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INDEPENDENCE OF JUDICIARY

A Comparative Analysis of India, Pakistan & Bangladesh


ADITI PANDEY
03/LLM/2014
Introduction
Judicial independence is the lifeblood of constitutionalism in democratic societies. It is one of
the pillars upon which our constitutional democracy rests. The freedom of the judiciary from the
influence of the other branches of government is essential to the achievement and proper
functioning of a free, just and democratic society based on the principles of constitutionalism and
the rule of law.1
Judicial Independence is an indispensable part of democracy which protects the judicial process
from external influences i.e the legislative and executive officials, military, individual litigants,
pressure groups, the media, and other private or partisan players.2 The Courts are expected to act as
protectors of law and they should be able to exercise their power independently without any outside
interference.3 Judicial Independence stems from the concept of separation of powers wherein the
three organs of the State are given separate and independent powers and these powers are not in
conflict with each other. Each organ of the state is expected to perform its responsibility effectively
and independently from the rest. It is the prime responsibility of the judiciary to act as a watchdog
and to check whether the executive and the legislature are functioning within their limits under the
constitution and not interfering with each other's functions.4This task assigned to judiciary cannot
be carried on completely until the judiciary itself is not independent. The judiciary also acts as the
guardian of the Constitution and helps in furtherance of the doctrine of separation of powers.
It is also expected from the judiciary to interpret the provisions of the Constitution in case of any
ambiguity and that such an interpretation must be unbiased but if the judiciary is not free from
external influences then either the executive or legislature may pressurise to interpret the provisions
according to their own whims and fancies. Therefore, it is of utmost importance that a nation should
have an independent judicial system which has the power to effectively deliver judgments in a
1 Mackin v. New Brunswick , 2002 SCC 13. Ell v. Alberta, 2003 SCC 35. Provincial Court Judges Assn. of New
Brunswick v. New Brunswick, 2005 SCC 44. Available at :
http://www.justice.gov.yk.ca/pdf/Submission_of_Senior_Presiding_Justice_of_the_Peace.pdf
2 See http://pdf.usaid.gov/pdf_docs/PNACM007.pdf
3 See http://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-the-government-and-the-constitution/judaccind/independence/
4 See Sabharwal Y.K., CJI Role Of Judiciary In Good Governance. Available at:
http://highcourtchd.gov.in/sub_pages/left_menu/publish/articles/articles_pdf/goodgovernance.pdf

dispassionate and an unprejudiced manner. Only an independent judiciary can discharge its
constitutional responsibility to provide fair and impartial justice.
An independent judiciary as an institution and the independence of the individual judges both go
hand in hand because an independent judiciary is not possible without the independence of the
individual judges and if the judiciary itself as an institution is not independent then the judges by
themselves cannot act independently.5 With this backdrop the author in this paper will compare the
judicial independence in India, Pakistan and Bangladesh. The rationale behind choosing the
following countries is that both Pakistan and Bangladesh have had a turbulent political past which
has hampered their judicial independence and accountability and both these nations could definitely
gather something from the Indian perspective of an independent judicial system.

India
Before Independence, in many provincial States, there was an independent and well-knitted judicial
system. The judges were appointed by the Crown but even then they were allowed to act free from
any interference from the Crown.6The Constitution of India explicitly provides for certain
provisions which have ensured an independent judiciary.
Under Article 50 it is the duty of the State to take steps to separate the judiciary from the executive
in the public services of the state. The object behind this directive is to secure the independence of
the judiciary from the executive.7
The judges of the Supreme Court and High Courts are provided with the security of tenure. Once
appointed the judges of Supreme Court continue to remain in office till the age of 65 years and the
judges of the High Courts continue to remain in office till the age of 62 years. 8 The judges cannot
be removed from the office except by an order of the President only on the ground of proven
misbehaviour and incapacity in addition to a resolution passed by a majority of total membership of
each House of Parliament and also by a majority of not less than two third of the members of the
present house and voting.9
Another aspect which makes the Indian judges independent is that their salaries and allowances are
fixed and cannot be changed arbitrarily by the legislature. In the case of Supreme Court judges their
salaries are charged on the Consolidated Fund of India and in the case of High Court judge the
5 See http://mulnivasiorganiser.bamcef.org/?p=482
6 See http://www.scribd.com/doc/232793644/Judicial-Accountability-in-India#scribd
7 Constitution of India, 1950. Article 50. The State shall take steps to separate the judiciary from the executive in the
public services of the State.
8 Ibid. Article 124(2) and Article 217(1).
9 Ibid.

salaries are charged on the Consolidated Fund of state. Further, their emoluments cannot be altered
to their disadvantage except in the event of financial emergency.10
The Constitution also states that any discussion in the legislature with respect to the conduct of any
judge of Supreme Court or of a High Court in the discharge of his duties is prohibited. 11 This
provision ensures that the Courts are shielded from political criticism, thereby ensuring their
independence from political pressures and influence. Under Article 129, the Supreme Court has the
power to punish for contempt of itself.12 Similarly, under Article 215 every High Court has the
power to punish for contempt of itself. 13The independence of judiciary is protected by treating the
superior courts as the court of record.
But on the flip side, the framers of the Constitution while drafting granted the power of appointment
of judges mainly to the President, who would act on the aid and advice of the Council of Ministers,
who were in the end political persons. This led to a disconnect between factors which preserved
judicial independence and those which sought to preserve executive control. 14 Thereafter, the a five
judges bench of Supreme Court in S.P. Gupta v UOI (The First Judges Case)15, clarified the
understanding of judicial independence and held that consultation is a mere suggestion not
concurrence and it is not binding on the President. It also held that though it is not an ideal system
of appointment of Judges, but the reason why the power of appointment of Judges is left to the
Executive is that the Executive is responsible to the Legislature and through the Legislature, it is
accountable to the people who are consumers of justice. The power of appointment of Judges is not
entrusted to the Chief Justice of India or to the Chief Justice of a High Court because they do not
have any accountability to the people and even if any wrong or improper appointment is made, they
are not liable to account to anyone for such appointment.
Thereafter, the SC in the Second Judges case16, overruling the First Judges Case held that the
opinion of Chief Justice in appointment of the judges shall be binding on the President as it will
help in removing political influence on judiciary. It established the primacy of the Chief Justice of
India in the process of judicial appointments operationalised through the judicial collegium.

10 Ibid. Article 125(2).


11 Ibid.,Article 211.
12 Ibid.,Article 129. The Supreme Court shall be a court of record and shall have all the powers of such a court
including the power to punish for contempt of itself.
13 Ibid.,Article 215. Every High Court shall be a court of record and shall have all the powers of such a court
including the power to punish for contempt of itself.
14 See https://www.academia.edu/2148025/JUDICIAL_ACTIVISM_IN_INDIA_MEANING_AND_IMPLICATIONS
15 AIR 1982 SC 149
16 Supreme Court Advocates on Record Association v Union of India (1993) 4 SCC 441

But, even after the Second Judges case, the uncertainty regarding appointment of judges was not
completely eliminated. The Supreme Court in the Third Judges case17 tried to remove the remaining
ambiguities and held that the Chief Justice of India must make recommendation to appoint a Judge
of the Supreme Court and to transfer a Chief Justice or Judge of a High Court in consultation with
the four senior-most Judges of the Supreme Court and in case of an appointment to the High Court,
the recommendation must be made in consultation with the two senior-most Judges of the Supreme
Court. Therefore, now the Supreme Court has finally resolved the uncertainty regarding the
appointment of the Judges of Supreme Court and High Courts.
The Supreme Court in Naresh Shridhar v State of Maharashtra18 held that in the absence of any
express provision in the Constitution, the Apex Court being the court of record has jurisdiction in
every matter and if there be any doubts, the court as the power to determine its jurisdiction.
I n Delhi Judicial Service Association, Tiz Hazari Court, Delhi v State of Gujarat 19, the Supreme
Court held that its power to contempt under Article 129 is not confined to its own contempt. It also
extends to all courts and tribunals subordinate to it in the country. 

I n Golak Nath v State of Punjab20, the Supreme Court observed that the Constitution brings into
existence different constitutional entities, namely, the Union, the States and the Union Territories. It
creates three major instruments of power, and expects them to exercise their respective powers
without overstepping their limits. They should function within the spheres allotted to them to assure
independence of all three wings.

In the words of Justice Bhagwati, The concept of independence of the judiciary is a noble concept
which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of
our democratic polity. If there is one principle which runs through the entire fabric of the
Constitution, it is the principle of the rule of law under the Constitution, it is the judiciary which is
entrusted with the task of keeping every organ of the State within the limits of the law thereby
making the rule of law meaningful and effective.21

17 Re Special Reference AIR 1999 SC 1


18 1967 AIR 1
19 1991 AIR 2176
20 1967 AIR 1643
21 Supra note.14

Pakistan
Pakistan's road to democracy has seen many obstacles and it has not been a success story. The
evolution of Pakistans government through alternating periods of military and civilian rule has
resulted in an imbalance between the judiciary and other institutions. The country has not yet seen a
stable democratic regime due to the strength of military and intelligence agencies, religious parties,
a submissive judiciary and corrupt political parties.22 Neither the civil government nor the martial
government wanted a stable and an independent judiciary. They preferred to keep judiciary under
pressure and wanted judges to be flexible so that the governments could further their evil motives
and desires. This resulted into the failure of judiciary to uphold the principles of separation of
powers and to check extra-constitutional regime changes.23
The martial regime left no stone unturned in paralysing the judiciary. It curtailed its jurisdiction,
took away the independence of judges by arbitrary removal and degraded the dignity of the
judiciary by interfering with the proceedings of the court. Even the successive martial law
government did not try to stabilise the dwindling political scenario rather they further continued to
curb the independence of the judiciary. Under the martial rule the judiciary was allowed to function
but did not have the powers to challenge the military government. Even the superior courts were not
allowed to question any emergency or order made under the martial law.24
The martial law also provided for setting up of military courts and these courts were empowered to
punish any person for the violation of martial law and also for offences under ordinary law. There
were no appeals against the orders passed by the military courts. 25 Further, under the Constitutional
(Second Amendment) Order 197926 a new Article 212-A was introduced in the constitution. This
amendment restricted the writ jurisdiction of the High Courts and prohibited them from making
any order with respect to the validity of any martial law regulation or order. The order also
prohibited the High Courts from reviewing the judgments or sentences passed by military courts or
tribunals.27
Under the military regime, a new constitutional court i.e Federal Shariat Court was established. By
establishing this court, the government not only showed a lack of confidence and trust in the
superior courts, but it also crippled the position of the Chief Justice of Pakistan. The military regime
also introduced a number of structural changes in the institution of judiciary which proved to be
22
23
24
25

See http://www.usip.org/sites/default/files/resources/Democracy_in_Pakistan.pdf
See http://www.fairobserver.com/region/central_south_asia/pakistans-struggle-for-independent-judiciary/
See http://prr.hec.gov.pk/Chapters/56S-8.pdf
Ibid.

26 Constitution (Second Amendment) Order, 1979. Gazette of Pakistan, Extraordinary, Part I, 18th October 1979
27 See http://www.pakistani.org/pakistan/constitution/orders/po21_1979.html

adverse to the independence of judiciary.28 For instance under the Provisional Constitution Order
1981 a judge of High Court was made transferable to another High Court for a period of two years
without his consent and without consultation with the Chief Justices of the concerned High Courts.
And in case of any refusal, the judge had to lose his office. 29This was in contradiction to Article 209
of the Constitution which provided for security of service and tenure.30
The army continued to interfere in the working of the judiciary even during the civilian regime. The
civilian government was not allowed to appoint judges due to pressure from the army and the army
continued to harass and intimidate judges of the superior courts. Till now, Pakistan has had one
provisional constitution, three permanent constitutions and one interim constitution. It has been
subjected to a number of extra-constitutional emergency or martial law regimes, when the
constitution was either abrogated or partly or wholly suspended.31
During the periods of the civilian governments, the appointment and removal of the judges was
politicised and the judges were harassed to get favourable decision. During the regime of Zulfiqar
Ali Bhutto from 1972 to 1977 the judiciary lost quite of its power due to constitutional amendments
and it was further transformed from a state organ into a government department. For instance,
members of Pakistan Peoples Party (PPP) were appointed as judges of the High Courts with the
knowledge that they would uphold the policy and objectives of the party.32
Another glaring example wherein the civil government tried to curb the independence of judiciary is
when the government by passing the Fifth Constitutional Amendment 197633 which limited the
tenure of the Chief Justices of Supreme Court and High Courts to five and four years respectively.
They were given the choice either to retire from office or to assume the office as senior most judge
of the court and moreover a judge of the High Court who did not accept appointment as judge of the
Supreme Court would be deemed to have been retired from his office 34. As security of tenure is an
essential pre-requisite for judicial independence, this amendment was in direct violation with the
protection available to the judges under Article 209(7). The Article ensures that a judge of the
Supreme Court or of a High Court cannot be removed from office except as provided by the
Constitution. Furthermore, Article 209 provides for the procedure for removal of the judges of the
28 See http://archiv.ub.uni-heidelberg.de/volltextserver/10947/1/Thesis.Online_Pub.5.8.10.pdf
29 See http://www.gu.edu.pk/New/GUJR/PDF/Dec-2009/7%20Amanullah%20Shah-Impact%20of%20Army%20on
%20the%20Judiciary.pdf
30 The Constitution of the Islamic Republic of Pakistan, 1973, Article 209
31 Supra note, 24.
32 Supra note, 28.
33 Constitution (Fifth Amendment) Act, 1976. Gazette of Pakistan, Extraordinary, Part I, 16th September 1976
34 See http://www.pakistani.org/pakistan/constitution/amendments/5amendment.html

superior courts.
The Fifth Amendment either led to forced retirement of Chief Justices or to accept lower status as
they had completed a period of four years as Chief Justices. This amendment was made in order to
remove Chief Justice of various High Courts in furtherance of corrupt motives of the civilian
government. In 2002, the Supreme Court Bar Association, submitted an application to the Supreme
Court for withdrawal of a review petition because Pakistan Bar Council and Supreme Court Bar
Association both were of the opinion that the Supreme Court has lost its independence and
impartiality.35
In Begum Nusrat Bhutto v. Chief of the Army Staff & Ors.36the petitioner, argued that the detention
of leaders from the Pakistan People's Party (PPP), was unconstitutional. This petition was dismissed
under the doctrine of state necessity. The flawed adjudication of the Supreme Court derailed
democracy for more than a decade.
In Zafar Ali Shah & Ors v General Pervez Musharraf 37, the doctrine of state necessity was
invoked again to justify military rule. However, restrictions were imposed and general elections
were ordered within three years.
Thus, it is evident that no government in Pakistan be it military or civilian wanted a truly
independent judiciary. Even the successive governments did not put any efforts to stables the
weakening judiciary. But on the other hand there have been instances wherein the judiciary has
tried to affirm its independence. In the Judges Case, the Supreme Court invalidated the judicial
appointments made by the then President and announced detailed rules relating to the appointments
process of the judges. The court held that the Judges have to be elevated on the basis of their
seniority and in cases where such a procedure is not followed reasonable justifications have to be
provided. The court also held that the senior-most High Court judge shall be appointed as the Chief
Justice of that High Court.38
In Supreme Court Bar Association President, Mr. Hamid Khan v. The Federation of Pakistan 39the
Supreme Court objected to the elevation of judges from the Lahore High Court due to the procedure
not being transparent, violating the fundamental rights of equality before law and equal
protection of law of the superseded Judges without affording them an opportunity of being heard.
Consequently this petition was dismissed.
35 See http://prr.hec.gov.pk/Chapters/56S-8.pdf
36 PLD 77 SC 657
37 (2000) PLDSC 869
38 Asad Ali v. Federation of Pakistan, (1998) 50 PLD (SC) 161.
39 Supreme Court of Pakistan, Available at:
http://www.supremecourt.gov.pk/web/user_files/File/JR_Detailed_Judgment_in_Appointment_of_Supreme_Court_Jud
ges_Case.pdf

In 2010, the National Assembly of Pakistan passed the Constitution (Eighteenth Amendment) Act,
201040 which made numerous changes in the constitution and removed the unfairness caused by the
military regime. The Amendment introduced significant changes such as the right to fair trial and
right to information to the citizens which would help in delivering justice effectively. The
Amendment also expanded the scope of provincial autonomy and introduced changes such as antidefection.41These changes are undeniably in the right direction to address the problems of a
subservient and an inferior judiciary. Even then changes are required in the procedure for
appointments and removals of judges. Provisions regarding security of tenure and salary should be
expressly mentioned in the Constitution. But independence cannot be merely restored by
constitutional or legislative amendments. It is the collective and committed effort of the legislature,
executive and judiciary to restore the lost faith in the judicial institutions among the common man.

Bangladesh
The Constitution of Bangladesh abides by the doctrine of separation of powers and has a
constitutional mandate for separation of judiciary from the executive control 42. But even then the
Bangladesh judiciary is not free from external influences and is not independent and impartial in its
true sense. Part VI of the Constitution of Bangladesh 1972 deals with the judiciary.
Article 35(3) provides that every person who is accused of a criminal offence shall have right to a
speedy and public trial by an independent and impartial court or tribunal established under the
law.43 Article 116A provides for independence of subordinate judiciary 44 and Article 94(4) provides
for independence of the Supreme Court Judges45. Under Article 116A all persons employed in the
judicial service and all magistrates shall be independent in the exercise of their judicial functions.
Further, Article 95(1) provides for the mode of appointment of the Supreme Court judges.46
The President is entrusted with the task of appointment of Chief Justice and other Judges. The

40 Constitution (Eighteenth Amendment) Act, 2010. President's Assent Received on April 19, 2010.
41 See http://www.pakistani.org/pakistan/constitution/amendments/18amendment.html
42 The Constitution of The Peoples Republic of Bangladesh 1972. Article 22. The State shall ensure the separation of
the judiciary from the executive organs of the State.
43 Ibid., Article 35(3)
44 Ibid., Article 116A.Subject to provisions of the Constitution, all persons employed in the judicial service and all
magistrates shall be independent in the exercise of their judicial functions.
45 Ibid., Article 94(4). Subject to the provisions of this Constitution the Chief Justice and the other Judges shall be
independent in the exercise of their judicial functions.
46 Ibid., Article 95. The Chief Justice shall be appointed by the President, and the other Judges shall be appointed by
the President after consultation with the Chief Justice.

Article 11547 and Article 11648 respectively describe the appointment and control of judges in the
subordinate judiciary. Here again the President has been vested with the powers of appointment in
consultation with the Supreme Court.
Due to the above constitutional mandates the executive has been able to encroach upon the
independence of judiciary in Bangladesh. Until 2009 the subordinate courts in Bangladesh remained
formally subject to executive control with magistrates performing the dual role of executive officer
of the government as well as that of a judicial officer. 49The Supreme Court in Secretary, Ministry
of Finance v Masdar Hossain50 re-affirmed the constitutional mandate for independence of the
judiciary and laid out a roadmap to achieve separation of the judiciary from the executive with
respect to the lower courts, both civil and criminal. But unfortunately until 2006, the judgment
remained largely unimplemented.

Further, the Bangladesh Judicial Service Commission which was established in 2007 has so far
conducted numerous judicial service examinations, and recruited and appointed judges to the lower
judiciary. However, as there is no separate secretariat established for the judiciary, the appointment,
transfer, promotion of the judges of lower judiciary are still administered by the executive instead of
the office of the Chief Justice.51
The question of appointment of judges has always been a controversial issue in the Bangladesh
political scenario. In Idrisur Rahman v Bangladesh52, the Supreme Court re-asserted the role of the
Chief Justice, and made it clear that the recommendation of the Chief Justice would be binding on
the President. The court also recommended passing of legislation which would specify guidelines
with respect to appointment of Chief Justices and other judges. But till now the government has not
even drafted the guidelines for appointment of judges. The independence of the judiciary will
remain on paper until a separate secretariat is not established which would monitor the control of
Supreme Court over the lower judiciary and moreover unless no legal instrument is framed for the
regulation of appointment of Supreme Court judges. Although the appointment, promotion and
posting of lower court judges are made in consultation with the Supreme Court but in reality the law
ministry proposes them and the Chief Justice is consulted by the law ministry and the president
Ibid., Article 115. Appointments of persons to offices in the judicial service or as magistrates exercising judicial
functions shall be made by the President in accordance with rules made by him in that behalf.
48 Ibid., Article 116. The control (including the power of posting, promotion and grant of leave) and discipline of
persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and
shall be exercised by him in consultation with the Supreme Court.
49 See http://archive.thedailystar.net/forum/2012/September/do.htm
50 20 BLD (2000) AD 141
47

51 Supra note. 48
5260 (2008) DLR 714

finally issues the orders.53


Questions have been raised with respect to the manner in which the courts grant or refuse bail to
political leaders. There have been instances wherein few of the opposition leaders were first granted
bail and thereafter 'shown arrested' with respect to other cases. Courts have sometimes also refused
to hear the bail petitions filed by some politicians. Cases have been withdrawn from the court due to
alleged political considerations. In a report submitted to the government it was found that the
withdrawal cases included senior ruling party leaders, their supporters, and relatives.54
Presidential pardons granted due to political influence have weakened the rule of law and the faith
in judiciary.The President from time to time has granted presidential pardons to offenders convicted
of murder. Some of these offenders even included influential political leaders. 55 This has led to
diminishing of faith and confidence of common man in the judicial system.
Thus, even Bangladesh has been surrounded with questions as to an independent judiciary because
of suspicious appointments to the High Court and Supreme Court, arbitrary judicial actions,
withdrawal of cases on political ground and arbitrary presidential pardons in the wake of a formal
separation of the judiciary from the executive.

Conclusion
It is now a well settled principle that separation of powers rests on the pillars of an independent and
impartial judicial system. It is the utmost responsibility of the State the uphold the ethos of
Constitution. The Constitution provides a description of powers for the organs of the government so
that they can exercise their authority within the its boundaries, owing to which State functionaries
are unable to enforce arbitrary powers providing paramount place to laws whose main aim is to
protect the interest of individuals in the country. The independence of judiciary holds a salient
position in any democratic nation. It is an essential requirement for the smooth functioning of the
government and for realisation of the true meaning of rule of law.
In India, the framers of the Constitution were well aware of the significance of the independence of
53 See http://www.bangladeshchronicle.net/index.php/2013/01/judiciary-independence-still-on-paper/
54 See Trasnparency International. Overview of corruption within the justice sector and law enforcement agencies in
Bangladesh, 12 February 2012 Number: 316. Available at: .http://www.u4.no/publications/overview-of-corruptionwithin-the-justice-sector-and-law-enforcement-agencies-in-bangladesh/downloadasset/2800
In September 2010, President Zillur Rahman granted presidential pardons to 20 death row inmates (some allegedly
affiliated with the ruling party) who were convicted of the murder of the Jubo Dal (opposition party BNP's youth
organisation) leader Sabbir Ahmed Gama, nephew of the former BNP deputy minister Ruhul Quddus Talukdar Dulu,
who had been gunned down in 2004 in Natore. In July 2011, the President granted a pardon to AHM Biplob, son of
ruling party leader Abu Taher of Laxmipur, who was convicted and sentenced to death for the murder of Nurul Islam, a
leader of the main opposition party, the BNP.Available at: http://archive.thedailystar.net/forum/2012/September/do.ht
55

judiciary hence separation of powers is a part of the basic structure doctrine. The decisions of the
Second Judges Case56 and the Third Judges Case57 is a notable and a commendable step in this
regard. In India, the legislative and the executive have given due regard to the judiciary and all the
three organs together have helped in furtherance of doctrine of separation of power and judiciary.
The Judiciary in Pakistan and Bangladesh have still a long way to go to achieve the dream of a truly
independent judiciary.

56 Supra note 16.


57 Supra note 17.

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