Paper Details Paper Code: RP-CLA-V2-06 Category: Research Paper Date of Submission for First Review: March 28, 2022 Date of Acceptance: July 6, 2022 Citation: Jayanta Boruah & Sarthak Aryan, “Indian Judiciary: Independence from Interferences vs Liberty to Interfere”, 2 AIJACLA, 81, 81-93 (2022).
Author Details: Jayanta Boruah, Research Scholar, Dept. of Law, North-Eastern Hill University, Shillong & Sarthak Aryan, Final Year, BALLB. Student, National Law University and Judicial Academy Assam
Abstract India being a democratic country has adhered to the Principle of the Rule of Law by adopting a Constitution supporting Independence of Judiciary. Even though the Doctrine of Separation of Powers has not been followed in India that strictly as it is followed in the United States, yet India has been able to secure the independent position for the Judiciary from the rest of the organs of the Government with the help of various Constitutional provisions. However, at present several allegations have been made against the functioning of the Indian Judiciary and a much debatable question is now put on the reality of its Independence. It, therefore, becomes important to analyze the various provisions providing for such Independence of the Judiciary in India along with the ability of the law-keepers in maintaining it in reality. This article will therefore try to analyze and understand the provisions in theory relating to Independence of Judiciary on the lines of the facts alleging them to be incapable of maintaining such independence and also will try to understand the Role of Judiciary as well as the other organs of the Government in securing such Independence. Keywords: Independence of Judiciary; Doctrine of Separation of Powers; interference; Judicial Activism; and Democracy
INTRODUCTION India adopted a democratic Constitution and established the Rule of Law based on the parameters of the Doctrine of Separation of Powers. By this, it becomes evident that there must be minimum non-interference between the three organs of the government. Although, India does not adhere strictly to the American notion of the Doctrine of Separation of Powers and follows the principle of mutual checks and balances, yet the Judiciary has often held this Doctrine as one of the Basic Structure of the Indian Constitution. Thus, we can say that Independence of Judiciary is one of the essences of our Constitution since it ensures non-interference by the other organs in the field of Judiciary to make justice fair and unbiased and at the same time to make Judiciary capable of maintaining a check on the other two organs in cases of violation of the Constitution. In short, it gets established that Independence of the Judiciary as a concept was framed by the Framers of the Constitution not to protect the Judiciary but for the broader interest of protecting the Constitution itself. But, at present few questions are enhancing the grounds for debates amongst the legal academia and political as well as Judicial Activists. Some of such questions are- whether Independence of the Judiciary as in existence today is relevant for the protection of the Constitution? Whether the concept of Independence of Judiciary as intended by the Framers of the Constitution is same as what is prevailing or is understood by the concept today? Is the judiciary independent or is subject to any Political Intervention? Are the methods for securing the Independence of the Judiciary valid in the present-day context? And at last but not least does Independence of Judiciary means the liberty of the Judiciary and if not then is there any need to control Judicial Activism that is initiated in the name of defending Constitutional Morality?
CONSTITUTIONAL PROVISIONS OF INDEPENDENCE OF JUDICIARY AND OTHER METHODS FOR SECURING IT In simple terms, Independence of the Judiciary means that Judiciary must not be dependent on any other organs of the government for conducting its day-to-day activities and also while delivering its judgment. This concept has even gained the status of human rights under International Convention and in India, it has been given the Status of Basic Structure of the Indian Constitution which means that this concept even though not a new one yet is very relevant even at present and will remain a relevant topic for discussion in future also. By looking at the status of this concept we can easily hold that this concept is not only relevant for the State in protecting the very morale of the Constitution that is Rule of Law but also is important from the citizen's point of view since Independence of Judiciary is assumed to be essential for protecting the individual rights of the citizens of the land. However, to achieve an Independent Judiciary, we must understand the requirements of such a system. At first, the law must be blind meaning that law must not consider any physical attributes of its subjects while delivering Justice and must ensure Equality before Law and Equal Protection of Law. This will enable the Judges to be free from subjective bias while delivering justice. Second, there must be institutional independence, meaning Judiciary must be capable enough to regulate its day-to-day activities without the interference of any other sources. Third, the persons involved in judicial processes must be self-sufficient and well qualified in their respective fields of expertise, since only then they will be eligible for delivering justice without depending on any other sources. And at last, they must be given some amount of power to have a say in the law-making process but with limitations, so that they can apply their practical expertise in removing the gap between law as in theory and law as in practice. Looking at the above attributes the Constitution has made several provisions for achieving Independence of the Judiciary. Those include- a. Judicial Appointments Article 124 and 217 of the Constitution provides for the appointment of Judges to the Supreme Court and the High Court respectively. On a literal interpretation of these two Articles one can say that the Central Government is entrusted with the responsibility of appointing Judges of both the Supreme Court as well as the High Courts since it’s the President who is responsible for appointing with consultation with such other Judges of Supreme Court and High Court in the case of Chief Justice of India, while in the case of other Judges of the Supreme Court the President must consult with the Chief Justice of India, in the case of Chief Justice of any High Court, the President will have to consult the Judges of the concerned High Court, Chief Justice of India and the Governor of the concerned State. It means that the appointment of Judges is mostly in the hands of the Executive. The Supreme Court in Supreme Court’s Advocates on Record Association v. Union of India held that under Article 121 and 211 of the Constitution the legislature has no merit to discuss any individual appointment to the Supreme Court and the High Court respectively and in case of any unsuitable appointments the Judges of Supreme Court and the High Court who are involved and whose opinion is taken into account will bear the consequences and become accountable. But there seems to be arbitrariness and a lack of transparency in the collegiums system. There appears to be a lack of accountability in the decision of the collegiums. Since, when the National Judicial Appointments Commission Bill was rejected the Supreme Court itself acknowledged the lack of transparency and shortcomings of the collegiums system. After four years the Supreme Court posted the decisions of collegiums online to show transparency but all the questions remain unanswered regarding the rationale and criteria behind the appointment and rejection of the judges. This is in the case of the Supreme Court but the appointments and transfers of Chief Justices and other puisne judges from one High Court to another remain a mystery. For an independent and incorruptible judiciary, there is a need for efficient judges. To achieve this goal, bright and young legal talent need to lure towards the judiciary. This could be achieved through increasing the perks and rewards or creating an efficient mechanism to attract those talents. All India Judicial Services (AIJS) under Article 312 might give a solution to judicial vacancies. AIJS might be able to provide for a centralized and efficient mechanism to fill the vacancies across the District and Subordinate Judiciary based on merits. But many High Courts are opposing AIJS as it involves the executive in the appointment of judges and will be against the independence of the judiciary. The lower judiciary in India is in a critical situation, for which something needs to be done soon otherwise public will lose faith in the judicial system. All these issues make it appear as if the current mechanism of appointment is filled with corruption and nepotism. It should be kept in mind that Independence of Judiciary can be achieved when there will be a centralized and mechanized system for the appointment and transfer of judges in the higher judiciary and when the judges will act without any fear that a controversial decision might affect their elevation and when the recommendations for transfer or elevation to higher Judiciary will be made based on merits and judges involved in the process are held accountable. b. Tenure of Judges The Constitution provides for the fixed tenure of Judges to the Supreme Court and the High Court respectively. The Constituent Assembly to achieve Independence of Judiciary understood the requirement of fixed tenure of the judges for them to work freely without any fear or favour. In India unlike the US Constitution does not provide for life tenure, the retiring age in India is 65 years. Under Article 128, a retired judge can be reappointed as a judge by the Chief Justice of India with the consent of the President. Article 124(2) sets the retirement age of the Judges of the Supreme Court at 65 years. A judge can resign his office by writing under his hand addressed to the President. Article 217(1) provides for the retirement age of the judges of the High Court at 62 years. It seems that the provisions regarding the tenure of Judges are still quite satisfactory for the protection of Independence of the Judiciary. c. Salary of the Judges The one who controls the purse can influence the action of those dependent upon it. The executive control over Judicial Salary fixation has been never seen as a threat to the Independence of the Judiciary until now. The salary of the judges in the case of the Supreme Court is charged from the Consolidated Funds of India and in the case of High Courts it is charged from the Consolidated Funds of States. Under Article 125(2) the salary of judges cannot be altered to their disadvantages. Earlier the District Judge had a superior position than the District Magistrate. But now District Magistrate are made part of Indian Administrative service, it is a service of all India character but District Judge is a higher judicial service which is a part of state service. In the past, lawyers used to take the job of the judge as a matter of great honour and reward. But now maybe because of this reason, students graduating from prestigious National Law Schools mostly prefer to choose corporate jobs or join the bar. This will heavily impact the efficiency of the judiciary and will lead to an increased burden on the sitting judges causing pendency and delays. There is a need of increasing the salary and allowances of the judges not only in the higher judiciary but also in the lower judiciary. This will motivate the judges as they are burdened with cases. The judicial system requires young, efficient, and talented judges then only the issue of delay in the disposal of cases could be done away with. d. Transfer of Judges The issue of transfer of judges is always raised whenever independence of the judiciary is discussed. Under Article 222(1), The President after consultation with the Chief Justice of India may transfer a judge. But this transfer of judges is seen as an opportunity by the governments and judges to reward and punish individuals. It becomes evident from the fact that during the emergency, 16 High Courts judges were transferred which was seen as a punitive action by the governments to punish those judges who gave judgments against it. Justice Shivakant Shukla from the ADM Jabalpur case nearly made it to Supreme Court but the final report prevented it. Transfer of judges is necessary for uniformity in judgments and so that no judge could develop a syndicate in their respective home state. However, it needs to be regulated by policies that are more systematic, transparent, and more predictable. In recent practice, it has been observed that consent is obtained for his/her transfer to other high courts soon after their appointments. But this system also lacks transparency. Justice PD Dinakaran whose reputation was tainted due to charges of corruption against him but when refused to go on leave was given punishment posting to Sikkim. Transfer cannot be a method to punish judges with doubtful integrity. Judges with doubtful integrity should be made to retire early after proper assessment by a competent authority like the Judicial Committee or by National Judicial Commission.
CONTENTIOUS ISSUES OF POLITICAL INTERVENTION AND JUDICIAL ACTIVISM TOWARDS INDEPENDENCE OF JUDICIARY Political Intervention There have been many indirect attempts to compromise with the independence of the judiciary. But there have been some direct ones also, including the one in 1971 when the then law minister started giving names instead of Chief Justice that led to deals being struck. The government never holds the hand of a judge and makes them give a judgment in their favour but they create pressure from the ‘lobby” that could affect their appointment or make an atmosphere that forces the judges to favour the government. And this got proved for the first time in 1975 in the State of Uttar Pradesh v. Raj Narain when Allahabad High Court invalidated the Indira Gandhi election it led to a national emergency is declared. In the present-day context, some academicians might question that there isn’t any direct intervention of legislature into the judiciary. We all know justice is blind but it is not deaf. When the former CJI Ranjan Gogoi after taking the oath as a nominated member to Rajya Sabha in an interview to Times of India said that half a dozen people have made a stranglehold over the judiciary and for the judiciary to be independent this stranglehold needs to be broken. He added that if a case is not decided in a particular way they favored, they question the judge’s integrity and malign him in every way possible. This is the most obvious evidence of political intervention into the judiciary. There are some serious issues that the former Chief Justice has raised but it is not the first time that the issues of corruption and loss of independence of the judiciary are being raised. The judges misuse their powers by giving vague judgments as they have no accountability. Parliament has failed to impeach sitting corrupt judges like Mr. Justice V. Ramaswami. The judges on several occasions have put morality and their position at stake like Justice Arun Madan- Sex for acquittal case. In 2010, even the former Law Minister Shanti Bhushan moved an application in the Supreme Court alleging that 8 former Chief Justices were corrupt. The judges are human being themselves so they can also commit mistakes but the main issue is the external intervention into a judicial process which the former CJI has raised. There is a certain ‘lobby’ that try to allure judges with money, alleviation, and post-retirement benefits or try to pressurize them by threatening them that their reputation will be maligned, as judges have subconscious too, so an environment is created around the country with the help of social media to influence them. The recent question of MeToo controversy on CJ Ranjan Gogoi and the manner it was disposed by the SC and even before this case the suicide letter of the Former Chief Minister of Arunachal Pradesh that alleged the then three Senior Judges of SC and other senior Advocates in 2017 put a lot of questions on the integrity of Judiciary and the relation between political leaders and Judiciary which are yet not answered. We must even not forget that it was during the reign of CJI Ranjan Gogoi that the Ram Mandir dispute and few such other disputes were solved. It seems that the term independence of the judiciary is also used to influence the judges and hold them on ransom. If the judgment is in the particular way they wanted, then only they will certify the judge as an independent. The former CJI is acting as a whistleblower on the issue of political intervention into the judiciary and how it affects the judiciary’s independence. This issue needs to be addressed otherwise the idea which the framers of our constitution were keen to protect and which the Supreme Court held as the basic feature will become archaic and the judiciary will lose its independence.
Judicial Activism It has been observed that the judiciary is acting as executive as well as legislative to some extent. Judges sometimes while giving judgments give out guidelines on areas of legislative vacuum like the Vishaka Guidelines. These are cases of judicial ‘legislating’ rather than judicial interpretation of the laws. There are cases where the Supreme Court issued administrative guidelines to government departments like the Supreme Court ordered the Election Commission of India to take action against all those political parties who have chosen candidates with criminal backgrounds. Courts have also laid policy guidelines or given out directives as Supreme Court has recently directed State Governments to improve the condition of Jails in India. These instances of Judicial Activism were necessary and therefore are even appreciated, but again the question arises that what will happen if it does not go well in the future? What will be the consequences if the Judiciary utilizes such power to satisfy political lusts on issues where the Ruling Party in power might not intend to legislate since they are directly accountable to the public and might have to lose their power after five years? The executive and legislative are elected by the people and so the executive is accountable to parliament and the legislative is answerable to the people and hence they can make laws and give directives that affect the people but the judiciary is unaccountable and answerable to the citizens since they are not elected democratically. However, we must also admit to the fact that the Supreme Court has the Constitutional power to pass any decree or order to secure complete Justice in matters pending before it and such decrees or orders will be binding across the whole of India subject to the laws passed by the Parliament or orders passed by the President and even it is also essential for the Apex Court to make laws or to issue directions to fill up the vacuums in law. But the question arises that who holds the power to legislate in a country like India which follows the pattern of Parliamentary Democracy and where citizens are the absolute Sovereign? The answer is obvious to be the Parliament and the State Legislatures over State matters since they represent the will of the people. But, if Supreme Court which is a nominated body makes or drafts any law on a topic where the Parliament does not intend to pass any law or forbids itself from interfering with the Judiciary over such a topic, then will the people of the Nation have a say in such law-making process? Judiciary can pass any Judgement, Rule or even Guidelines on matters pending before it and such Judgments, Rules or Guidelines shall intend to affect the Rights of the Parties involved in such matters but if any such Judgement, Rules or Guidelines takes into concern the Rights of the entire Citizens of the country who are not even direct parties to the matter, then will it be justified for the Citizens to be Ruled by a Judgement or Rules passed by an Authority whom they have not voted for or who neither has the representation of the will of the ultimate sovereign? Under the umbrella to achieve Independence of Judiciary, it appears as if the transparency and accountability of the judiciary have been done away with. In recent years it has been observed that there is increasing judicial activism to defend constitutional morality. This judicial activism is interfering in the working of both the legislature and the executive. For instance, the role played by the Supreme Court in the matter of NRC where the Court exercised a lot of influence and power over the Executive for implementation of NRC. For this reason, it is expected that around 1100 crore of money was invested along with many other Resources. It even created a lot of panic in the entire administration but the biggest question is where NRC is now? The question of whether such intervention was needed or not is not important, rather the most important question is- did the people get any opportunity to hold the Executive or Legislative accountable for this or whether they can make a decision before voting in the next election where Judiciary will never context any election? One another example where Judiciary tried to impose forceful patriotism, passed guidelines ignoring not only previously passed Judgements, enacted laws , or other such reasons but has also ignored the fact that patriotism cannot be imposed rather it is possessed by the Citizens of a Nation from their heart if they love their motherland. Similarly, there are many such instances like- Proactive Censorship in the case of Jolly LLB 2 where the judgment was not only illegal rather it is alleged to have committed miscarriage of justice; the cancellation of telecom licenses in 2G Case where it is alleged, that it was not a fit case for application of Article 142; and several such other cases have made critiques to argue that these are not only instances of Judicial Activism rather these can be attributed as Judicial Overreach. From all these, we have seen how these judicial activists are interfering with the judicial process and influencing judges to get judgments in their favour. These activists then try to interfere in the law-making process and bargain with the government, if laws favourable to them are brought about, they won’t be challenged in the judiciary and if not then it will be challenged in the court of law and the law will be struck down since they exercise control over the judiciary. This will lead to government image getting tainted in front of the public because the public might not even get an opportunity to showcase their opinion which they can if a law is made by the Parliament since every Government will have to pass the election after every five years. In India, there is a separation of power although not strict. This separation of power is necessary for the Independence of the Judiciary. But what if the independence of the judiciary is being threatened from inside? From the discussions so far, it becomes evident that the Judiciary is becoming more and more opaque to protect it from external intervention. Any attempts to improve the accountability would eventually turn out to attempt to interfere. This has given breeding ground for corrupt practices, unaccountability and even exercising power outside their jurisdiction. Now, this unaccountability is not only threatening the judiciary’s independence but has also started interfering in the law-making process. There are certain functions of the legislature, executive, and judiciary that are overlapping. Judicial Activism or Judicial Overreach whatsoever is defended on the ground of defending Constitutional Morality, but such Activism is how far democratic? And if such Activisms are not democratic since they lack people’s representation, then how come such Activism defends Constitutional Morality when Democracy is the soul of such Morality?
CONCLUSION At the beginning of the paper few questions were raised relating to the Independence of the Judiciary and now it seems that we are in a position to answer those questions. The word Independence is not present in the Constitution of India but the Constituent Assembly was very keen to protect the Independence of the Judiciary. There are certain institutions which are required for subsistence of democratic temper in India like independent Election Commission, Comptroller and Auditor General of India, but above all is Judiciary. So, the Independence of the Judiciary is relevant for the protection of the Constitution. The provisions that are given in the Constitution to secure the Independence of the Judiciary are not being strictly followed. There is no clear parameter in the judicial appointment and transfer of judges and so it will be erroneous to assume that the Judiciary in India is Independent. There is no transparency and accountability in judicial transfers and appointments. Retired Supreme Court Justice Chelameswar in an interview on the controversy of transfer of high court judges said “I never understood as even a member of the collegiums as to why a particular high court judge is being transferred”. Then in a recent interview to Times of India, former Chief Justice of India Ranjan Gogoi raised the issue of political intervention into the judiciary and a “lobby” has formed a stranglehold around the judiciary. Judiciary to shield itself from intervention has become opaque and unaccountable. This has given breeding grounds for corrupt practices and this might become a reason for young legal talents of the country to get discouraged from opting for the judiciary as a career. There is a need for a centralized transparent mechanism for the appointment, elevation, and transfer of judges based on merits. But the question that remained unanswered is whether there is any need to control judicial activism that is initiated in the name of defending constitutional morality. There is a difference between judiciary which is independent of any improper inducement, influence, or pressure from any quarter, and liberty of judiciary. Liberty of Judiciary does not mean the unaccounted exercise of the power of judiciary and interference of judiciary into executive and legislative. Unethical practices in the name of Independence of Judiciary should not be tolerated otherwise the concept of Independence of Judiciary that our framers sought will lose its relevance.
Suggestions All the above issues require a highly transparent system to protect the independence of the Judiciary. Such transparency will have to be maintained by making the Citizens vigilant through awareness and education. Political education for all must be taken seriously at all levels of development. Likely, Political Agendas will never desire to make the Citizens politically educated and thus it becomes a vital responsibility of the Academicians to spread awareness amongst the ignorant masses. Further, looking at the Institutional Framework in India, we can say that when the Executive Head passes an Ordinance, it is required to be placed before both the Houses of the Parliament to make such ordinance operate beyond a certain period, besides having the same force as of law. Similarly, the laws passed by the Parliament can be reviewed by the Judiciary under the Constitutional Power of Judicial Review , and if such laws do not satisfy the will of the People then the Party in Power might have to lose in the next election. But the question is who has the power to review laws made by Judiciary? It is the Judiciary itself and if we analyze this fact then we can hold that it’s a violation of the First Principle of Natural Justice- No One shall be the Judge of His Cause. Judiciary, no doubt has the power to pass any Judgment in a matter pending before it but if such judgment provides guidelines or rules that are going to regulate the life of the entire citizens then such guidelines or rules losses the element of democracy. And since it's on the will of the Parliament to legislate on such guidelines or rules passed by the Judiciary, the Party in power might not do so and such guidelines or rules may remain in operation forever without any scrutiny. In such a situation, we would like to suggest making scope for a new provision of Parliamentary Review. It means like the Ordinance if once issued requires to be placed before both the Houses of the Parliament beyond a certain period which is a compulsion, similarly, every guideline passed by the Judiciary, that are going to influence the Rights of people in access of those that are parties to the matter pending before the Judiciary, to be placed before both the Houses of the Parliament to be passed as a law or else such guidelines or rules shall cease to operate beyond a certain period. This might make a proper balance between the three organs of the Government. By equating the process of Ordinance making and validating with that of the law-making process of the Judiciary that lacks a democratic element, such guidelines will be given more strength and also the powers of the Judiciary can be checked from getting misused. Although Parliament has the power to legislate over the guidelines passed by Judiciary, and on several occasions, it has been done, yet the Parliament even may ignore to do so or might take a long delay in bringing a valid law. But by making this a compulsion, will ensure better Independence of the Judiciary, since then no will be in a position to force Judiciary to make laws on the topic where the Party in Power might not intend, to escape public accountability and scrutiny.
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