Australia There was a struggle to establish judicial independence in
colonial Australia, but by 1901 it was entrenched in the
Australian constitution, including the
separation of judicial power such that the
High Court of Australia held in 2004 that all courts capable of exercising federal judicial power must be, and must appear to be, independent and impartial. Writing in 2007
Chief Justice of Australia Murray Gleeson stated that Australians largely took judicial independence for granted and the details were not matters of wide interest. No federal judge and only one supreme court judge has been
removed for misconduct since 1901. Immunity from suit for judicial acts, security of tenure, and fixed remuneration are all established parts of judicial independence in Australia. The appointment of judges remains exclusively at the discretion of the executive which gives rise to concerns expressed that judicial appointments are political and made for political gain. Issues continue to arise in relation to dealing with
judicial misconduct not warranting removal and incapacity of judges. In 2013
Chief Justice of NSW Tom Bathurst identified the way in which judicial and court performance was measured as one of the most substantial risks to the separation of powers in Australia.
Canada Canada has a level of judicial independence entrenched in its
Constitution, awarding superior court justices various guarantees to independence under sections 96 to 100 of the
Constitution Act, 1867. These include rights to tenure (although the Constitution has since been amended to introduce mandatory retirement at age 75) and the right to a salary determined by the
Parliament of Canada (as opposed to the executive). In 1982 a measure of judicial independence was extended to inferior courts specializing in
criminal law (but not
civil law) by
section 11 of the
Canadian Charter of Rights and Freedoms, although in the 1986 case
Valente v. The Queen it was found these rights are limited. They do, however, involve tenure, financial security and some administrative control. The year 1997 saw a major shift towards judicial independence, as the
Supreme Court of Canada in the
Provincial Judges Reference found an unwritten constitutional norm guaranteeing judicial independence to all judges, including civil law inferior court judges. The unwritten norm is said to be implied by the
preamble to the
Constitution Act, 1867. Consequently, judicial compensation committees such as the
Judicial Compensation and Benefits Commission now recommend judicial salaries in Canada. There are two types of judicial independence: institutional independence and decisional independence. Institutional independence means the judicial branch is independent from the executive and legislative branches. Decisional independence is the idea that judges should be able to decide cases solely based on the law and facts, without letting the media, politics or other concerns sway their decisions, and without fearing penalty in their careers for their decisions.
China No judicial independence exists in the
People's Republic of China. The
Chinese Communist Party's
Central Political and Legal Affairs Commission maintains effective control over the
country's judicial system and its personnel. In February 2023, the
General Office of the Chinese Communist Party issued a text titled
Opinions on Strengthening Legal Education and Legal Theory Research in the New Era that called for purging "Western erroneous views" from legal education, including
constitutional government,
separation of powers, and judicial independence.
Hong Kong In
Hong Kong, independence of the judiciary has been the tradition since the territory became a British crown colony in 1842. After the 1997 transfer of sovereignty of Hong Kong to the
People's Republic of China pursuant to the
Sino-British Joint Declaration, an international treaty registered with the
United Nations, independence of the judiciary, along with continuation of English
common law, has been enshrined in the territory's constitutional document, the
Basic Law.
India Judicial independence in India refers to the autonomy of the judiciary from the influence or interference of the executive and legislative branches of government. This principle is a cornerstone of the
Indian Constitution and a fundamental feature of the country's democratic framework. It ensures that judges are free to make decisions based solely on law and justice, without any external pressures, thereby upholding the rule of law and protecting the rights of citizens.
Constitutional Provisions The independence of the judiciary in India is enshrined in several provisions of the Constitution of India: • Article 50 of the
Directive Principles of State Policy urges the state to separate the judiciary from the executive in public services. • Article 124 to 147 deal with the
Supreme Court, while Articles 214 to 231 concern the
High Courts. These provisions ensure security of tenure, fixed service conditions, and protection against arbitrary removal of judges. • Article 121 and 211 prohibit the discussion of the conduct of judges in Parliament and State Legislatures, respectively, except in the context of impeachment. • Article 368 provides the procedure for constitutional amendments but does not permit the curtailment of judicial independence.
Appointment and Tenure of Judges Originally, the appointment of judges was carried out by the President in consultation with the Chief Justice of India and other senior judges. However, the
Collegium System, evolved through Supreme Court judgments (notably the
Second Judges Case in 1993), gave primacy to the judiciary (Specifically the
CJI and two senior judges of Supreme Court) in appointments and transfers of judges. This system aims to preserve independence by insulating the appointment process from political interference. Judges of the Supreme Court and High Courts enjoy security of tenure and can only be removed through a complex impeachment process requiring a two-thirds majority in both Houses of Parliament on grounds of proven misbehavior or incapacity (Article 124(4)).
Financial Independence The Constitution also ensures financial independence by charging the salaries and allowances of Supreme Court and High Court judges to the
Consolidated Fund of India or the respective states, meaning they are not subject to vote by the legislature.
Judicial Review and Activism Judicial independence empowers courts to exercise
judicial review, the authority to review laws and executive actions for their constitutionality. The Supreme Court, through landmark judgments such as
Kesavananda Bharati v. State of Kerala (1973), upheld the
Basic Structure Doctrine, preventing Parliament from altering the Constitution's essential features, including judicial independence. Indian courts have also developed a tradition of
judicial activism, particularly through
Public Interest Litigations (PILs), allowing courts to act on behalf of the public good even in the absence of a traditional legal dispute.
During the Emergency (1975–1977) One of the most significant tests of judicial independence in India occurred during the
Emergency declared by
Prime Minister Indira Gandhi from June 25, 1975, to March 21, 1977.
Civil liberties were suspended, political opponents were jailed, and
press freedom was severely curtailed. This period highlighted how the judiciary could be vulnerable to executive overreach—and how it responded under pressure.
The ADM Jabalpur Case (Habeas Corpus Case) At the center of the judicial controversy during the Emergency was the
ADM Jabalpur v. Shivkant Shukla (1976) case, commonly known as the Habeas Corpus case. The question before the Supreme Court was:
Can a person challenge unlawful detention during the Emergency when the right to life and liberty under Article 21 has been suspended? In a 4:1 majority judgment, the
Supreme Court held that no person had the right to seek a writ of
habeas corpus during the Emergency. This essentially gave the state unchecked power to detain individuals without trial. The lone dissent came from
Justice H.R. Khanna, who famously ruled that
"Even in absence of Article 21, the State has no power to deprive a person of life or liberty without authority of law." His courageous stand cost him the position of
Chief Justice of India, as he was superseded in seniority. This decision is widely regarded as a dark moment in Indian judicial history, where the judiciary was seen to have failed in its duty to protect fundamental rights.
Justice A.N. Ray, who sided with the majority in the
Kesavananda Bharati case but dissented from the majority in the Bank Nationalization case, was appointed
Chief Justice of India by superseding three senior judges in 1973—an event often seen as a precursor to the erosion of judicial independence during the Emergency.
Legacy and reassessment After the Emergency ended and the
Janata Party came to power, there was widespread introspection. The ADM Jabalpur judgement was heavily criticized, and many later Supreme Court decisions essentially overruled it in spirit, even if not formally. In 2017, the Supreme Court in the
K.S. Puttaswamy v. Union of India (privacy case) declared the ADM Jabalpur ruling to be "seriously flawed" and overruled it explicitly. The judgement reaffirmed that fundamental rights cannot be suspended even in times of crisis, thereby restoring the dignity of judicial independence.
Singapore Judicial independence in Singapore is protected by the
Constitution of Singapore, statutes such as the State Courts Act and Supreme Court of Judicature Act, and the
common law. To safeguard judicial independence,
Singapore law lays down special procedures to be followed before the conduct of
Supreme Court judges may be discussed in
Parliament and for their removal from office for misconduct, and provides that their remuneration may not be reduced during their tenure. By statute, judicial officers of the
State Courts, and the Registrar, Deputy Registrar and assistant registrars of the Supreme Court have immunity from civil suits, and are prohibited from hearing and deciding cases in which they are personally interested. The common law provides similar protections and disabilities for Supreme Court judges. The
Chief Justice and other Supreme Court judges are appointed by the
President of Singapore acting on the advice of the
Cabinet of Singapore. The President must consult the Chief Justice when appointing other judges, and may exercise personal discretion to refuse to make an appointment if he does not concur with the Cabinet's advice. Supreme Court justices enjoy
security of tenure up to the age of 65 years, after which they cease to hold office. However, the Constitution permits such judges to be re-appointed on a term basis.
United Kingdom History in England and Wales During the
Middle Ages, under the Norman monarchy of the
Kingdom of England, the king and his
Curia Regis held judicial power. Judicial independence began to emerge during the
early modern period; more courts were created and a judicial profession grew. By the fifteenth century, the king's role in this feature of government became small. Nevertheless, kings could still influence courts and dismiss judges. The
Stuart dynasty used this power frequently in order to overpower the
Parliament of England. After the Stuarts were removed in the
Glorious Revolution of 1688, some advocated guarding against royal manipulation of the judiciary. King
William III approved the
Act of Settlement 1701, which established tenure for judges unless Parliament removed them.
Contemporary usage Under the uncodified
British Constitution, there are two important
conventions which help to preserve judicial independence. The first is that the
Parliament of the United Kingdom does not comment on the cases which are before the court. The second is the principle of
parliamentary privilege: that
Members of Parliament are protected from prosecution in certain circumstances by the courts. Furthermore, the independence of the judiciary is guaranteed by the
Constitutional Reform Act 2005. In order to try to promote the independence of the judiciary, the selection process is designed to minimize political interference. The process focuses on senior members of the judiciary rather than on politicians. Part 2 of the
Tribunals, Courts and Enforcement Act 2007 aims to increase
diversity among the judiciary. The pay of judges is determined by an independent pay review body. It makes recommendations to the government after taking evidence from a variety of sources. The government accepts these recommendations and will traditionally implement them fully. As long as judges hold their positions in "good order", they remain in post until they wish to retire or until they reach the
mandatory retirement age of 70. Until 1 January 2010, the legal profession was self-regulating; with responsibility for implementing and enforcing its own professional standards and disciplining its own members. The bodies which performed this function were the
Bar Council and the
Law Society. However, this self-regulation came to an end when approved regulators came under the regulation of the
Legal Services Board, composed of non-lawyers, following the passage of the
Legal Services Act 2007. This saw the establishment of the
Solicitors Regulation Authority to regulate
solicitors and the
Bar Standards Board to regulate
barristers.
United States Federal courts Article III of the
United States Constitution establishes the
federal courts as part of the
federal government. The Constitution provides that
federal judges, including judges of the
Supreme Court of the United States, are appointed by the
President "by and with the
advice and consent of the
Senate". Once appointed, federal judges: Federal judges vacate office only upon death, resignation, or
impeachment and removal from office by
Congress; only 13 federal judges have been impeached . The phrase "during good behavior" predates the Declaration of Independence.
John Adams equated it with
quamdiu se bene gesserint in a letter to the
Boston Gazette published on 11 January 1773, a phrase that first appeared in section 3 of the
Act of Settlement 1701 in England. The president, while free to appoint any person to the federal bench, typically consults with the
American Bar Association, whose Standing Committee on the Federal Judiciary rates each nominee "Well Qualified", "Qualified" or "Not Qualified".
State courts State courts deal with independence of the judiciary in many ways, and several forms of judicial selection are used for both
trial courts and
appellate courts (including
state supreme courts), varying between states and sometimes within states. In some
states, judges are elected (sometime on a partisan ballot, other times on a
nonpartisan one), while in others they are appointed by the
governor or
state legislature. The 2000 case of
Bush v. Gore, in which a majority of the Supreme Court, including some appointees of President
George H. W. Bush, overruled challenges to the election of
George W. Bush then pending in the
Florida Supreme Court, whose members had all been appointed by Democratic governors, is seen by many as reinforcing the need for judicial independence, both with regard to the Florida Supreme Court and the US Supreme Court. This case has increased focus and attention on judicial outcomes as opposed to the traditional focus on judicial qualifications. ==See also==