Utter Pradesh – Lucknow

Allahabad – Bench

Gujarath – Ahmedabad (Gandhi Nagar)

Gujarath Branch – Aurangabad

Regarding the transfer of High Court Judges, since there is no specific provision in the constitution. It is only a precedent or custom for transfer of High Court Judges. There is a legal conflict over this matter of transfer of High Court Judges.

[1] 1994 (2) SCC 303, is adequate to meet the situation

[2] AIR 1974 SC 2192

Constitution Of High Court

Constitution Of High Court:

In India every state has got High Court. This is the higher Judiciary in respect of the state.

Constitution Of High Court In The States :

Article 214 deals with a High Court by each state.

Article 215 deals with the High Courts to be courts of record.

Appointment of Judges of High Court :

Under Article 217 the President of India by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, in case of appointment other than Chief Justice, appoint the Judges of the High Court. The Judges of the High Court shall retire after attaining the age of 62 or he may resign from his office. The Judge of the High Court can also be removed under the same procedure as stated Article 124(4). The High Courts are also constitutional courts by exercising powers, under Article 226 original writ Jurisdiction in the nature of

A. Habeas Corpus

B. Mandamus

C. Prohibition

D. Quo-warrant

E. Certiorari

A part from the above original Jurisdiction the High Courts have powers of appeals from the Orders passed by subordinate courts in the state in respect of civil and criminal matters.

The High Court’s additionally, exercises the power of superintend dense / supervisory powers under Article 227 over the subordinate courts.

Powers of the Supreme Court

Powers of the Supreme Court :

Under Article 131 of the Constitution the Supreme Court of India have got original Jurisdiction in cases of disputes

a) Between the Government of India and one or more States.

b) Between the Government of India and any State or States are one side and one or more other States on the other.

c) Between two or more States.

The Supreme Court entertains appeals from High Court in certain cases.

Article 134(1) – Under the Certificate of the High Court.

Article 133 – Supreme Court has appealed powers from the orders of the High Court in the Civil matters.

Article 134 – Supreme Court has git appellate powers in regard to criminal matters.

Article 136 – The powers of Supreme Court and Special Leave Appeals (SLPs).

Article 137 – Supreme Court has powers to review its own Judgements or Orders.

Article 140 – Ancillary Powers of the Supreme Court.

The Supreme Court of India is the highest court which is most powerful national judiciary in the world. It is respected internationally for its inventive and creativity. Under

Article 141, The law declared by Supreme Court is binding on all Subordinate Courts in India. By virtue of this article the supremacy of the Supreme Court in the Indian Judiciary is declared.

Article 142 – The Supreme Court can enforce decreases and orders and orders for act the sc alone can exercise such extraordinary power which no other courts can do.

Tenure Of Supreme Court Judges

Which they wanted not to be eroded, this was the significant event in the entire Judicial History of India subsequently the convention of seniority for the appointment of Chief Justice of India has been continuously followed. From the Puisne Judges of the Chief Justice of Supreme Court of India Justice Sinha 1949. He was impeached by the Parliament and it was only the occasion in the Judicial History of India. After Republic, Justice Harilal J.Kania was the First Chief Justice of India. He was in office from 26th Jan 1950 to 6th Nov 1951. Even though the tenure of office of the Chief Justice of India was less than one month, few months, or one year before attaining the age of 65, such senior most Judge of the Supreme Court was appointed as Chief Justice. The tenure of Justice J.C.Shah is one such example. He held the office for 34 days hardly. Justice M.H.Kania held the office from 18 November 1992 to 1993. For appointment of other Judges of the Supreme Court a procedure was constantly followed that senior most Chief Justices of High Courts are being appointed. The retirement age of Judge of the supreme Courts in 65 years, whereas the retirement for Chief Justice of High Court is 62 years. This is also on the basis of convention followed by the President of India. But, as per the qualifications prescribed under clause 3 of Article 124* he must be a Citizen of India, He must be a Judge of a High Court for 5 years in two or more High Courts successively.

Those events of appointments were subjected to lot of criticism across the Nation in the legal field.

If once the Judges of higher judiciary are appointed they cannot be removed from office except the procedure laid down under (4) of Article 124. It by impeachment of Judge in the Parliament, Subhash Sharma VS Union of India[1]. The procedure of impeachment is specifically dealt with and it may be motion for impeachment of a Judge of a higher Judiciary (Supreme Court or High Court) can be moved either in Loksabha or in Rajyasabha. After an address by each house of Parliament supported by a majority of not less than 2/3 of the members of the house present and voting in the house for such removal on the ground of proved misbehaviour or incapacity. As per this stipulation it is highly impossible to obtain 2/3rd majority in the house because of present day political system in the country.

Justice Sinha was impeached by the Indian Parliament in the year 1949. Later, V.Ramaswamy, Judge the proceedings of impeachment was moved against him. Finally, it was not passed in the Parliament. Recently, another case relating to Justice P.D.Dinakaran, Chief Justice of Karnataka an impeachment proceedings were moved in the Rajya Sabha, how even he resigned, and as such the matter was not further proceeded in the Parliament.

[1] AIR 1991 SC 631

* Article 124 – Establishment and Constitution of Supreme Court.

Removal Of Supreme Court Judges

A Judge of Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than 2/3 of the members of house present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4).

Every person appointed to be a Judge of the Supreme Court shall, before he enter upon his office, make and subscribe before the President, or same person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the 3rd schedule. No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India. This clause of a qualification of a Advocate having 10 years or more practice in High Court was taken into consideration by Mr.Rajiv Gandhi, as a Prime Minister, he recommended to the President for appointment of Justice T.Natarajan, Madras High Court a practicing Advocate from Madras High Court was straight way appointed as Judge of the Supreme Court of India. This is break though of the convention.

That appointment was the first and last of such a practising advocate of a High Court being appointed straight as a Judge of the Supreme Court. Except above cited occasions the convention for appointment of Chief Justice of India and other Judges appointment of Chief Justice of India and judge of the Supreme Court were made on the recommendation of Indira Gandhi and Rajiv Gandhi only of mileage. It was an unfortunate event in the annals of a History of Appointment of Judges in the events with a view to gain political advantage by the P.M. of the country who recommended the name to the President. The President who appointed them in the above occasions was not above any cloud of suspecting the integrity of the highest officers of the country. The President, the Prime Minister, the Chief Justice of India and the Judge of the Supreme Court.

Most of the Judge of the Supreme Court is those previously senior Judges on High Courts.

What criteria and guide lines are being applied? What level of scrutiny is done before a Judge of the High Courts is elevated to the Supreme Court? At present, the choices are made seemingly according to the foney of the Judges who constitute that should help reveal the class bias of those who are chosen. The Bar is the Judge of the Judges and no Judge can avoid or escape the verdict of the bar.

A performance commission is a necessary instrument to assess the worth of Judges proposed for elevation or for extension of tenure or for ad hoc appointment; there are no checks on the decisions of the collegiums. The whole system needs reform and principles need to be set out on a candidate’s social philosophy bedlam process why it should be retained. The Supreme Court is the conscience keeper of the proprietary. Arbitrary power will corrupt even the best of persons absolutely. The colleguim is a Judicial Creation and a syndrome of the personality cult, being beyond accountability. It is a bixarre on its performance. Its selection process is secret and suspect, and is subject of no scrutiny. It exerclude the executive and is in that respect unique in the world. Parliament must take a law regarding, selection of Judges and a performance Commission, as has been done by many of states in us, such performance commission. Should have the power to hear the complaints from any litigant against. The condue of Judge Lord Chancellor has such power. In 1986, Lord Hail Sham expressed support for the introduction of an Indepent Complaints Board to investigate facts and make recommendations to the Lord Chancellor. Prior to the dismissal of an Judge. Judges with a class bias are misfits in a socialist republic. Some Judges with a communal bend of mind are on the Bench.

In the name of Independence, you cannot have judicial absolution and Tyranny. The three instrumentalities must harmoniously work the constitutions sense of Justice, Social, Economic and Political in to a reality.

Committees and Commissions are being set up as a play for inaction and dodging.

Judiciary is proclaimed by all high and mighty as one of the pillars of good Governance and Democracy, but, successive Government has starved of the funds and where with all to improve the Justice Delivery System.

Appointment of Judges to the Supreme Court

Appointment of Judges to the Supreme Court :

The composition of Judges in the Supreme Court comprises its establishment, and it involves in constitution of Supreme Court – This subject is specifically dealt under chapter IV of the Constitution. The Union Judiciary Article 124(1)

Article 124(1) – The Constitution of Supreme Court of India consisting of a Chief Justice of India and not more than 7 other Judges initially. That was subsequently amended to 25 other Judges by Act 22 of 1986 Amendment.

Article 124(2) – Every Judge of Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Court in the states for the purpose, and the Judges of Supreme Court shall retire until he attains the age of 65 years.

Justice Bhagavathi desired for a National Court of Appeal, which would be in a position to entertaine Appeals[1].

From the bare reading of Article 124 with its clauses 1 to 7 it is clearly spelt out regarding the qualifications, procedure and other requirements, regarding the appointment of other judges of the Supreme Court. Whereas, significantly the manner, the procedure, the qualification for the appointment of Chief Justice of India is not dealt with under this Article 124. Therefore the appointment of Chief Justice of India impliedly is left to be followed by convention. That means the Chief Justice of India shall be appointed from a Judge who is senior most among the Judges of the Supreme Court. This convention has been continuously followed from 1950 onwards. But, however, there was a breach in the convention.

When Indira Gandhi as Prime Minister in the year 1974, preferred Justice A.N.Ray of the Supreme Court of India to be elevated as Chief Justice of India by superseding the seniority of Justice Shalat, Justice Grover and Justice K.S.Hedge. This was the first ever occasion a controversy has been raised on the appointment of Chief Justice of India, the highest judicial post of the country. The President appointed Justice A.N.Ray as Chief Justice of India on this matter a lot of discussion was raised among the legal fraternity across the country. Consequently, the 3 senior judges of Supreme Court Justice Shalat, Justice Grover and Justice K.S.Hedge resigned their post as the judges of the Supreme Court since as a measure of protest since they were overlooked. And the convention of seniority was not followed. The resigned judges preferred to keep up their integrity, character and personality.

Provided that in case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted. The Judge may resign, he may be removed from office in the manner provided under (4) of Article 124.

1. A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India.

2. He has been at least 5 years as a Judge of a High Court or 2 or more courts such in succession. (Or) He has been for at least 10 years as Advocate of High Court or 2 or more courts such in succession.

[1] Bhihar Legal Supports Society Vs CJ of India and another, 1986 (4) SCC 797.

The Higher Judiciary Constitution – Appointments

1. The Higher Judiciary Constitution – Appointments

The Jurisprudence of Judicial composition is of paramount importance. The frames of the constitution wasted the appointment power of Higher Judiciary in the hands of the president and in consultation with the chief Justice of India. Regarding other Judges of the Higher Judiciary (High Courts and Supreme Court Judges) the power was a political choice and the basis of wisdom of counsel by the highest judicial functioning. The provision in the constitution regarding the appointment of judges from the Supreme Court gave primary to the Executive while at the same time the Chief Justice of India and the Chief Justice of High Courts were accorded high importance and their views in the choice of appointment of Judges were given great importance.

Today if the Judges are selected and appointed through manipulations and influences. They always tend to attempt to enrich themselves instead of attempting to enrich the law. There Salaries and parks are more attractive. They are provided with all facilities A.C. Bunglas, A.C.Cars, A.C. Chambers, Attenders, Servants, Free Library etc. They feel so co placement, secure of tenure of the court till the age of 65 or 62 and also securing some other like chairman a member of the board, tribunals of income tax administrative tribunals banking tribunals and other committees or commissions. The Judge of lower Judiciary and Higher Judiciary have became a separate affluent class at higher strata of the society. They and their families are now feeling as a separate class by themselves.

Today, this has to overhauled and recast the entire procedure of their selection, appointment, exercising power, discipline, power, character, efficiency above all impartial and devotional discharge of their pious – desire to have Judges of not only honesty / integrity but also efficient and effective at the deliverance of Judgements in disposal of cases. Incorruptibility should be the quality of a Judge. If any doubt or suspicion is raised from any corner against a Judge / Judges. They must be sacked wedded out, corrupt, inept and inefficient to purse the system in order to preserve its glorious qualities, recognized and applauded by the other countries in the world. Since the Indian Judiciary is estimated so high in its efficiency working, protecting and above all successfully preserving the democracy in the country. Judiciary in India is acting –

· The Judiciary has been given an exalted status.

· Unfortunately the provisions relating to accountability of higher Judiciary have not come up to the expectations of the people. The expectation of the frames of the Constitution has been belied.

Judiciary in India, A Structural Analysis

Administration of Justice is one of the essential functions of the state. Every State (The organized power of a Political Community) has a primary objective to maintain peace and order in the society. To achieve the said objective of maintaining peace and order in every state has to make laws both Civil and Criminal to regulate and control the action of its citizens. However, mere enunciation of law for regulating the conduct of citizens without the establishment of proper machinery to administer and enforce the same will be of little value. Hence, the Constitution of Courts presided over by Judges who are commissioned to administer the laws an essential condition of administration of justice.

The courts may be defined as the institutions through which the state administers Public Justice to its citizens. The courts administer Justice for enforcement of rights and for punishing wrong doers. The courts will handle both Civil and Criminal law of Justice. The present legal system of our country was inherited from the Britishers during their rule. The Justice delivery system, comprising of various courts in their constitution and composition structure on the analysis of formation of government viz Central Government for the whole of the country and state government for respective state in the country, on the same ground the judiciary was also built up in India.

The courts which administer Justice are classified as follows :-

a. Higher Judiciary – It consists of our Supreme Court of India and all High Courts of State.

b. Subordinate Judiciary – From the Magistrate to District Judge in the District Administrative Justice is called lower Judiciary / Subordinate Judiciary.

Legal and Constitutional Perspectives

Legal and Constitutional Perspectives :

The objectives Resolution of the Constituent Assembly to frame the Constitution to free India contains 8 clauses to guarantee and to secure to all the people of India : Justice – Social, Economic and Political, Equality of status and opportunity, freedoms “with adequate safeguards to the minorities, backward and depressed classes” to maintain integrity of the Republic and the “welfare of mankind”. The Preamble of the constitution of India, therefore, laid structural foundation to retrieve the aristocratic, medieval and hierarchical society for transformation as an egalitarian society assuring to every citizen Justice – Social, Economic and Political, the Liberties, Equality of Status and of Opportunity and to promote among all the citizens fraternity assuring the dignity of individual for unity among them and integration of the nation in Sovereign, Democratic Republic. Constitution 42nd Amendment Act introduced “socialist, secular” goals which were embedded in various provisions of the Constitution to make it more explicit.

Constitutional Mechanism to Realize the Promises :

To achieve the above, Constitutional governance was entrusted to the Executive, the Legislature and the Judiciary assisted by permanent bureaucracy, planning commission to evolve and monitor socio-economic industrial policies implemented. Republicanism, democratic system of governance, federal structure with a unitary goal and flexible balance of the distribution of powers between the Parliament and the Legislatures of the States demarcated. The President of India governs the Bharat Republic with aid and advice of the council of ministers of union of India headed by the Prime Minister and the Governor of the state with the aid and advice of the Council of Ministers of the state headed by the Chief Minister, the elected accountable Governments at the National and State level respectively. Single Citizenship and Adult franchise to every citizen has been granted. Periodical elections to the Parliament and Legislature of the States have also been delineated in the Constitution. The Executive power of the Union of India and the State are co-extensive with their Legislative Powers enumerated in Schedule VII to make laws for the Union of India and States in Article 1 to 4 read with the 1st schedule to the Constitution. The entries in List -1 and residuary power were demarcated to the Union of India and entries in List -2 to the States and the entries in the List-3 (Concurrent List), both the Union of India and State Legislature have power to make Laws.

Quality of Judge and Progressive Justicing :

The Quality of dispensation hedges with the quality and capacity of the judge. The quality of disposal is on commitment. The post Independent Higher Judiciary provided to the tilt of Granville Austin’s substandard perspective as wrong. Whether 21st Century Higher Judiciary measuring up to that standard is to search for.

Role of Law and Democracy :

“Rule of Law acquired a richer content as a potential instrument of maintain liberty, equality and fraternity among all citizens of the country promoting social justice”. The obligation of a democratic state to its citizens is the functional role of law as a democratic society.......... freedom from want cannot be forced on a democracy or given to a democracy. It must be one or other. In the progress of the democratic way of life, law ceases to the passive just as democracy ceases to be passive and purpose of law like that of democracy becomes dynamic. Rule of law adjusts the claims of individual liberty and freedom an one hand and the claims of social good on the other. It is this dual which a dynamic democracy has to face and it is in the harmonious and rational settlement of these duel that law has to assist democracy.

1. Calcutta Electricity Supply Co. Vs J.c Bose[1], it was stared that, the concept of social justice assured in the preamble thus become a dynamic fundamental rights.

2. Consumer Education Research Centre vs Union of India[2]. As a vehicle for orderly growth and development of full personality of every citizen, including the Weaker Sections, in particular, the Scheduled Castes and Tribes.

3. Air India Statutory Corporation Case[3], stated that the concept of social justice embodies equality of fervour and enliven a practical content of life.

[1] 1991 (1) SCC 411

[2] 1995 (3) SCC 42

[3] AIR 1997 SC 647

Judicial Appointments in Other Countries

In other countries, the Judges are elected by the people. In such a case, they are accountable to the people for their actions. In other countries they are appointed by the Parliament and they are answerable to the Parliament. But, in India, the Judges are appointed under the hand and seal of the President. But they are not answerable to the President for their actions. In the first 25 years placed confidence and reliance on the integrity and honesty of the Judges. And in any other event, it was left to their self-introspection, when a little finger is raised against a Judge or a court.

Now, the Judges in India are feeling that their office is so secure, that cannot be removed from their office in any ordinary course. Except in this case o an impeachment-motion moved and passed with a 2/3rd majority in the house. Today under Indian Political system, it is highly impossible to secure 2/3rd majority in the Parliament. By knowing this position, the Judges in the Higher Judiciary, now enjoying unperturbed position. There is no need to raise any grievance against any possible disturbance over the Independence of Judiciary. Interpretation of the constitution besides exercising powers of Judicial review over the administrative acts of the Executive or the Acts passed by the legislature, by testing their constitutional validity, besides interpreting the constitution.

The roots of an impartial and independent Judiciary are deeply embedded in our Indian Democracy. The constitutional rights of every Indian to have her/his legal issues decided by a fair and impartial judicial decision-maker. Judicial Independence does not exist to serve the interest of the other two branches of the government. Executive and Legislature exists to serve and protect the general public citizens. Judicial Independence is important for the existence of a free-society only. As it is governed by the Rule of Law. The people of this country, not only desire to have an Independence Judiciary, for the purpose of getting impartial Justice to them, but also free from corruption and bias.

Independence of the Modern Judiciary has many facts. The external facets, that held to undermine the Independence of Judiciary, are well recognized. Judicial Independence is priceless property of any country under the Rule of Law. But, the Judicial Independence rests on the calibre and the character of the Judges themselves. The constitution of India is supreme in the country. Any law inconsistent with or in derogation of the provisions of the constitution, is void. Article 50 of the constitution enjoins the state and in fact separated the Judiciary from the Executive in the Public Services of the State.

It is the constitutional duty of the Judiciary to adjudicate the disputes between the citizens and the citizens, citizens and state, state intense, and the states and the centre in accordance with the constitution and the Independence and Integrity of the Judiciary in a democratize system of a government is of the highest importance and dispensation of Justice by an impartial presiding Judge without fear or favour, affection or ill-will is the cardinal creed and it is Jealously protected by the constitution.

The confidence of the people is in the impartial deliverance of the Justice that is binding force for the acceptance of Judicial System it provides, to solicit respect, faith and obedience to the orders passed by the court, in the process of deliverance of the court. It must not only be independent, the Judiciary must have efficacy, efficiency and expeditious delivery of Justice. If any one of these qualities in the Judicial System is missing / absent, the faith of the people gets eroded.

Judicial Independence means total liberty of the presiding Judge to try, hear and decide the cases that have come before him according to the set procedure of law and to give binding decisions in merits without fear or favour. Independence is not limited to insulting the Judge from the Executive pressure alone, it’s sphere extends to many other impeccable zones of pressure or prejudice.

Judges should be made of stem stuff, unbending before the power, economic or political, which alone would ensure fair Justice Percolating to the person deserves it. The Judges on the rolls in the system of Judiciary should be persons of sterling character, impeccable integrity, un-daunting, cottage and determination, where impartiality and Independence are the command of the constitution and the needs of the people. If the people lose confidence in the credentials / quality of the Judgement and feel that they are not receiving a fair-hearing and true Justice, ultimately they start suspecting the system of the Judiciary, and not inclining to obey the orders of the Judges. Judiciary requires not only independence, but also fairness.

Judges Transfer Case - SP Gupta Vs Union of India

Famous case, S.P.Gupta Vs Union of India[1] 1982, this is popularly known as Judges Transfer case. The Supreme Court unanimously agreed with the meaning of the term consultation in Article 212, 22, 124(1)* of the constitution. In the above, Supreme Court Advocates on Record case, the Supreme Court held that the Chief Justice shall have to consult two other senior most Judges of the Supreme Court before sending his opinion. In this Judgement, the Supreme Court laid down certain guidelines.

a) Individual initiation of high constitutional functionaries in the matter of appointment of Judges reduced to minimum. It gives privacy to the Chief Justice of India but puts a check on him to consult at least two of his senior most colleagues.

b) Constitutional functionaries must act collectively in Judicial Appointments.

c) Appointment of Chief Justice of India by seniority only.

d) No Judge can be appointment by the Union Government without Consulting the Chief Justice of India.

The Supreme Court, while upholding the Independence of Judiciary in appointment of Judges of the Supreme Court and High Court, on the basis of the term “consultation” under Article 217(1)* and 222 of the constitution in the formation of the opinion of the Chief Justice of India after consultation has to be sent to the President. Two senior most Judges of the Apex Court have to assist the Chief Justice of India to form an opinion. However, the question regarding political interference in the matter of appointment of Supreme Court and High Court Judges, still exists and after, the court has been striving to maintain the Independence. But in 93rd Constitutional Amendment Bill of 2003, it will provide for establishment of National Judicial Commission. The provisions of the 93rd Amendment are featured as follows.

1) Constitution of the commission to be chaired by the Honourable Chief Justice of India with two senior most Judges of the Supreme Court, Minister In-charge of law and Justice, Union of India , and an eminent citizen to be nominated by the President, as its member.

2) Powers of the Commission regarding appointment of the Supreme Court and High Court Judges, and matters incidental thereto.

3) Powers of the Commission to take action in cases of complaints against Judges and the matters incidental thereto.

4) Association of the Chief Minister of the concerned state in the matter of appointment of High Court Judges.

The Legislature has been conferred with powers for the constitution to enact laws at the same time, the constitution also provides for certain rights to the citizens. The Independence of Judiciary has been provided by the constitution to maintain of Judiciary has been provided by the constitution to maintain balance between the legislative-powers and the rights of the citizens. The legislature must understand that it cannot indirectly interfere with the Independence of the Judiciary and its functioning, which is against the spirit of the constitution.

The Government of India through the 93rd Amendment Bill proposes to constitute a National Judicial Commission in view of the allegations of corruption and misuse of official position, being mode against sitting Judges of different High Courts. The Bill (93rd amendment) provides to deal with the matters relating to Appointment, Transfer of Judges and inquiries into the complaints against the Judges and other incidental matters. The Government of India proposes to establish the National Judicial Commission, so that the Commission comprising eminent persons without any Executive or Political influences. But the Judiciary is expressing a grouse by saying that under the pretext of constituting National Judicial Commission, The Executive is trying to interfere with the Independence of the Judiciary and the so-called nominated persons in the National Judicial Commission, pliable to the Executive and may Act according to the wishes of the Executive. But the Independence of the Judiciary as contemplated in the constitution is without any interference in any manner what so ever. The Independence of Judiciary is a basic structure of the constitution as held by the Supreme Court in Kesavananda Bharathi Vs State of Kerala[2].

Visualising the present situation, the Judiciary in India, which is the protector and guarantor of Fundamental Rights of the citizens, is to be allowed to function independently without any interference. In this regard, a mute question raises that whether the action of the Executive in respect of constitution of the courts, appointment of Judges, laying down their conditions of service including salary, age of retirement etc, whether this amounts to interfering with the Independence of Judiciary while the Judges are not answerable to any Superior Authority. While exercising their power of delivering Judgments in the course of administration of Justice ?. However once an office or a post or an Institution is created or constituted, it must be placed under the control of some authority; so that the actions of the persons employed can be supervised or controlled. But, in Indian Constitution, once the courts are constituted and the Judges are appointed, no external influence over exerted or imposed in the course of deliverance of Judgements, either from the legislature or from the executive. But on the other hand, it is for the Judges themselves, who are allured by the influences corruption, malice, bias, favour etc, because the Judges are also human beings. In India, the Judges are influenced only by their vices or weaknesses from among themselves and no external inferences ever entered into the citadels of Independence of Judiciary.

[1] AIR 1982 SC 149

* Article 212 – Courts not to inquire into proceedings of the Legislature.

* Article 22 – Protection against arrest and detention in certain cases.

* Article 217 – Appointment and conditions of the office of a Judge of High Court.

[2] AIR 1973 SC 1461

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