AbstractOne of the most significant features of India’s Constitution is the independence of its judicial system; judges should be free from external influence while deciding cases involving individual citizens. During the development of the Constitution by its architects, they had prior experience with the separation of powers between the administrative branch of government and the jurisdictive branch as they were often combined during colonial rule. Therefore, several precautions have been made into the Constitution to ensure that judicial independence exists today; however, new issues have arisen relating to delays in the appointment of judges to vacant positions and supposed administrative influence on judicial verdicts. This paper will first examine the constitutional provisions ensuring judicial independence, second, trace how those provisions have developed through landmark jurisdictive verdicts, third, examine how contemporary events are challenging the independence of judges and jurisdictive systems, and finally, propose some ideas moving forward that will strike a balance between maintaining judicial independence while sufficiently addressing issues that concern individuals using the jurisdictive system.Keywords: Judicial Independence; Separation of Powers; Constitutional Safeguards; Collegium System; Judicial Appointments
Introduction
The jurisdictional branch of government serves the function of being the guardian of our constitution and the rights of all citizens in a democratic society. A free society and constitutional democracy require an independent judiciary. The independence of the judiciary means judges are independent and can apply the law and deliver justice without influence from other branches of government or political parties. The importance of independence from the government or political parties is not just a matter of tradition; it is also a foundational part of our Constitution and is protected under the “basic structure” doctrine as described in the Kesavananda Bharati case (1973).
Why is independence of the judiciary important? Without independent courts, those in power would easily violate the fundamental rights of people, such as the right to equality, the right to freedom of expression and the right to trial without partiality. The architect of the Constitution, including Dr. B.R. Ambedkar, understood this principle from their experiences with the British rulers, where magistrates held both administrative and judicial duties, causing the judiciary to be biased in favour of the administrative branch of government. Therefore, they created a system of
government which allowed for the independence of the judiciary and for it to function in conjunction with the other branches of government.
This paper inspects the major constitutional provisions regarding judicial independence for the Supreme Court, High Courts and subordinate courts, discusses how the courts have interpreted these provisions as well as the real-world challenges we are currently facing, such as the backlog of cases and delays in filling judicial vacancies. The goal is to provide a clear, balanced view based on the Constitution and recent developments up to 2026.
Research Methodology
The present study adopts a doctrinal research methodology, which is the most appropriate approach for examining questions of constitutional law and institutional design. Doctrinal research, also known as library-based or black-letter research, focuses on the systematic analysis of legal rules, principles, and judicial pronouncements as they exist in formal legal sources. The central inquiry of this paper—how the Constitution of India secures the independence of the judiciary and how contemporary developments test that independence—lends itself naturally to this method.
Primary sources form the foundation of the analysis. These include the text of the Constitution of India, particularly Articles 50, 121, 124 to 147 (Supreme Court), 214 to 231 (High Courts), and 233 to 237 (Subordinate Courts), along with related provisions concerning salaries, tenure, removal, and administrative control. Landmark Supreme Court decisions constitute another crucial category of primary material. The study closely examines the First Judges Case (S.P. Gupta v. Union of India, 1981), the Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993), the Third Judges Case (In re Presidential Reference, 1998), the Fourth Judges Case striking down the National Judicial Appointments Commission (2015), and other relevant decisions such as Union of India v. Sankalchand Himatlal Sheth (1977) and Indira Nehru Gandhi v. Raj Narain (1975). These judgments are analysed not merely for their holdings but for the constitutional principles and institutional arrangements they established or refined.
Secondary sources are used to contextualise, critique, and enrich the primary analysis. These include scholarly articles, monographs, and commentaries on judicial independence, the collegium system, and separation of powers. Particular reliance is placed on the work of M.P. Singh on securing judicial independence in the Indian experience, reports of the Law Commission of India, and contemporary assessments by organisations such as the International Commission of Jurists. Academic literature examining post-retirement appointments, case allocation practices, judicial vacancies, and the tension between independence and accountability has also been consulted. Official data from the National Judicial Data Grid and annual reports of the Supreme Court have been used to ground the discussion of contemporary challenges in empirical reality.
The research employs an analytical and critical approach. Constitutional provisions and judicial decisions are not merely described; they are evaluated in light of the objectives they were intended to serve and the practical outcomes they have produced. Comparative references, where relevant, are drawn to illustrate alternative institutional designs, though the primary focus remains on the Indian constitutional framework. The study is limited to the higher judiciary and the constitutional structure governing subordinate courts; it does not undertake empirical fieldwork, interviews with judges or practitioners, or quantitative analysis of case outcomes. The temporal scope extends to developments up to early 2026, enabling the paper to engage with recent debates on vacancies, transparency in the collegium process, and post-retirement employment.
By combining rigorous doctrinal analysis of primary legal materials with a critical reading of secondary literature and contemporary institutional data, this methodology seeks to present a balanced account of both the constitutional safeguards that protect judicial independence and the challenges that continue to test its effectiveness in practice.
Review of Literature
The literature on judicial independence in India is extensive and spans constitutional theory, institutional analysis, and contemporary political critique. Early scholarly engagement with the subject emphasised the historical and philosophical foundations of judicial independence. Writers drawing on the doctrine of separation of powers and the experiences of colonial administration highlighted the Constituent Assembly’s deliberate effort to insulate the judiciary from executive control. M.P. Singh’s influential work, “Securing the Independence of the Judiciary—The Indian Experience,” provides a comprehensive account of the constitutional design and the conditions necessary for both institutional and individual judicial independence. Singh underscores that formal separation of institutions is insufficient unless judges themselves are free from extraneous pressures in the performance of their adjudicative functions.
A substantial body of literature has developed around the evolution of the collegium system. The First Judges Case (1981) generated considerable academic criticism for affirming executive primacy in appointments. The Second Judges Case (1993) and the Third Judges Case (1998) shifted scholarly attention to the implications of judicial primacy. Commentators have examined how these decisions transformed the meaning of “consultation” under Articles 124 and 217 into something closer to concurrence, thereby transferring effective control over appointments to the judiciary itself. Subsequent literature has debated whether this shift successfully protected independence or merely relocated the problem of opacity and unaccountability within the judicial institution.
The striking down of the National Judicial Appointments Commission (NJAC) in 2015 produced a fresh wave of scholarship. Supporters of the decision argued that judicial primacy in appointments is an essential feature of the basic structure and that any dilution of that primacy would reopen the door to political interference. Critics, including some within the judiciary itself, contended that the collegium system suffers from a lack of transparency, diversity, and clear criteria, and that a carefully designed commission could reconcile independence with accountability. Recent analyses continue to grapple with this tension, examining proposals for reform of the Memorandum of Procedure, greater disclosure of collegium resolutions, and alternative institutional models.
Contemporary literature has also focused on practical threats to judicial independence beyond the appointment process. Scholars and civil society organisations have examined post-retirement appointments of judges to government positions, arguing that the prospect of such appointments may create incentives that undermine impartiality while judges are still in office. Case allocation practices, especially in high-profile or politically sensitive matters, have drawn critical attention, with some observers alleging selective prioritisation. Chronic judicial vacancies, the enormous backlog of cases, and inadequate infrastructure have been analysed as systemic pressures that indirectly affect the quality and independence of adjudication. Reports by the International Commission of Jurists and other monitoring bodies have documented these concerns while acknowledging the resilience of formal constitutional safeguards.
Despite this rich body of work, certain gaps remain. Much of the existing literature tends either to celebrate the constitutional architecture of judicial independence or to emphasise contemporary deficits, without fully integrating both perspectives. There is also relatively limited sustained analysis that connects the formal safeguards contained in the Constitution with the lived institutional experience of the collegium era and the practical challenges of the last decade. The present paper seeks to contribute to this literature by offering a structured examination of constitutional safeguards, the evolution of judicial doctrine on independence, the principal contemporary challenges, and possible pathways for reform that preserve independence while enhancing transparency and efficiency.
Meaning of the Independence of the Judiciary
Independence of the judiciary is an old concept, with no clear-cut definition.2 The beginning or basis of independence of the judiciary is based on the doctrine of separation of powers.3 Essentially it means independence of the judiciary from the administrative and the legislature. However, this only establishes independence of the institution of judiciary from the other two branches of government, without looking at independence of the judges themselves in performing their functions as judges. Therefore, if we consider only independence of the jurisdictive institution from administrative and legislative branches and not looking at independence of the judges, we do not achieve very much.4 Independence of the judiciary does not just require creating a separate institution that is free from administrative and legislative control and influence; the independence of the judiciary has the dependent objective of allowing judges to make their decision based on law and free from any other influence or consideration. Thus, the independence of the judiciary is the independence from a personal perspective, of each individual judge. Consequently, independence of each individual judge is part of the overall independence of the judiciary.
2 “While there is widespread concerns on the obvious importance of the judiciary, the literature on it is meagre, and the concept itself has never been fully unpacked.” ROBERT STEVENS, THE INDEPENDENCE OF THE JUDICIARY 3 (1993) [hereinafter STEVENS, THE INDEPENDENCE OF THE JUDICIARY]. See also ERIC BARENDT, AN INTRODUCTION TO CONSTITUTIONAL LAW 129 (1998) (“But it is unclear what
independence of the judiciary really means.”); Steven Lubet, Judicial Discipline and Judicial Independence, 61 LAW & CONTEMP. PR0BS. 59, 74 (Summer 1998) (“It may well turn out that judicial independence is easier to protect than to define.”).
3 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.
4 Shimon 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].
Historical Background
Prior to independence, under the Government of India Act, 1935, British appointed judges for India often without considering Indian perspectives, which initiated petitions for separation of power during the struggle for independence. Extensive debate regarding the separate powers was a key argument made when the Constituent Assembly was formed. Therefore, the members of the assembly frequently argued that an independent judiciary was crucial for enabling a new democratic body to uphold rights and control government powers.
When India’s Constitution came into effect in 1950, the Constitution established one integrated judiciary as a whole – with the Supreme Court at the top, state High Courts underneath, and further subordinate courts below those state High Courts.5 Article 50 (a directive principle) states that all jurisdictive officers must be completely separated from administrative officers.6 Although this is not enforceable in relation to the fundamental rights of citizens, courts have historically recognized this directive principle as a guideline for their actions.
During the early years of India’s independence, there were several conflicts, particularly in the 1970s during the period known as “Emergency,” which embroiled the administrative branch of the government trying to influence judicial appointments. Following this influence exerted by the administrative, there were several Supreme Court verdicts that provided clarity and reform to assist in restoring and protecting the independence of the judiciary from any administrative influences in regard to judicial appointments.7
Components of the Independence of the Judiciary
The independence of the judiciary and its constitutional status cannot be established instantaneously; it develops through time as part of a long-running, ongoing, and dynamic effort. Consequently, it is impractical to specify every condition to provide for the continued independence of the judiciary in advance, either by constitution or otherwise. Rather, there must be periodic reviews and adjustments to these conditions. However, there are certain conditions that are so fundamental that without them there cannot be independent jurisdictive function. Some options for addressing individual judicial independence are institutional, while others are specific to individual judges.
The most important aspect in the independence of the judiciary is its constitutional position. Just as the constitution provides for the composition and powers of the administrative and the legislature, it should also provide for the judiciary. The constitution may provide for the
5 Constitution of India 1950, Parts V (Chapter IV) and VI (Chapter V); see also M P Singh, ‘Securing the Independence of the Judiciary—The Indian Experience’ (2000) 10(2) Indiana International & Comparative Law Review 245, 251.
6 Constitution of India 1950, art 50.
7 Supreme Court Advocates-on-Record Association v Union of India, AIR 1994 SC 268 (Second Judges Case); In re Presidential Reference, AIR 1999 SC 1 (Third Judges Case).
composition of the courts and their jurisdiction, and for the appointment, terms of office, and tenure of the judges. 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 enforcement by the other branches of the government of court verdicts, provide for separation of judges from the civil services, and prohibit diminution of judges’ service conditions.8 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 administrative. 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. Moreover, the procedure for such appointments must be the same as for regular appointments. Judicial salaries must be beyond the administrative and legislative reach with provision for automatic upward revision with changes in the price index or at least regular and timely adjustment of salaries with the passage of time. Salaries should not be subject to any ad hoc cut except perhaps in emergencies. Transfer of judges without their consent should not be permitted and in no case should such power be with the administrative. If transfer is permitted at all, it must be in the hands of the judiciary and must be exercised by a collegial body or at least by more than one person. Further, impartiality and freedom from irrelevant pressures must be ensured to the judges in all aspects of adjudication. The judges must be and appear to be unbiased and, therefore, should not be members of either the administrative or the legislature or of political parties or business organizations, and should not participate in political activities. Similarly, the judge should be predetermined. The judges must also fairly reflect the society. Judges must also be independent from directives, guidelines, or any kind of pressures from fellow judges. The dominant role of the judges in the matter of appointments and promotions, the hierarchy within the judiciary, and the lack of power to write dissents may also have an adverse impact on the independence of the judges. Although accountability of the judiciary is a delicate and controversial issue, it goes hand in hand with its independence.9
8 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 the judges 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
9 “Accountability and independence are not mutually exclusive; most often we can have both.” Lubet, supra note 5, at 65; Peter M. Shane, lntrabranch Accountability in State Government and the Constitutional Requirement of
Constitutional Safeguards
All laws in India must comply with the Constitution, because it is the ruling principle for all laws in India.10 Laws created by the legislature cannot be found to be unconstitutional after having gone through the process of creation; therefore, all laws get their power from the Constitution. Governmental types are also derived from the Constitutions. The Legislature has both close and remote ties to the Judiciary, because the Legislature and Administrative are similar, but they are distinct according to their respective powers, which serve as the basis for certain jurisdictive functions.11
In other words, even though the Legislature (i.e. parliament) and the Administrative have close working relationships, the Constitution is designed to maintain a prescribed division of power between the two of them and the Judiciary in the public service.12 The separation of powers between these three areas ensures that judges remain independent and will provide unbiased and impartial justice to all persons who come before them.
As indicated in Article 50 of the Constitution, which is a Directive Principle of State Policy, Article 46 directs that “the State shall separate the Judiciary from the Administrative in all public services from all public services”.13 Therefore, the Supreme Court has pointed to Article 50 in helping to promote and enhance the independence of the Judiciary throughout the Nation – beginning with the Judiciary in its diversity and heritage before the Supreme Court through its various levels of expression.
The judicial system of India is discoursed as being a unitary system within a federal state structure of Government.14 The Judiciary consists of a single hierarchy which includes (1) Subordinate Courts, (2) High Courts, and (3) The Supreme Court. This single structure was intended by the Constitution to achieve the goal of having unified laws, and uniform standards of Justice and Judicial Independence across the country. While Subordinate Courts do receive some assistance from State Governments for funding purposes and providing administrative support, those courts operate under the direct and complete control of the respective High Court. The Union has the primary authority to regulate High Courts, and State’s Authority to regulate their respective High Courts is restricted to appointment and financial authorities only. The Supreme Court is presented with total and complete authority from the Union in relation to all three
Judicial Independence, 61 Law & CONTEMP. PROBS. 21, 54; see generally Symposium, Judicial Independence and Accountability, 61 LAW & CONTEMP. PROBS (Summer 1998) (conducting an in-depth examination of the interplay between judicial independence and accountability).
10 Constitution of India 1950, art 13.
11 M P Singh, ‘Securing the Independence of the Judiciary—The Indian Experience’ (2000) 10(2) Indiana International & Comparative Law Review 245, 250–51.
12 Ibid 251.
13 Constitution of India 1950, art 50.
14 Constitution of India 1950, arts 124–147 (Supreme Court), 214–231 (High Courts), 233–237 (Subordinate Courts).
branches of Government. Part 5 of the Indian Constitution deals with the Union Judiciary.15 The independence of the judiciary starts with the appointment of the judges in the courts. Article 124 to Article 147 deal with the appointment of the Supreme Court judges and, Article 214 to Article 231 deal with the appointment of judges in the High Courts. Further, the Subordinate courts are mentioned under Article 233 to Article 237 of the Constitution.16 The highest subordinate court is that of the court of District Judge. The framers of the Constitution divided the judiciary, legislature, and the administrative into three separate organs, so as to ensure that each organ will perform its roles independently and not interfere with the functioning of the other, and also that this will help in justifying the principles mentioned in the Preamble.
- The Supreme Court (Articles 124–147)
The Supreme Court of India is the highest court in the country. It consists of the Chief Justice of India and other judges. The sanctioned strength is currently 34 judges (including the Chief Justice).
Appointment (Article 124(2)): The President of India appoints the judges of the Supreme Court after consultation with such judges of the Supreme Court and High Courts as the President may deem necessary. For the appointment of any judge other than the Chief Justice, the Chief Justice of India must always be consulted.17
Qualifications (Article 124(3)): A person must be a citizen of India and must have either:
• Served as a judge of one or more High Courts for at least five years, or
• Practised as an advocate in one or more High Courts for at least ten years, or
• Been a distinguished jurist in the opinion of the President.18
Tenure and Removal (Article 124(2) & (4)): Judges hold office until they attain the age of 65 years. They may resign earlier or be removed on the grounds of proved misbehaviour or incapacity. Removal is possible only through an order of the President after an address is passed by each House of Parliament. This address must be supported by a majority of the total membership of that House and not less than two-thirds of the members present and voting. This rigorous impeachment process makes removal extremely difficult. No Supreme Court judge has ever been successfully removed so far.19
15 Ibid Part V, Chapter IV.
16 Ibid arts 124–147 (Supreme Court), 214–231 (High Courts), 233–237 (Subordinate Courts).
17 Constitution of India 1950, art 124(2).
18 Ibid art 124(3).
19 Ibid art 124(4); only one unsuccessful impeachment attempt (Justice V Ramaswami, 1993).
Oath (Article 124(6)): Before entering office, every judge takes an oath to perform duties without fear or favour, affection or ill-will, and to uphold the Constitution and the laws.20
Financial Independence (Article 125): Judges are entitled to salaries, allowances, and privileges specified in the Constitution. These cannot be reduced to their disadvantage during their term (except during a financial emergency). All administrative expenses of the Supreme Court, including salaries, allowances, and pensions of judges and staff, are charged on the Consolidated Fund of India and are not subject to a vote in Parliament.21
Other Important Safeguards:
• Judges are prohibited from practicing law or appearing before any court or authority in India after retirement (Article 124(7)).22
• Parliament and State legislatures are prohibited from discussing the conduct of any Supreme Court or High Court judge except during removal proceedings (Article 121).23
• The Supreme Court is a court of record with the power to punish for contempt of court (Article 129).24
• The Chief Justice of India appoints the officers and servants of the Court and regulates their service conditions (Article 146).25
• The Supreme Court can make its own rules for practice and procedure (Article 145) and has the power to pass any order necessary for doing complete justice in any matter (Article 142).26
The law declared by the Supreme Court is binding on all courts in India (Article 141), and all civil and jurisdictive authorities must act in aid of the Supreme Court (Article 144).27
2. The High Courts (Articles 214–231)
The Constitution provides for a High Court for each State. Parliament may also establish a common High Court for two or more States or Union Territories (Article 214 and Article 231).28
Appointment (Article 217): The President appoints the Chief Justice and other judges of the High Court after consultation with the Chief Justice of India, the Governor of the State, and the Chief Justice of the concerned High Court.29
20 Ibid art 124(6) read with Third Schedule.
21 Ibid art 125.
22 Ibid art 124(7).
23 Ibid art 121.
24 Ibid art 129.
25 Ibid art 146.
26 Ibid arts 145 and 142.
27 Ibid arts 141 and 144.
28 Ibid arts 214 and 231.
Qualifications (Article 217(2)): A person must be a citizen of India and must have either held a judicial office for at least ten years or practiced as an advocate in a High Court for at least ten years.30
Tenure and Removal (Article 217(1) & Article 218): High Court judges hold office until the age of 62 years. They can be removed only in the same manner as Supreme Court judges (through parliamentary address on grounds of proved misbehaviour or incapacity).31
Financial Independence (Article 221): Salaries, allowances, and privileges of High Court judges are fixed by the Constitution and can only be increased (not decreased) by Parliament. The administrative expenses of the High Court, including salaries of judges and staff, are charged on the Consolidated Fund of the State.32
Other Safeguards:
• Every High Court is a court of record with the power to punish for contempt (Article 215).33
• Judges take a similar oath as Supreme Court judges (Article 219).34
• After retirement, High Court judges cannot plead or act in any court or authority except the Supreme Court or a High Court in which they have not served (Article 220).35
• The Chief Justice of the High Court appoints officers and servants of the Court and regulates their service conditions (Article 229).36
• High Court judges may be transferred from one High Court to another by the President after consultation with the Chief Justice of India (Article 222).37
Powers: High Courts have wide original and appellate jurisdiction. They can issue writs for the enforcement of Fundamental Rights and for any other purpose (Article 226). They exercise superintendence over all subordinate courts and tribunals within their territory (Article 227).38
- The Subordinate Courts (Articles 233–237)
29 Ibid art 217.
30 Ibid art 217(2).
31 Ibid arts 217(1) and 218.
32 Ibid art 221.
33 Ibid art 215.
34 Ibid art 219.
35 Ibid art 220.
36 Ibid art 229.
37 Ibid art 222.
38 Ibid arts 226 and 227.
The subordinate judiciary forms the foundation of the jurisdictive system. The highest court at this level is the court of the District Judge.39
Appointment of District Judges (Article 233): The Governor of the State appoints district judges in consultation with the High Court of that State. A person can be appointed as a district judge only if they are already in the jurisdictive service of the Union or the State, or have practised as an advocate for at least seven years and are recommended by the High Court.40
Appointment of Lower Judicial Officers (Article 234): Appointments to jurisdictive posts below the rank of district judge are made by the Governor in accordance with rules framed after consultation with the State Public Service Commission and the High Court.41
Control by High Court (Article 235): The High Court exercises full control over district courts and courts below them. This includes posting, promotion, granting leave, and disciplinary matters for members of the state judicial service. The Governor may extend these provisions to magistrates as well (Article 237).42
This extensive control by the High Court ensures that the subordinate judiciary remains independent of direct administrative interference in its day-to-day functioning.
Judicial Intervention
The independence of the judiciary faced serious challenges during and after the Emergency period (1975–77). The government took certain actions that appeared to interfere with judicial freedom. These actions led to important court cases where the judiciary itself stepped in to protect its independence. In the First Judges Case (1981), administrative primacy was upheld. But the Second Judges Case (1993) and Third Judges Case (1998) established the collegium system: a group of senior judges (CJI + 4 for Supreme Court appointments) recommends names. The administrative can only return names once with reasons; the collegium’s reiterated view is binding.
In the Fourth Judges Case (2015), the Court struck down the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment. It held that judicial primacy in appointments is part of the basic structure and cannot be altered.
Independence of the judiciary was declared a basic feature in Kesavananda Bharati (1973) and reaffirmed in later cases. Transfers of judges (Article 222) also require CJI consultation in the public interest, not as punishment.
39 Ibid art 233(1)
40 Ibid art 233
41 Ibid art 234
42 Ibid art 237
i. Justice Sheth’s Case (1977)
Soon after the Emergency, the government transferred many High Court judges to other High Courts. These transfers were seen as punishment because those judges had delivered judgments that were inconvenient or unfavourable to the government during the Emergency. One such judge, Justice S.H. Sheth43, was transferred from the Gujarat High Court to the Andhra Pradesh High Court. He challenged his transfer in the Gujarat High Court on two main grounds:
- The transfer was made without his consent.
- The transfer was made without proper consultation with the Chief Justice of India.
The Gujarat High Court initially ruled in his favor on the consultation issue, but the Supreme Court emphasized that transfers should serve the public interest rather than act as punitive measures. While most judges did not see the necessity of consent for transfers, they unanimously acknowledged judicial independence as a fundamental aspect of the Constitution.
ii. The Judges Case (S.P. Gupta v. Union of India, 1981)
This case, popularly known as the First Judges Case44, came before the Supreme Court a few years later. The second intervention, known as the Judges Case (S. P. Gupta v. Union of India), involved multiple petitions against a circular from the Union Law Minister requesting advance consent for transfers of High Court judges. The Supreme Court’s diverse opinions highlighted concerns over jurisdictive independence and the practice of appointing additional judges, although the circular was upheld. The majority ruled that transfers should occur in the public interest and not as punishment but did not affirm the Chief Justice’s primacy in appointing judges, giving more authority to the administrative instead. This led to criticism from the legal community, advocating for a judiciary-dominated process for appointments and transfers. The Law Commission later proposed creating a National Judicial Service Commission45, chaired by the Chief Justice, indicating the need for reform in judicial appointments based on global practices.
iii. The Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993)
This case is popularly known as the Second Judges Case46. It was decided by a nine-judge bench of the Supreme Court, arose from unfilled vacancies in the Supreme Court and High Courts. Petitions under Article 32 prompted the Court to direct the government to address these
43 Justice S.H. Sheth’s Case is formally known as Union of India v. Sankalchand Himatlal Sheth (1977) 4 SCC 193.
44 S.P. Gupta v. Union of India (1981) 1 SCC 87 (popularly known as the First Judges Case).
45 The Law Commission of India in its 121st Report (1987) recommended the setting up of a National Judicial Service Commission.
46 Supreme Court Advocates-on-Record Ass’n v. Union of India, A.I.R. 1994 S.C. 268 (Second Judges Case).
vacancies and led to a reevaluation of the First Judges Case (S.P. Gupta, 1981), which favored administrative primacy in judicial appointments. The Supreme Court overruled this perspective, asserting that the independence of the judiciary is a fundamental feature of the Constitution that cannot be altered, even by constitutional amendments. The Court established a collegium system for jurisdictive appointments, with key points including:
- Judges’ appointments require a consultative process involving multiple parties.
- The Chief Justice of India (CJI) holds primacy in appointments and transfers but must consult two senior-most Supreme Court judges for filling Supreme Court vacancies and the Chief Justice of a High Court and its senior-most judges for High Court positions.
- The CJI’s opinion, after consultation, is binding on the President, allowing the government to return recommendations only once with valid reasons; if reiterated, the appointment is mandatory.
- High Court judges can only be transferred in the public interest, with the CJI’s opinion being decisive and consent of the judge being unnecessary.
- Regular reviews of the number of High Court judges are mandated, with the government required to act swiftly on recommendations.
The Court emphasized that this process should be timely and documented to minimize confusion and bias. This judgment was significant as it transferred power in jurisdictive appointments from the administrative to the judiciary, protecting the Constitution’s basic structure and ensuring the selection of competent and independent judges.
iv. The Third Judges Case (In re Presidential Reference, 1998)
After the Second Judges Case, some practical problems remained. Vacancies were still not filled quickly, and some transfers created disputes. In 1998, the President of India made a formal reference to the Supreme Court under Article 143 of the Constitution. He asked the Court to clarify how the collegium system should work in practice. This is known as the Third Judges Case47. A nine-judge bench gave a unanimous opinion.
This case made the collegium system more practical and detailed. It answered doubts about how many judges should be involved and how verdicts should be recorded. It strengthened judicial independence by ensuring that appointments and transfers are decided collectively by senior judges, not by the administrative alone.
v. 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.48 The police investigated and arrested several activists claiming that inflammatory speeches were made by
47 In re Presidential Reference, A.I.R. 1999 S.C. 1 (Third Judges Case).
48 Romila Thapar v. Union of India, (2018) 10 SCC 753, para 3.
them eventually leading to the violence.49 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.50 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.
vi. The CBI-Alok Verma case
In this case, the judgment was delayed. The government had divested the CBI director Alok Verma of all his powers. This needed sanctions from a high-powered committee under the Delhi Special Police Establishment Act.51 The Supreme Court examined the details of the corruption charges against the CBI director. Later, the Court directed the reinstatement of Verma as the CBI director on the basis of the sanctions of the selected committee. However, the reinstatement was ordered when Mr. Verma had just three weeks left for his tenure. Hence, this raised criticism once again.52
Contemporary Challenges
Despite the strong constitutional safeguards and the protective rulings in the Second and Third Judges Cases, the independence of the judiciary in India continues to face several practical and perceived challenges. These issues have raised questions about whether judicial independence is truly secure or is gradually coming under pressure from the administrative, political influences, and systemic problems.
One major challenge is delays in judicial appointments. Collegium recommendations are often delayed or not approved by the administrative. As of 2025–2026, a large number of vacancies remain in the Supreme Court and High Courts.53 This has contributed to over 50 million pending cases across the country, seriously affecting access to justice.54
Post-retirement employment of judges has also become a serious concern. After retirement, some judges have accepted high-level government positions, raising questions of possible
49 Ibid, para 4.
50 Ibid, para 5.
51 Common Cause v. Union of India, Writ Petition (Civil) No. 509 of 2018, Order dated 10 January 2019 (the Alok Verma matter).
52 M.P. Singh, ‘Securing the Independence of the Judiciary—The Indian Experience’ (updated commentary, 2020);
see also International Commission of Jurists, Judicial Independence in India: Tipping the Scale (2025) 28–30.
53 Supreme Court of India, Annual Report 2025–2026 (2026) 12.
54 National Judicial Data Grid (NJDG) statistics as on 31 March 2026 (over 50 million pending cases reported).
inducement or bias. For example, former Chief Justice of India Ranjan Gogoi was nominated to the Rajya Sabha soon after retirement. Similar cases include Justice Ranganath Mishra, who became Chairman of the National Human Rights Commission after stepping down as CJI, and Justice M. Hidayatullah, who became Vice President of India after retiring in 1970. Article 124(7) of the Constitution bars retired Supreme Court judges from practising law, but it does not stop them from taking other government posts.55 Critics argue that the possibility of attractive post-retirement jobs can influence judges while in office.56
Case allocation and priority in hearings have also drawn criticism. During the COVID-19 pandemic, when courts shifted to online hearings, the huge backlog made it difficult to hear all cases. The Supreme Court decided to hear only the most urgent matters, but the selection of cases appeared inconsistent. In Jagdeep Chokkar v. Union of India (2020), a petition seeking help for stranded migrant workers during the lockdown was not heard immediately.57 In contrast, the petition in Arnab Goswami v. Union of India (2020) for quashing FIRs against the journalist was listed and heard the very next day.58 Similarly, the prolonged internet shutdown in Jammu and Kashmir (lasting nearly six months) was not taken up promptly by the Court. Such instances have led to allegations that the judiciary sometimes gives priority to cases involving influential persons over those involving ordinary citizens or social causes.
There are also perceived administrative influences in case allocation and transfers of judges. Reports, such as the International Commission of Jurists (2025), have pointed out opaque case allocation and the transfer of judges who deliver “inconvenient” judgments. Some observers note a shift toward jurisdictive restraint in politically sensitive matters since 2014. In addition, the role of Governors in High Court appointments (under Article 217) sometimes creates federal tensions, as Governors (appointed by the Union) can delay or influence the process, giving an impression of central interference in state matters.59
Judicial vacancies and poor infrastructure add to the strain. Chronic understaffing and lack of modern facilities slow down justice delivery. Critics say this indirectly pressures judges and affects their independence.60 The collegium system itself is criticised for lack of transparency and diversity in selections, even though it was designed to protect judicial independence.61
55 Constitution of India 1950, art 124(7).
56 International Commission of Jurists (n 3) 28–30.
57 Jagdeep Chokkar v. Union of India, Writ Petition (Civil) No. 468 of 2020 (Supreme Court, 2020) – petition concerning migrant workers during lockdown.
58 Arnab Ranjan Goswami v. Union of India, Writ Petition (Criminal) No. 130 of 2020 (Supreme Court, 2020) – FIR quashing petition heard within 24 hours.
59 Constitution of India 1950, art 217; see also Supreme Court Advocates-on-Record Ass’n v. Union of India, AIR 1994 SC 268.
60 International Commission of Jurists (n 3) 40–42.
61 Ibid 45–47.
However, the judiciary has also shown strength in difficult times. In the landmark case of Indira Gandhi v. Raj Narain (1975), the Supreme Court struck down the election of the then Prime Minister on valid grounds, even though it was just before the Emergency.62 This judgment proved the Court’s ability to stand firm against administrative power.63
Suggestions for Improvement
• Salaries of judges in India are lower than in many other countries. Increasing them could reduce the temptation for post-retirement government jobs.
• The strength of the judiciary needs to be increased so that both high-profile and socially important cases can be heard without delay.
• A clear law should be introduced to restrict post-retirement government appointments for judges. This would strengthen public trust and ensure greater discipline and impartiality.
• Introduce a transparent, time-bound process for collegium recommendations (e.g., mandatory timelines).
• Increase jurisdictive infrastructure funding and fill vacancies urgently.
These contemporary challenges do not cancel the constitutional safeguards or the collegium system, but they test their real effectiveness. Addressing them through greater transparency, better resources, and stronger accountability (without compromising independence) is essential to maintain the judiciary’s role as the guardian of the Constitution and the rights of citizens.
Conclusion
The Constitution of India provides one of the world’s strongest frameworks for judicial independence through Articles 50, 124, 217, 121, 125, 129, and others. These provisions, reinforced by jurisdictive wisdom, have enabled the Supreme Court and High Courts to protect democracy for over 75 years. Contemporary challenges like appointment delays and pendency are real but solvable within the constitutional scheme. An independent judiciary is not a luxury—it is the bedrock of rule of law, fundamental rights, and accountable governance. As India aspires to be a developed nation, preserving this independence while ensuring efficiency remains a shared responsibility of all organs of the state and citizens.
62 Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.
63 Ibid 2325
Mariya Hasan Suri
Maulana Azad National Urdu University, MANUU Law School, Hyderabad
3rd Year/ 5th Sem