This article is written by George Philip, a Second Year LL.B student of Nari Gursahani Law College, Mumbai

Independence of the Judiciary is a salient feature of our Constitution. There are many checks and balances to ensure Judiciary remains independent, non-partial and powerful. These measures include:

1. Appointment of Judges: The Judges of the Supreme Court and High Court are appointed by the President on the recommendation of the Supreme Court Collegium. 5 seniormost judges of the Supreme Court form a Collegium to recommend the names for the appointment of Judges to the Supreme Court. For the High Court, a 3 Judge Collegium of the High Court recommends names to the Chief Justice of the High Court. The Chief Justice of the High Court in consultation with the Governor and Chief Minister of the State forwards the recommended names to the Chief Justice of the Supreme Court. 3 Senior most Judges of the Supreme Court review the recommendations and further recommend them for appointment to the President. Hence, there is a very limited role of the Judiciary here,
2. Salary of the Judges: The salary of the Judges of the Supreme Court is fixed and drawn from the Charged Expenditure of the Consolidated Fund of India. The salaries of the Judges cannot be reduced once the Judges are appointed. 
3. Removal of Judges: Removal of Supreme Court and High Court Judges are long and cumbersome process. They can be removed by the President on the recommendation of the Parliament of India only on grounds of proved misbehaviour and incapacity. The motion for removal needs to be introduced in one house, investigate the charges and provide an opportunity to the concerned Judge. Once, the house investigates the Charge and passes the motion for removal of the Judge with a two-third majority, it is sent to the other house. The other house needs to pass the motion with a two-third majority and then the motion for removal is sent to the President of India. This also ensures the independence of the Judiciary.

Along with these measures, Article 50 of the Constitution states, “The State shall take steps to separate the judiciary from the executive in the public services of the State.” Although it wasn’t a part of the Draft Constitution of 1948, it was introduced as an amendment in the Constituent Assembly keeping in mind the ideals of the Freedom Movement.

Reality Check – Is Judiciary really Independent?

Although we have measures to ensure the independence of the Judiciary, there is serious doubt whether our Judiciary is in practice independent. In the appointment of the Judges, we have seen many times, the Law Ministry disapproving names of Judges who have criticised the ruling party during their previous tenures. The Collegium was many times forced to remove their names and resend the recommendations to fasten the appointments. The non-appointment of Justice Akil Kureshi to the Supreme Court is a perfect example of a weak Judiciary. The appointment of Judges post-retirement to various Tribunals, Boards are also weakening the independent nature of the Indian Judiciary. Apart from these, there are various instances where the judiciary has failed to protect the interest of citizens. The infamous Habeus Corpus Case (ADM Jabalpur v. Shivkant Shukla) denied people’s fundamental Right to Life and Liberty during the Emergency.  

Bilkis Bano Case – A Blot on Indian Judiciary

Bilkis Bano, a Muslim woman fled with her daughter during the Godhra riots of 2002. On the way, her daughter and some more women were killed and a mob of Hindu Men raped pregnant Bilkis. When she regained consciousness, she complained to the Police. However, the Head Constable wrong a diluted and distorted version of her complaint. Later, the case was transferred to CBI which investigated the case thoroughly and 11 men were convicted of rape and murder to life imprisonment. The Bombay High Court upheld the conviction. 

Fourteen years after the incident in 2022, the 11 men were released from prison after their sentences were remitted by a panel formed by the Gujarat Government. The Supreme Court had allowed Gujarat Government to review the application for remission, though the case was transferred from Gujarat to Mumbai. Bilkis Bano filled two pleas- one review petition against the Supreme Court Judgement allowing the Gujarat Government to decide on the Remission application and another petition filed against the order of the Gujarat Government releasing the 11 convicts. The Supreme Court rejected the Review Petition challenging the validity of the Gujarat Government deciding on the Remission Petition. The petition against the remission order of the Gujarat Government is still pending in the Court.

This raises eyebrows on why Supreme Court which ought to have protected the rape victim and ensured Justice for her by not releasing the convicts, gave a free hand to the Government to release them. The delay in listing of the petition challenging the Gujarat Government’s order to release the convicts also raises suspicion on whether Judiciary remains independent today. 

The Positive Side of Indian Judiciary:

Supreme Court, although not free from criticism is the ultimate ray of hope for common citizens. As a protector of Fundamental Rights, Supreme Court in many instances has limited the powerful wings of the Executive and the legislature too. Some of the examples of the Judiciary protecting the Indian Constitution include:

1. In Keshavananda Bharti v. Union of India, the Supreme Court held that some of the principles of the Constitution can never be amended by the Parliament. These principles were laid down by the Supreme Court of India as the Basic Structure of the Indian Constitution. Democracy, Secularism, a Parliamentary Form of Government, and Independence of the Judiciary are some of the inclusions of the Basic Structure Doctrine.
2. In Navtej Singh Johar v UOI, Supreme Court decriminalized Homosexuality liberating the LGBTQ community from the oppression of society and the police forces.
3. In K.S. Puttuswamy v. Union of India (The Adhaar Case), the Supreme Court held that the Right to Privacy is a Fundamental Right enshrined in the Constitution under Article 21. This ensured that the Government and Corporates do not encroach on the privacy of individuals.

Every Institution’s strength depends on the workforce. Similarly, bold and honest Judges are the basic requirement for an Independent and Impartial Judiciary. A cooling-off period post-retirement of Judges is the need of the hour. Time and again, our Judiciary has played a vital role in safeguarding the Constitution and protecting the interest of the citizens, especially from the minority ad backward classes. An Impartial and Independent Judiciary is the key ingredient for a Healthy Democracy.

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