Independence of the Judiciary: The Constitutional Guarantees

Four: no discussion in the legislature. Article 121: no discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for his removal. Article 211 imposes the same bar on a State Legislature. Compare section 40 and section 86 of the Government of India Act 1935, which are in almost the same words.

Five: no practice afterwards. Article 124(7): a person who has held office as a Judge of the Supreme Court shall not plead or act in any court or before any authority within the territory of India. Article 220: a person who has held office as a permanent Judge of a High Court shall not plead or act in any court or before any authority in India except the Supreme Court and the other High Courts. A judge with no future practice to protect has nothing to gain from a decision that pleases a future client.

Six: control over its own establishment and over the courts below. Article 146(1): appointments of the officers and servants of the Supreme Court are made by the Chief Justice of India or a Judge or officer he directs. Article 229(1): the same for a High Court, by its Chief Justice. Article 235: control over the district courts and the courts subordinate to them, including posting, promotion and leave of officers below district judge, is vested in the High Court. And article 227 gives every High Court superintendence over all courts and tribunals in its territories.

Seven: contempt. Article 129: the Supreme Court is a court of record with all the powers of such a court including the power to punish for contempt of itself. Article 215: the same for every High Court. A court that cannot protect its own process depends on the executive to protect it, and Module I shows what that is worth.

To those seven, article 50 adds a directive that the State shall take steps to separate the judiciary from the executive in the public services of the State; and article 144 provides that all authorities, civil and judicial, in India shall act in aid of the Supreme Court.

Independence from whom

The question is worth asking explicitly, because the seven guarantees do not all point the same way.

From the executive: security of tenure, the irreducible salary, control over the court's own officers, control over the subordinate judiciary, and the bar on practice afterwards. The mischief is a government that can dismiss, impoverish, transfer or reward a judge.

From the legislature: charged expenditure, and the bar on discussion in article 121 and article 211. The mischief is a legislature that debates a judge's conduct or starves his court.

From the parties and from the public: the contempt power. The mischief is a litigant or a newspaper that obstructs or intimidates.

An answer that sorts the guarantees by the danger each answers is worth more than one that lists them.

Where each guarantee comes from

This is the table that makes the topic a history answer rather than a civics answer.

Two rows say "nothing", and they are the two that matter most. Security of tenure and the bar on practice after retirement have no ancestor in British India, and they are the two guarantees that most directly answer the events of Module I, in which the Chief Justice of the Supreme Court accepted from the Council the office of Judge of the Sadar Diwani Adalat with a salary held at their pleasure.

A worked example

Take Impey's position in 1780 and test it against each of the seven.

• Tenure: he held office under a charter, and the Company could not dismiss him, so this one he had.
• Salary: paid by the Company, and for the Sadar Diwani Adalat office at the Council's pleasure. Fails, and it is the fact that became an article of his impeachment.
• Expenses: the Court's establishment was approved by the Governor-General and Council under section 13 of the Regulating Act. Fails.
• Discussion in the legislature: the Council both legislated and complained of him constantly, and Parliament impeached him. Fails.
• Practice afterwards: no rule. Fails.
• Control over subordinate courts: the Company's courts were not his to supervise, which is exactly what the seven proceedings were about. Fails.
• Contempt: he had it, and the only person committed in the Cossijurah affair was the Zamindar's attorney. Formally passes, and it did not help.

One of seven, and that is the honest measure of judicial independence in 1780.

What beginners get wrong

"Independence of the judiciary is guaranteed by article 50." Article 50 is a Directive Principle and is not enforceable. The enforceable guarantees are the seven above.

"A judge can be impeached." The Constitution does not use that word for judges. Article 124(4) provides for removal by an order of the President after an address of both Houses on proved misbehaviour or incapacity.

"Parliament cannot discuss judges at all." Article 121 bars discussion of a Judge's conduct in the discharge of his duties, except on a motion for an address for removal. It does not bar discussion of the judiciary as an institution or of the law.

"The salary of a judge cannot be changed." It cannot be varied to his disadvantage after his appointment. It can be increased, and it can be changed for future appointees.

Limits and criticism

Three criticisms, each fair.

Removal is so difficult that it has never been completed against a Judge of the Supreme Court. A protection designed to prevent removal for the wrong reasons also prevents it for the right ones, and the discipline that remains is the profession's opinion and the in-house procedure the Supreme Court has devised.

Appointments are outside the list. Not one of the seven guarantees concerns how a judge is chosen, and that is the largest gap in the chapter. The next chapter is about how it was filled, and by whom.

And post-retirement appointments are not covered by articles 124(7) and 220. Those articles bar practice, not office: a retired judge may be appointed to a tribunal or a commission, and the criticism that the prospect of such an appointment may influence a judge before retirement is made regularly and is not answered by any provision of the Constitution.

Quick revision

• Tenure: 65 for the Supreme Court, 62 for a High Court; removal only by order of the President after an address of both Houses, special majorities, same session, proved misbehaviour or incapacity: arts. 124(4), 217.
• Salary: arts. 125, 221, not to be varied to his disadvantage after appointment.
• Expenses charged on the Consolidated Fund: arts. 146(3), 229(3).
• No discussion in the legislature except on a removal motion: arts. 121, 211.
• No practice afterwards: art. 124(7) absolutely; art. 220 except in the Supreme Court and other High Courts.
• Control over the court's own officers and over the subordinate judiciary: arts. 146(1), 229(1), 235, and superintendence under art. 227.
• Contempt of itself: arts. 129, 215.
• Plus art. 50, a directive, and art. 144, all authorities to act in aid.

Test yourself

1. List the seven constitutional guarantees of judicial independence with their articles. Security of tenure, articles 124(4) and 217; a salary not variable to disadvantage, articles 125 and 221; expenses charged on the Consolidated Fund, articles 146(3) and 229(3); the bar on discussion in the legislature, articles 121 and 211; the restriction on practice after retirement, articles 124(7) and 220; control over the court's own officers and over the subordinate judiciary, articles 146(1), 229(1), 227 and 235; and the power to punish for contempt of itself, articles 129 and 215.

2. Which two guarantees have no ancestor in British India, and why does that matter? Security of tenure and the restriction on practice after retirement. It matters because they are the two that most directly answer the events of Module I, in which judges held office and salary at another authority's pleasure and there was no rule about what a judge might do afterwards.

3. What does it mean that a court's expenses are "charged" on the Consolidated Fund? That they are not submitted to the vote of the legislature, so the funding of the court cannot be used as a means of pressure on it.

4. What exactly does article 121 forbid? Discussion in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties, except upon a motion for presenting an address to the President praying for his removal. Article 211 imposes the same bar on a State Legislature.

5. Name the largest gap in this chapter, and say where it is filled. The manner of appointment, which none of the seven guarantees touches. It is dealt with in articles 124(2) and 217(1) and, in practice, by the four decisions considered in the next chapter.