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Basic Principles on the Independence of the Judiciary

While the world's peoples affirm, among other things, in the United Nations Charter their commitment to creating the conditions necessary to uphold justice in order to foster international cooperation in advancing and encouraging respect for fundamental freedoms and human rights without discrimination.

While the Universal Declaration of Human Rights specifically upholds the rights to a fair trial by a legally appointed tribunal that is unbiased, independent, and competent, as well as equality before the law and the presumption of innocent.

While the International Covenants on Civil and Political Rights and on Economic, Social, and Cultural Rights both guarantee the exercise of those rights, the International Covenant on Civil and Political Rights additionally ensures the right to a speedy trial.

Even while there is often still a disconnect between those principles' guiding vision and the real world, while those ideals ought to serve as a model for the structure and operation of judicial systems worldwide and efforts ought to be made to completely implement them in practice, while it is the goal of judicial office regulations to empower judges to operate in line with those values, although judges have the final say on matters pertaining to people' lives, freedoms, rights, obligations, and property, in contrast, the Committee on Crime Prevention and Control was asked to prioritize developing standards pertaining to judges' independence by the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in its resolution 16.

Therefore, it is appropriate to first discuss the function of judges in the justice system and the significance of their appointment, education, and behavior, the following fundamental ideas were developed to support Member States in their efforts to safeguard and advance the independence of the judiciary. Governments should consider and uphold these principles within the parameters of their national laws and practices, and they should be made known to judges, attorneys, members of the legislative and executive branches, and the general public. The guidelines were primarily developed with professional judges in mind, but they also apply to lay judges when applicable.

Independence of the Judiciary:

  • The State shall ensure the independence of the judiciary and it shall be incorporated in the national Constitution or laws. All governmental and non-governmental organizations have an obligation to uphold and respect the judiciary's independence.
  • The court will make decisions about cases that come before it in an unbiased manner, based on the facts and the law, free from any constraints, inappropriate influences, inducements, pressures, threats, or interferences, direct or indirect, from any source or for any purpose.
  • Everyone has the right to have their case heard by regular courts or tribunals utilizing accepted legal practices. Tribunals cannot be constituted to replace the authority of regular courts or judicial tribunals if they do not follow the legally defined procedures.
  • The judiciary is entitled to and obliged by the concept of its independence to guarantee the fair conduct of judicial proceedings and the observance of the parties' rights.
  • Each Member State bears the responsibility of ensuring that the judiciary has sufficient resources to carry out its duties.

Freedom of Expression and Association:

  • Judges are entitled to the same freedoms of expression, belief, association, and assembly as other citizens under the Universal Declaration of Human Rights. However, in the exercise of these rights, judges must always conduct themselves in a way that upholds the dignity of their office and the impartiality and independence of the judiciary.
  • In order to advance their professional development, safeguard their judicial independence, and represent their interests, judges are permitted to organize and join groups of judges or other organizations.

Qualifications, Selection and Training

Candidates for judicial position must be honorable, capable people with the necessary legal education or experience. Any judicial selection process must provide protection against appointments made for unethical reasons. A candidate for judicial office may not be required to be a citizen of the country in question, but there may still be discrimination based on other criteria, such as race, color, sex, religion, political opinion, national or social origin, property, birthplace, or status, when choosing judges.

Conditions of Service and Tenure:
  1. The legislation must sufficiently guarantee judges' terms of office, independence, security, sufficient compensation, terms of service, pensions, and retirement age.
  2. Judges, whether appointed or elected, will always have tenure up until they reach a mandatory retirement age or, if one already exists, the end of their term in office.
  3. In cases when a system of this kind is in place, the advancement of judges ought to be determined by objective criteria, specifically skill, honesty, and background.
  4. Judiciary administration internally handles the assignment of cases to judges within the court to which they are assigned.

Professional Secrecy and Immunity:

  • With respect to their discussions and any private information they obtain while doing their duties—aside from in public proceedings—the judges will be held to a professional confidentiality standard and will not be forced to testify on such topics.
  • Judges should have personal immunity from civil actions for monetary damages for wrongful acts or omissions in the execution of their judicial powers, without prejudice to any disciplinary proceeding, right of appeal, or entitlement to compensation from the State, in accordance with national law.

Discipline, Suspension and Removal
  1. A charge or complaint brought against a judge in their official and judicial capacities must be handled properly, promptly, and in accordance with the proper protocol. A fair hearing is a right that will be granted to the judge. Unless the judge requests otherwise, the initial assessment of the matter will be kept private.
  2. The only grounds for suspension or removal of judges will be incapacity or behavior that makes them unable to perform their duties.
  3. All procedures pertaining to discipline, suspension, or removal must be decided in line with accepted guidelines for judicial behavior.
  4. An impartial review should be conducted before decisions made in disciplinary, suspension, or removal procedures are made.

The work that the legal system performs is quite challenging. As a result, the judiciary now possesses the judicial independence that the Indian Constitution mentions. The judges perform an outstanding job of delivering fair justice to the public. There will inevitably be others, though, who disagree with the choice made while doing this. Thus, this is the point at which the judiciary's independence is questioned. It is impossible to definitively establish whether outside forces have any impact over India's legal system. But the aforementioned case laws, together with instances of judges taking employment after leaving the bench, demand significant changes to the nation's legal system.

Article 124 of the Indian Constitution clearly stated that the President of India would appoint any judges to the Supreme Court in consultation with the Chief Justice of India, prior to the Supreme Court's conception of the collegium. This suggests that the authors of the constitution themselves believed the executive branch should be involved in the nomination of judges. It has become abundantly clear that the adoption of specific protections is necessary for all the elements of a democratic government.

Though the entire concept of the separation of powers was created to keep each branch independent of the other, the framers of the Constitution deliberately chose to keep the executive involved in the selection of the judiciary in order to prevent any abuse of power by a single branch of government.

To safeguard judges' judicial independence and enable them to exercise their judgment without hindrance to their personal or substantive independence, collegium governance should also be in place for the promotion or transfer of judges. Thus, it is imperative that the judiciary maintain its independence without imposing its will on the other branches of government.

Written By: Akanksha

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