Judicial independence is not a matter of compromise. It is the soul and inner strength of the judiciary, which helps it in safeguarding the Fundamental Rights and civil liberties of people against executive actions and encroachment by other powerful groups. Only an impartial and independent judiciary can protect the rights of the individual and provide equal justice without fear or favour.

There are no two opinions that the judiciary has served the country well even in difficult times. It has produced judges of outstanding integrity and ability. The people of India have confidence in the judiciary because it has functioned independently and impartially. Judicial independence is the foundation on which the whole concept of justice is based. If judges are not independent and impartial, who will have faith in the administration of justice?

Independence of the judiciary: How it is maintained under the Constitution. It is true that the quality of justice depends upon the independence enjoyed by the judiciary. It is, therefore, very necessary that the Court should be allowed to perform its functions in an atmosphere of independence and that it should be free from all kinds of political pressures. The Constitution has made several provisions to ensure independence of the judiciary. They are:

(1) Security of tenure: The judges of the Supreme Court have security of tenure.

They cannot be removed from office except by an order of the President and that also only on the ground of proved misbehaviour or incapacity, supported by a resolution adopted by a majority of total membership of each House and also by a majority of not less than 2/3 of the members of the House present and voting. Parliament may, however, regulate the procedure for the presentation of the address and for investigation and proof of the misbehaviour or incapacity of a judge. But Parliament cannot misuse this power, because the special procedure for their removal must be followed.

(2) Salary of judges fixed, not subject to vote of legislature: 

The salaries and allowances of the judges of the Supreme Court are fixed by the Constitution and charged on the consolidated fund of India. They are not subject to the vote of the Legislature. During the term of their office, their salaries and allowances cannot be altered to their disadvantage, except in grave financial emergency.

(3) Parliament can extend, but cannot curtail the jurisdiction and power of the Supreme Court In respect of its jurisdiction: 

Parliament may change the pecuniary limit for appeals to the Supreme Court in civil cases, enhance the appellate jurisdiction of the Supreme Court, confer supplementary power to enable it to work more effectively, confer power to issue directions, orders or writs, including all the prerogative writs for any purpose other than those mentioned in Article 32. The point to be noted in all these provisions is that the Parliament can exceed but cannot curtail the jurisdiction and power of the Supreme Court. [Article 138]

(4) No discussion in the legislature on the conduct of the 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 the discharge of his duties (Article 121,

 (5) Power to punish for its contempt:

The Supreme Court and the High Court have the posier to punish any person for their contempt (Article 129 and 215), This power is very essential for maintaining the impartiality and independence of the judiciary,

(6) Separation of the judiciary from the Executive: Article 50 directs the state to take steps to separate the judiciary from the Executive in the public service of the state, It emphasizes the need to secure the judiciary from interference by the Executive,

(7) Judges of the Supreme Court are appointed by the Executive with the consultation of legal experts: The Constitution does not leave the appointment of the judges of the Supreme Count to the unguided discretion of the Executive. The Executive is required to consult the judges of the Supreme Count and High Count in the appointment of the judges of the Supreme Court (Article 124(21)_, The independence of the Supreme Court is emphasized by Artice 229, which provides that the appointment of officers and servants shall be made by the Chief justice on such other judge or officer as he may appoint,

(8) Prohibition on practice after retirement: Article 124(7) prohibits a retired judge of the supreme Court to appear and plead in any court or before any authority within the territory of India, Thus, the Gorton of the supreme Count is very strong, and is independence is adequately guaranteed, However, there are certain disturbing trends at present, which are likely to threaten the independence of the judiciary,

Threat to the independence of Judiciary

The independence of the judiciary means, in main, independence during the post-appointment period. The concept of independence of the judiciary at the pre-appointment stage is primarily to appoint the best persons, who have integrity and a sound knowledge of the laws, persons who will not succumb to pressures of any kind from any quarter. This independence alone secures justice for all and creates the confidence of society in judges. The judges of our country have proved worthy of the privilege for decades.

The quality of justice depends upon the independence enjoyed by the judiciary.

The main causes for danger to the independence of the judiciary are as follows:

• Firstly, although judges are appointed by the Executive with the consultation of legal experts, the word ‘consultation’, as has been held in the judges Transfer Case, does not mean concurrence and the Executive is not bound by it. The Government may completely ignore the advice of legal experts. Thus, the power of appointment of the judges of the Supreme Court is solely vested in the Executive, from whose dominance the judiciary is expected to be freely.

(2) Secondly, the power of the of President under Article 222 to transfer a judge from one High Court to another might also be used to undermine the independence of judiciary.

(3) Thirdly, the practice of appointing retired judges in various capacities might pose a serious danger to judicial independence.

So far as the appointment of judges is concerned, our founding fathers did not leave the power to appoint judges in any single quarter, be they the Chief Justice of the High Court, the Chief Minister and the Governor of the state, the Chief Justice of India and the President of India, besides the fact that each constitutional functionary has an effective role in the ‘consultation process’. While calling this the “middle course” Dr. Ambedkar rejected the concept of a collegium, suggested by the Ad-hoc Committee of Jurists. He said that “there can be no difference in the House that our judiciary must both be independent of the Executive and must also be competent in itself”.

“Dr. Ambedkar made minor changes in the recommendations made by the conference of chief justices before giving final shape to the existing process of consultation provided in the Constitution of India for the appointment of High Court and Supreme Court judges. Several legal luminaries who intervened in the debates of the Constituent Assembly repeatedly assured the House that they were committed to an independent judiciary.

The question is therefore simple. Who should play the decisive role in the appointment of judges of High Courts and the Supreme Court? This involves the interpretation of Article 124(2) and 217(1) of the Constitution of India, insofar as appointments are concerned. Article 222 of the Constitution of India deals with the transfer of High Court judges.

The seven judges bench in the SP GUPTA case, AIR 1982, SC 149 interpreted the constitutional provision and delivered a judgment by a majority of 4:3, holding that the Chief Justice of India did not enjoy primacy over the Chief Justice of a High Court. I will discuss the case elaborately but before that, it is better to see the constitutional provision:

Article 124: Establishment and Constitution of the Supreme Court

• There shall be a Supreme Court of India, consisting of a Chief Justice of India and, until Parliament by laws prescribes a larger number, of not more than seven other judges.

(2) Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal 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 for the purpose and shall hold office until he attains the age of sixty-five years:

The Independence of Judiciary

Provided that, in the case of the appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted, provided further that:-

• a judge may, by writing under his hand addressed to the President, resign his office;

(b) a judge may be removed from his office in the manner provided in clause (4).

The age of a judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide.

(3) A person shall not be qualified for appointment as a judge of the Supreme Court unless he is a citizen of India and

(a) has been for a least five years a judge of a High Court or of two or more such Courts in Succession;

Or

(b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or

(c) is, in the opinion of the President, a distinguished jurist.

EXPLANATION I- In this clause, “High Court” means a High Court which exercises, or which at any time before the commencement of this Constitution, exercised jurisdiction in any time part of the territory of India.

EXPLANATION II- In computing, for the purpose of this clause, the period during which a person has been an advocate, any period during which a person has held judicial office not inferior to that of a district judge after he became an advocate shall be included.

(4) A judge of the Supreme Court shall not be removed from his office, except by an order of the President passed after an address by each House of Parliament, supported by a majority of the total membership of justice for Judges that House and by a majority of not less than two-thirds of the membership of that House present and voting, has been presented to the President in the same session, for such removal on the ground of proved misbehaviour or incapacity.

(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a judge under clause(4).

(6) Every person appointed to a judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.

(7) No person who has held office as a judge of the Supreme Court shall plead or act in any authority the territory of India. Article 220: Restriction on practice after being a permanent judge. No person who, after the commencement of this Constitution, has held office as a permanent judge of a High Court, shall plead or act in any Court or before any authority in India, except the Supreme Court and the other High Courts.

EXPLANATION- In this expression, “High Court” does not include a High Court for a state specified in Part B of the First Schedule as it existed before the commencement of the Constitution (Seventh Amendment) Act, 1956. Article 222: Transfer of a judge from one High Court to another:

• The President may, after consultation with the Chief Justice of India, transfer a judge from one high Court to any other High Court.

(2) When a judge has been or is so transferred, he shall, during the period he serves, after the commencement The Independence of Judiciary of the Constitution (Fifteenth Amendment) Act, 1963, as a judge of the other High Court, be entitled to receive, in addition to his salary, such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensation allowance as the President may by order fix.

Article 224 A: Appointment of Additional and Acting judges

• If, by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein, it appears to the President that the number of the judges of that Court should be for the time being increased, the President may appoint duly qualified persons to be additional judges of the Court for such period not exceeding two years as he may specify.

(2) When any judge of a High Court other than the Chief Justice is, by reason of absence or for any other reason, unable to perform the duties of his office or is appointed to act temporarily as Chief Justice, the President may appoint a duly qualified person to act as judge of that Court until the permanent judge has resumed his duties.

(3) No person appointed as an additional or acting judge of a High Court shall hold office after attaining the age of sixty-two years.

Article 225: Appointment of retired judges at sittings of High Courts

Notwithstanding anything in this Chapter, the Chief Justice of a High Court for any State may, at any time, with the previous consent of the President, request any person who has held the office of a judge of that Court or of any other High Court to sit and act as a judge of the High Court for that State, and every such persons requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdictions, powers and privileges of, but shall not otherwise be deemed to be, a judge of that High Court.

Provided that nothing in this Article shall be deemed in require any such person as aforesaid to sit and act as a judge of that High Court unless he consents so to do.

Jurisdiction of existing High Courts Subject to the provisions of this Constitution and to the provisions of any law of the appropriate legislature made by virtue of powers conferred on that legislature by this Constitution, the jurisdiction of, and the law administered in any existing High Court, and the respective powers of the judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and in regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution:

Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.

Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories is relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, and Government, within those territories directions, orders or wads including wads in the nature of habeas corpus. mandamus prodiation warranto and certiorant or any of them enforcement of any of the rights conferred by and for any other purpose.

(2) The power conferred by clause (1) to issue directions orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part,

arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without

• furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received, or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.

(4) The power conferred on a High Court by this Article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.

Article 227: Power of superintendence over all courts by the High Court

(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

(2) Without prejudice to the generality of the foregoing provision, the High Court may

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms and regulations the practice and proceedings of such courts; and

(c) prescribe forms in which books, entries and ac. counts shall be kept by the officer of any such courts,

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:

Provided that any rules made, forms prescribed or tables settled under clause(2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor,

(4) Nothing in this Article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces,

By going through the provisions of the Constitution of India it is clear that the judges of the Supreme Court are appointed by the President. The Chief Justice of the Supreme Court is appointed by the President with the consultation of such of fudges of the Supreme Court and the High Courts as he deems necessary for the purpose. But in appointing other judges, the President shall always consult the Chief Justice of India, He may consult such other judges of the Supreme Court and High Court as he may deem necessary.

Though the President is required to ‘consult’ legal experts, he is not bound to act in accordance with such consultation.

The meaning of the word ‘consultation’ came for the consideration of the Supreme Court in the Sankal Chand Sheth case (AIR 1977, SC 2328), which was related to the scope of Article 222 of the Constitution. It was held that the word ‘consultation’ meant full and effective consultation. For a full and effective consultation, it is necessary that the three The Independence of Judiciary

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constitutional functionaries “must have for its consideration full and identical facts”, based on which they would be able to take a discussion. Consultation does not mean concurrence and the President is not bound by it. In the Judges Transfer case (AIR 1982, SC 149), the court unanimously agreed with the meaning of the term ‘consultation’ as explained by the majority in the Sankal Chand Sheth case. The meaning of the word ‘consultation’ in Article 124 (2) is the same as the meaning of the word ‘consultation’ in Article 212 and Article 222 of the Constitution. The only ground on which the decision of the government can be challenged is that it is based on mala fide and irrelevant considerations. This means that the ultimate power to appoint judges is vested in the Executive, from whose dominance and subordination it was sought to be protected

Under Article 124 (2), the President, in appointing other judges of the Supreme Court, is bound to consult the Chief Justice of India. But in appointing the Chief Justice of India, he is not bound to consult anyone. Till 1973, the practice was to appoint the senior-most judge of the Supreme Court as the Chief Justice of India. This practice had virtually been transformed into a convention and was followed by the Executive without any exception. In 1973, the old practice was suddenly broken by the government within few hours of the delivery of the judgment in the Fundamental Rights case.

As a matter of fact, the specific question framed in the SP Gupta case was: “Does the advice given by the Chief Justice of India have primacy over that rendered by the Chief Justice of the High Court? The Court considered this question and answered in the following terms: ” point has been raised whether on a difference of opinion between them, the advice of the Chief Justice of India can be said to enjoy primacy over that tendered by the Chief Justice of High Court. Nothing is laid down on the matter in express terms in clause (1) of Article 217. If by ‘primacy’ is meant that the opinion of the Chief Justice of the High Court can alone be considered, it is clearly against the provisions of clause (1) of the Article 217, 154

Justice for Judges

for the clause intends that the President should consult both judicial functionaries, besides the Governor. The Chief Justice of India does not sit in the appellate judgement over the advice of the Chief Justice of the High Court and the fact that the former has given his advice cannot imply that the advice given by the latter must be ignored.”

Looking at the issue of unity amongst judges, events from the SP Gupta case onwards go to show that the Supreme Court itself has failed to take a united stand on the issue of the primacy of the Chief Justice of India in the matter of judicial appointments. Seeing the sensitivity of the issue, the SP Gupta care was reopened in the Subhash Sharma case [(1990) Suppl-

(2) SCR 433], stating that it should be considered by a larger bench constituting nine judges to examine the two questions, viz. the position of the Chief Justice of India with reference to the primacy and justiciability of the fixation of judges’ strength. The order states: “In the event of the amendment being carried and the National Judicial Commission being set up, the correctness of the ratio in SP Gupta’s case, on the status of the Chief Justice of India, may not be necessary to be examined in view of the fact that, by the amendment, the Chief Justice of India would become the chairman of the commission. In case the commission is not constituted, the two questions indicated above, which are vital importance to the efficient functioning of the judicial system in the country, require consideration and there is an element of immediacy in the matter”

The reading of the order creates an impression that the bench, headed by Justice Ranganath Mishra, then Chief Justice of India, wanted a clear decision upholding the primacy of the Chief Justice of India in the appointment of judges. But the order says that, in the event of the setting up of a National Judicial Commission, the Chief Justice of India would become the chairman of the commission and therefore the correctness of the ratio in SP Gupta’s case may not be examined. It is difficult to agree that if the Chief Justice of India is made chairman of an appointment commission, it would automatically give primacy to the Chief Justice of India.

However, the Supreme Court of India did not take up the matter early, even though the court had considered it to be of vital importance to the efficient functioning of the judicial system. Justice MN Venkatchaliah took over as Chief Justice of India and constituted the nine-judge bench in 1993, to decide the points mentioned in the referring order quoted above.

The nine-judge bench did not strictly limit the scope of hearings to the two issues, i.e. the position of the Chief Justice of India with reference to the primacy and justiciability of the fixation of judges’ strength as framed in the referral order. The Supreme Court once again opted to interpret Article 217(1) and 124 (2) of the Constitution of India in the post-SP Gupta scenario, to further insulate the appointment of judges. Again, the court was divided and by a majority of 6:3, they did not give primacy to the Chief Justice of India in the appointment of judges. The interpretation of the consultation process by the majority judgment is that the Chief Justice of India shall consult two senior-most judges in writing and send their views to the President of India, along with his own recommendations. In the case of unambiguity between the three judges, their recommendations are almost binding on the President of India, unless he sends them back for reconsiderations for specific reason. On such reconsideration, if three judges reiterate their earlier recommendations, they would be binding on the President of India. The majority decision, therefore, interpreted the relevant constitutional provisions not strictly in favour of the primacy of the Chief Justice of India but laid down a new consultation process.

Recently, when Shri Punchchi, then Chief Justice of India, recommended the name of a few judges for appointment without the consultation of the two senior-most judges, the President refused the recommendations and asked the Chief Justice of India to reconsider the name as per the prevailing norm of consultation. In the case of a division of opinions among the throb indeed the Supreme Court decision sense in make his choice from amongst the senior judges.

Names proposed by the Chief Justice of India and two other judges. This is indeed a departure from the decision in the Sp Gupta, case where the role of the judiciary was not so decisive. The Supreme Court decided, even after the nine. judges bench was informed by the Department of Law and Justice, that since 1985, the government had appointed only such persons as judges as were recommended by the Chief Justice of High Court and the Chief Justice of India. In no case would a person be appointed as judge if the Chief Justice of India did not agree to his or her appointment, even though recommended by the Chief Justice of the High Court and the Governor of the State. This unwritten rule has worked well and has promoted judicial independence.

In SC Advocates-on-Record Assn. vs. Union of India, AIR 1994, S.C. 268, the court said that the Consultation of the Chief Justice of India contemplated under the Constitution in the appointment of judges has to be meaningful and not illusory, and that the Chief Justice of India’s (CJI) opinion enjoys primacy. Giving the simile of the Pope, who enjoys supremacy in ecclesiastical and temporal affairs, the Court said that the CIl being the highest judicial authority has a right of primacy, if not supremacy, to be accorded on the affairs concerning the “Temple of Justice”. The Court observed:

“The judiciary may be the weakest among the constitutional functionaries, for the simple reason that it is not possessed of the long sword (that is the power of enforceability of its decisions) or the long purse (that is financial resources), but if the opinion of the Executive is to prevail over the opinion of the CJI in matters concerning the judiciary on account of that reason, then the independency judiciary which a power of strength for all- particularly for the poor, the down-trodden and average person confronting the wrath of the government, will be a misnomer”

Today there is a need to realise that judicial appointments are different from other types of appointments. Some argue that the Executive is entitled to take into consideration the mental outlook or the social philosophy of judges. This means that judge should subscribe to the social philosophy of the ruling party. It is true that in deciding cases, the social philosophy of the judge plays an important role. But the question arises as to what kind of social philosophy a judge is to subscribe to. Evidently, the philosophy of the Constitution. The preamble in the Constitution embodies social philosophy.

Thus, it is clear that the Supreme Court judges are bound to adhere to the social philosophy of the Constitution.

The independence and impartiality of the judiciary is one of the hallmarks of the democratic setup of government. To give to the Executive unfettered discretion to decide the philosophy of judges is to make the judiciary subservient to the Executive. Every judge who desires to be elevated to the highest post of the Chief Justice of India will try his best to become a ‘forward looking judge’ in the eye of the government.

On the second issue of question of transfer of High Court judges, it should be remembered in the first place that High Courts are the highest courts in the states. They have the power of superintendence and control over the subordinate courts and tribunals. The judges of High Courts occupy a prestigious position in the administration of justice. Thus, the transfer of High Court judges has a strong bearing on the independence of the judiciary and judicial discipline. Even the transfer of a single High Court judge would attract criticism from several quarters. The Constitution of India does not empower the Supreme Court or the chief Justice of India to transfer the High Court judges. As a matter of fact, the Supreme Court does not enjoy any administrative control over the High Courts in our country. Only on the judicial matters is the Supreme Court a superior court to the High Courts. The role of the Chief Justice of India under Article 222 of the Constitution of India is to protect the interest of judges against arbitrary transfers by the Executive. He is the link between the judge and the President, to oversee that the transfer is not punitive and also to hear the concerned judge before rendering his advice to the President on the transfer. This process of consultation must be effective and full data has to be placed before the Chief Justice of India while seeking his views. After the joint conference of chief justice and chief ministers endorsed the policy of having one-third of the judges from outside in each court, in December 1993, the Chief Justice of India MN Venkatachaliah desired to implement the policy through the Peers Committee of three judges of the Supreme Court and two Chief Justices of the High Courts. He wanted to keep the government completely outside the consultation process and left it to the Peers Committee. The Government agreed to implement the transfer policy, based on the recommendations of the Chief Justice of India. Large scale transfers did cause hardship to judges. No norms were followed in the Peers Committee or by the Chief Justice of India. However, the government had faith that the judiciary would give justice to its judges.

So far as the subordinate courts are concerned, the Constitution secures the independence of subordinate judiciary from the Executive. Article 233 provides that the appointment, posting and promotion of district judges shall be made by the Governor of the state in Consultation with the High Court. The Governor is not bound to act on the advice of the High Court. The High Court recommends the names of the persons for appointment, but it is not obligatory on the Governor to accept the recommendation. Nor is the government bound to give reasons for not accepting the recommendations of the High Court. (MS Jain vs state of Haryana, AIR 1977, SC 276).

Appointment of persons other than district judges to the judicial service of a state shall be made by the Governor of the state in accordance with the rules made by him on behalf of public service, the State Public Service Commission and with the High Court of the state (Article 234). At present, the State Government exercises administrative control over the district and subordinate magistrates. The law commission has also suggested the strengthening the control of the High Court over district judges and the subordinate judiciary in a state. To ensure the independence of the subordinate judiciary, separation from executive and control of the High Court over the district judge and the subordinate judiciary is required. In a significant judgement in the case of the All India Judges Association vs. Union of India (1992), ISCC 119, the Supreme Court has directed the union government to establish an All India Judicial Service and to bring about uniformity in service conditions of members of the subordinate judiciary throughout the country. It is yet to be implemented by the government.

So far as the practice of appointing retired judges in various capacities is concerned, obviously it is a danger to the independence of the judiciary. The law commission has pointed out the dangers of the prevailing practice in the following words:

“It is clearly undesirable that the Supreme Court judges should look forward to other government employment after their retirement. The government is a party in a large number of cases in the highest court and average citizens may well get the impression that a judge, who might look forward to being employed by the government after his retirement, does not bring to bear on his work that detachment of outlook which is expected of a judge in case in which government is a party.

We are clearly of the view that the practice has a tendency to effect the independence of judges and should be discontinued.

Recommendations

In order to uphold the independence of the judiciary, a meaningful unity and mutual respect must exist within itself. There are a few recommendations, which may create the independence without any controversies:

• There is a need to establish an All India Judicial Service and to keep the uniformity in service conditions of members of the subordinate judiciary.

(2) The state Governments’ administrative control over the district and subordinate magistrates must be abolished and control of the High Court over the district judge and the subordinate judiciary is to be strengthened.

(3) A judicial committee, consisting of the Attorney General, the Law Minister, the President of the Bar Association and the retiring Chief Justice of India may be constituted and authorised to suggest a panel of names for the appointment of judges of the Supreme Court and High Courts.

(4) To bring about uniformity in service conditions of members of the judicial subordinate judiciary throughout the country, there is a need to establish an All India Judicial Service.

(5) There is a need to chalk out a syllabus for the professional degree of law, which must be applicable throughout the country and of course, the classes/ courses of law must be taught in one language throughout the country.

(6) There should be an institute or academy for the training of judicial officers to be set up by the central government with the Chief Justice of India as a chairman. The functioning of the institute or the academy should be under the supervision of the governing body to be constituted in consultation with the Chief Justice of India. The Chief Justice shall also be the chairman of the governing body. The governing body will determine whether and in what place branches of the institute or academy should be set up for such training.

(7) There is a need to take immediate action to upgrade the infrastructure facilities for the judiciary.

(8) There is a need to set up a judicial disciplinary authority over the misconduct of judges, which must be under the control of judiciary.

In the 50th year of the Independence of India, we, the law makers, lawyers and judges, must do some introspection. It is our duty to bring justice within the reach of the common

man without any favour or disfavour. In the United States of America, judicial independence has developed into a set of institutions that ensure that judges decide according to the law, rather than according to their own whims or the will of others, including the other branches of the government. The components of judicial independence comprise the constitutional protection enjoyed by judges in the United States of America.

We must achieve the independence of the administration of the judiciary and judicial disciplinary authority over the misconduct of judges. Together these components combine to assure an independent judiciary that is the basis for a society in which the people and the government behave according to the law. India accepts the concept of security of tenure for judges in our Constitution but there is no provision for judicial control over the misconduct of judges. The procedure for impeachment is very cumbersome and is ultimately not in the hands of judiciary. Judicial independence is the foundation on which the whole concept of justice is based. There is no doubt that the Indian judiciary has served the country well even in difficult times. It has produced judges of outstanding integrity and ability. There is a need to maintain this independence with proper administration of justice without interference. If this can be ensured, India will be able to proclaim proudly that we not only judge the judges but also provide the justice for all.

Bibliography

1. Pandey, Dr. /N, constitutional Law of India.
2. Bhardwaj, HR, The Law, Lawyers and Judges.
3. Kumaramanglom, Judicial Appointments.
4. Advani, Poornima, Indian Judiciary: A Tribute.
5. Dhawan, R, Khurshid, S and Sudharshan, R, Judges and Judicial Power.
6. lyer, VR Krishna, Justice and Beyond.
7. lyer, VR Krishna, Judicial Justice: A New Focus.