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Independence of Judiciary: A Questionable Affair

In India there is democracy, and a democratic form of government is taking all the decisions as per the guiding principles of the constitution. The constitution of India is the Supreme law of the country which has three organs i.e legislature, executive and judiciary. So therefore, there is a rule of law in the country which makes the judiciary independent. It means that the legislature and executive must not interfere in the working of the judiciary. By this judiciary will be able to work more effectively and pass unbiased decisions.

The judiciary (judges) could perform its functions without any fear or any favour. The main aim of this independence is to provide justice which could have been called a just decision (without any influence). The first person who propounded the idea of independence of the judiciary was Montesquieu, who was a French philosopher. Also, he gave the concept of separation of power between the organs of the government (legislature, executive and judiciary).

India also adopted the theory of separation of power by Montesquieu. In India, the constitution does not state explicitly the separation of power but the rule of law and independence of the judiciary are essential features of the constitution.

Independence of the judiciary is a sin qua non for an effective democratic system. It ensures rights and is responsible for the stability of the democracy[2] An impartial judiciary can help in the protection of the rights of individuals and can provide justice without any fear or favour. The judiciary is considered a protector of rights as it strikes down those laws which are known to be void. For the rule of law to prevail, judicial independence is of utmost importance.

The independence of the judiciary also needs to be constantly guarded against unexpected events and changing social, political, and economic conditions; it is too fragile to be left unguarded[3]. In India, the independence of the judiciary has been subject to a long heated debate for many years. Both the people who are in favour and against have a different opinions regarding the independence of the judiciary.

Meaning of independence of the judiciary

Independence of the judiciary means that the legislature and executive must not restrain the judiciary from work and the judiciary could fairly do justice. Also, any other organ should not interfere in judiciary decisions and the judiciary can do justice without any favour or fear. However, the independence of the judiciary is not a new concept it is there in the Separation of power which states that there should not be a concentration of power in a single body.

It ensures that the exercise of judicial power that is unhindered by other branches. So, primarily it means independence of the judiciary from the executive and legislature. But the independence of the judiciary does not mean that accountability is absent. The judiciary is part of the democratic system of the country so it is accountable to the people of the country.

The independence of the judiciary does not mean the creation of anonymous institutions which is free from the influence of legislature and executive but the purpose to make it free from any influence is to solve disputes according to the principles of law and provide justice to all. And independence of the judiciary is for every judge. But whether such independence will be ensured to the judge only as a member of an institution or irrespective of it is one of the important considerations in determining and understanding the meaning of the independence of the judiciary.[4]

Historical background
Due to the prolonged British rule in India and a newly formed democracy, there was always a concern and thoughts in the mind that how the judiciary in India should function. Hence, an independent judiciary was the answer to this question. The concept of judicial independence came from England and Wales in 1701 under the Act of settlement. This statute formally recognised the principles of security of judicial tenure by establishing that High Court Judges and Lords Justice of Appeal hold office during good behaviour.[5]

Before 1701 senior officers hold office at sovereign pleasure but there are many cases where judges were failing to solve disputes to the wishes of the king or queen. So to remove the judge from his position the assent of the queen agreed with both houses of Parliament. In the UK, the judiciary cannot declare any unlawful law passed by the legislature as unconstitutional. But in India and USA, the judiciary is vested with the power of judicial review. They even can strike down that law as void or unconstitutional.

In India, Supreme Court has the power to declare a law void if it violates the basic structure of the constitution. Judicial independence serves as the foundation of rule of law and democracy. With this, the independent judiciary can ensure the protection of the rights and freedoms of people which leads to equal protection for all. The judiciary which is independent in nature can ensure stable democracy and economy in the nation. So by an independent judiciary, there will be a balance between the demands of individuals and norms of the society.

The essence of independence of the judiciary

It is important that each judge can decide cases based on the evidence presented by the law. The relevant facts and laws should be made based on judicial decisions. In this way, judges can discharge their constitutional responsibility and provide fair justice. The responsibility of the judiciary over its citizens and states has increased with the government's new policies.

So to protect the citizens from the unlawful act of government the independence of the judiciary is necessary. The principal role of the judiciary is to protect rule of law and ensure the supremacy of the law. One of the important functions that the judiciary is perform is to maintain stability in democracy and one could not convert it into a dictatorship. So for all of this, the judiciary should be free from all political pressures.

Constituent of independence of the judiciary

An important aspect of the independence of the judiciary is its constitutional position. Likewise, the constitution provides powers to the executive and legislature the same as it provides power to the judiciary. Constitution provides jurisdiction to courts, the appointment of judges procedure and the tenure of judges.

This constitutional position provides dignity to the judiciary. The constitution must ensure the administrative powers of the courts and their independence, control over administrative staff and preparation of a budget. It must prohibit ad hoc tribunals and the diversion of cases from ordinary courts, ensure the natural justice principle, ordain respect for and enforcement by the other branches of the government of court decisions, provide for separation of judges from the civil services, and prohibit diminution of judges service conditions.[6]

Judicial tenure and appointment must not be in the control of the executive. Extention beyond appointment is not consistent with judiciary Independence. Ad-hoc, temporary or part-time appointments should be avoided and could be seen in emergencies. So the procedure for this is the same as a regular appointment. The salary of judges must not be in the hands of the executive and legislature. Transfer of judges without their permission is not considered a valid transfer and this power should not in the hands of the executive.

Therefore, impartiality and freedom from any influence must be removed so that justice could prevail effectively. Judges must be fearless and unbiased and not favour legislature or executive. The judges must also fairly reflect society. They should give due deference to the other branches of the government and refrain from deciding issues which squarely fall within the exclusive domain of the legislature or the executive.

It is, however, doubtful whether the judges should resort to the political questions doctrine to deny access to the courts, particularly in matters of fundamental rights.[7] Judges must be also free from directive guidelines or any pressure from fellow judges. In matters of appointment and promotion, the lack of dissent from judges can hinder the independence of the judiciary. Accountability of judges is one of the controversial issues when it goes to the independence of the judiciary.

The objective of independence of the judiciary

The independence of the judiciary is necessary for a democratic structure. In India, the power distribution is between three organs of government ( legislature, executive and judiciary). The power of the judiciary is not less than the legislature and the executive each organ has equal power and they can check each other this system is known as check and balance.

The judiciary could work on constitutional principles and can work over the democratic system. The constitution does not explicitly talks about the separation of power but it does provide the distribution of power to see that one organ does not interfere with the other. The distribution of power in the judicial system is free from internal as well as external pressures. The judiciary upholds the rule of law along with democracy and safeguards the rights of citizens.

The judiciary has power which is the judicial review which meant the powers of the Supreme Court or high court to check the constitutional validity of any law. If the law fails to follow constitutional guidelines or principles so the court can declare it unconstitutional. The judicial review is nowhere mentioned in the Constitution. The writ power and power of judicial review make the judiciary more powerful.

So basically it means the judiciary can interpret laws passed by the legislature ( if unlawful) to protect the rights of citizens. The introduction of public interest litigation makes the judiciary power to safeguard the rights of individuals. So the need for the judiciary Independent and impartial to dispense justice without fear or favour or affection to provide justice and the cordial creed of the constitution. The judiciary should perform its functions actively and its citizens should also need to be vigilant about their rights. Judiciary could provide social justice through a proactive-oriented approach.

Constitutional provisions
The constitution of India is Supreme law of the land. It is the source of different organs and powers of the state. But these organs are subject to limitation. In India, there is a parliamentary form of government which do not make a clear demarcation between legislature and executive but maintain a clear distinction between them and the judiciary.

The Indian Constitution specifically directs the state "to separate the judiciary from the executive in the public services of the State.[8] Though Indian Constitution doesn't explicitly talk about judiciary Independence this is incorporated into various provisions of the Indian Constitution. Rule of law and independence of the judiciary is the basic feature of the constitution and one cannot separate them even not through a constitutional amendment.

This was observed in S.P. Gupta v Union of India; AIR 1982 SC 149. The nature of the Indian Constitution is not clear about its unitary or federal form but it provides a federal structure with Union and states. The central and state have different powers as per their jurisdiction. The judiciary has a single pyramidal structure with the subordinate courts at the bottom, the High Courts in the middle, and the Supreme Court at the top.

For funding and some administrative purposes, the subordinate courts are subject to regulation by the respective States, but they are basically under the supervision of the High Courts.[9] The High Courts are basically under the regulative powers of the Union, subject to some involvement of the States in the appointment of judges and other staff and the finances.[10]

The Supreme Court is exclusively under the regulative powers of the Union.[11] All the courts can solve disputes according to state and central laws. The unitary character of the judiciary is not an accident but rather a conscious and deliberate act of the constitution makers for whom a single integrated judiciary and uniformity of law were essential for the maintenance of the unity of the country and uniform standards of judicial behaviour and independence. [12]

The Supreme Court

The Supreme Court of India comprises the chief justice and thirty other judges. These judges are appointed by the President of India after consultation with judges of the supreme court and of the high courts of the state. The Supreme Court of India is the highest judicial court. This court is the final appeal court in the country. For the appointment of judges, the chief justice is the person who is consulted. The retirement period for judges starts after 65 years of age.

But they can be removed earlier also the process of removal can be possible on the grounds of misconduct or incapacity of the Judge by the order of the president with a special majority in the Parliament. Before entering office judges take an oath, to, among other things, perform their duties without fear or favour, affection or ill will, and to uphold the constitution and the laws.[13] This court hears appeals against the judgement of high courts and settles disputes between unions and provinces.

Supreme Court can take cases on its own this is commonly known as suo moto. The laws made by the Supreme Court are binding upon all the courts as well as on the union and state. The judgments and opinions of the Court are given in the open and with the approval of the majority of judges. The differing judges may write dissenting or separate opinions.[14] Administrative expenses of the court such as salaries and pensions of the judges and other staff are taken from the consolidated fund of India and can be altered by the Parliament.

The High courts

The constitution provides for a High Court for each State, though Parliament is also authorized to establish a common High Court for two or more States or two or more States and a Union Territory.[15] The highest judicial court in the state is the high court. After the Supreme Court, it is the highest court. High court judges are appointed by President after consultation with the chief justice of India, the governor of the state and the chief justice of the high court.

The high court judges can function till the age of 62. They hold this tenure on basis of good behaviour and can be removed in the same manner in which the Supreme Court Judge can be removed. 25 high courts are working in different states of India. Every judge of the high court would take a similar oath to Supreme Court. The salaries and pensions of high court judges are mentioned in the Constitution and can be altered by Parliament. High court judges may be transferred from one high court to another.

The high court has original and appellate jurisdiction and can issue writs if fundamental rights are violated. Every High Court has the power of superintendence over all courts and tribunals within its territorial jurisdiction and of withdrawal of cases involving substantial questions of law relating to the interpretation of the constitution.[16] Same to the Supreme Court The administrative expenses like salaries, and pensions of judges of the high court are taken from the consolidated fund of the Indian state.

Subordinate courts

In this category the highest court in District Court. The Governor of the state in consultation with the high court appoints District Court Judge. The governor of the state along with the high court judge appoints the district judge. Only a person who is either already in the legal service of the Union or of the State or has been an advocate for at least seven years and is recommended by the High Court can be appointed a district judge.[17]

These courts dispense justice at the district level. These courts are under the control of high courts present in the states. And the decision by District Court is subject to appeal and the appeal went to the high court. The control of the District Court and courts below it, like the position and promotion of judges vested in the hands of the high court. The Governor of a State may apply these provisions even to the magistrates in that State.[18]

Cases where the principle of independence of the judiciary is laid down:

  • In the case of Supreme court Advocate on Record Association and other vs Union of India ( 1993), the court observe that the independence of the judiciary is important to have efficient democracy and could able to function in a good way. And stated that the powers and rights of the legislature and executive should not hamper the functioning of the judiciary.
  • In the case of SP Gupta vs Union of India ( 1982), the court held the judges who are sitting to uphold the law must be working in a fearless way which is the basic feature of the independence of the judiciary.

Appointment and transfer of judges

The judiciary is one of the main pillars of democracy and helps in maintaining the smooth functioning of democracy. Judges are the main aspect of the judiciary. Various provisions of the Indian Constitution are there for the appointment of judges and these need to be followed while the appointment.

Article 233[19] of the constitution deals with the appointment of district judges.

To be appointed as district judge certain qualifications are needed which are as follows:

  1. The person to be a practising advocate for 7 years or more
  2. The person should not be working in government or state services
  3. The person needs to be recommended by the high court for employment

The independence of the judiciary is an essential part of the Indian constitution. This feature strengthens the effectiveness of Indian democracy. In a democratic set-up the need there is a need for independence of the judiciary. As such Indian constitution does not explicitly states the independence of the judiciary but in keshavanada Bharti's case this is considered a part of the Basic Structure of the Indian constitution. Through various Supreme Court judgments, this concept is becoming stronger and more relevant in the contemporary world.

  1. *
  2. See Philip S. Anderson, Foreword to Symposium, Judicial Independence and Accountability, 61 LAW & CONTEMP. PROBS. 1
  3. (Summer 1998); Stephen G. Breyer, Comment, Liberty, Prosperity, and a Strong Judicial Institution, 61 LAW & CONTEMP. PROBS. 3 (Summer 1998); see also K. T. Shah, CONSTITUENT ASSEMBLY DEBATES, vol. VIII, 218-19; the preamble to UN Basic Principles on the Independence of the Judiciary; para. I of the Draft Universal Declaration on the Independence of the Justice, reprinted in CIJL Bulletin, No. 25-26, at 17, 39 (Apr.-Oct. 1990); ABIMBOLA A. OLowOFOYEKu, SUING JUDGES 3 (1993); THE FEDERALIST, No.78, at 505 (Alexander Hamilton); Archibald Cox, The Independence of Judiciary: History and Purposes, 21 U. DAYTON L. REv. 565,566 (1996); cf. G. N. Rosenberg, Judicial Independence and the Reality of Political Power, 54 REV. OF POL. 369, 398 (1992).
  4. On the fragility of the independence of the judiciary see the recent controversy that arose in the United States on the judgment of Judge Harold Brier in United States v. Bayless, 913 F. Supp. 232 (S.D.N.Y 1996), vacated on reconsideration, United States v. Bayless, 921 F. Supp. 211 (S.D.N.Y. 1996).
  5. See Siracusa Draft Principles on the Independence of the Judiciary, reprinted in CIJL Bulletin No. 25-26, at 59 (Apr.-Oct. 1990)
  6. From judiciary.UK
  7. Article 92 vests the judicial power of 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.
  8. See Street, Judicial Independence, supra note 10, at 636 (supporting the non- involvement of the courts in the political questions). But see BARENDT, supra note 7, at 147 (asserting a more active role for courts in deciding political questions).
  9. Indian Constitution article 50.
  10. Indian Constitution article 233 to 235
  11. See art. 229, schedule. VII.
  12. See art. 146, schedule. VII.
  13. See AUSTIN, supra note 6, at 184-85.
  14. See Indian constitution art. 124, � 6 & schedule. III.
  15. See Article 145
  16. See articles 214, 231.
  17. See article. 228
  18. See Article 233(2)
  19. See article 237
Written By: Jitender Kothari - BA.LLB, IV semester student, Trinity institute of professional studies, Dwarka affiliated to GGSIPU

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