Evolution of Judicial Independence in India: A Historical Overview

When we talk about the Indian judiciary today – its power to strike down laws, protect fundamental rights, and operate free from political pressure – it is easy to take that independence for granted. But this independence was not handed over voluntarily. It was constructed brick by brick, across centuries of colonial rule, constitutional debates, and post-independence power struggles. Understanding how India’s judiciary evolved from a tool of imperial administration into a constitutionally insulated pillar of democracy is essential for anyone studying how justice is delivered in this country.

The colonial roots: courts in service of empire 🔗

India’s modern judicial structure traces its origins directly to British colonial rule. Before the British arrived, justice was administered through a patchwork of customary practices, religious laws, and royal authority – rooted in the Vedas, Dharmashastra, and Manusmriti, with kings and Brahmin scholars serving as the primary arbiters of disputes. There was no codified or uniform system of law, and justice varied dramatically depending on region, religion, and social standing.

That changed when the British East India Company began expanding its commercial and territorial presence. The Company established courts primarily to protect its own commercial interests and maintain order among its employees and subjects. While introducing structured courts and the rule of law, British judicial reforms in India were often shaped by racial biases and colonial priorities, serving British interests far more than those of ordinary Indians.

In 1772, Governor-General Warren Hastings introduced a dual court system – Diwani Adalats for civil matters and Faujdari Adalats for criminal cases. This was an early attempt to bring some order to the Company’s vast and chaotic territorial administration. Then came the landmark Regulating Act of 1773, which established the first Supreme Court of Judicature at Calcutta – the single most significant step in formalizing judicial institutions in colonial India. King George III subsequently established Supreme Courts in Bombay (1800) and Madras (1823).

The High Courts Act, 1861 and the push toward uniformity 🔗

A major structural reform came with the Indian High Courts Act of 1861. This legislation merged the fragmented Supreme Courts in the Presidencies with the Sadar Adalats (revenue and civil courts in the provinces), leading to the establishment of High Courts in Calcutta, Bombay, and Madras. These High Courts were given extensive powers and became the highest courts of appeal in their respective regions – a structural model that remains largely intact in independent India.

Alongside this, codification of law was gaining momentum. The first Law Commission under Thomas Babington Macaulay drafted the Indian Penal Code, which came into force in 1862. This was followed by the Code of Criminal Procedure, the Evidence Act (1872), and the Contracts Act (1872). These codified statutes brought a degree of uniformity to Indian law, though the system continued to serve colonial rather than popular interests.

The critical problem: no separation of judiciary and executive 🔗

One of the most damaging features of colonial judicial administration was the deliberate fusion of judicial and executive power. District Collectors – who were revenue and administrative officers of the Crown – also held magisterial authority and exercised judicial powers over local populations. The judges in pre-independence India were symbols of imperial power, and the entire objective of the judicial system was to facilitate colonial governance, not dispense impartial justice to Indians.

The Government of India Act, 1919 made the first formal gesture toward separating judicial and executive functions, introducing limited self-governance to provinces through the concept of diarchy. However, the reform was superficial. The real step forward came with the Government of India Act, 1935, which established the Federal Court of India as the highest court with jurisdiction over constitutional matters – a direct institutional precursor to the Supreme Court. Yet, critically, the Privy Council in London remained the final court of appeal, symbolizing continued colonial control over India’s highest judicial decisions.

The constitutional moment: framing an independent judiciary 🔗

The Constitution of India, adopted on 26 January 1950, represented a decisive and deliberate break from the colonial model. The framers of the Constitution – many of whom were lawyers who had witnessed executive-dominated justice firsthand – were determined that independent India’s judiciary would be insulated from political interference. The Supreme Court of India was established in 1950, and the judiciary was envisioned as an independent entity with the power of judicial review, enabling courts to uphold citizens’ rights against the state.

The Constitution embedded judicial independence not through a single provision but through an interlocking set of safeguards spread across Part V (Union Judiciary) and Part VI (State Judiciary). Together, these provisions ensure that the judiciary remains structurally separate from – and constitutionally superior to – executive influence in the domain of law.

Key constitutional provisions protecting judicial independence 🔗

Article 50 of the Constitution directs the State to actively separate the judiciary from the executive in public services – a direct response to the colonial practice of fusing both roles in district administration. This provision, located in the Directive Principles of State Policy, set the constitutional vision for a clean institutional divide.

Article 124 governs the establishment, composition, and appointment of Supreme Court judges. Judges of the Supreme Court hold office until the age of sixty-five, and Parliament cannot alter their service conditions to their disadvantage after appointment – a protection designed to prevent political pressure through threats to job security or pay. Their salaries are charged to the Consolidated Fund of India, meaning they do not depend on annual parliamentary appropriation. Removal of a judge requires a special majority in both Houses of Parliament – an extremely high threshold that prevents arbitrary dismissal.

Article 121 places a clear restriction on parliamentary debate: no discussion shall take place in Parliament with respect to the conduct of any judge of the Supreme Court or a High Court in the discharge of duties, except upon a motion for the judge’s removal. This provision prevents elected representatives from using the floor of Parliament to intimidate or discredit sitting judges. Article 211 extends the same protection to State Legislatures with respect to High Court judges.

Article 129 designates the Supreme Court as a court of record with the power to punish for contempt – ensuring the dignity and authority of judicial orders are not undermined. Articles 124(7) and 220 prohibit retired judges from practising in courts where they previously presided, reducing potential conflicts of interest.

The collegium system and the ongoing tussle over appointments 🔗

One of the most contentious chapters in the story of Indian judicial independence involves the question of who appoints judges. On its face, Article 124 provides that appointments are to be made by the President of India in consultation with the Chief Justice of the Supreme Court. However, the word “consultation” was never defined, leaving enormous room for interpretation – and executive encroachment.

From the 1950s through the 1970s, the Supreme Court retained considerable control over judicial administration. But tensions escalated during the Emergency (1975-1977), when the Indira Gandhi government took direct aim at judicial autonomy – superseding senior judges in Chief Justice appointments and attempting to pack the judiciary with pliable judges.

The constitutional response came through a series of landmark cases. In the First Judges Case (S.P. Gupta v. Union of India, 1981), the Supreme Court held that the executive had primacy in appointments. But in the landmark Second Judges Case (1993), the Court reversed this position and established judicial primacy. The collegium system emerged through judicial interpretation rather than constitutional amendment – under it, the Chief Justice of India along with the four senior-most Supreme Court judges collectively recommend appointments, significantly limiting executive control.

In 2014, Parliament attempted to dismantle the collegium through the 99th Constitutional Amendment, which created the National Judicial Appointments Commission (NJAC) – a body that included the Law Minister as a member. In 2015, the Supreme Court struck down the 99th Amendment as unconstitutional, holding that it violated the basic structure of the Constitution by compromising judicial independence. The NJAC judgment reaffirmed that executive participation in judicial appointments, in any form that undermines judicial primacy, is constitutionally impermissible.

The basic structure doctrine: independence as an inviolable principle 🔗

The single most powerful judicial articulation of India’s commitment to an independent judiciary came from Kesavananda Bharati v. State of Kerala (1973) – a case decided by a 13-judge bench of the Supreme Court in a 7:6 majority. The case arose from a dispute over Kerala’s land reform laws, but its implications were constitutional in the deepest sense.

The Court introduced the basic structure doctrine: while Parliament has the power to amend the Constitution under Article 368, it cannot alter or destroy its fundamental features. The basic structure includes supremacy of the Constitution, rule of law, separation of powers, federalism, judicial independence, and fundamental rights – none of which can be legislated away, regardless of the majority in Parliament.

This doctrine had immediate and far-reaching consequences. The basic structure doctrine holds that certain fundamental features of the Constitution, such as the supremacy of the Constitution, the rule of law, and the independence of the judiciary, cannot be amended or abrogated by Parliament through a constitutional amendment. In practical terms, this means any law or amendment – no matter how democratically passed – that strikes at the heart of judicial independence is void.

The doctrine was subsequently invoked in Minerva Mills v. Union of India (1980) to strike down provisions of the 42nd Amendment that had tried to curtail judicial review, and in I.R. Coelho v. State of Tamil Nadu (2007) to subject even laws placed in the Ninth Schedule to a basic structure test. The NJAC’s invalidation in 2015 followed the same constitutional logic.

From colonial subordination to constitutional primacy: the big picture 🔗

The transformation of India’s judiciary – from colonial instrument to constitutional guardian – reflects one of the most significant institutional shifts in the country’s democratic history. Under British rule, the judiciary and the executive were deliberately fused, with courts serving imperial administration rather than justice. The independence movement brought with it a vision of justice that would serve ordinary Indians rather than colonial masters, and the Constitution of 1950 gave that vision institutional form.

Today, the Indian judiciary comprises the Supreme Court at the centre, High Courts at each state, and district courts at each district, functioning as a unified hierarchical system. Through constitutional provisions protecting tenure, salary, and conduct from political interference – and through landmark judgments establishing the basic structure doctrine and the collegium system – the judiciary has progressively insulated itself from executive dominance.

That said, the journey is not complete. Questions about transparency in judicial appointments, post-retirement appointments of judges to government positions, and the sheer volume of pending cases continue to shape debates about whether India’s judiciary is as independent in practice as it is in principle. The International Commission of Jurists, in its 2025 report on judicial independence in India, noted that while the judiciary is nominally constitutionally insulated, significant scope for external, including executive, influence remains.

The evolution of judicial independence in India is, ultimately, a story about the ongoing negotiation between state power and constitutional principle – a negotiation that is very much alive today.

What do you think? Given that the collegium system operates without a formal statutory framework and relies on internal conventions, does it adequately protect judicial independence – or does it risk replacing executive influence with judicial insularity? And if the basic structure doctrine is not explicitly written into the Constitution’s text, what is its democratic legitimacy when used to strike down laws passed by elected majorities?

References

1. https://www.clearias.com/history-of-indian-judiciary/
2. https://www.nextias.com/blog/judicial-system-in-british-india/
3. https://polsci.institute/constitutional-gov-democracy-india/evolution-judiciary-india-colonial-modern/
4. https://www.legalserviceindia.com/article/1138/Judicial-System-Before-1947.html
5. https://indialawyers.org/the-evolution-of-the-indian-judiciary-from-colonial-era-to-the-present-day/
6. https://www.apnilaw.com/upsc/indian-constitution/article-124-establishment-and-constitution-of-the-supreme-court/
7. https://www.gktoday.in/article-121/
8. https://www.icj.org/wp-content/uploads/2025/02/Judicial-Independence-in-India.pdf
9. https://www.ensureias.com/blog/current-affairs/judicial-appointments-in-india-independence-diversity-and-institutional-reform
10. https://www.delhilawacademy.com/parliament-124-124a-njac-explained/
11. https://en.wikipedia.org/wiki/Kesavananda_Bharati_v._State_of_Kerala
12. https://vajiramandravi.com/upsc-exam/kesavananda-bharati-case/
13. https://judgments.ecourts.gov.in/KBJ/?p=home/intro