Independence of Judiciary


Independence of Judiciary- The constitution distinguishes three organs of the state on the basis of specific powers and responsibilities assigned to each organ. They are: 

Executive – Consists of the president/governor, PM/CM, the council of ministers at union and state level respectively. It’s empowered to take and execute important policy decisions. 

Legislature- Both the Centre and the State level formulate laws and policies along with scrutinising the government and its decisions. It also tests executive authority as the executive is accountable to the legislature. 

Judiciary – The top to bottom court structure beginning at the highest level from the Supreme Court (SC) to District Court at the bottom. It also consists of multiple tribunals within it. The Constitution provides for the SC as the sole guarantor of the fundamental rights and charter defender and sole translator. Aside from this, the judiciary also acts as an arbitrator and judicial dispenser. 

This system can be called the ‘Horizontal Power-Sharing Model’. It is followed mainly to reduce the possibility of concentration of powers in any one organ, making it powerful. Through this system of division of power, the Constitution has endowed the system with checks and balances where one organ cannot infringe upon the areas others are dealing with. Essentially the responsibility or governance is shared in order to achieve full output, along with having checks and balances that end the fear of accumulation of power in only one organ. 


Article 50 of the Indian Constitution lays down the rule for the independence of the judiciary. It is known as the independent role of the courts, distinct from the government’s executive or legislative wings. Judicial independence helps in maintaining the rule of law, ensuring good governance, and establishing a fair and equal society. 


First, independence of the judiciary is linked to its position as a watchdog in a democracy. It tracks and retains checks and balances over the governments’ other weapons. Thus judiciary emerges like a mediator if any of the organs of government exercise power beyond their jurisdiction, which tends to violate the greater interest of society or individuals. For this judiciary has a special power called judicial review under which actions of legislative and executive are subject to approval by the judiciary and if it thinks that any action of these organs is going beyond their jurisdiction or is unconstitutional it has the power to reject and exercise its power of judicial review. The Indian police, for example, has broad powers to track crimes and collect evidence for criminal prosecution. To collect the best evidence of the crime it is normal for police to interrogate alleged suspects in order. However, the rights of victims or the alleged perpetrator should not be compromised by these powers. An accused cannot be pressured into offering his/ her guilt statement. Under Article 20(3) of the Constitution, this right has been constitutionally granted to the convicted which states “No person accused of any offence shall be compelled to be a witness against himself”. 

Judicial independence is related to the guarantee of a fair trial for the accused. This is particularly relevant even when the victims are foreign nations or people who have committed state crimes like terrorists. 

If these delicate interests are at loggerheads then the judiciary steps in. Similarly, where there is a thin line of distinction as in case of police exercising its power to gather witnesses, the role of the judiciary becomes crucial in the exercise of the valid and unreasonable right of a State organ.


Judicial independence is related to the guarantee of a fair trial for the accused. This is particularly relevant even when the victims are foreign nations or people who have committed state crimes who can be called terrorists. There are certain rights which are constitutionally granted to each and every citizen of a country. 

  • Judicial independence was sculpted during the creation of the Indian constitution, as India moved from a feudal to democratic systems. This was done to translate entirely into the lives of ordinary people the well-knit guarantees of comprehensive freedom enshrined in the constitution. We have been granted unique rights and privileges by our constitution, such as- (a) Civil and political rights e.g. right to life. (b) Economic, social, and cultural rights e.g. freedom to practice any religion. 

The power of writ jurisdiction helps the judiciary in safeguarding the fundamental rights of its citizens. A writ can be issued by the Supreme Court or High Court of India to impose their directives on the enforcement of constitutional rights and /or legal rights of the individual concerned; Article 32 and Article 226 of the constitution give extensive powers to the SC and HC in regard to enforcement of fundamental rights. They are empowered to issue writs of habeas corpus, mandamus, prohibition, quo warranto, and certiorari to enforce them.


Independence of the judiciary is vital for the respect of the due process of law means the state must respect all the civil rights owed to an individual and maintain the standards of justice, equality, fairness, and human rights, etc. The principle can only be made effective by an autonomous judiciary. Experience has shown that once the independence of the judiciary is disputed it has directly impacted the proper governance mechanism and the rights given to average citizens.



Original Jurisdiction

Original jurisdiction of the Supreme Court has been granted to it under Article 131 of the Indian Constitution. This power gives authority to the apex court to resolve disputes between the union and one or more states and between two or more states. The court has the authority to judge the validity and scope of conflicts involving any question of law or question of fact. For instance, the conflict over the sharing of a river or other natural resources over two Indian states can be taken directly to the Supreme Court under this jurisdiction. The best example of this is the water dispute over the river Kaveri. The Supreme Court on 16 Feb 2018 delivered its decision in the Kaveri water dispute allocating more water to the state of Karnataka. 

Appellate Jurisdiction

The Supreme Court’s appellate jurisdiction under Article 132  can be exercised by a certificate issued by the high court. For both civil and criminal cases, appeal to the Supreme Court can be brought against any decision, decree or final order of a high court. Like the exercise of original jurisdiction, these cases must include a sufficient question of law as to how the constitution is read. The question of law here means questions of law or fact on which extent or exercise of legal rights can be adjudicated. In addition to the court’s specified appealing powers the Supreme court also had broad jurisdiction over all courts and tribunals as provided for in Article 136 of the constitution. The court can at its discretion grant special leave to appeal and accept any decision, ruling, sentence, or order in any case or matter passed or handed down by any court or tribunal in the court. 

Advisory Jurisdiction

Under Article 143 of the constitution the president can pursue advisory jurisdiction of the court. This process is called the “Presidential Reference” and is known as courts’ advisory jurisdiction. The President has the authority to refer to the court any matter of law or fact of public opinion. However, the final power lies with the court that whether it wants to answer the question raised or not and it can even refuse to give an opinion if the court thinks that the question involved is socio-economic or political in nature. Just a handful of references are made in judicial history in more than 60 years. 

PIL ( Public Interest Litigation)

With the development of time the apex court has relaxed the principle of locus standi (the right if the party to appear and to be heard by the court) and has allowed socially concerned citizens and organisations allowing the third party, to approach the Court on behalf of the victims for better administration of justice. All this was possible through the Supreme Court’s judicial activism through Public Interest Litigation (Janhit Yachika) (PIL). This exceptional authority is exercised by writing letters to judges whose modalities are established in compliance with the Court’s PIL guidelines. The first-ever PIL has been identified as Hussainara Khatoon v. Bihar State and dates back to 1979. A public interest activist lawyer Kapila Hingorani filed this lawsuit against the cruel conditions of the jail on behalf of thousands of Bihar’s prisoners. Two weeks after Kapila took the case to court, the Supreme Court issued a notice to the Bihar government, which resulted in the release of all the victims in the case. A bench of the Supreme Court, led by Justice P.N. Bhagwati ruled that these prisoners were entitled to free legal aid and expeditious trial, which eventually resulted in their release. Since then, PILs have addressed numerous topics, including socio-economic rights (freedom from bonded labour), legal entitlements (right to food; right to work), environmental concerns (clean air and water), and political reforms (disclosure of assets by executive members; disbursement of government-led natural resources). PIL’s progress has thus appeared to include several issues. 


PIL ( Public Interest Litigation )

High Court’s role in the exercise of public interest litigation also becomes similar to that of the Supreme Court. In addition, each High Court has superintendence powers within its jurisdiction over all the Courts. This may call for records from these courts, create and issue general rules and prescribe forms for controlling their practice and proceedings, and decide whether and how to book entries are made and accounts must be kept. 



The constitutional framework for judicial independence is important to discuss. There are many clauses in the Indian Constitution to fulfil certain twin purposes. The Constitution recognises that the Parliament can not limit vast powers exercised by the courts, especially the Supreme Court. Parliament has only a restricted right, in civil cases, to modify the pecuniary requirements for an appeal to the Supreme Court. The Supreme Court, in turn, has considerable authority over appeals and additional powers to allow its effective functioning.


The principle of ‘constituent structure’ of judicial independence describes the independence of the judiciary in terms of the freedom of its judges. Independence of judiciary and impartiality of judges are taken as two different spheres interrelated to each other where the former refers to the institution and authoritative organisation while the latter refers to its constituents which are the players of the institution. The notion of judges’ impartiality can be interpreted within the broad sense of judicial independence. Such principles must be discussed in tandem as they aim to accomplish the same objective of preserving judicial independence within the country’s democratic process. 

The constitutional framework for judicial independence is important to discuss. There are many clauses in the Indian Constitution to fulfil certain twin purposes.

  • Every judge of the Supreme Court shall be appointed by the president after consultation with the Chief Justice in case of appointment of judges other than Chief Justice. Article 124(2) 
  • A high court or Supreme Court judge may only be dismissed on the basis of proved misbehaviour or incapacity. The president can remove a judge following an address given to him by the House of Parliament under the provision of Article 128. A judge may be removed only through a motion in Parliament with two-thirds support in each House.  The process is laid down in the Judges (Inquiry) Act, 1968. This process of removal of judges is termed as impeachment. In the history of Indian judiciary, there has been one case of impeachment. Supreme Court justice Ramaswamy faced such a motion. The Committee of Inquiry found the charges against him were valid but the motion to impeach him, however, did not gather the support needed in the Lok Sabha.
  • Salaries and allowances that are paid to the judges of a High Court and Supreme Court are kept out of the power of the legislature and are defined in the second schedule. Article 125, Article 221
  • Judges derive their salaries from India’s consolidated fund (Supreme Court), and state consolidated fund (high court) except in case of financial emergency, their emoluments can not be altered to their disadvantage. Article 360 (4)(b) , Article 229, Article 146
  • No judge after the commencement of his tenure or reaching the age of his retirement has retained the office as a permanent judge of the high court. Article 220
  • Restriction on the discussion in parliament related to the conduct of any judge of the Supreme Court or high court except upon a motion presenting to the president for his/ her removal. Article 121 

No discussion shall take place in the state legislature with respect to any judge of the Supreme Court or high court in the discharge of his duties. 

  • The President, only after consulting the Chief Justice of India, can transfer a judge from one High court to another High court. Article 222 

The Supreme Court originally ruled in 1977 in the case of Shankar Chand Sheth when reading the word “consultation” that it can never mean “concurrence.” The Chief Justice’s opinion, the court ruled, was therefore not binding on the executive. And the court once again supported this interpretation in the First Judges Case in 1981, although in part. But 12 years later the court overruled its earlier decisions in the second judge’s case.


It now maintained that “consultation” acutely signified “concurrence,” and CJI’s opinion enjoyed primacy because it is best equipped to know and assess candidates’ worth. In consequence, however, the CJI had to formulate its opinion through a body of senior judges identified by the court as the collegium. In 1998, through the third judges’ case, the court further clarified the position of this collegium.

The collegium it said would include the CJI and its four senior-most colleagues in case of appointments of Supreme Court and in case of appointment to the high court the CJI and its two senior-most colleagues. Along with this the body or the collegium has to take into consideration all other senior judges who are presently serving in Supreme Court but have earlier served in the concerned high court. Nonetheless, when the constitution was altered through the 99th amendment, one such proposal was to come up with the National Judicial Appointments Commission in place of the collegium.

The commission would consist of members of the judiciary, executive and even the general public but this replacement was reflected by the court and finally, in Fourth Judges Case (2015) it was held that the primacy of the collegium was part of the fundamental and basic framework of the constitution and this authority couldn’t be abolished even by a constitutional amendment. 


  1. Article 50 of the Indian Constitution,1949 
  2. Article 20 (3) of the Indian Constitution,1949 
  3. Article 32 of the Indian Constitution,1949 
  4. Article 226 of the Indian Constitution,1949 
  5. Article 131 of the Indian Constitution,1949 
  7. Article 132 of the Indian Constitution,1949 
  8. Article 136 of the Indian Constitution,1949 
  9. Article 143 of the Indian Constitution,1949 
  10. Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, 1979 AIR 1360, 1979 SCR (3) 169
  11. Article 124(2)  of the Indian Constitution,1949
  12. Article 128 of the Indian Constitution, 1949
  13. The Judges (Inquiry) Act 1968, 51 of 1968 
  14. Sarojini Ramaswami vs Union Of India 27 August 1992 Writ Petition   514 of 1992
  15. Article 125 of the Indian Constitution, 1949
  16. Article 221 of the Indian Constitution, 1949
  17. Article 360(4)(b) of the Indian Constitution, 1949
  18. Article 229 of the Indian Constitution, 1949
  19. Article 146 of the Indian Constitution, 1949
  20. Article 220 of the Indian Constitution, 1949
  21. Article 121 of the Indian Constitution, 1949
  22. Article 222 of the Indian Constitution, 1949

BY- Janavi Chhabra | Guru Gobind Singh Indraprastha University

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