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By: Kaustubh Kumar* |


Judiciary being the third pillar of democracy plays a vital role in Indian political system by keeping a check on the executive. The perseverance and dedication of the forefathers to make India a democratic state that provides basic rights to its citizens was fulfilled by enshrining adult suffrage, parliamentary (indirect) democracy, and fundamental rights in the constitution, but to bolster these democratic ideals, the independence of the judiciary was also added so that the Indian judiciary shall function as the sole guarantor and protector of the constitution and help each citizen in getting access to their fundamental rights from the state, without any hurdle. Independent judiciary was also a necessity to contain the wide powers provided to the executive so that there exists a perfect balance among the trinity.

The existence of an independent and courageous judiciary in India played a crucial role since independence in transforming society by making them adaptive to new changes. For example, recognition of transgender people as third-gender,[1] inclusion of women in command positions,[2] etc., changed society from a closed and traditional to an open and evolving mindset. Judicial independence helped in maintaining neutrality and dignity. If it were controlled under the executive, then principles implanted by the executive would have ruined it and citizens would have no faith in it.


Since independence, the executive has tried various times to restrict the independence of the judiciary and make judicial institutions bow down under its vast powers. It was already foreseen by our Constitutional framers while drafting that's why they enshrined various provisions in the Constitution of India, so that the executive may not interfere in its smooth functioning. Some of these provisions are the appointments of judges after consulting with judicial authority by the President,[3] security of specific tenure,[4] removal of judges by the President only after an address presented to him by each house of the parliament,[5] salaries of judges,[6] the appointment of their staff,[7] etc. The judges are only appointed by the President, but his power is only formal as he is bound to seek the advice of the council of ministers.[8] So, there is a probability that the council of ministers may bring politics inside the institution of the judiciary.

One of such instances took place just before the declaration of emergency in 1975 by then Prime Minister Smt. Indira Gandhi. There was a long practice to appoint the senior-most judge as the Chief Justice of the apex court, but on April 25, 1973, this practice got shelved off, and Justice A.N. Ray was appointed as the Chief Justice of India supplanting three other senior justices, J.M. Shelat, A.N. Grover, K.S. Hegde, respectively, as they passed the order criticizing the government in the case of Kesavananda Bharati.[9] Later, they resigned from the Supreme Court after this incident. This incident aptly shows how the executive shall hi-jack the judiciary and adulterate its impartiality and independence by pressurizing or influencing the judges.

The transfer of the judges from one court to another also affects the independence of the judiciary. During the 1975 emergency, the Union Government transferred nearly 56 judges without their consent. However, Gujarat High Court’s Justice S.H. Seth decided to brave it out and filed a writ petition against the Union of India and the Chief Justice of India i.e., Justice A.N. Ray. In this case, the Hon'ble Court in majority judgment stated that the prior consent of the judge is not necessary to transfer. However, Justice P.N. Bhagwati and Justice N.L. Untawalia, in a dissenting judgment, quoted that transfer of the judges without consent is interference in judicial independence.[10]

Another case that dealt with the same issue was S.P. Gupta vs. Union of India,[11] where the appointment of judges was again encroached by the executive (Law Ministry) by issuing a circular. On March 18, 1981, a circular, seeking the consent of additional judges of High Courts for appointment as permanent judges in other High Courts was issued, this led to a heated controversy on its constitutional validity. The petitioner deemed it as an indirect interference in the independence of the judiciary and sought the disclosure of the documents of the correspondence between the Law Minister, Chief Justice of India, and Chief Justice of Delhi High Court. The Supreme Court asked the government to disclose the documents and upheld the circular and transfers as constitutional. The Supreme Court also elucidated the word ‘consultation’ with the legal experts while appointing judges. The Court stated that the executive is not bound by any consultation, as it does not mean ‘concurrence.’ The Government may ignore the advice of legal experts, as well. This ruling of the Hon'ble Court surfaced a huge controversy, and various legal experts deemed the verdict as a danger to judicial independence.

Continuous interference of the executive by influencing the appointment of judges created pressure on the judges The transfer of various judges only based on rumours and suspicion violates the basic principles of natural justice. The fear of transfer also harasses the judges, along with affecting their social, family life, and the education of their children. Hence, to vanquish the unnecessary interference, the Judges introduced the Collegium System in Second Judges’ Case[12] by over-ruling the majority judgment of S.P. Gupta vs. UOI (First Judges’ Case) that was giving primacy to the President (the head of the executive) over the CJI (the head of judiciary) in the matter of appointment of judges. The Bench stated that ‘consultation’ really means ‘concurrence’ and the opinion of CJI formed in consultation with the other two senior-most judges should be given greater weightage, in the appointment of Judges.

Later in the Third Judges’ Case,[13] the Collegium System evolved and the nine-judge bench stated that the members of collegium will be CJI along with the other four senior-most members. However, various scholars, judges, and legal practitioners have contrasting views on the Collegium System. Some appreciate it as it helps in less interference of the executive in appointments of judges while some consider it as absolutely opaque and inaccessible to the public. However, the Supreme Court said that it shall continue the appointment of judges through the collegium system. The Supreme Court also recognized that the existing collegium system needs improvement and sought suggestions from senior lawyers, lawyer’s organization, and the general public in 2015.


The appointment of judges was secured by the Collegium System, but the salary of judges is secured in our Constitution. It bolsters judicial independence by preventing the executive from increasing or decreasing it, but this affects the economic conditions of judges as the salary and allowances do not get revised with time. A judge of Bombay High Court resigned in July 1966, expressing due to the rise in the cost of living, he could not keep up with the position and status from the salary fixed sixteen years ago.[14] Duties cannot be discharged honestly if a judge has feelings that he is treated unfairly by the State. It indirectly influences judicial independence as well by harassing them financially and mentally. However, recently there was a considerable hike in the salaries, but it was not so during past times.


The executive, in the past, has strived to restrict the judiciary from passing any order against it, and if any order were made by the judges of the High Court or Supreme Court, then it tried to take revenge by transferring or harassing them in different ways. For instance, after the appointment of Justice R.N. Aggarwal as an Additional Judge in Delhi HC, a vacancy occurred and his name was recommended for the permanent post. But neither he was appointed as permanent High Court Judge nor re-appointed as an Additional Judge. Moreover, he was demoted as a Session Judge. As in Kuldip Nayyar’s case, he and Justice Rangarajan delivered a judgment criticizing the government.[15] There were various instances like this, and to overcome it, the Collegium System played a crucial role. Although the Collegium System is considered not transparent or secret, it has helped in the survival of the independent judiciary.

Though judicial independence is a feature of basic structure enshrined under the Constitution,[16] it is slowly fading away, in the eyes of the citizens. One of the main reasons is the practice of employing judges by the government after retirement in various capacities. The talent and experience of retired judges shall be used in tribunals or contributions to other judicial functions in the public good. But it is disgraceful and disappointing if any Supreme Court judge after retirement has to look for any government employment. In the cases where the government was a party, a normal citizen and litigant might get the impression that the judge was already under the influence of the government. The Law Commission also stated that this practise should be discontinued, as it might affect the judges.[17]

Supreme Court has, since independence, strived to protect its independence to administer justice to the citizens equally and impartially. At last, the words of the 7th U.S. President, Andrew Jackson would be worth quoting ‘All the rights secured to the citizen under the Constitution are worth nothing, and a mere bubble, except guaranteed by an independent and virtuous judiciary.


* The author is a student at National University of Study and Research in Law, Ranchi.

[1] National Legal Services Authority v. Union of India, (2014) 5 SCC 438. [2] Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469. [3] The Constitution Of India, art. 124(2), 127. [4] The Constitution Of India, art. 124, 217. [5] The Constitution Of India, art. 124(4). [6] The Constitution Of India, art. 125, 221, 360. [7] The Constitution Of India, art. 146(2). [8] The Constitution Of India, art. 74. [9] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225. [10] Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193. [11] S.P. Gupta v. Union of India, 1981 Supp SCC 87. [12] Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441. [13] Special Reference No. 1 of 1998, Re, (1998) 7 SCC 739. [14] 68 Bom LR (Journal) 80-81. [15] Noorani, A. G. “THE JUDICIARY AND THE BAR IN INDIA DURING THE EMERGENCY.” Verfassung und Recht in Übersee / Law and Politics in Africa, Asia and Latin America, vol. 11, no. 4, 1978, pp. 403–410. JSTOR, [16] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225. [17] Law Commission XIV Report, 46.



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