Features of the Judiciary: Constitution, Roles and Impartiality by Dr. Sital Sharma | Career Launcher

In this blog, explore how India’s Constitution safeguards judicial independence and impartiality. Learn key Articles, landmark judgments, and why an unbiased judiciary is the backbone of democracy. Curated by an expert in law studies, Dr. Sital Sharma is known for her prowess with demystifying concepts into digestible chunks.

This sub-topic has been further divided into the following points to enable a better understanding of the concepts-

Features of the Judiciary: Independence of the Judiciary as a Constitutional Safeguard

1. Article 50 of the Constitution of India provides for the Independence of the Judiciary. The article provides that the judiciary shall be separate from the Executive.
2. Independence of the judiciary is one of the important features of the Basic Structure of the Indian Constitution.
3. Independence of the judiciary means a fair and neutral judicial system of a country, which can afford to take its decision without any interference from the executive or legislative branches of government. 
4. Independence of the judiciary helps in-
   • The maintenance of the rule of law,
   • Ensuring good governance, and 
   • Creating a free and fair society.
5. Dr BR Ambedkar said that the judiciary is the guardian of human rights and civil liberties. The Courts are not only Courts of law, they are also the Courts of justice.
6. Jurist AV Dicey said that the rule of law would mean supremacy of regular law as opposed to arbitrariness. He also added that it would mean equality before the law.
7. The first political philosopher who propounded the idea of an independent judiciary was Montesquieu, the famous French philosopher. 
8. Therefore, for a democratic government, the Rule of Law is a basic requirement, and for the maintenance of the Rule of Law, there must be an independent and impartial judiciary. 

Features of an Independent Judiciary:

• This is understood as the judiciary’s autonomous status, separate from the executive or legislative wings of the government.
• The other organs of the government, like the executive and legislature, must not restrain the functioning of the judiciary in such a way that it is unable to do justice. 
• The other organs of the government should not interfere with the decision of the judiciary. 
• Judges must be able to perform their functions without fear or favour.
• Independence of the judiciary helps in the maintenance of the rule of law, ensuring good governance and creating a free and fair society. 

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Need/Importance of Independence of Judiciary:

1. Judiciary’s independence is linked to its role as the watchdog in a democracy.
   • It monitors and maintains the checks and balances over the other arms of the government. Thus, the judiciary emerges as a mediator when any organ of the government exercises ‘excess power’ which tends to violate the larger societal or individual interest. For instance, the Indian Police has extensive powers for crime detection and gathering evidence for the prosecution of criminals. However, such powers should not impinge upon the rights of the accused or the suspected criminal. An accused cannot be coerced into giving a statement pointing to his/her guilt. This is known as ‘Right Against Self Incrimination’. This right has been constitutionally guaranteed to the accused under Article 20(3) of the Constitution, which states: “No person accused of any offence shall be compelled to be a witness against himself”.
     
2. In order to ensure that constitutionally guaranteed freedoms, such as freedom to speak in public or peacefully assemble are interpreted as per the true constitutional philosophy, the judiciary has been kept free from any external pressures. This is particularly useful when the judiciary is interpreting a case of conflict between, say between the government (political party in power) and certain protesting people of the civil society who have peacefully articulated their opinions on social issues, for example, crime against women. 
3. The judiciary acts as a guardian of fundamental rights, which are constitutionally granted to every citizen in India. Independence of the judiciary was carved out during the formation of the Indian Constitution as India was transitioning from a feudal to a democratic order. It was done to fully translate the well-knit provisions of extensive rights guaranteed under the Constitution into the lives of average citizens. Our Constitution grants us unique rights such as: 
   • Civil and political rights- e.g., the right to life; right to freedom from discrimination based on religion, race, caste, sex, or place of birth. 
   • Economic, social, and cultural rights- e.g., freedom to practice any religion; protection of the interests of minorities. 
4. Independence of the judiciary is vital for the respect of due process of law. Due process of law means that the State must respect all the legal rights that are owed to a person and conform to the norms of fairness, liberty, and fundamental rights 

How is the Independence of the Judiciary ensured?

The constitution has made the following provisions to ensure the independence of the judiciary:

1. Appointment of judges: Article 124 deals with the appointment of Judges to the Supreme Court, and Article 217 regarding the appointment of Judges to High Courts. 

• • Article 124 of the Constitution, ‘every judge of the Supreme Court shall be appointed by the President after consultation with such of the Judges of the Supreme Court and of the High Courts in the States, as the President may deem necessary’. The Article also provides that in case of appointment of a judge other than the Chief Justice of India, the Chief Justice must be consulted.
  • Article 217 prescribes that every Judge of the High Court shall be appointed by the President after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court concerned. 

In Supreme Court Advocates on record v. Union of India, it was held that the opinion of the Chief Justice shall be binding on the President, as he is more competent than other constitutional machineries to assess the merit of a candidate. 

1. Security of Tenure:  The judges of the Supreme Court have security of tenure, and they cannot be removed from office except by an order of the President by adopting the set procedure laid down in the Constitution.
2. Salary of Judges fixed, not subject to vote of Legislature: The salary and allowances of the judges of the Supreme Court are fixed by the constitution and are paid fromthe  Consolidated Fund of India. Salary cannot be altered.
3. Removal of judges: Judges cannot be easily removed from their office except for proven misbehaviour and incapacity. The legal process is kept stringent to ensure the security of tenure of the judges. 
4. Parliament can extend but cannot curtain the jurisdiction and power of the Supreme Court: To work more effectively the Parliament may enhance the jurisdiction of the Supreme Court in civil cases, here the point to be noted that in all the provisions the Parliament an exceed, but cannot curtail the jurisdiction and power of the Supreme Court under article 138.
5. No discussion in Legislature on the conduct of Judges: Neither in Parliament nor in a State Legislature can a discussion take place with respect to the conduct of a judge of the Supreme Court in discharge of his duties under Article 121.
6. Power to punish for its contempt: The Supreme Court and the High Court have the power to punish any person for its contempt under articles 129 and 215. This power is essential for maintaining the impartiality and independence of the Judiciary.
7. Separation of judiciary from executive: States have been directed by the constitution through Article 50 to take steps to separate the judiciary from the executive in the interest of public service of the State.
8. Judges of the Supreme Court are appointed by the Executive with the consultation of Legal experts: The Executive cannot appoint the Judges without the consultation of the Judges of the Supreme Court as provided in Article. 124(2).
9. Prohibition on practice after retirement: Under article 124(7) of the Constitution a retired Judge of the Supreme Court is prohibited from appearing and pleading in any court or before any authority within the territory of India

In the celebrated decision of the Supreme Court in S.P. Gupta v. Union of India, the court held that “the concept of independence of the judiciary is a notable concept which inspires the constitutional scheme and constitutes the foundation on which the edifice of our democratic polity rests. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law under the Constitution; it is the judiciary which is entrusted with the task of keeping every organ of the state within the limits of the law, thereby making the rule of law meaningful and effective.”

Impartiality of Judges:

One must note that independence of the judiciary and impartiality of judges exist as two distinct concepts- 

1. The former refers to the institution, and 
2. The latter refers to its constituent actors.

The two main aspects of the rule against bias are that a person adjudicating on a dispute must have no pecuniary or proprietary interest in the outcome of the proceedings and must not reasonably be suspected, or show a real likelihood of bias. The Supreme Court, through its judicial decisions, has classified bias under three heads: 

1. A Legal interest, which means that a judge is in such a position that bias must be assumed; 
2. Pecuniary (Money) Bias; 
3. Personal Bias.

Provisions in the Constitution Relating to the Judges Ensuring Their Independence 

• After the appointment, the judges are provided with a security of tenure till they reach retirement age. This age remains 62 for the High Court judges and 65 for the Supreme Court judges. 

• Judges are not allowed to practice as advocates in the same or equivalent courts post their retirement. For example, a retired High Court judge can practice in the Supreme Court, but is prevented from practicing in the same or other High Courts. This ensures that ex-judges practicing at the bar do not influence the decision of the bench, with whom they may have presumed familiarity. 

• Judges cannot be easily removed from their office except for proven misbehaviour and incapacity. The legal process is kept stringent to ensure the security of tenure of the judges.

• The salaries and allowances of judges are fixed and not subject to the vote of the legislature. Judges derive their salaries from the consolidated fund of India (for the Supreme Court) and the consolidated fund of the state (in case of High Courts). Their emoluments cannot be altered to their disadvantage except in the event of a financial emergency.

• Even the judicial conduct of the judges has been kept immune from examination by other Constitutional organs. The conduct of judges of both the Supreme Court and High Courts cannot be discussed in Parliament or the state legislature, except when a motion for the removal of a judge is being presented to the President.
• The Supreme Court of India has been authorized to have its own establishment and to have complete control over it. It is further authorized to make appointments of officers and staff of the court and determine their service conditions.