Constitution has provided several guards to protect the judiciary from the politicians and executives. Independence of judiciary is the basic feature of out Constitution.
The Constitution made several provisions for the maintenance of independent of judiciary. They are given here under:
1. Restriction on discussion:
Articles 121 and 211 provide that no discussion shall take place in Parliament and in a State Legislature with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties in the Parliament and State Legislatures concerned.
However the Parliament is empowered to bring a motion against a judge on the allegation of corruption, Infirmity to hold the post as Judge of the Supreme Court, and for the removal of such Judge after an address to the President.
Article 124 provides the appointment of the Judges of the Supreme Court and High Court. Their appointment is not left to the whims or the executive.
The President shall appoint them after the consultation of the Chief Justice of the Chief Justice of the Supreme Court. The Chief Justice plays an important and key role.
Ordinarily when once a Judge is appointed he shall not be removed until he attains the age of 65 years. There is elaborate procedure to remove a Judge of Supreme Court or of a High Court.
This lengthy unusual motion was brought first time in the History of Supreme Court of India in the case of Ramaswamy Justice. However, due to the trick play of Congress-I the motion could not get success.
Thereafter, Ramaswamy Justice resigned to his post voluntarily.
The salaries, allowances and pension of the Judges of the Supreme Court are charged on the Consolidated Fund of India; vide Article 146 (3). Similarly, the salaries, allowances and pension of the Judges of the High Court are charged on the Consolidated Fund of the State concerned vide Article 229 (3).
Therefore, the Supreme Court and High Court are kept outside the political controversy, authority and influence.
5. Courts of Record:
Articles 129 and 215 empower the Supreme Court and High Courts respectively with the power to punish for contempt, i.e. they are Courts of Records.
Article 146 conferred the autonomy to the Supreme Court The Chief Justice of the Supreme Court is empowered to appoint officers and servants, and he may prescribe the conditions of services by rules, subject to the law which Parliament may make.
Similarly, the Article 229 empowers the Chief Justice of the High Court with the similar powers, and thus gives autonomy to the High Court.
Case-Laws: Indira Gandhi V. Rajnarayan (Election Case)
The working of the Supreme Court for the last five decades provides proved that on the whole it has maintained its independence and has upheld the dignity of the High Courts.
The independence and dignity has been proved in this famous case. Indira Gandhi was the Prime Minister. Raj Narain contested against her in Allahabad High Court, which gave the judgement in favoUr of Raj Narain.
The Supreme Court upheld the judgment of High Court It jolted the Congress-I the ruling party, it became famous judgmer and talk of that time.
S. P. Gupta Vs. Union Of India 1982 (Judge’s Transfer Case)
Article 222 empowers the President of India to transfer Judge from one High Court to another. In this case, a judge was transferred.
The advocate practicing in that High Court filed a petition under Public Interest Litigating’ contending that the President has no power to transfer a Judge without his consent. Supreme Court held the following conclusions:
1. The President can transfer a Judge without consent of that Judge.
2. However, the President may do so only after consultation with the Chief Justice of India.
3. The transfer should be made in the public interest and not by way of punishment.
4. The provisions for transfer of Judges of High Court will not undermine independence.
Supreme Court Advocates’ Assn. Vs. Union Of India 1993
The Judgment given in this case on 6- 10-93 ruled the judgment of S.P. Gupta case.
With a majority 7-2 Supreme Court gave the judgment that the opinion and consent of the Chief Justice must weigh more than other constitutional wings, viz. President, cabinet regarding the transfers, or appointments of Judges of Supreme Court and High Court and the Chief Justice of High Courts.’
Supreme Court also held that no appointment or transfer of Judges shall be made without the consent of the Chief Justice.
Principle lay down:
President cannot appoint or transfer a Judge without the consent of the Chief Justice of Supreme Court.