Judicial Independence
Chapter -Three
Syllabus topic 7, "Comparative Study of Judiciary in India, UK, USA and Switzerland."
Pages 458 to 461 of 676
In one line
Judicial independence means that a judge decides according to law and is not answerable to anybody for the decision.
In the wording a student can write in an exam: judicial independence is the constitutional condition in which a judge, in deciding a case, is free from control, pressure or inducement by the executive, the legislature, private interests or other judges, and is subject only to the law; it comprises individual independence in the decision of a case and institutional independence of the judiciary as a branch.
Independent of whom
Of the executive. The largest litigant in most systems, and the historical source of pressure. Devices: appointment removed from the executive, tenure, salary, and a difficult removal procedure.
Of the legislature. Devices: removal by a special majority only, and prohibitions on discussing a judge's conduct. Article 121 provides that 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 on a motion for an address for his removal; article 211 says the same for a State legislature.
Of other judges. Individual independence includes independence within the judiciary: a judge is not answerable to a superior for the way he decides, only to an appeal.
Of private power and of public opinion. The contempt jurisdiction under articles 129 and 215 addresses interference; public criticism is treated in [Contempt, Criticism and Accountability].
The devices, gathered
Separation. Article 50 directs the State to take steps to separate the judiciary from the executive in the public services of the State. Article 144 of the Swiss Constitution forbids a judge from being a member of the Assembly or the Federal Council. Article I section 6 of the American Constitution keeps officers out of Congress.
Appointment. Treated in [Appointment of Judges Compared].
Tenure and salary. Articles 124(2), 125, 217(1) and 221; Article III section 1.
Institutional autonomy. Article 146 gives the Chief Justice the appointment of the Supreme Court's officers and charges its administrative expenses on the Consolidated Fund; article 229 does the same for a High Court; article 188(3) of the Swiss Constitution provides that the Federal Supreme Court administers itself.
Immunity from legislative discussion. Articles 121 and 211.
Immunity of legislative proceedings from judicial inquiry. Articles 122 and 212, which run the other way and protect the legislature from the courts, and are part of the same settlement.
A statutory duty. Section 3(1) of the Constitutional Reform Act 2005 requires the Lord Chancellor, other ministers and all with responsibility for the judiciary to uphold its continued independence, and forbids ministers from seeking to influence particular decisions through special access.
A constitutional declaration. Article 191c of the Swiss Constitution: the judicial authorities are independent in their judicial activity and bound only by the law.
Judicial Independence
The Indian doctrine
Independence of the judiciary has been held to be part of the basic structure. That has three consequences.
An amendment impairing it is void, which is the holding of the NJAC case.
Judicial review under articles 32 and 226 cannot be excluded, which is the holding of L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.
The primacy of the judiciary in appointments is protected, which is the holding of the Second Judges case and of the NJAC case.
No other system on this syllabus entrenches judicial independence against constitutional amendment.
What independence is not
It is not immunity from criticism. A judgment may be criticised, and In Re: Prashant Bhushan and the older authorities distinguish criticism of a judgment from a scandalising attack on the administration of justice.
It is not freedom from appeal. A judge is corrected by a higher court, and that is not a breach of independence.
It is not unaccountability. The removal procedure, the criminal law after K. Veeraswami, and the in-house procedure all operate.
It is not the same as impartiality. Independence is a structural condition; impartiality is a state of mind in a particular case, protected by the rule against bias.
A worked example
A minister publicly criticises a judgment and says that judges should remember who appoints them.
United Kingdom. Section 3(1) of the Constitutional Reform Act 2005 imposes a duty on ministers to uphold the continued independence of the judiciary, and the Lord Chancellor has a specific duty to defend it. The remedy is political.
India. Articles 121 and 211 prevent discussion in the legislature of a judge's conduct except on a removal motion; the statement outside the House is not covered, and the contempt jurisdiction under article 129 would be available only if the statement scandalised the court or interfered with the administration of justice.
United States. The First Amendment protects the statement, and the answer is the tenure and salary guarantees in Article III section 1, which make the threat empty.
Switzerland. Article 191c states the guarantee; article 190 means the judge is unlikely to have struck down anything the minister enacted.
The cases
Facts. Supreme Court Advocates-on-Record Association v. Union of India, the NJAC case, concerned the Ninety Ninth Amendment and the National Judicial Appointments Commission Act 2014.
Held, by four to one. Both were void. The independence of the judiciary is a part of the basic structure of the Constitution, and the primacy of the judiciary in the appointment of judges is an essential element of that independence; a commission in which the judicial members could be outvoted impaired it.
Judicial Independence
Why it matters here. It is the case that entrenches judicial independence in India against constitutional amendment, which is what distinguishes the Indian position from every other on this syllabus.
Facts. Union of India v. Sankalchand Himatlal Sheth, AIR 1977 SC 2328, concerned the transfer of a High Court judge without his consent under article 222.
Held, by the Supreme Court. A transfer may be made without consent but only in the public interest and never as punishment; consultation with the Chief Justice of India must be full and effective and based on identified material.
Why it matters here. It shows independence being protected against a device the classical guarantees do not reach.
Distinctions
| Individual independence | Institutional independence | |
|---|---|---|
| What is protected | The judge deciding a case | The judiciary as a branch |
| Threats | Pressure, inducement, transfer, criticism | Budget, appointments, jurisdiction-stripping |
| Indian devices | Articles 121, 124(2), 125, 217, 221, 222 as limited | Articles 50, 146, 229; the basic structure |
| American devices | Article III section 1 | Appropriations practice; Article III section 2's exceptions clause is the threat |
| British devices | Section 3, CRA 2005 | Section 3 and the Lord Chancellor's duty |
| Swiss devices | Article 191c | Article 188(3), self-administration |
What beginners get wrong
"Independence means judges are answerable to nobody." They are answerable through appeal, through removal, through the criminal law and, in India, through the in-house procedure. What they are not answerable for is the content of a decision.
"Article 50 secures judicial independence." It is a directive principle and is not enforceable; what secures independence are articles 124 to 128, 217 to 221 and the basic structure doctrine.
"Independence and impartiality are the same." Independence is structural, impartiality is about a particular case and a particular judge, and a judge may be independent and biased.
Limits and criticism
Independence can shade into unaccountability, and the Indian collegium is the standing example on both sides of that argument.
The classical devices do not reach the modern pressures: vacancies, court size, transfers and post-retirement appointments.
Institutional independence depends on money, and where the courts' budget is voted annually the guarantee is weaker, which is why articles 146(3) and 229 charge it on the Consolidated Fund.
Quick revision
- Independent of the executive, the legislature, other judges, and private power.
- India: article 50 directive; articles 121 and 211 no legislative discussion; articles 124(2), 125, 217, 221 tenure and salary; articles 146 and 229 institutional autonomy; article 129 contempt.
- Articles 122 and 212 protect legislative proceedings from judicial inquiry and are part of the same settlement.
- United States: Article III section 1 tenure and salary; the exceptions clause in section 2 is the threat.
- United Kingdom: sections 1 and 3 of the Constitutional Reform Act 2005.
- Switzerland: article 144 separation of personnel; article 191c the guarantee; article 188(3) self-administration.
- India alone entrenches independence against constitutional amendment: the NJAC case.
Judicial Independence
Test yourself
1. From whom must a judge be independent, and what device answers each? From the executive, answered by removing appointment from executive control and by tenure, salary and a difficult removal procedure. From the legislature, answered by a special majority for removal and by articles 121 and 211 forbidding discussion of a judge's conduct. From other judges, answered by the rule that a judge is corrected only by appeal. From private power and interference, answered by the contempt jurisdiction under articles 129 and 215.
2. What makes the Indian protection unusual? That judicial independence has been held to form part of the basic structure, so a constitutional amendment impairing it is void. The NJAC case struck down the Ninety Ninth Amendment on that ground, and L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, held that the review jurisdiction under articles 32 and 226 cannot be excluded. No other system on this syllabus entrenches independence against amendment.
3. Distinguish independence from impartiality and from unaccountability. Independence is a structural condition, that the judge is free from control or inducement in deciding. Impartiality concerns a particular judge in a particular case and is protected by the rule against bias, so a judge may be independent and partial. Unaccountability is not implied: a judge is subject to appeal, to removal, to the criminal law after K. Veeraswami, and to the in-house procedure, and is unaccountable only for the content of a decision.
4. Which modern pressures do the classical devices fail to reach? Delay in filling vacancies, which no constitution regulates; the size of the court, left to ordinary law in India and the United States; transfers of judges, which article 222 permits and which Union of India v. Sankalchand Himatlal Sheth limits to the public interest and forbids as punishment; and post-retirement appointments to tribunals and commissions, which the Indian Constitution does not address at all.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.