Independence of judiciary-: A comparative study between India UK and USA

ACKNOWLEDGEMENT
We extend our deepest appreciation to all those who contributed to the realization of
this project. Their unwavering support, dedication, and expertise have been invaluable
throughout this journey in result we completed the project .

First and foremost, we express our gratitude to DR. LAVALESH SINGH SIR for
their guidance, encouragement, and invaluable insights, which have been instrumental
in shaping the direction of this project.

We are also grateful to ISDC LAW FACULTY for their tireless efforts, creativity, and
collaboration. Their commitment to excellence has truly elevated the quality of our
work.

Special thanks to my seniors for their invaluable advice, feedback, and

encouragement. Their expertise and wisdom have been invaluable assets.

We would like to acknowledge the contributions of my friends for their assistance and
resources, which have significantly contributed to the success of this project.

Last but not least, we express our heartfelt appreciation to our families for their
unwavering support, understanding, and encouragement throughout this endeavor.

This project would not have been possible without the collective effort and support of
each individual mentioned above.

Thank you for believing in us and for being part of this journey.

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 Independence of judiciary-: A comparative study between India UK and USA

DECLARATION

I hereby declared that the project entitled “Independence of

judiciary in Iindia, UK and USA”is an independent work carried
out by me and it is partially original work and partially reference
from internet. This is bonafaid and legitimate project work and it
has been pursued as an academic interest.

Vaishnavi Chaurasia

Enroll No.- I2041074

Centre of Legal Education

Iswar Saran PG Collage

Prayagraj

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 Independence of judiciary-: A comparative study between India UK and USA

RESEARCH METHODOLOGY
The author will apply the Comparative methodology and “Doctrinal research” and
the “The researcher used the doctrinal research method for gathering the opinions of
the textbook writers, the Law of research whereby the author will compare and
analyse Independence of Judiciary in India ,UK and USA by examine its origin,
historical development and current position in each country and what are the
restrictions ensuring them independence of judiciary. Moreover, the author will also
evaluate and analyse the decisions of the Hon’ ble Supreme Court and various High
Courts and examine the role played by them in ensuring and reminding the
independence of judiciary.

Certainly, when focusing on the independence of the judiciary specifically within the
contexts of India, the UK, and the USA, the aim and objectives might be tailored to
address the unique legal and political landscapes of each country. Here's a refined set
of research aim and objectives:

Research Aim: This research aims to analyze and compare the independence of the
judiciary in India, the UK, and the USA, with a focus on understanding the
institutional frameworks, legal safeguards, and practical challenges within each
context.

Research Objectives:

1. to compare the history of judicial independence

2. to compare constitutional and legal frameworks:

3. to compare institutional structures supporting:

4. to compare how rule of law secures judicial independence

5. to analyze how landmark judgement ensures

6. to compare judicial independence:

7. to identify challenges and threats:

8. to propose reforms and recommendations:

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 Independence of judiciary-: A comparative study between India UK and USA

LIST OF CASES

1-Kesavananda Bharati v. State of Kerala (1973)

2-S.P. Gupta v. Union of India (1982):

3-Justice Sheth 's Case

4-Supreme Court Advocates on record v. Union of India (1993) -

5-Supreme Court Advocates-on-Record Association v. Union of India, 1998

6-Justice K. S. Puttaswamy (Retd.) v. Union of India (2017):

7-Miller v. Secretary of State for Exiting the European Union (2017):

8-Marbury v. Madison (1803):

9-Brown v. Board of Education (1954):

10-R (Miller) v. The Prime Minister (2019):

11-Privacy International v. Investigatory Powers Tribunal (2021):

12- The Bhima Koregaon case

13-The Rafale deal case

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 Independence of judiciary-: A comparative study between India UK and USA

CONTENT
Serial Page
Number Number
1 CHAPTER-1 (Basic Introduction)
 Meaning of Independence of judiciary (IOJ)
 Importance of (IOJ) 6-14
 Components of (IOJ)
 Need of (IOJ)
2 CHAPTER-2
 Introduction to legal system of India, UK and
USA 15-20
 Historical development of (IOJ) in India, UK and
USA
3 CHAPTER-3 (Constitutional Provision)
 How constitution securing (IOJ) in India and 21-29
Judicial Pronouncement, In UK and in USA
4 CHAPTER-4
 Separation of power in India, UK and USA 30-32
 How separation of power ensures (IOJ)
5 CHAPTER-5
 Rule of law in India, UK and USA
 How rule of law secures (IOJ) 33-36
 Comparing the safeguards in securing (IOJ)in
India, UK and USA
6 CHAPTER-6
 Judicial Review in India, UK and USA 37-39
 How judicial review ensures (IOJ)
7 CHAPTER-7
 Judicial Activism in India, UK and USA 40-41
 How judicial activism ensures (IOJ)
8 CHAPTER-8
 Recent Judgement regarding (IOJ) in India, UK
and USA 42-47
 Challenges faced by , UK and USA and Judiciary
of India in securing (IOJ)
9 CONCLUSION
 Comparing Independence of judiciary in India, 48-49
UK and USA
10 SUGGESTION 50
11 REFERENCE 51

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 Independence of judiciary-: A comparative study between India UK and USA

CHAPTER -1

There can be no difference of opinion in the House that our judiciary must both be
independent of the executive and must also be competent in itself And the question is
how these two objects could be secured1 . -Dr. B. R. Ambedkar

We have provided in the Constitution for a judiciary which will be independent. It is

difficult to suggest anything more to make the Supreme Court and the High Courts
independent of the influence of the executive. There is an attempt made in the
Constitution to make even the lower judiciary independent of any outside or
extraneous influence.'2 -Dr. Rajendra Prasad

"The legitimacy of the judiciary lies in the faith and confidence it commands from the
people, who in turn depend on judicial independence. People's faith in the judiciary is
determined by the single most important factor that judiciary is the first and last
access for citizens in distress and need,"3- DY Chandrachud

BASIC INTRODUCTION-

An independent judiciary is necessary for a free society and a constitutional

democracy. It ensures the rule of law and realization of human rights and also the
prosperity and stability of a society.4 The independence of the judiciary is normally
assured through the constitution but it may also be assured through legislation,
conventions, and other suitable norms and practices.

Following the Constitution of the United States, almost all constitutions lay down at
least the foundations, if not the entire edifices, of an independent judiciary. The

1
Dr. B. R. Ambedkar, Chairman of the Drafting Committee of the Constituent Assembly and later Law Minister of India
Reply to the debate on the draft provisions of the Constitution on the Supreme Court, (May 24, 1949), in
CONSTITUENT ASSEMBLY DEBATES, vol.VIII, 258.
2
. Dr. Rajendra Prasad, President of the Constituent Assembly and later President of India, Speech to the Constituent
Assembly of India preceding the motion to adopt the Constitution (Nov. 29, 1949), in I I CONSTITUENT ASSEMBLY
DEBATES 498
3
Chief Justice of India DY Chandrachud said about independence of judiciary in a report by NDTV INDIA India
NewsPress Trust of IndiaUpdated: April 08, 2023 11:52 am IST
4
See SHIMON SHETREET, JUSTICE IN ISRAEL: A STUDY OF THE ISRAELI JUDICIARY 4 (1994) [hereinafter
SHETREET, JUSTICE IN ISRAEL]. The independence of the judiciary and the protection of its constitutional position
is not achieved in an instant act, but rather over a period of time by a continuous struggle which takes place within the
framework of an ongoing and dynamic process. Thejudiciary, and the social forces which support it, must always be on
guard to maintain the independence of the judiciary in the face of unexpected events and changing social, economic, or
political circumstances. See id.

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 Independence of judiciary-: A comparative study between India UK and USA

constitutions or the foundational laws on judiciary are, however, only the starting
point in the process of securing judicial independence.

Ultimately the independence of the judiciary depends on the totality of a favorable

environment created and backed by all state organs, including the judiciary and the
public opinion. The independence of the judiciary also needs to be constantly guarded
against the unexpected events and changing social, political, and economic conditions
it is too fragile to be left unguarded.5

India has given to itself a liberal constitution in the Euro-American traditions which
aims at establishing a free and democratic society. It also aims at the prosperity and
stability of the society. Its makers believed that such a society could be created
through the guarantee of fundamental rights and an independent judiciary to guard and
enforce those rights. Therefore, the framers of India's Constitution dealt with these two
aspects with maximum and identical idealism.6

The constitution must ensure a constitutional position of dignity to the judiciary. The
constitution must also ensure administrative independence of the judiciary, such as
supervision and control over administrative staff, preparation of its budget, and
maintenance of court buildings. It must prohibit ad hoc tribunals and the diversion of
cases from ordinary courts, ensure the natural judge principle, ordain respect for and

5
5. On the fragility of the independence of the judiciary see the recent controversy that arose in the United States on the
judgment of Judge Harold Brier in United States v. Bayless, 913 F. Supp. 232 (S.D.N.Y 1996), vacated on
reconsideration, United States v. Bayless, 921 F. Supp. 211 (S.D.N.Y. 1996). Among many legal writings on the episode,
see Steven Lubet, Judicial Independence and Independent Judges, 25 HOFSTRA L. REV. 745 (1997); Stephen B. Bright,
Political Attacks on the Judiciary: Can Justice Be Done Amid Efforts to Intimidate and Remove Judges from Office for
Unpopular Decisions?, 72 N.Y.U. L. REv. 308 (1997); Monroe H. Freedman, The Threat to Judicial Independence by
Criticism ofJudges: A Proposed Solution to the RealProblem, 25 HOFSTRA L. REV. 729 (1997). For more instances
see, Robert Stevens, A Loss of Innocence?: Judicial Independence and the Separation of Powers, 19 OXFORD J.
LEGAL STUD. 365 & n. 1 (1999) [hereinafter Stevens, A Loss ofInnocence].
6
See GRANVILLE AUSTIN, THE INDIAN CONSTITUTION: CORNERSTONE OF A NATION 26, 164. See also
Mahendra P. Singh, Constitutionality of Market Economy, in LEGAL DIMENSIONS OF MARKET ECONOMY 1
(M.P. Singh et al. eds., 1997); H. M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 2484, 2944 (4th ed. 1991-96).

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 Independence of judiciary-: A comparative study between India UK and USA

enforcement by the other branches of the government of court decisions, provide for
separation of judges from the civil services, and prohibit diminution of judges' service
conditions.7

Meaning of the Independence of the Judiciary

The independence of the judiciary is not a new concept but its meaning is still
imprecise8. The starting and the central point of the concept is apparently the doctrine
of the separation of powers.9 Therefore, primarily it means the independence of the
judiciary from the executive and the legislature. But that amounts to only the
independence of the judiciary as an institution from the other two institutions of the
state without regard to the independence of judges in the exercise of their functions as
judges. In that case it does not achieve much. The independence of the judiciary does
not mean just the creation of an autonomous institution free from the control and
influence of the executive and the legislature. The underlying purpose of the
independence of the judiciary is that judges must be able to decide a dispute before
them according to law, uninfluenced by any other factor. For that reason the
independence of the judiciary is the independence of each and every judge.

IMPORTANCE OF INDEPENDANCE OF JUDICIARY IN A DEMOCRATIC

SOCIETY-

An independent judiciary plays a pivotal role in a democratic society for several

reasons:

 Checks and Balances: In a democracy, power is distributed among different

branches of government to prevent any one branch from becoming too powerful.
An independent judiciary serves as a check on the legislative and executive
branches by reviewing the constitutionality of laws and government actions. This
ensures that government power is exercised within the limits set by the constitution.

7
6. In this regard provisions of the German Basic Law are worth noting. Article 92 vests the judicial power in the judges.
GRUNDGESETZ [Constitution] [GG] art. 92. Article 97 provides that thejudges shall be independent and subject only to
the law, see id. art. 97, and that any disciplinary action against the judges under article 97(2) be read with Article 98 and
be subject to judicial decision. See id. art. 98. Article 101 prohibits extraordinary courts and removal of any one from the
jurisdiction of his lawful judge. See id. art. 101.
8
AN INTRODUCTION TO CONSTITUTIONAL LAW 129 (1998) ("But it is unclear what independence ofthejudiciary
really means."); Steven Lubet, Judicial Discipline and Judicial Independence, 61 LAW & CONTEMP. PROBS. 59, 74
(Summer 1998) ("It may well turn out that judicial independence is easier to protect than to define."). Shetreet, Judicial
Independence: New Conceptual Dimensions and Contemporary Challenges, in JUDICIAL INDEPENDENCE: THE
CONTEMPORARY DEBATE 594 (Shimon Shetreet & Jules Deschanes eds., 1985) [hereinafter Shetreet, Judicial
Independence]. Much reliance has been placed on this source for the following discussion on this issue
9
While the doctrine of separation of powers ensures liberty by preventing concentration of powers in one person or body
and thereby puts a restraint on the executive and legislative, it also ensures the exercise of judicial power that is
unhindered by the other two branches.

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 Independence of judiciary-: A comparative study between India UK and USA

 Protection of Rights: A key function of an independent judiciary is to protect

individual rights and liberties guaranteed by the constitution. By adjudicating
disputes and interpreting laws impartially, courts safeguard the rights of citizens
against encroachment by the government or other entities.
 Rule of Law: An independent judiciary upholds the principle of the rule of law,
which holds that all individuals and institutions are subject to the law, including the
government itself. When the judiciary is free from political interference, it can
apply the law fairly and consistently, ensuring that justice is administered equally
to all citizens.
 Legal Stability: A predictable and stable legal environment is essential for
economic growth, investment, and social cohesion. Independent courts provide
legal certainty by interpreting laws and settling disputes in a consistent and
impartial manner, fostering confidence in the legal system.
 Accountability: An independent judiciary promotes accountability by holding
government officials and other powerful actors accountable for their actions. Courts
have the authority to review government decisions and actions, including cases of
corruption or abuse of power, and provide remedies when necessary.
 Public Trust: A judiciary that is perceived as independent and impartial fosters
public trust and confidence in the legal system. When individuals have faith that
they will receive fair treatment and justice in court, they are more likely to respect
the law and participate in the democratic process.
 Protection against Tyranny: In democratic societies, an independent judiciary
serves as a bulwark against tyranny and authoritarianism. By upholding the rule of
law and protecting individual rights, courts prevent the concentration of power in
the hands of a few and ensure that government actions are subject to legal scrutiny.

In essence, an independent judiciary is indispensable for the functioning of a

democratic society, as it safeguards the rule of law, protects individual rights,
promotes accountability, and upholds the principles of democracy and justice.

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 Independence of judiciary-: A comparative study between India UK and USA

Components of the Independence of the Judiciary

"The independence of the judiciary and the protection of its constitutional position,"
contends Shetreet, "is not achieved in an instant act, but rather over a period of time
by a continuous struggle which takes place within the framework of an ongoing and
dynamic process."10 Therefore, it may not be possible to lay down all the conditions in
advance, either in the constitution or otherwise, which will secure and ensure
perpetual independence of the judiciary. Such conditions will have to be checked and
revised from time to time..

Some of these matters may be entrusted to legislation; however, there must be enough
assurance in the Indian Constitution to that effect so that the judiciary is able to
command respect in the eyes of the people and is able to attract the ablest persons as
judges. Again, judicial tenure and appointment must be beyond the control of the
executive. The best tenure is for life, but it may also be up to a particular age without
any possibility of its abrupt termination. Extension beyond retirement is also
inconsistent with the independence of the judiciary. Probationary appointments should
not be allowed; part-time, ad hoc, and temporary appointments should be avoided and
must be restricted to emergency situations.

SIGNIFICANCE OF JUDICIAL INDEPENDANCE IN ENSURING THE RULE OF LAW

AND PROTECTING INDIVIDUAL RIGHTS-
Judicial independence is crucial for upholding the rule of law and safeguarding
individuals' rights in several ways:

Impartiality: Judicial independence ensures that judges can adjudicate cases fairly
and impartially, free from external pressures or influence. This impartiality is essential
for ensuring that all individuals are treated equally before the law, regardless of their
status, wealth, or political connections.

Checks and Balances: Independent judiciaries serve as a check on the power of the
executive and legislative branches of government. They have the authority to review
and strike down laws or government actions that violate constitutional rights or exceed
the government's lawful authority. This role is crucial for maintaining a balance of
power within a democratic system.

10
SHETREET, JUSTICE IN ISRAEL, supra note 4, at 4.

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 Independence of judiciary-: A comparative study between India UK and USA

Protection of Rights: The judiciary acts as a bulwark against government overreach

and abuse of power. By ensuring that government actions comply with the constitution
and laws, independent courts protect individual rights and liberties from infringement
by the state.

Legal Stability and Predictability: Judicial independence fosters legal stability and
predictability by providing consistency in legal interpretation and enforcement. When
courts are free from political interference, their decisions are more likely to be based
on established legal principles, precedent, and jurisprudence, leading to greater
certainty in the law.

Public Confidence: A judiciary that is perceived as independent enhances public

confidence in the legal system. When individuals trust that their cases will be decided
fairly and impartially, they are more likely to respect the law and participate in the
judicial process.

Preventing Corruption: Judicial independence helps prevent corruption within the

legal system. When judges are free from political or external pressures, they are less
susceptible to bribery, coercion, or other forms of undue influence that could
compromise the integrity of their decisions.

In summary, judicial independence is essential for maintaining the rule of law,

protecting individual rights, upholding the constitution, and ensuring a fair and
impartial legal system. It serves as a cornerstone of democratic governance and is
indispensable for the preservation of a free and just society.

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 Independence of judiciary-: A comparative study between India UK and USA

NEED OF JUDICIAL INDEPANDANCE

In all democratic constitutions, or even those societies which are not necessarily
democratic or not governed by any constitution, the need for competent, independent
and impartial judiciary as an institution has been recognised and accepted.11 Indian
democracy is not an exception. In Indian democracy various functions and
responsibilities have been assigned to courts. In fact, there is a well-built need to
strengthen the capacity and independence of the judiciary as an influential institution
in India. The judiciary is constitutionally responsible to dispense justice by
interpreting and applying the laws of the land.12

Due to following reasons independence of judiciary needs to be safeguarded in India.

(i) Judiciary as Defender of Constitution-

There are several constitutional principles and goals such as rule

of law, distributive justice, enforcement of fundamental rights, to establish egalitarian
society and uphold integrity and unity of India which cannot be defended and achieved
without judicial independence. Besides, there are various statutory and other human
rights available for citizens which need to be defended under all circumstances. The
protection and implementation of these rights depends on the proper administration of
justice which in its turn depends on the existence and availability of an independent
judiciary. 13 Within Constitutional scheme, Indian judiciary performs a watch dog role,
exercising power of judicial review over the acts of the legislature and the
executive.14As an independent judiciary, under the constitutional scheme, the Court
has played its role without any fear and favour over the acts of the legislature and the
executive. When it appears to it, that any law and action of legislature and executive
respectively violates fundamental rights, it not only evolved laws to fill vacuum but

11
R.C. Lahoti, Canons of Judicial Ethics 13 (Universal Law Publishing Co.1st edn., 2005).
12
Livingston Armytage, “Judges as Learners: Reflections on Principle and Practice” 1 Journal of National Judicial
Academy Bhopal 120 (2005).
13
R.C. Lahoti, Canons of Judicial Ethics 13 (Universal Law Publishing Co.1st edn., 2005).
14
R. C. Lahoti, “Quest for Judicial Excellence”1 Journal of the National Judicial Academy Bhopal (2005).

12
 Independence of judiciary-: A comparative study between India UK and USA

also has issued several noteworthy directions to governments in public interests. The
free, unbiased and impartial judiciary can back constitutional mandate to secure and
provide to all the citizens of India justice-social, economic and political.

(ii) Judiciary as Interpreter of laws-

Role of judiciary plays an important part in keeping the

15
society as a dynamic one. Judiciary interprets the law according to the needs and
aspirations of the individuals. The judiciary should give up mechanical interpretation
of social welfare laws and has to adhere to principle of beneficial interpretation to
confer maximum benefits on individuals.

The governments’ are making social welfare laws such as Maternity Benefits Act,
1961, the Equal Remuneration Act, 1976, Child Labour (Prohibition and
Regulation) Act, 1986, Bonded Labour System (Abolition) Act, 1976, Domestic
Violence Act, 2005, Right to Information Act, 2005, The Consumer Protection
Act, 1986 and The Immoral Trafficking Prevention Act, 1956, etc. Interpretation
of these laws must be pro-citizen. It is needless to mention here that judiciary has
exhibited great skill to interpret the horizon of art. 21 right to life and personal liberty
and included right to move freely within territory of India, right to get uninterrupted
education, right to health, right to live in pollution free environment and many rights.

(iii) Judiciary as Resolver of Disputes -

The most basic role assigned to judiciary is to resolve disputes among individuals as
well as between Central and State government. The resolution and avoidance of
disputes is required to maintain peace in society. The courts also give advice to
governments on several matters. Judicial independence is significant in ensuring
impartial decision making, to resolve disputes, avoid disputes and to tender advice to
governments. Even in the Constituent Assembly, judicial independence was seen as a
necessary requirement in order to adjudicate impartially and insulate from political
interferences.16The judicial independence also becomes significant because in most of
the cases before courts, the governments’ have been the parties. Only uninfluenced
judiciary can decide cases where government is party without fear and favour. If
judges would not be appointed fairly and independently, there would be chance of

15
Sabita Bandyopadyay, “Reforms in Judiciary-A Loud Thinking,” Journal of All India Reporter 23 (2000).
16
Quoted by Arghya Sengupta, Judicial Independence and the Appointment of Judges to the Higher Judiciary in India: A
Conceptual Enquiry” Indian Journal of Constitutional Law 116 (2012) available at:nalsarijcl.in. (Visited on February 12,
2017).

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 Independence of judiciary-: A comparative study between India UK and USA

favouritism especially in case where judges exclusively have been appointed by the
government.

(iv) Judiciary as a Tool to ensure Good Governance-

The Courts are mean of assuring

good governance in India. Transparency, accountability, equality, rule of law and
openness in government’s functioning can be achieved through independent judiciary.
The executive, legislature and even the judiciary comes within the purview of the RTI
Act, 2005 and hence answerable for any act done towards the public. The executive
and legislature is responsible for decisions taken. Similarly, judiciary is answerable to
disclose to public the manner in which judges are appointed. Transparency is ensured
by the openness and fairness of procedures adopted in matter of appointments of
judges

Independence of judiciary is important for the purpose of fair justice. There should be
no interference by the legislature or the executive in the proceedings of the judiciary
so that it may pass a judgment that seems reasonably fair. In case of intervention, there
may be an element of bias on the part of the judges in taking a fair decision. It is
difficult to suggest any other way to make the Indian courts more self-reliant and keep
them away from the influence of the other two organs.

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 Independence of judiciary-: A comparative study between India UK and USA

CHAPTER-2

( INTRODUCTION TO LEGAL SYSTEM OF INDIA,UK AND USA)

India:
India has a complex legal system that reflects its diverse history and cultural heritage.
The legal system in India is largely based on the English common law system due to
British colonial rule. However, it also incorporates elements of Hindu, Islamic, and
customary law. The Indian legal system is comprised of various levels of courts,
including the Supreme Court of India, high courts at the state level, district courts, and
lower courts. The Constitution of India is the supreme legal document, providing the
framework for the legal system and guaranteeing fundamental rights to citizens.

United Kingdom (UK):

The legal system of the UK is often referred to as a common law system. It has
evolved over centuries through case law, judicial decisions, and statutes. The UK does
not have a written constitution like many other countries, relying instead on statutes,
conventions, and common law principles. The judiciary in the UK is independent and
consists of various levels of courts, including the Supreme Court of the United
Kingdom, Court of Appeal, High Court, and lower courts. The UK legal system also
incorporates European Union law, although post-Brexit, the extent of its influence has
changed.

United States of America (USA):

The legal system of the USA is a federal system, meaning it operates at both the
federal and state levels. The US legal system is based on the principles of federalism,
with power divided between the federal government and individual state governments.
The US Constitution is the supreme law of the land, establishing the framework for the
federal government and guaranteeing fundamental rights to citizens. The US legal
system is adversarial, with opposing parties presenting their cases before impartial
judges and juries. It is also based on the principle of stare decisis, meaning that
decisions made by higher courts serve as precedents for lower courts to follow.

Each of these legal systems has its own unique characteristics, institutions, and
processes, reflecting the historical, cultural, and political contexts of the respective
countries.

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 Independence of judiciary-: A comparative study between India UK and USA

HISTORICAL DEVELOPMENT OF JUDICIAL INDEPENDANCE IN INDIA ,UK AND USA

IN INDIA –

The present judicial system of India did not emerge all of a sudden. It has been the
result and outcome of slow and gradual process and bears the imprint of the different
periods of Indian history. The history of judicial system has been studied into two
important phases (i) pre-independence period (ii) post independence period.

(Supreme Court logo of India)

PRE-INDEPENDENCE ERA:

Colonial Legacy: - The judicial system during British colonial rule was hierarchical,
with the ultimate authority vested in the British Crown. The judiciary was not
independent but rather served the interests of the colonial administration.

Early Demands for Reform:- Despite the lack of independence, there were early
demands for judicial reforms from Indian nationalists. Figures like Dadabhai Naoroji
and Surendranath Banerjee advocated for a more impartial judiciary that could protect
the rights of Indian subjects.

Indian National Movement:17- The struggle for independence saw a heightened

demand for judicial independence. Leaders like Mahatma Gandhi emphasized the
importance of a fair and impartial judiciary in a free India. The Indian National

17
https://en.wikipedia.org/wiki/Indian_independence_movement

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 Independence of judiciary-: A comparative study between India UK and USA

Congress, through various resolutions and movements, advocated for legal reforms
that would ensure judicial independence.

Montague-Chelmsford Reforms:- The Montague-Chelmsford Reforms of 1919

introduced limited measures to increase Indian participation in governance, including
the establishment of a dyarchical system in which some legislative powers were
devolved to Indian provinces. However, judicial independence remained constrained.

Simon Commission and Demand for Swaraj:- The appointment of the Simon
Commission in 1927, which consisted solely of British members, led to widespread
protests in India. The demand for "Swaraj" (self-rule) included the aspiration for an
independent judiciary that would serve the interests of the Indian people.

POST-INDEPENDENCE ERA:

Constitutional Framework:- The Constitution of India, adopted in 1950, laid the

foundation for an independent judiciary. It established the Supreme Court as the apex
judicial body and provided for the separation of powers between the executive,
legislature, and judiciary.

Judicial Activism:- Indian courts, particularly the Supreme Court, have played a
significant role in safeguarding fundamental rights and ensuring the rule of law.
Landmark judgments such as Golaknath v. State of Punjab (1967) and Kesavananda
Bharati v. State of Kerala (1973) expanded the scope of judicial review and
emphasized the independence of the judiciary.

Judicial Reforms:- Efforts have been made to strengthen judicial independence

through reforms in appointment processes, accountability mechanisms, and
infrastructure development. The Collegium system, established by judicial
interpretation, gives the judiciary significant control over judicial appointments.

Challenges and Criticisms:- Despite progress, challenges to judicial independence

persist. Issues like judicial backlog, delays in justice delivery, and executive influence
in appointments have raised concerns. Calls for reforming the Collegium system to
ensure greater transparency and accountability have also been made.

Contemporary Scenario:- In recent years, the Indian judiciary has faced various
challenges, including questions about its accountability, efficiency, and
responsiveness. Debates on judicial activism versus judicial restraint, judicial
appointments, and the role of the judiciary in governance continue to shape
discussions on judicial independence in India.

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 Independence of judiciary-: A comparative study between India UK and USA

Constitution of India (1950):- India's constitution, which came into effect on

January 26, 1950, established an independent judiciary with the Supreme Court as the
highest judicial authority. It enshrined principles of judicial independence and
separation of powers.

 Kesavananda Bharati v. State of Kerala (1973)18: This landmark case marked a

significant moment in Indian judicial history. The Supreme Court held that the
Parliament cannot amend the basic structure of the Constitution, thereby ensuring
that certain fundamental principles, including judicial independence, remain
inviolable.
 S.P. Gupta v. Union of India (1982): Also known as the Judges' Transfer case,
this case reaffirmed the independence of the judiciary by establishing the principle
of judicial primacy in matters of judicial appointments and transfers.
 NJAC Judgment (2015)19: In a landmark decision, the Supreme Court struck
down the National Judicial Appointments Commission (NJAC) Act, which sought
to change the process of judicial appointments. The court upheld the existing
collegium system, asserting the judiciary's role in maintaining its independence
from the executive.

-IN UK-
Historical Background:-

The concept of judicial independence in the UK has evolved over centuries, dating
back to the Magna Carta in 1215. However, the judiciary was historically intertwined
with the monarchy and the aristocracy, limiting its independence.

Modern Era:-

The UK has gradually developed a more independent judiciary, particularly following

the establishment of the UK Supreme Court in 2009. Prior to this, the highest court
was the Appellate Committee of the House of Lords, which had a mixed legislative-
judicial role. The creation of the Supreme Court further separated the judiciary from
the legislature, enhancing its independence

Statutory Protections:-

18

https://judgments.ecourts.gov.in/KBJ/?p=home/intro#:~:text=Introduction%20to%20the%20Judgment&text=The%20cas
e%20was%20filed%20by,the%20fundamental%20rights%20of%20citizens.
19
https://cjp.org.in/an-overview-of-dissent-in-the-njac-
case/#:~:text=However%2C%20the%20Supreme%20Court%20in,members%20object%20to%20the%20name.

18
 Independence of judiciary-: A comparative study between India UK and USA

While the UK lacks a written constitution, various statutes and conventions have
safeguarded judicial independence. The Constitutional Reform Act 2005, for example,
established the principles of judicial independence and the separation of powers.

 Magna Carta (1215): Often regarded as the foundation of the rule of law in
England, the Magna Carta established principles that laid the groundwork for
judicial independence by limiting the power of the monarchy and affirming
legal right
 Constitutional Reform Act (2005): This legislation reformed the UK's
constitutional framework and established the UK Supreme Court as the highest
court of appeal. It further separated the judiciary from the legislative branch,
enhancing judicial independence.

(Supreme Court Logo of UK)

Miller v. Secretary of State for Exiting the European Union (2017)20: In this case,
the UK Supreme Court asserted its independence by ruling that the government could
not trigger Article 50 of the Treaty on European Union without parliamentary
approval. The judgment reaffirmed the judiciary's role as a check on executive power.

- United States-
The United States was founded on the principles of limited government and separation
of powers, with an independent judiciary as a cornerstone. The framers of the US
Constitution sought to establish a judiciary that was insulated from political pressures
and beholden only to the law.

20

https://www.google.com/search?q=miller+vs+secreatary+state+case&rlz=1C1PRFE_enIN973IN973&oq=miller+vs+sec
reatary+state+case&aqs=chrome..69i57j0i22i30l2j0i512i546l5.7895j0j4&sourceid=chrome&ie=UTF-8

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 Independence of judiciary-: A comparative study between India UK and USA

Marbury v. Madison (1803): This landmark case established the principle of judicial
review, affirming the judiciary's authority to interpret the Constitution and strike down
laws that are unconstitutional. It bolstered the independence of the judiciary by giving
it the power to check the actions of the legislative and executive branches..

Judiciary Act of 1789: This legislation established the federal court system and
outlined the jurisdiction and structure of the federal judiciary. It laid the foundation for
an independent federal judiciary in the United States.

(Supreme Court Logo of USA)

Brown v. Board of Education (1954): 21The Supreme Court's unanimous decision in

this case declared racial segregation in public schools unconstitutional. The ruling
demonstrated the judiciary's commitment to upholding constitutional rights and
combating discrimination, despite political and social pressures.

These events and milestones highlight the ongoing evolution of judicial independence
in India, the UK, and the USA, reflecting each country's unique historical,
constitutional, and legal context .Overall, in all three countries, the development of
judicial independence has been shaped by historical, constitutional, and legal factors,
with each jurisdiction evolving its own institutional frameworks and legal principles to
uphold the independence of the judiciary.

21
https://www.archives.gov/milestone-documents/brown-v-board-of-
education#:~:text=In%20this%20milestone%20decision%2C%20the,1896%20Plessy%20v.%20Ferguson%20case.

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 Independence of judiciary-: A comparative study between India UK and USA

CHAPTER-III

(CONSTITUTIONAL FRAMEWORK )

THE CONSITUTIONAL PROVISION RELATED TO JUDICIAL INDEPANDANCE IN

INDIA, UK AND USA-
In India, judicial independence is enshrined in various constitutional provisions, which
collectively aim to safeguard the judiciary's autonomy and integrity. Key
constitutional provisions related to judicial independence in India include:

1. Article 50 - Separation of Judiciary from Executive: -

Although not explicitly mentioning judicial independence, Article 50 of the

Constitution of India emphasizes the separation of the judiciary from the executive.
This separation is fundamental for ensuring that the judiciary can function
independently, free from interference or influence by the executive branch of
government.

2. Article 124 - Establishment and Constitution of Supreme Court:-

Article 124 provides for the establishment of the Supreme Court of India as the
highest court in the country. It outlines the composition of the Supreme Court,
including the appointment of judges, their qualifications, and the process for removal.
The provision emphasizes the importance of appointing qualified individuals to the
judiciary to uphold its independence and integrity.

3. Article 50A - Independence of the Judiciary: -

This article, inserted by the Forty-second Amendment Act of 1976, explicitly

recognizes the independence of the judiciary as a fundamental principle of
governance. It states that the state shall take steps to separate the judiciary from the
executive, ensuring the independence of the judiciary.

4. Article 141 - Binding Nature of Supreme Court Judgments:-

Article 141 declares that the law declared by the Supreme Court shall be binding on
all courts within the territory of India. This provision reinforces the authority and
independence of the Supreme Court in interpreting and enforcing the law, ensuring
uniformity and consistency in judicial decisions across the country.

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 Independence of judiciary-: A comparative study between India UK and USA

5. Article 142 - Enforcement of Decrees and Orders of Supreme Court:-

Article 142 grants the Supreme Court the power to pass orders and decrees necessary
for doing complete justice in any case or matter pending before it. This provision
empowers the Supreme Court to protect its independence and authority, ensuring that
its judgments and orders are effectively implemented.

6. Article 217 - Appointment of High Court Judges:-

Article 217 outlines the process for appointing judges to the High Courts in India. It
specifies that the President shall appoint High Court judges in consultation with the
Chief Justice of India and the Governor of the state. This provision seeks to maintain
the independence of the judiciary by involving the judiciary in the appointment
process.

7. Article 124(2) and Article 217(1) – Security of Tenure:-

The judges of the Supreme Court and High Courts have been given the security of the
tenure. Once appointed, they continue to remain in office till they reach the age of
retirement which is 65 years in the case of judges of Supreme Court (Article 124(2))
and 62 years in the case of judges of High Courts (Article 217 (1))

8. Article 124(4) and Article 217-Removal Of Judges:-

In India, both the Supreme Court and High Court Judges are appointed by the
President under Article 124 and 217, and they enjoyed a fixed tenure and are
removable under Articles 124(4) and 217 on proved misbehaviour or incapacity after
an impeachment motion passed by each house supported by a stipulated majority.
Their tenure and different process of removal are also in tune with their independent
function.

9. Article 222(1)- Transfer Of Judges:-

Article 222(1) empowers the President after consultation with Chief Justice of India
transfer a judge from one High Court to another. The Constitution makes provisions
for granting compensatory allowances when a judge is transferred from one High
Court to another. The power of transfer of a judge is vested with the President is not
absolute. He takes into consideration two things: (i) public interest (ii) effective
consultation with Chief Justice of India.

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 Independence of judiciary-: A comparative study between India UK and USA

10.Article 19(2),129 and 215- Power To Punish For Its Contempt:

Contempt of Court finds a place in the Indian Constitution under Article 19(2),
Article 129 and Article 215. According to Article 19(2) of the Constitution, contempt
of Court' is one of the grounds on which the State can legislate to place reasonable
restrictions on freedom of speech. Article 129 of the Constitution of India says that the
Supreme Court shall be a 'court of record'. Article 215 grants a similar status to the
High Courts.

( JUDICIAL PRONOUNCEMENTS )

A-JUSTICE SHETH 'S CASE-

The Justice Seth case refers to a significant legal matter involving a former Chief
Justice of India, Justice A.N. Ray, and his appointment. One of the judges-Justice S.
H. Sheth-who was transferred from the Gujarat High Court to the Andhra Pradesh
High Court, challenged, among other things, the constitutionality of his transfer in the
Gujarat High Court, on the grounds that it was without his consent and without
consultation between the President and the Chief Justice of India.22

In 1973, Justice Ajit Nath Ray was appointed as the Chief Justice of India superseding
three senior judges, which sparked controversy and led to legal challenges.The case
was initiated by a lawyer named Keshav Singh, who filed a writ petition questioning
the legality of the supersession.

 In response to the legal challenge, the Supreme Court, in the Justice Seth case
(S. P. Gupta v. Union of India, 1981), ruled that the consultation process for
judicial appointments must be meaningful and genuine, and the opinion of the
Chief Justice of India should have primacy in appointing judges to the Supreme
Court and High Courts. The judgment in the Justice Seth case reaffirmed the
principle of judicial independence and emphasized the importance of upholding
the integrity of the judiciary in appointments.

Overall, the Justice Seth case contributed to the evolution of the legal framework
concerning judicial appointments and played a crucial role in safeguarding the
independence of the judiciary in India.

22
S See Union of India v. S. H. Sheth, A.I.R. 1977 S.C. 2328.ee

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 Independence of judiciary-: A comparative study between India UK and USA

B- FIRST JUDGE'S CASE: S.P. GUPTA V. UNION OF INDIA (1982)-

For the second time the matter came before the Supreme Court in S. P. Gupta v.
Union of India,23 known as the Judges Case.

The "First Judges Case" in India pertains to the interpretation of the constitutional
provisions regarding the appointment of judges to the Supreme Court and High
Courts. The case arose in 1981 when the Supreme Court delivered its judgment in the
Sankalchand Sheth case. It involved a challenge to the presidential order of the
appointment of Justice A.N. Ray as the Chief Justice of India, superseding three senior
judges.

 The Supreme Court, in its judgment, held that the opinion of the Chief Justice of
India regarding appointments and transfers of judges to the Supreme Court and
High Courts should carry the greatest weight. However, it also recognized the
President's authority to make appointments, acting in accordance with the
advice of the Council of Ministers. This case established the principle that the
Chief Justice of India's recommendation should be given significant importance
in judicial appointments, but it did not explicitly define the process or the extent
of the executive's role in such appointments.

This judgment established the principle that the CJI's recommendation should be
given significant importance in judicial appointments, while also acknowledging the
role of the executive in the appointment process..

C-SECOND JUDGE'S CASE: SUPREME COURT ADVOCATES ON RECORD V . UNION

OF INDIA (1993) -

The "Second Judges Case" (Supreme Court Advocates-on-Record Association v.

Union of India, 1993) dealt with the issue of judicial appointments and the
interpretation of Article 124 and Article 217 of the Indian Constitution. In the Second
Judges Case, the Supreme Court expanded upon the principles laid down in the First
Judges Case. It held that the Chief Justice of India (CJI) should consult a collegium of
senior judges in making recommendations for appointments and transfers of judges to
the Supreme Court and High Courts.

The court held that the "collegium system" should consist of the CJI and four senior-
most judges of the Supreme Court. It emphasized that the consultation process must be
effective and meaningful, and the CJI's opinion should have primacy.

23
See S. H. Sheth v. Union of India, 1976 17 G.L.R. 1017.

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 Independence of judiciary-: A comparative study between India UK and USA

Furthermore, the court ruled that the executive's role in judicial appointments was
limited to providing information and material necessary for the collegium's decision-
making process. The President's power to appoint judges was to be exercised only in
accordance with the collegium's recommendations. The judgement in S.P. Gupta's
Case is now reversed that the court has held that the opinion of the Chief Justice shall
be binding on the President as he is more competent than other constitutional
machineries to accrue the merit of a candidate.

Overall, the Second Judges Case solidified the collegium system as the prevailing
method for judicial appointments in India, enhancing judicial independence and
reducing executive influence in the appointment process.

D-THE THIRD JUDGES CASE- SUPREME COURT ADVOCATES -ON-RECORD

ASSOCIATION V. UNION OF INDIA, 1998

The "Third Judges Case" (1998) revolved around the interpretation of the Constitution
of India concerning the appointment of judges to the higher judiciary. Here's a concise
overview:In the Third Judges Case, the Supreme Court clarified the process for
appointing judges to the Supreme Court and High Courts.

The court held that the consultation process between the Chief Justice of India (CJI)
and the collegium of senior judges should be broader and include a consultation with a
larger body of judges, rather than just the immediate four senior-most judges.

It affirmed the collegium system established in the Second Judges Case, emphasizing
the independence of the judiciary and the importance of judicial primacy in
appointments.Furthermore, the court ruled that the opinion of the CJI, while crucial,
should be formed in consultation with the other judges, ensuring a collective decision-
making process.

Overall, the Third Judges Case reinforced the collegium system for judicial
appointments and underscored the judiciary's role in maintaining its independence
from the executive.

E-THE NATIONAL JUDICIAL APPOINTMENTS COMMISSION BILL, 2014-

The National Judicial Appointments Commission Bill, 2014 was introduced in the Lok
Shabha on August 11, 2014 by the Minister of Law and justice, Mr. Ravi Shankar
Prasad. The Bill has been introduced in conjunction with the Constitutional (121^^
Amendment) BILL, 2014 which establishes the National Judicial Appointments
Commission (NJAC). The bill provides for the procedure to be followed by the NJAC
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 Independence of judiciary-: A comparative study between India UK and USA

for recommending persons for appointment as Chief Justice of India and other Judges
of the Supreme Court (SC), and Chief Justice and other judges of High Courts (HC).

F-FOURTH JUDGE'S CASE: SUPREME ADVOCATES ON RECORD ASSOCIATION &

ANR. V UNION OF INDIA24-

In brief, the Fourth Judges Case, which is officially known as the Supreme Court
Advocates-on-Record Association vs. Union of India (1993), was a landmark
judgment delivered by a nine-judge bench of the Supreme Court of India. The case
upheld the principles laid down in the earlier "Judges Cases" (First, Second, and Third
Judges Cases) and introduced the concept of the "collegium system" for the
appointment and transfer of judges

When the 121st Constitution Amendment which created the National Judicial
Appointment Commission (NJAC) was passed by both the houses of the Parliament
with 2/3rd (special) majority, it was subsequently sent to the states for ratification after
16 states approved the amendment, it was finally sent to the President for his assent.
But before the amendment could become fully effective, it was declared to be
unconstitutional by the SC as it violated the independence of judiciary as a basic
structure in the also known as the 4th Judge's Case.

The decision in the Fourth Judges Case affirmed the independence of the judiciary and
asserted the primacy of the judiciary in the appointment and transfer of judges. It held
that the consultation process with the Chief Justice of India and other senior judges
(collegium) should be given the highest importance in the appointment and transfer of
judges. This decision significantly reduced the role of the executive in the appointment
process.

-IN UNITED KINGDOM-

In the United Kingdom, judicial independence is not codified in a single constitutional

document like a written constitution. Instead, it is upheld through a combination of
legal principles, conventions, and statutes. Key elements related to judicial
independence in the UK include:

 Constitutional Conventions: While the UK lacks a single written constitution, it

has developed a set of constitutional conventions that govern the relationships
between different branches of government. One such convention is the principle of

24
https://www.lawctopus.com/clatalogue/clat-ug/appointment-of-judges-in-india-analysis-of-the-4-judges-
case/#:~:text=The%20Fourth%20Judges%20Case%20saw,Act%E2%80%9D%2C%20citing%20their%20unconstitution
ality.

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 Independence of judiciary-: A comparative study between India UK and USA

judicial independence, which dictates that the judiciary must be free from political
interference or influence from the executive or legislative branches.
 Statutory Protections: Several statutes provide legal protections for judicial
independence in the UK. The most significant of these is the Constitutional Reform
Act 2005, which established the UK Supreme Court as the highest court of appeal
and reformed the judicial appointment process. The Act also introduced safeguards
to ensure the independence of the judiciary, including provisions for the security of
judicial tenure and the establishment of the Judicial Appointments Commission to
oversee judicial appointments.
 Security of Tenure: Judges in the UK enjoy security of tenure, meaning they
cannot be removed from office except in specific circumstances and through a
prescribed process. This protects judges from arbitrary dismissal or political
pressure, ensuring their independence in adjudicating cases without fear of reprisal.

 Judicial Appointment Process: The process for appointing judges in the UK is

designed to uphold their independence and impartiality. While the Prime Minister
formally makes judicial appointments, they are made on the recommendation of an
independent Judicial Appointments Commission, which assesses candidates based
on merit and suitability for judicial office.

 Financial Independence: The judiciary in the UK also enjoys financial

independence, with its budget allocated separately from other branches of
government. This helps to insulate the judiciary from financial pressures and
ensures its ability to operate autonomously.

 Doctrine of Separation of Powers: Although not as rigidly defined as in some

other jurisdictions, the UK adheres to the principle of the separation of powers,
which underscores the independence of the judiciary as a separate and co-equal
branch of government. This principle serves to maintain the balance of power and
prevent undue influence on the judiciary by the executive or legislative branches.

In summary, while the UK lacks a single constitutional provision explicitly

guaranteeing judicial independence, it relies on a combination of legal principles,
conventions, and statutes to uphold the independence and integrity of the judiciary.
These provisions are essential for ensuring that judges can adjudicate cases impartially
and without interference, thereby upholding the rule of law and protecting individual
rights.

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 Independence of judiciary-: A comparative study between India UK and USA

-IN UNITED STATES-

In the United States, judicial independence is enshrined in various constitutional

provisions, legal principles, and historical precedents. Key constitutional provisions
related to judicial independence in the USA include:

1. Article III of the Constitution: Article III establishes the federal judiciary,
including the Supreme Court, and outlines the powers and jurisdiction of the
federal courts. It provides for the appointment and tenure of federal judges,
specifying that they shall hold their offices during good behavior, which
effectively means they serve for life unless impeached and removed by Congress.

2. Judicial Review: Although not explicitly mentioned in the Constitution, the

principle of judicial review, established by the landmark case Marbury v.
Madison (1803), empowers the judiciary to interpret the Constitution and declare
acts of the legislative or executive branches unconstitutional. This power serves as
a check on the other branches of government and underscores the judiciary's
independence in interpreting the law.

3. Separation of Powers: The Constitution establishes a system of separation of

powers among the legislative, executive, and judicial branches of government.
This separation ensures that each branch operates independently and serves as a
check on the powers of the others. The judiciary's independence is inherent in this
system, allowing it to adjudicate disputes and interpret the law free from
interference by the other branches.

4. Tenure and Salary Protection: Article III provides for the protection of judicial
tenure by stipulating that judges' salaries cannot be diminished while they are in
office. This provision aims to safeguard judicial independence by insulating
judges from financial pressures and ensuring their security of tenure.

5. Appointment Process: The Constitution grants the President the authority to

nominate federal judges, including Supreme Court justices, with the advice and
consent of the Senate. This appointment process, along with the requirement for
Senate confirmation, is intended to ensure that judges are selected based on merit
and are insulated from political influence.

6. Judicial Immunity: The doctrine of judicial immunity protects judges from

personal liability for actions taken in their judicial capacity. This immunity
ensures that judges can make decisions without fear of personal reprisal, thereby
upholding their independence in adjudicating cases.
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 Independence of judiciary-: A comparative study between India UK and USA

7. Federalist Papers: While not constitutional provisions per se, the Federalist
Papers, particularly Federalist No. 78 authored by Alexander Hamilton, provide
insights into the framers' intent regarding judicial independence. Hamilton argued
for the importance of an independent judiciary as a safeguard against legislative
and executive encroachments on individual rights.

In summary, the United States Constitution contains several provisions and principles
aimed at ensuring the independence of the judiciary. These provisions are fundamental
to maintaining the rule of law, protecting individual rights, and upholding the checks
and balances inherent in the American system of government.

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 Independence of judiciary-: A comparative study between India UK and USA

CHAPTER-IV

( SEPARATION OF POWER)

The doctrine of separation of powers is a fundamental principle in democratic

governance.. It typically divides governmental authority into three branches: the
legislative, executive, and judicial, each with its own distinct powers and
responsibilities. While the specific application of this doctrine can vary from country
to country, its essence remains consistent across democratic systems.25

United States (USA)-

 In the United States, the doctrine of separation of powers is enshrined in

the Constitution. The legislative branch is represented by Congress,
which is responsible for making laws. The executive branch is headed by
the President, who enforces laws, and the judicial branch is represented
by the Supreme Court and other federal courts, responsible for
interpreting laws.

 The system in the USA is notable for its strong separation between the
three branches, with checks and balances ensuring that no single branch
becomes too powerful. For instance, the President can veto legislation
passed by Congress, but Congress can override the veto with a two-thirds
majority vote.

HOW SEPARATION OF POWER ENSURES JUDICIAL INDEPANDANCE IN USA-

The separation of powers in the USA ensures that the judiciary operates
independently from the executive and legislative branches. The President appoints
federal judges, including Supreme Court justices, with the advice and consent of the
Senate. Once appointed, federal judges serve for life or until they retire, providing
them with security of tenure and insulating them from political pressures.

25
https://en.wikipedia.org/wiki/Separation_of_Power

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 Independence of judiciary-: A comparative study between India UK and USA

The Supreme Court, as the highest judicial authority, has the power of judicial review,
allowing it to interpret the Constitution and strike down laws or executive actions that
are deemed unconstitutional. This power serves as a check on the other branches of
government, enhancing the judiciary's independence.

United Kingdom (UK):

 The UK has a parliamentary system where the doctrine of separation of

powers is not as rigidly defined as in the USA. The executive branch, led
by the Prime Minister, is drawn from the legislative branch (Parliament).
This blurs the lines between the executive and legislative branches.

 However, there is a functional separation of powers between the

executive and the judiciary. The judiciary, led by the Supreme Court, has
the power to interpret laws and ensure that the executive acts within the
bounds of the law.

HOW SEPARATION OF POWER ENSURES JUDICIAL INDEPANDANCE IN UK-

In the UK, while there isn't a strict separation of powers as in the USA, there is still a
functional independence of the judiciary. The judiciary is responsible for interpreting
laws and ensuring that the executive and legislative branches act within the bounds of
the law.

Judicial appointments in the UK are made by an independent body, the Judicial

Appointments Commission, which selects candidates based on merit. This helps
safeguard the judiciary from political interference and ensures that judges are
appointed based on their qualifications and experience rather than political
considerations.

IN India:-

India's Constitution also incorporates the doctrine of separation of powers. The

legislative branch is represented by Parliament, responsible for making laws. The
executive branch is headed by the President at the national level and by the Governor
at the state level, responsible for implementing laws. The judicial branch is
represented by the Supreme Court and other subordinate courts, responsible for
interpreting laws.

Similar to the UK, India's system has a degree of overlap between the executive and
legislative branches. The Prime Minister and the Council of Ministers are drawn from
the Parliament. However, the judiciary maintains its independence and has the power

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 Independence of judiciary-: A comparative study between India UK and USA

of judicial review to ensure that both the legislative and executive branches act within
the framework of the Constitution.

HOW SEPARATION OF POWER ENSURES JUDICIAL INDEPANDANCE IN INDIA-

India's Constitution establishes a clear separation of powers between the judiciary,
executive, and legislative branches. The judiciary has the authority to interpret laws,
including the Constitution, and to ensure that the actions of the executive and
legislative branches are in accordance with the law.

The independence of the judiciary in India is further reinforced by the process of

judicial appointments. While the President formally appoints judges, the actual
selection process is conducted by a collegium system, where senior judges of the
Supreme Court and High Courts play a significant role in recommending candidates
for appointment. This system aims to insulate judicial appointments from political
influence.

In summary, while the doctrine of separation of powers is a foundational principle in

the political systems of the USA, UK, and India, its application may vary due to
differences in constitutional frameworks and historical contexts. Nonetheless, the
overarching goal remains the same: to prevent the abuse of power and uphold the
principles of democracy, rule of law, and accountability.In all three countries, the
separation of powers serves as a bulwark against attempts to undermine judicial
independence. By establishing distinct spheres of authority and ensuring mechanisms
for judicial appointment and tenure that are insulated from political pressures, the
separation of powers helps uphold the rule of law and protect the judiciary's role as an
impartial arbiter of disputes.

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 Independence of judiciary-: A comparative study between India UK and USA

CHAPTER-V

( RULE OF LAW )

The rule of law is a foundational principle in democratic societies, ensuring that the
government is bound by law and that all individuals, regardless of their status, are
subject to the same set of laws. While the concept of the rule of law is universal, its
application and interpretation may vary across different countries. Here's how the rule
of law is understood and practiced in the USA, UK, and India:

United States: In the USA, the rule of law is enshrined in the Constitution, which
serves as the supreme law of the land. The American legal system emphasizes the
principles of legality, predictability, and equality before the law. Key features of the
rule of law in the USA include:

 Separation of powers: The Constitution establishes separate branches of

government—executive, legislative, and judicial—with distinct powers
and responsibilities, ensuring a system of checks and balances.

 Judicial review: The judiciary has the authority to review the

constitutionality of laws and government actions, ensuring they comply
with the Constitution.

 Due process: The Fifth and Fourteenth Amendments guarantee due

process of law, protecting individuals' rights to fair treatment and legal
procedures.

United Kingdom: In the UK, the rule of law is a fundamental constitutional principle,
although the country does not have a single written constitution like the USA. Instead,
the rule of law is upheld through a combination of statutes, common law, and
constitutional conventions. Key aspects of the rule of law in the UK include:

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 Independence of judiciary-: A comparative study between India UK and USA

 Parliamentary sovereignty: Parliament is the supreme legal authority, but

its actions are subject to judicial review to ensure they comply with legal
principles and human rights standards.

 Respect for legal principles: The UK legal system emphasizes the

importance of legal certainty, equality before the law, and access to
justice for all individuals.

 Rule of judges: Courts play a central role in interpreting and applying the
law, ensuring that government actions are consistent with legal standards.

India: In India, the rule of law is a fundamental feature of the Constitution and is
essential for the functioning of a democratic society. Key elements of the rule of law
in India include:

 Judicial independence: The judiciary acts as the guardian of the

Constitution and has the authority to review laws and government actions
to ensure they are consistent with constitutional principles.

 Equality before the law: The Constitution guarantees equality before the
law and prohibits discrimination based on various grounds, including
religion, race, caste, sex, or place of birth.

 Access to justice: The Indian legal system strives to provide equal access
to justice for all individuals, including through legal aid programs and
public interest litigation.

In summary, while the rule of law is a fundamental principle in the USA, UK, and
India, its application may vary based on each country's legal system, constitutional
framework, and historical context. However, all three countries share a commitment to
upholding the rule of law as a cornerstone of democracy and justice.

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 Independence of judiciary-: A comparative study between India UK and USA

COMPARE THE SAFEGUARD IN SUCURING INDEPANDANCE IN UK ,USA

AND INDIA

;India:

 Constitutional Provisions: India's Constitution contains explicit provisions such

as Article 50A, which emphasizes the independence of the judiciary and mandates
the separation of the judiciary from the executive.
 Collegium System: The appointment and transfer of judges in India are primarily
managed through the collegium system, where a group of senior judges makes
recommendations for judicial appointments and promotions. This system aims to
insulate judicial appointments from political interference.
 Judicial Review: The power of judicial review allows Indian courts to strike down
laws and executive actions that are unconstitutional. This authority reinforces the
judiciary's independence by enabling it to check the actions of the legislative and
executive branches.
 Public Interest Litigation (PIL): PIL allows individuals or groups to bring cases
before the courts to seek redress for violations of public rights or interests. This
mechanism empowers citizens to hold the government accountable and reinforces
the judiciary's role as a protector of rights.

United Kingdom:

 Constitutional Reform Act 2005: This legislation established the UK Supreme

Court as the highest court and reformed the judicial appointment process,
introducing safeguards to ensure judicial independence.
 Judicial Appointments Commission (JAC): The JAC is an independent body
responsible for selecting candidates for judicial office in the UK. It assesses
candidates based on merit and suitability, ensuring that appointments are made on
a non-partisan basis.
 Statutory Protections: Various statutes, including the Constitutional Reform Act
2005, provide legal protections for judicial independence in the UK. These
protections include security of tenure for judges and financial independence for the
judiciary.
 Common Law Tradition: The UK's common law tradition, rooted in principles of
fairness and impartiality, serves as a safeguard for judicial independence. Judges
are expected to apply the law without fear or favor, regardless of political or social
pressures.

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 Independence of judiciary-: A comparative study between India UK and USA

United States:

 Lifetime Tenure: Federal judges in the USA enjoy lifetime tenure, subject to good
behavior, which insulates them from political pressures and ensures their
independence in adjudicating cases.
 Separation of Powers: The principle of separation of powers, enshrined in the US
Constitution, serves as a fundamental safeguard for judicial independence. It
ensures that the judiciary operates independently of the legislative and executive
branches.
 Judicial Review: The power of judicial review, established by the landmark case
Marbury v. Madison, allows US courts to interpret the Constitution and strike down
laws that are unconstitutional. This authority reinforces the judiciary's role as a
check on the other branches of government.
 Merit-Based Appointment Process: Federal judges in the USA are appointed by
the President with the advice and consent of the Senate. This appointment process
aims to select judges based on merit and legal qualifications, rather than political
considerations.

In summary, while India, the UK, and the USA employ different mechanisms and
safeguards to protect judicial independence, all three jurisdictions share a commitment
to upholding the rule of law, protecting individual rights, and ensuring the judiciary's
autonomy from political interference.

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 Independence of judiciary-: A comparative study between India UK and USA

CHAPTER-VI

( JUDICIAL REVIEW )

Supremacy of law is essence of Judicial Review. It is power of the court to review the
actions of legislative and executive and also review the actions of judiciary. It is a
concept of Rule of Law. Judicial Review is the check and balance mechanism to
maintain the separation of powers. Separation of power has rooted the scope of
Judicial Review. It is the great weapon in the hands of the court to hold
unconstitutional and unenforceable any law and order which is inconsistent or in
conflict with the basic law of the land..

The two principal basis of judicial review are “Theory of Limited Government” and
“Supremacy of constitution with the requirement that ordinary law must confirm to
the Constitutional law.”Judicial Review is a mechanism and therefore the Concept of
Judicial Activism is a part of this mechanism. So far as the, Indian constitution has
created an independent judiciary which is vested with the power of judicial review to
determine the legality of any validity of law and any executive action. Supreme Court
of India formulated various doctrines on the basis of Judicial Review like “Doctrine of
Severability, Doctrine of Eclipse, and Doctrine of Prospective Overruling” etc. In
India Judicial Review based on three important dimensions, these are” Judicial
Review of Constitutional Amendments”, Judicial Review of Legislative Actions,
“Judicial Review of Administrative Actions”.

The concept of Judicial Review is basically originated in USA in the historic landmark
case Marbury vs. Madison The US Supreme Court, through this case, asserted its
power to review and invalidate laws passed by Congress if they are found to be
unconstitutional But originally Lord Coke decision in, Dr. Bonham vs. Cambridge
University 26 had rooted the scope of judicial review first time in 1610 in England...

26
Thomas Bonham v College of Physicians, (1610) 77 Eng. Rep. 638.

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 Independence of judiciary-: A comparative study between India UK and USA

The US Constitution doesn’t provide power of judicial review expressly but Article III
of the U.S. Constitution as "the judicial power of the United States which includes
original, appellate jurisdiction and also matter arising under law and equity
jurisdiction incorporates judicial power of Court. Art. VI of the Constitution provides”

All powers of government are exercisable only by on the authority of the organ
established by the Constitution. Thus Art VI incorporates “Constitution of USA is the
supreme law of the land”.

But in UK, there is no written constitution. Earlier, there was no scope of judicial
review in UK. The principle of “Parliamentary Sovereignty” dominated to
Constitutional democracy in United Kingdom. There is Parliament Supremacy UK
which incorporates the will of the people and Courts cannot scrutinize the actions of
Parliament. In UK, Parliament prevents the scope of Judicial Review to Primary
legislation (legislation enacted by Parliament) except in few cases related to Human
Rights and individual freedom, therefore Primary legislation is outside the purview of
judicial review.

But, as regards to Secondary legislation (rules, regulation, act of Ministries) are

subject to Judicial Review. Court can review the actions of administrative and
executive actions in UK. Judicial Review in UK is basically on procedural grounds
which are largely related to Administrative action In the UK, parliamentary
sovereignty is a fundamental constitutional principle, which means that Parliament is
supreme and can make or repeal any law. However, since the enactment of the Human
Rights Act 1998, UK courts have been empowered to review legislation to ensure it
complies with the European Convention on Human Rights. This allows courts to issue
a "declaration of incompatibility" if they find a conflict between domestic law and
human rights, but they cannot strike down legislation..

In India, judicial review is a fundamental feature of the Constitution. The Supreme

Court and the High Courts have the power of judicial review. They can review laws
enacted by the Parliament and State Legislatures to ensure they are not ultra vires
(beyond the powers) of the Constitution. Additionally, the judiciary can review
administrative actions to ensure they are within the bounds of legality, reasonableness,
and fairness. This power allows the judiciary to review laws and executive actions to
ensure they comply with the Constitution's provisions. By being able to strike down
laws or actions that violate constitutional principles, the judiciary asserts its
independence from the other branches of government. This independence is further

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 Independence of judiciary-: A comparative study between India UK and USA

bolstered by the Supreme Court's authority to interpret the Constitution and serve as
the final arbiter on constitutional matters.

In all three countries, judicial review acts as a bulwark against attempts by the
executive or legislative branches to infringe upon the independence of the judiciary.
By providing a means for the judiciary to uphold constitutional principles and
fundamental rights, judicial review reinforces the separation of powers and helps
maintain the integrity and autonomy of the judiciary.

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 Independence of judiciary-: A comparative study between India UK and USA

CHAPTER-VII

(JUDICIAL ACTIVISM)

Judicial activism refers to instances where judges actively interpret the law and the
Constitution to address social, economic, or political issues, often going beyond
traditional legal boundaries to promote justice or effect social change. Here's how
judicial activism manifests in India, the UK, and the USA:

India:In India, judicial activism has played a significant role in securing the
independence of the judiciary by:

 Asserting the role of the judiciary as the guardian of the Constitution:

Judicial activism has enabled the Indian judiciary, particularly the
Supreme Court, to assert its authority in safeguarding constitutional
principles and fundamental rights.

 Providing a platform for public interest litigation (PIL): Through PIL, the
judiciary has been able to address systemic issues affecting society, such
as corruption, environmental degradation, and human rights violations,
thereby enhancing its legitimacy and independence.

 Reviewing legislative and executive actions: Judicial activism has

allowed the Indian judiciary to actively review and strike down laws and
government actions that are inconsistent with the Constitution, ensuring
that the judiciary remains independent from undue influence by the other
branches of government

In the UK, judicial activism, though relatively subdued due to the principle of
parliamentary sovereignty, can still contribute to judicial independence by:

 Interpreting statutes to protect fundamental rights: UK courts engage in

judicial activism by interpreting legislation creatively to ensure
compatibility with human rights standards, thereby asserting their role in
upholding fundamental rights and liberties.

 Reviewing administrative decisions: Judicial review allows UK courts to

scrutinize the legality and fairness of administrative actions, ensuring that
government agencies operate within the bounds of the law and
reinforcing the judiciary's independence from the executive branch.

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 Independence of judiciary-: A comparative study between India UK and USA

Judicial activism in the USA has been a prominent feature of the legal landscape and
has contributed to securing judicial independence by:

 Issuing landmark decisions to protect individual rights: The US Supreme

Court's activism has led to groundbreaking decisions that have expanded
constitutional protections for individual rights and liberties, reinforcing
the judiciary's role as a guardian of constitutional principles. The US
Supreme Court has issued landmark decisions that have significantly
impacted American society, such as Brown v. Board of Education (1954)
desegregating schools, Roe v. Wade (1973) legalizing abortion, and
Obergefell v. Hodges (2015) legalizing same-sex marriage.

 Expansion of constitutional rights: The Supreme Court has expanded the

scope of constitutional rights, including the right to privacy, freedom of
speech, and equal protection under the law, through its interpretations of
the Constitution.

 Exercising judicial review over legislative and executive actions: Judicial

activism enables the Supreme Court to review laws and government
actions, ensuring they comply with constitutional standards and
preserving the judiciary's independence from political pressures.

In summary, while judicial activism manifests differently in India, the UK, and the
USA due to variations in legal systems and constitutional frameworks, all three
countries have experienced instances where the judiciary has played an active role in
shaping legal norms, protecting individual rights, and addressing societal issues.
Judicial activism can help secure the independence of the judiciary in India, the UK,
and the USA by empowering courts to uphold the rule of law, protect fundamental
rights, and serve as a check on the other branches of government. By actively
engaging in legal interpretation and review, courts assert their authority and
legitimacy, thereby reinforcing their independence from external influences.

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 Independence of judiciary-: A comparative study between India UK and USA

CHAPTER-VIII

(RECENT JUDGEMENT REGARDING INDEPANDANCE OF JUDICIARY )

Chief Justice of India D.Y. Chandrachud said the “independence of judiciary depends
on the freedom of each and every individual judge to function in office without the
pulls of political pressure, social compulsions, and inherent bias”.27

“Independence of judiciary is not a one-time pill, it’s a state of affairs”, says CJI
Gogoi

“The Constitution entrenches several institutional safeguards for an independent

judiciary... However, these constitutional safeguards are not in themselves sufficient
to ensure an independent judiciary. An independent judiciary does not merely mean
the insulation of the institution from the executive and the legislature branches, but
also the independence of individual judges in the performance of their roles as
judges," the Chief Justice of India said.28

In India-:

The Rafale deal case-

In this case, the Indian Government announced a deal with the French Government to
purchase 36 Rafale fighter jets from the French company Dassault Aviation in 2015.
The deal also included a 50% offset clause which meant that the French company had
to invest 50% of the contract value in India by purchasing Indian goods and services.
Next year, the company and Reliance Group announced a joint venture. Dassault
specified that it wants to invest $115 million to fulfill its offset obligation partially.
Hence, the matter went to the Supreme Court where the litigants alleged irregularities
in the deal. The Court turned down the corruption charges on the grounds that it had
less scope for judicial review in defense matters. This decision of the Court proved to
be controversial as the government stated that the judgment had some factual errors.
The judgment consisted of the CAG(Comptroller and Auditor General) report and
the Parliamentary Accounts Committee report which were submitted to the Court by
the government and were termed as misinformation. The Court decided to review the
petitions on merit, hence closing the controversy.29

27
https://www.thehindu.com/news/national/independence-of-judiciary-depends-on-the-freedom-of-every-individual-
judge-to-decide-without-pressure-or-bias-cji/article67786330.ece
28
https://www.thehindu.com/news/national/independence-of-judiciary-depends-on-the-freedom-of-every-individual-
judge-to-decide-without-pressure-or-bias-cji/article67786330.ece
29
https://blog.ipleaders.in/independence-indian-judiciary-demonstrated-relevant-rulings/

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 Independence of judiciary-: A comparative study between India UK and USA

The Bhima Koregaon case

In 2018, the celebrations for the bicentenary anniversary of the Bhima Koregaon battle
were interrupted due to violence leading to the death of a person and several injuries.
The police investigated and arrested several activists claiming that inflammatory
speeches were made by them eventually leading to the violence. Hence a PIL was filed
seeking an investigation by the SIT(Special investigation team) over the Unlawful
Activities (Prevention) Act charges against the arrested activists. The litigants alleged
that the Mumbai Police were biased in their decision. The case went to the Supreme
Court who dismissed the case with a 2:1 majority. While the two judges who were
Chief Justice of India Dipak Misra and Justice Khanwilkar were satisfied with the
investigation done by the Mumbai Police, Whereas, Justice D.Y Chandrachud was not.
Justice Chandrachud dissented, alleging that the arrests were made targeting political
dissent.

Justice K. S. Puttaswamy (Retd.) v. Union of India (2017): Aadhar Act as a money

bill case

In this case, the issue was whether the Aadhar Act in 2016, was passed as a money
bill. The court held that it was a money bill again with a majority. Justice A.K Sikri
accepted the act as a money bill and referred to Section 7 of the Act which states that
the Aadhar based authentication can be used for benefits or services charged on
the Consolidated Fund of India, hence it can be used as a money bill. Whereas, Article
110 of the Constitution stated that the money bill can be used only on services related
to spending and receiving of money by the Union Government.The Supreme Court
affirmed the right to privacy as a fundamental right under the Indian Constitution,
highlighting the judiciary's role in protecting individual liberties against government
overreach.

ELECTORAL BOND CASE-On 15 February 2024, the Court unanimously struck

down the Union’s 2018 Electoral Bonds (EB) Scheme. The Bench held that the
Scheme violated the voters’ right to information enshrined in Article 19(1)(a) of the
Constitution. The Court also directed that the sale of electoral bonds be stopped with
immediate effect. SBI was directed to submit details of the Electoral Bonds purchased
from 12 April 2019 till date, to the ECI. This will include details of the purchaser as
well as the political parties that the bonds were given to. Further, the Court ordered the
ECI to publish the information shared by SBI on its official website within one week
from the receipt of the information (by 13 March 2024)

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 Independence of judiciary-: A comparative study between India UK and USA

United Kingdom:

Miller v. Secretary of State for Exiting the European Union (2017): This landmark
case dealt with the UK government's authority to trigger Article 50 of the Treaty on
European Union to commence the Brexit process without parliamentary approval. The
Supreme Court ruled that parliamentary approval was required, reaffirming the
principle of parliamentary sovereignty and the judiciary's role in interpreting
constitutional conventions.

R (Miller) v. The Prime Minister (2019): In this case, the UK Supreme Court
addressed the lawfulness of Prime Minister Boris Johnson's advice to the Queen to
prorogue (suspend) Parliament in the lead-up to the Brexit deadline. The Court
unanimously held that the prorogation was unlawful, emphasizing the judiciary's role
in upholding the rule of law and scrutinizing executive actions.

Privacy International v. Investigatory Powers Tribunal (2021): This case

concerned the lawfulness of mass surveillance programs conducted by UK intelligence
agencies. The UK Supreme Court ruled that certain aspects of the surveillance regime
were incompatible with European Union law and required reforms, underscoring the
judiciary's role in overseeing government surveillance activities and protecting
individual privacy rights.

United States:

Marbury v. Madison (1803): This landmark case established the principle of judicial
review in the United States, affirming the Supreme Court's authority to declare acts of
Congress unconstitutional. The decision solidified the judiciary's role as a co-equal
branch of government and a check on legislative and executive power.

Brown v. Board of Education (1954): In this landmark civil rights case, the Supreme
Court declared racial segregation in public schools unconstitutional, overturning the
"separate but equal" doctrine established in Plessy v. Ferguson (1896). The decision
highlighted the judiciary's role in safeguarding constitutional rights and promoting
equality under the law.

Obergefell v. Hodges (2015): In this landmark case, the Supreme Court held that the
fundamental right to marry is guaranteed to same-sex couples under the Fourteenth
Amendment's Equal Protection Clause. The decision legalized same-sex marriage
nationwide, illustrating the judiciary's role in expanding civil liberties and protecting
minority rights.

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 Independence of judiciary-: A comparative study between India UK and USA

These cases represent significant moments in the legal history of India, the UK, and
the USA, showcasing the judiciary's role in upholding the rule of law, protecting
individual rights, and ensuring government accountability.

Challenges faced by the judiciaries of india uk and usa in maintaining there

indepandance-

Maintaining judicial independence is crucial for the functioning of any democracy,

ensuring that the judiciary can act as a check on the other branches of government and
uphold the rule of law. However, judiciaries in India, the UK, and the USA face
various challenges in preserving their independence:

-India-

Executive Influence: There have been concerns about the executive branch's attempts
to exert influence over the judiciary through appointments, transfers, and political
pressure.

Backlog of Cases: India's judiciary is burdened with a massive backlog of cases,

which can lead to delays in justice and increased susceptibility to external pressures.

Resource Constraints: Limited resources, including funding and infrastructure, can

affect the judiciary's ability to function efficiently and independently.

Public Perception: There have been instances where public trust in the judiciary has
been undermined due to allegations of corruption, bias, or inefficiency.

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 Independence of judiciary-: A comparative study between India UK and USA

Political Interference: In some cases, political parties or interest groups attempt to

influence judicial decisions, particularly in high-profile or politically sensitive cases.

United Kingdom:

Government Influence: While the UK judiciary enjoys a high degree of

independence, there have been concerns about the potential for government influence,
especially in cases involving national security or constitutional matters.

Appointment Process: The process for appointing judges in the UK has faced
criticism for lacking transparency and accountability, raising questions about the
diversity and independence of the judiciary.

Legal Aid Cuts: Cuts to legal aid funding have limited access to justice for
marginalized communities and disadvantaged individuals, potentially undermining the
judiciary's role in ensuring equal protection under the law.

Media Scrutiny: High-profile cases and judicial decisions can come under intense
media scrutiny, which may influence public perception and put pressure on judges to
consider public opinion in their rulings.

European Union Influence: Prior to Brexit, the European Union's legal framework
and courts played a role in shaping UK law, leading to debates about the balance
between national sovereignty and international legal obligations.

- United States:

Political Polarization: The appointment of judges in the US, particularly to the

Supreme Court, has become highly politicized, with partisan battles over nominees
and concerns about the court's perceived impartiality.

Public Funding and Resources: Budgetary constraints and resource limitations can
impact the judiciary's ability to operate effectively and independently, leading to
backlogs and delays in case resolution.

Judicial Activism vs. Restraint: Debates persist about the appropriate role of the
judiciary in interpreting laws and shaping public policy, with some advocating for a
more activist approach and others emphasizing judicial restraint.

Public Perception and Trust: Public confidence in the judiciary can be influenced by
factors such as high-profile rulings, perceptions of bias or partisanship, and attacks on
judicial independence from political leaders or interest groups.

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 Independence of judiciary-: A comparative study between India UK and USA

Security Concerns: Judges and court personnel may face security threats or
intimidation, particularly in cases involving organized crime, terrorism, or contentious
social issues, which can impact their ability to carry out their duties impartially.

In all three countries, safeguarding judicial independence requires ongoing efforts to

protect against undue influence from the other branches of government, ensure
transparency and accountability in judicial appointments and decision-making
processes, and uphold the principle of the rule of law.

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 Independence of judiciary-: A comparative study between India UK and USA

CONCLUSION
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. A comparative study of the
independence of the judiciary in India, the UK, and the USA would yield nuanced
findings, but here are some key points that might emerge:

Constitutional Framework:

India: The Constitution of India establishes an independent judiciary as one of the

basic structures. UK follows a system of parliamentary sovereignty, where the
judiciary's independence is rooted in conventions and legal principles. US Constitution
provides for an independent judiciary, with separation of powers between the
executive, legislative, and judicial branches.

Appointment Process:

In India it Involves a collegium system where judges are appointed by the judiciary
itself, with minimal involvement of the executive. In UK Judges are appointed by the
Crown on the advice of the Lord Chancellor, with an increasing role of independent
Judicial Appointments Commissions.while in USA: Federal judges are nominated by
the President and confirmed by the Senate, providing a system of checks and balances.

Tenure and Removal:

In India Judges have a fixed tenure until retirement and can only be removed through
impeachment by Parliament for proven misconduct or incapacity In UK Judges hold
office during "good behavior," essentially meaning until retirement, and can only be
removed through an address by both Houses of Parliament.While in USA: Federal
judges serve for life, subject to good behavior, and can only be removed through
impeachment by the House of Representatives and conviction by the Senate.

Separation of Powers:

India: The judiciary is seen as a separate and independent branch of government, with
powers of judicial review over legislative and executive actions. While the UK has no
formal separation of powers, the judiciary maintains its independence through the
doctrine of parliamentary sovereignty and the rule of law.The US Constitution clearly

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 Independence of judiciary-: A comparative study between India UK and USA

delineates the separation of powers, with the judiciary acting as a check on the
legislative and executive branches.

Role in Governance:

The Indian judiciary has played an active role in shaping public policy through judicial
activism, particularly in cases involving public interest litigation (PIL).In UK The
judiciary traditionally exercises restraint in matters of policy and politics, adhering to
the principle of parliamentary sovereignty.The US judiciary has significant power to
review laws and executive actions for constitutionality, often leading to landmark
decisions that shape governance.

Public Perception and Accountability:

In India Public confidence in the judiciary has been affected by concerns over judicial
vacancies, delays in justice delivery, and allegations of corruption.UK Generally, the
judiciary enjoys a high level of public confidence, bolstered by its adherence to the
rule of law and impartiality.In USA Public perception of the judiciary varies but is
influenced by high-profile cases, judicial appointments, and political polarization.

These findings would highlight both the strengths and challenges each country faces in
maintaining an independent judiciary and upholding the rule of law.

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 Independence of judiciary-: A comparative study between India UK and USA

SUGGESTIONS AND REFORM

India:There's a need to reduce political influence on judicial appointments. The
current system, where the executive has a significant role in appointing judges, can
undermine independence. Implementing a more transparent and merit-based selection
process could enhance credibility.

Introducing mechanisms for judicial accountability without compromising judicial

independence is vital. Independent oversight bodies or commissions can be established
to investigate complaints against judges, ensuring transparency and fairness.

Improving the infrastructure and resources available to the judiciary can expedite the
delivery of justice. This includes increasing the number of courts, judges, and support
staff, as well as leveraging technology for efficient case management.

United Kingdom: The UK could consider reforms to the judicial appointments

process to enhance transparency and diversity. Establishing an independent body
responsible for appointments, similar to the Judicial Appointments Commission, could
mitigate political influence and ensure merit-based selections.

Strengthening the delineation between the executive, legislative, and judicial branches
is crucial. Updating legal procedures and practices to streamline court processes and
enhance accessibility can improve public trust in the judiciary. Embracing
digitalization for case management and remote hearings can enhance efficiency and
reduce backlog.

United States: Streamlining the appointment process for federal judges can address
vacancies and ensure a fully functioning judiciary. Bipartisan cooperation in the
Senate to expedite confirmation hearings can prevent delays in filling vacant judicial
seats.

Measures to depoliticize judicial appointments can safeguard judicial independence.

Encouraging presidents to consider bipartisan advisory committees for nominations
and promoting consensus-building in the Senate confirmation process can mitigate
partisan influence.

Enhancing transparency in judicial decision-making processes can foster public

confidence. Publishing comprehensive opinions and disclosing judges' financial
interests and potential conflicts of interest can promote accountability and trust in the
judiciary.

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 Independence of judiciary-: A comparative study between India UK and USA

REFERENCE
RELATED BOOKS-

"Independence of the Judiciary in India: A Critical Analysis" by S. C. Tripathi

(2015)

"Judicial Independence in India" by T. R. Andhyarujina (2001)

"The Indian Judiciary: The Quest for Independence" edited by P. K. Tripathi

(2011)

"Judicial Independence in the United Kingdom: A Contemporary Analysis" by

Kate Malleson (2016)

"Judicial Independence in the Age of Democracy: Critical Perspectives from

Around the World" edited by Peter H. Russell, David M. O'Brien, and Jennifer M.
Smith (2001)

"The Federal Courts: Challenge and Reform" by Richard A. Posner (1996)

"Separation of Powers and the Administrative State" by Adrian Vermeule (2017)

REFERENCE AND PUBLICATIONS-

https://blog.ipleaders.in/what-is-an-independent-
judiciary/#Judicial_independence_in_India

https://www.unodc.org/dohadeclaration/en/news/2021/05/the-need-for-independent-
judges-and-a-free-press-in-a-democracy.html

https://mckinneylaw.iu.edu/iiclr/pdf/vol10p245.pdf

https://ir.nbu.ac.in/bitstream/123456789/2973/1/March_2018_2.pdf

https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL(2010)006
-e

https://www.thehindu.com/news/national/independence-of-judiciary-depends-on-the-
freedom-of-every-individual-judge-to-decide-without-pressure-or-bias-
cji/article67786330.ece

https://indiankanoon.org/search/?formInput=independence%20of%20judiciary

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