Q. Critically examine the constitutional provisions which ensure the independent judiciary in India.

 

_{Note: this post is a part of our important question answer series on Constitutional Law. You can read other questions by clicking here.}

 

Answer

India is a democratic nation, which is built on the principle of rule of Law. Our Constitution makers ensure that all the 3 organs of the government, although inter-related to each other, but should work on the principle of separation of power. It means; no organ should interfere in the working of other organ of the government.

Our constitution enshrined concepts like: supremacy of Law, judicial review, independent functioning of the courts and judiciary as the final interpreter of the Constitution, which signifies the position, the judiciary enjoys, in our democratic setup.

Following some key constitutional provisions are discussed:

I.                   Separation of Judiciary from the Executive and Legislature:

Under the article 50 of COI, it is clearly laid down the provisions to separate the functioning of the judiciary from executive. Judiciary in India is neither a branch of the executive nor a hand-maid of the legislature. It has an independent identity under the Constitution. Even it is considered as watchdog over other organs of the government.

 

II.                No executive interference policy in appointments of judges:

After the series of plethora of judgements: SP Gupta Vs. UOI, (1^st judges case), Supreme Court Advocates on record v. Union of India, (1993) (2^nd Judges case), 3^rd judges or Re-presidential reference case and Supreme Court Advocates on Record Association & Anr. V UOI, (NJAC judgement), now it becomes a settled principle that except the CJI, all other judges shall be appointed on the recommendation of the collegium consisting 4 senior most judges and headed by CJI. In the appointment of the CJI, the principle of seniority should be followed. All these arrangement makes judiciary free from executive interferences.

 

III.             Satisfactory salaries and allowances:

Every possible effort has made in order to ensure that judiciary should remain free from financial influences. The salary and other perks for the judges are increased by the parliament, according to need of the time. Moreover, it is also ensured in Constitution itself that salaries and allowances of judges cannot be reduced during their terms of office, except in the situation of a financial emergency in the country.

 

IV.              Security of Service:

No judge can be removed from the office except by a very difficult process of impeachment. Moreover, the proceedings for the impeachment can only be initiate on the grounds of proved misbehaviour or incapacity.

 

V.                 Power to Punish for Its Contempt:

Courts in India have been given the power to punish all cases involving a contempt of court. For the same purpose, the contempt of courts act, 1971 has been enacted. This power of judiciary ensures that no one can unnecessarily interrupt or interfere in administration of justice.

 

VI.              Prohibition on Practice After Retirement:

A Judge of the Supreme Court is prohibited to practice before any court or authority in India, even after his retirement from the service.

 

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