Performance and Judicial Freedom of Decisions
Performance and Judicial Freedom of Decisions
Performance and Judicial Freedom of Decisions
FREEDOM OF DECISIONS
BY:
ROLL NUMBER: 17
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CERTIFICATE
This is to certify that Miss JYOTI YADAV, a student of LL.M, semester 1st, has worked under
my supervision and guidance. The work contained in this dissertation is titled “Performance
and Judicial Freedom of Decisions” under my supervision and guidance.
It is further certified that the candidate has made sincere efforts for the completion of this
project work.
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ACKNOWLEDGMENT
I hereby acknowledge the help and support of teachers, who helped me in compiling this
project. I thank the faculty and management of Dr. B.R. Ambedkar Law University, Jaipur, as
the resources that were necessary to complete this project were provided by them.
I am highly indebted to my teacher ASSO.PROF. Mrs. SWATI CHHAJLANI for her
guidance and constant supervision as well as for providing necessary knowledge
regarding the subject at hand and also for her support in completing the project.
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TABLE OF CONTENTS
CERTIFICATE ............................................................................................................................... 2
ACKNOWLEDGMENT................................................................................................................. 3
INTRODUCTION .......................................................................................................................... 5
IMPORTANCE OF THE CONCEPT ............................................................................................ 5
INDIAN SCENARIO ..................................................................................................................... 6
HISTORICAL BACKGROUND ................................................................................................... 7
INDIAN JUDICIARY .................................................................................................................... 8
Role of Judiciary ......................................................................................................................... 9
Judicial freedom led by Supreme Court ...................................................................................... 9
Structure of Courts in India ................................................................................................... 10
Branches of the Legal System ................................................................................................... 10
Access to the courts ................................................................................................................... 11
STEPS TAKEN TO ENSURE JUDICIAL FREEDOM .............................................................. 11
COMPARATIVE ANALYSIS OF US AND INDIA ................................................................... 14
Salient Features ......................................................................................................................... 14
Nature of the Constitution ......................................................................................................... 14
Doctrine of Separation of Powers and the System of Checks and Balances............................. 15
Impeachment of the President ................................................................................................... 16
Fundamental Rights................................................................................................................... 16
Distribution of Legislative Power ............................................................................................. 18
Emergency and Suspension of Writs ........................................................................................ 18
Judiciary .................................................................................................................................... 18
Amendment of the Constitution ................................................................................................ 19
BIBLIOGRAPHY ......................................................................................................................... 21
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INTRODUCTION
Judicial Freedom is the concept that the judiciary should be independent from the
other branches of government. That is, courts should not be subject to improper influence from
the other branches of government or from private or partisan interests. Judicial independence is
important to the idea of separation of powers.
Different countries deal with the idea of judicial independence through different means of
judicial selection, or choosing judges. One way to promote judicial independence is by
granting life tenure or long tenure for judges, which ideally frees them to decide cases and
make rulings according to the rule of law and judicial discretion, even if those decisions are
politically unpopular or opposed by powerful interests. This concept can be traced back to 18th-
century England.1
In some countries, the ability of the judiciary to check the legislature is enhanced by the power
of judicial review. This power can be used, for example, by mandating certain action when the
judiciary perceives that a branch of government is refusing to perform a constitutional duty or by
declaring laws passed by the legislature unconstitutional.
The effectiveness of the law and the respect that people have for the law and the government
which enacts it is dependent upon the judiciary's independence to mete out fair decisions.
Furthermore, it is a pillar of economic growth as multinational businesses and investors have
confidence to invest in the economy of a nation who has a strong and stable judiciary that is
1
https://en.wikipedia.org/wiki/Judicial_independence
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independent of interference. The judiciary's role in deciding the validity of presidential and
parliamentary elections also necessitates independence of the judiciary. 2
In reality, an independent, impartial and fearless judiciary is a sine qua non for any nation which
believes in democracy. Such a judiciary is all the more necessary for a federal type of
Government like in India. Unless the judges are independent and fearless, they cannot be
expected to protect the rights and liberties of the people. If the judges are weak and prone to
pulls and pressures, people will lose faith in the judiciary.3
INDIAN SCENARIO
In India, the question of performance and judicial freedom of decisions has been a subject of
heated national debate over the last many years. It has exercised the minds of legislators, jurists,
politicians and the laymen. Both the supporters and the opponents have cogent arguments in
support of their views. This question assumes great importance whenever the Supreme Court
holds a particular Act or particular Clause of an Act passed by Parliament ultra virus of the
Constitution or whenever Government supersedes any person while making appointments of
judges of the High Courts or the Supreme Court.
The supporters of absolute independence of the judiciary argue that in the absence of an
independent judiciary, democracy cannot succeed. They point out that only an independent
judiciary can safeguard the rights of the people as enshrined in the Constitution and thereby
ensure the rule of law in the country.
On the other hand, the opponents of the theory of the independence of the judiciary say that
under our Constitution, it is not the judiciary but the Parliament which is supreme and sovereign.
They feel that it is for the Parliament to lay down the laws and for the judiciary to interpret them.
The judiciary cannot and should not usurp the powers of the Parliament. If the Parliament passes
any laws for the economic and social upliftment of the people and establishment of a socialistic
pattern of society, the judiciary should not strike down such laws and stand in the way of
progress. Otherwise, the people might resort to revolution to bring about a change.4
2
Ibid.
3
http://www.shareyouressays.com/english-essays/926-words-essay-on-independence-of-judiciary-in-india/3085
4
Id.
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HISTORICAL BACKGROUND
The first political philosopher, who propounded the idea of an independent judiciary, was
Montesquieu, the famous French philosopher. He believed in the theory of separation of powers
of the three branches of the Government- Legislature, Executive and Judiciary. The fathers of the
American Constitution were very impressed by his theory. They, therefore, established an
independent judiciary in their country. The American people have great faith in the independence
of the judiciary. They are convinced that if any fetters are placed on the judicial freedom, the
rights and liberties of the people might be endangered.
In U.K., however, the Parliament is supreme. The judiciary, there, has not separated from the
legislature. In fact, there the House of Lords acts as the highest Court of appeal. Though in U.K.,
the judiciary has not been independent or supreme, yet its judges have been giving decisions
without fear or favour on matters coming up before them. They have been independent and
impartial in their judgements. The U.K. does not have a written Constitution but still its people
enjoy no less liberty than the Americans. In the U.K. no major clash between the Parliament and
the judiciary has occurred so far. Each minds its own business.
The judiciary in the U.K. is not competent to declare a law passed by their respective legislatures
as unconstitutional. But in the U.S.A. and India, the judiciary has been vested with the power of
judicial review. They can hold a law passed by the legislature as unconstitutional and strike it
down. In India the Supreme Court strikes down a law only if it violates the basic structure of the
Constitution.5
5
Ibid.
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INDIAN JUDICIARY
In India, the Constitution has spelt out the fundamental rights of the people and made the
judiciary independent so that it can safeguard and uphold these rights. If experience is any guide,
the Indian Supreme Court has invariably shown a high degree of independence in giving its
judgements. Some of its judgements even went against the Government.6
The Supreme Court is held in high esteem by the Parliament, the Government and the people of
India for its role in protecting and guarding the rights and liberties of the citizens, advising the
Government on complex constitutional issues, dispensing justice to the people, awarding,
confirming, reducing or enhancing the punishment awarded by lower courts to the criminals.
The judges of the Supreme Court are appointed by the President. The President also consults the
Chief Justice of India in the appointment of other Judges. The age of retirement for the Judges of
Supreme Court is sixty-five years. A judge of the Supreme Court can also be removed from his
office by order of the President passed after an address by each House of Parliament supported
by a majority of the total membership of that House and by a of not less than two-thirds of the
members of that House present and vat has been presented to the same session for such removal
on the ground proved misbehavior or incapacity.
The salaries of the Judges are charge upon the Consolidated Fund of India and are not notable in
the Parliament. Their salaries cannot be reduced during the term of their office. So, the Indian
Constitution has taken every step to ensure the judicial freedom.
However, in the modern age, the judiciary should always keep in view the economic and social
ideals and aspirations of the people, particularly of the weaker or oppressed sections of the
society. Only then will it continue to command the confidence and faith of the people.7
6
https://brainly.in/question/682981
7
Supra note 3
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Role of Judiciary
The Supreme Court of India is the highest authority of the judiciary. But, first of all, we need to
understand the role of the judiciary system. Courts in India are responsible for handling and passing
decisions on multiple issues- how a school should treat the students, or if two states can share each
other’s resources etc.
The Courts also have the right to punish people for the crimes they commit. Almost every social
situation which needs a rule is managed by the judiciary, like-
Dispute Resolution: Whenever there is a dispute, the courts intervene in providing solutions.
Whether it’s a dispute between citizens, citizens, and government, or between two state
governments or even the central and state governments, the court is responsible for dispute
resolution.
Judicial Review: The judiciary has the final hold on the Constitution of India. As such, if
there is any violation of the fundamentals of the constitution, the court can even overwrite
laws passed by the Parliament. This process is called Judicial Review.
Upholding the Law and Enforcing Fundamental Rights: Almost all Fundamental Rights of
Indian citizens are defined in our constitution. In case, any citizen feels that any of such
rights are violated, they can approach their local high courts or the Supreme Court.8
The judicial freedom calls for ‘separation of powers’. This basically means that both the legislature
and the executive branches of the government cannot interfere with the functions and decisions of
the judiciary. So, in order to successfully execute their independent authority, the judges of both
High Courts and the Supreme Court must be appointed without any influence or interference from
8
https://www.toppr.com/guides/civics/judiciary/introduction-of-the-judiciary/
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other branches of the government. Also, it is very difficult to remove a judge from his/her office,
once appointed by the judiciary.
As per the judiciary system, there are three levels of courts in India.
District Courts: This is where most citizens go to for any dispute in their city or region. Each
state comprises many districts and has its own district or subordinate courts. And, the entire
district is presided over by the District Judge
High Courts: Each state has its own High Court, which is most certainly the highest judicial
authority of the state.
Supreme Court: This is at the top of all state and district courts, presided by the Chief
Justice of India. Because it is the highest authority of justice for the country, the decisions
made by the Supreme Court stands above all other courts. The Supreme Court of India is
located in Mandi House, New Delhi.
Due to the integrated judicial system of the country, you can find a strong connection between all
the courts. This means that the decisions of the higher courts are binding on the lower courts. The
‘appellate system’ establishes such connection. Due to the appellate system, if anyone is not
satisfied by the judgment of a lower court (district or high court), he/she/they can appeal to the
higher court for a fair decision.
The Indian legal system has two main sections: Civil Law and Criminal Law. And the rules for each
of these laws vary from each other. As the highest judiciary authority, the Supreme Court takes care
of both civil and criminal issues.
Criminal Law takes care of misconduct of citizens, which are defined as an offence or crime
by the law. A criminal case starts with filing a report with the local police, who then starts an
investigation of the matter. The court finally decides on the matter.
9
Id.
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Civil Law, in contrast, takes care of disputes in the event of violation of a citizen’s
Fundamental Rights. The involved parties then file a petition to the relevant court. Finally,
the court provides a solution and a decision thereafter, to the dispute presented.10
To solve this problem, the Supreme Court introduced the system of Public Interest Litigation (PIL),
which allowed every person to approach the court first with their issue. This could be done through
a simple communication as a written letter stating the case.
The courts of India play a crucial role in sustaining the Fundamental Rights as basic as food. Some
years ago, a PIL enabled the Supreme Court to include the ‘Right to Food’ for all citizens, as a part
of ‘Right to life, under Article 21 of the Constitution.
Judiciary in India is neither a branch of the executive nor a hand-maid of the legislature. It has an
independent identity under the Constitution. It enjoys full autonomy in its working.
The method of appointment of judges has been very sound. The Judges of the Supreme Court
and High Courts are appointed by the President. While appointing other judges the Supreme
Court, the President consults the Chief Justice of India. In case of the appointment of the Chief
Justice, the practice of appointing the senior most judges to this high office is followed. In the
case of subordinate courts, the Judges are recruited through competitive examinations.
10
Id.
11
http://www.yourarticlelibrary.com/political-science/9-steps-taken-to-ensure-independence-of-judiciary/40366
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3. High Qualifications:
The Constitution prescribes specific and high qualifications for the Judges. A person eligible for
judgeship has to be an Indian citizen, must have experience as a Judge of a High Court for at
least five years or as an advocate of High Court for at least ten years or be a distinguished jurist.
Thus, only persons with high qualifications and experience are appointed as judges of the courts.
4. Long Tenure:
Judges of Supreme Court remain in office till they attain the age of 65 years. This age limit
ensures a long tenure for the Judges.
5. Security of Service:
The Judges in India enjoy good security of service. No judge can be removed from the office
except by a very difficult process of impeachment.
6. High Salary:
Every Judge of the Supreme Court gets a high salary. Besides this, each judge is entitled to free
residential accommodation, medical allowance and several other perks. Salaries and allowances
of judges cannot be reduced during their terms of office, except in the situation of a financial
emergency in the country.12
A Judge of the Supreme Court is prohibited to practice before any court or authority in India.
Courts in India have been given the power to punish all cases involving a contempt of court. The
Supreme Court can punish any institution or person who is found guilty of contempt of court.
12
Id.
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Judiciary in India enjoys a vast jurisdiction. It acts as the guardian interpreter of the Constitution,
the protector of Fundamental Rights of the people and the arbiter of disputes between the Union
and the States. It has the power to determine the constitutional validity of every law.
It can reject any law in case it is found to be against the Constitution of India. Indian Judiciary is
in no way subordinate to the other two organs of the government. Its decisions bind all. Such a
powerful position helps the judiciary to maintain its independence. Thus the Constitution of India
incorporates all such features as are considered essential for the preservation of judicial
freedom.13
13
Ibid.
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COMPARATIVE ANALYSIS OF US AND INDIA14
Salient Features
1. While American Constitution is the shortest (of any major government in the world) and
the first written constitution, India’s Constitution is the lengthiest written constitution in
the World. American Constitution is a very rigid constitution consisting of only Seven
Articles and twenty-seven amendments, so far.
Originally, the India Constitution consisted of 395 Articles in 22 Parts, with 8 Schedules.
Now, it consists of 448 Articles in 22 Parts, with 12 Schedules.
2. The US Constitution was finalized in a convention held on September 17, 1787, which
required its ratification by a minimum of nine States, for it to be enforced. By the end of
July 1788, eleven States had ratified it and the Constitution was put into operation on
13th September 1788.
The Indian Constitution, on the other hand, was adopted by her Constituent Assembly on
26th November 1949, and came into effect on 26th January 1950.
3. America has adopted the doctrine of dual ship in respect of its Constitution and
citizenship. It has two Constitutions, one, for America as whole and another for each
State. American people have two citizenships, one of USA and another of their respective
State.
On the other hand, India has one constitution and concept of single citizenship for every
citizen of the country.
14
https://www.civilsdaily.com/constitution-of-usa-features-comparison-with-indian-other-constitutions/
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1. Appointment of Governors.
2. Governor having the power of reserving the States’ bills for consent of the President.
3. Central government’s power to impose President’s rule in the States.
The theory of Separation of Powers started with John Locke and became popular with
Montesquieu (18th century philosophers).
US
3. The term of Legislature and Executive are fixed and do not depend on each other.
5. The Houses of Congress enact the law; the President executes the law; and the Supreme
Court interprets the law.
6. The American President has no privilege of law making power. Moreover, he is neither a
member of the House of Representative nor that of Senate.
7. By confirming veto power but equally not confirming the law-making power to the President,
the Congress controls the Presidents and vice versa. In this way, ‘Checks and Balances’ are
maintained.
India
1. Theoretically, we may say that the doctrine of Separation of Power is adopted in our
Constitution, but it is only between the Executive and Judiciary.
2. The President is a part of the Union Executive. Yet, it is the Prime Minster and the Council
Ministers who are the real executive because the President has to act on the aid and advice of
the Council of Ministers.
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3. They have dual capacity:
The Prime Minster, in his capacity as the leader of the ruling party can enact a law, which his
administration executes. Thus, the Prime Minster and his Council Ministers enact the law and the
administration executes the same, which is per se, contradictory to the doctrine of Separation of
Power.
2. By the use of veto powers (Congress can pass a bill against Presidential veto with 2/3rd
majority. So the President doesn’t have an absolute veto.
Congress in session for less than ten days: Bill will lapse.
Fundamental Rights
While US has incorporated the “Bill of Rights”, India has incorporated “Fundamental Rights” in
its Constitution. However, the American Constitution has provided additional human rights,
which are not to be explicitly found in the Indian Constitution.
1. Freedom of press is explicitly provided under the 1st amendment of the US Constitution,
while in India it is implicitly read under the Article 19[1][a], freedom of speech and
expression. Petition to the Supreme Court is a fundamental right in India, where as in US it is
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the government that is petitioned (In case of US, the word “government” has a wider
connotation and encompasses not only the executive, but also the higher judiciary).
2. The Americans have a right to keep arms and guns for the protection of their life and
property. This was provided under the 2ndamendment. Therefore, guns and arms are sold
like any other commodity in US without legal hassles, whereas in India it is a total contrast,
because apart from not being a fundamental right, it is a highly regulated legal right.
3. 5th amendment to the US Constitution guarantees that an accused will be tried for criminal
offence with a system of “Grand Jury”. Grand Jury means that common people are selected
by the government randomly, representing the community. They play a part in deciding the
guilt of the accused persons. The number of persons selected to be in the grand jury varies
from 6 to 12, or even more, if the case is controversial.
On the other hand, in India criminal trials are adjudicated by the Judges only.
4. Further, in US, no person’s life and liberty shall be deprived without “due process” of law.
Due process means that the content and procedure of law must be just, fair, and equitable,
which will be decided by the judiciary.
Legislative power of depriving a person’s liberty is restricted and scrutinized and
evaluated by the judiciary.
In India, a person’s life and liberty shall be deprived according to the “procedure established
by law”.
The world “procedure established by law” gives wide discretionary power to the
legislature to restrict the liberty.
Nevertheless, the Supreme Court in Maneka Gandhi case (even though the court did not
use the word due process) held that the procedure established by law must be fair, just
and equitable.
5. The Indian Parliament deleted the Right to Property from the list of Fundamental Rights in
1978. Whereas, in US, the right to property is still a fundamental right and no property shall
be acquired without just compensation.
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6. The American Constitution is highly influenced by Locke’s philosophy of inalienable natural
rights of human being.
The Indian Constitution, on the other hand, does not contain any such notable Article.
Therefore, Indians enjoy only those rights recognized by the Constitution, which are based
on the philosophy of Austin and Bentham’s theory of law.
India
Seventh Schedule of the Indian Constitution distributes the legislative power between the Central
and State governments. The Central and State governments have exclusive power to make laws
on 97 and 66 subjects, listed in the Union and State list respectively. On the 47 matters of
Concurrent list both the Centre and State can make laws. In case of conflicting laws, law of the
Centre would prevail.
97th subject in the Union list says that any subject, which does not belong to any other list would
automatically confer power to the Parliament to make a law regarding that subject. Thus, our
constitution makers have created stronger Central and weaker State governments, which depend
on the Central government for the financial assistance.
US
It is quite contrary in the case of US, where no elaborative mechanism is provided. Few
expressly mentioned subjects are with the federal and rest of the matters with State governments.
In India, an emergency can be declared on the ground of War and Armed Rebellion. During such
emergency all fundamental rights except the right to life can be suspended. The American
Constitution does not use the phrase of emergency but says that in case of Rebellion and
Invasion of Public Safety, the writ of Habeas Corpus can be suspended.
Judiciary
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There is no qualification mentioned for the appointment of judges of the Supreme Court. In
America, the President has the final say in the appointment of Supreme Court Judges. He
suggests the names of judges to the Senate and on the advice and consent of the Senate, judges
are appointed by the President.
The Judicial Committee of Senate plays a very significant role in evaluating the credentials of
the proposed judges of the Supreme Court. They make the investigation of the background of
judges, they hold a face-to-face interaction with the judges, the judges are queered and grilled
and questions are put.
The whole process happens in public and in a transparent manner. If a citizen of the US has any
information about judges’ integrity, he can send that information, with evidence, to the Senate
Judicial Committee, which further investigates to ensure that no unworthy candidate is appointed
as a Judge to the Supreme Court.
In the appointment of Judges, the people of US also participate and the judiciary of US has no
role to play in the appointment of judges. The entire process of appointment of judges is crystal
clear.
There is no fixed tenure of the judges. However, if they are retiring at the age of 70 years, they
will get salary and perks as a working judge.
In India, on the other hand, the entire process of appointment of judges happens in a darkroom,
between the judiciary and executive. The people of India come to know of the judges only after
their appointment. Neither the people are informed in advance, nor does the executive make an
open inquiry about judges.
The President appoints Judges to the Supreme Court based on a process, in which the Chief
justice and four senior judges of the SC play a very dominant and decisive role. The entire
process of appointment of judges happens in the backyard and under the carpet without the
involvement of the people, which is cited by many as a serious flaw of the Indian legal system.
The judges hold the office up to the age of 65 years.
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There are two ways to amend the US Constitution:
-They will communicate to the Congress. The Congress will call the convention.
In case of India, the amendment process is easy and flexible as compared to the US.
In India, it is only the Parliament that can propose an amendment to the Constitution and States
do not have any role to play in this matter. While some of the Articles can be amended by a
simple majority,
While some of the Articles can be amended by a simple majority, a special majority is required
for others, and in some limited Articles, ratification by more than half of the States is also
required. The majority here means the majority of the members of the Parliament present on the
date of the amendment and is not related to the total strength of the Parliament.
The fact that the US Constitution got amended only 27 times in the last 225 years, shows how
rigid it is to amend the US Constitution, in contrast to the Indian Constitution.
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BIBLIOGRAPHY
BOOKS
Linder, D.E., Cooper, J. and Jones, E.E., 1967. Decision freedom as a determinant of the
role of incentive magnitude in attitude change. Journal of personality and Social
Psychology.
Stevens, R., 1994. The independence of the judiciary: the view from the lord chancellor's
office. Oxford University Press, Incorporated.
Stiansen, Ø., 2022. (Non) renewable Terms and Judicial Independence in the European
Court of Human Rights. The Journal of Politics, 84(2), pp.992-1006.
Godbole, M., 2022. The Indian Judiciary and Civil Society. Indian Public Policy Review,
3(1 (Jan-Feb)), pp.77-83.
Sharma, B.K., 2022. Introduction to the Constitution of India. PHI Learning Pvt. Ltd..
ARTICLE
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