D.6. Constitutional provisions
Our constitution has several clauses that guarantee the independence of the judiciary. The following is a discussion of the constitutional clauses:
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Security of Tenure |
The Supreme Court and high court justices have been granted tenure security. Once appointed, they stay in their positions until they reach the retirement age, which is 65 years for judges of the Supreme Court (Article 124(2)) and 62 years for high court judges (Article 217(1)), respectively. They cannot be removed from their positions other than by presidential order, and even then only on the basis of proven misbehaviour and incapacity. A majority of all members of each House of Parliament, as well as a majority of at least two-thirds of the members who are present and voting, are required in order to approve a resolution to that effect. Due to the difficult nature of the procedure, there has never been a case of a Supreme Court or High Court judge being removed under this clause. |
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Separation of the Judiciary from the Executive |
According to Article 50, which is one of the Directive Principles of State Policy, the State must take action to keep the judiciary and executive branches distinct in its public services. Securing the judiciary’s freedom from the executive is the goal of the Directive Principle. There must be a separate, independent judiciary according to Article 50. |
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Salary and Allowances |
Since judges’ salaries and allowances are set and not subject to a vote by the legislature, it is also a factor that contributes to the judges’ independence. In the instance of judges of the Supreme Court, they are charged to the Consolidated Fund of India, and in the instance of judges of the high court, to the state consolidated fund. Except in extreme financial emergencies, their pay structures can be changed, but they cannot be changed to their detriment (Article 125(2)). |
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Powers and jurisdiction of Supreme Court |
Parliament is only able to increase the Supreme Court’s authority, it cannot reduce it. Parliament may alter the monetary threshold for Supreme Court appeals in civil matters. The Supreme Court’s appellate authority may be expanded by Parliament. To help the Supreme Court function more efficiently, it could grant it extra authority. It may provide authority to issue orders, writs, or directives for any purpose other than those listed in Article 32. The Supreme Court’s authority cannot be diminished, thereby establishing judicial independence in India. |
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Penalising for its contempt |
Both the Supreme Court and the high court are able to do so. According to Article 129, the Supreme Court is empowered to penalise for its contempt. Similarly, Article 215 stipulates that each high court should have the authority to impose punishment for contempt of itself. |
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The conduct of a judge is not discussed in the state legislature or Parliament |
According to Article 211, no debate over the behaviour of any Supreme Court or high court judge in the course of his duties shall take place in the state legislature. A similar provision is included in Article 121, which states that no discussion of the behaviour of the Supreme Court or A high court judge in the performance of his duties may take place in Parliament until a resolution is presented by the President requesting the judge’s dismissal. |