File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Independence Of Judiciary: An Essential Feature Of A Thriving Democracy

India, considered as the world's youngest and largest democracy, is on the verge of developing into a robust democratic republic. A nation where all executive policies emphasize on progressive law-making and where the functioning of judiciary builds a prosperous civil society and guarantees the most deserving rights to the citizens of the country. A country which has its ideals protected in its Constitution.

To preserve the Rule of Law in any democracy, an independent judiciary is needed. The credibility of courts to address political and public policy issues is a key concern in a modern democracy. Political judicialization is the outcome of a shift in concerns regarding democratic legitimacy, both in the realm of institutional building and political culture. Separation of power of the organs of the government has emerged as a key determinant in the legitimacy of democracies, and it has become essential in garnering public support for democracy.

A democratic system is built on the doctrine of separation of powers. It is a concept of the division of state power, first proposed by Montesquieu. From its foundations in the state of nature, and the Social Contract Theory, as defined by Hobbes, Locke and Rousseau , the State develops into what we consider to be a democratic state. The implementation of Montesquieu's Doctrine of Separation of Powers advocated a State in which man loses natural liberty and gains civil liberty.

The division of political power was attributed primarily to three branches, each having a different function: the Legislature, or the body which makes laws, the Executive, the body that administers laws and , and the Judiciary, which interprets the law. In order to safeguard the rights of people suppressed by the state, he was a strong supporter of personal freedom. Montesquieu felt that applying the Doctrine would limit the consolidation of wealth in one branch of government, which he saw as a danger to political and personal liberty. There can be no personal freedom if the administrative and legislative powers were concentrated in the same organ, because the same branch would pass restrictive laws and implement them out undemocratically.

The lives and freedom of people in the State would be compromised if judicial and legislative powers were exercised concurrently, because the judges would then be the legislators. If judicial and executive power were unified, the judges may resort to violence and persecution since they would be interpreting the law as well as having the authority to implement it. Finally, and most disastrously, if a single body possessed all three functions-enacting laws, enforcing them, and interpreting them-it would result in a totalitarian, dictatorial form of leadership that would finally mark the end of the very essence of the State. Montesquieu's opinion may be stated as power tends to corrupt, and absolute power tends to corrupt absolutely.

He argued that liberal democracy in a state is achievable when limitations on the use of power are imposed. He urged for the government's duties to be divided and allocated to independent organs in order to confine each organ to its own area of activity and allow these organs to operate freely with one another. As a result, the idea of judicial independence was established.

In all modern democracies, the notion of an independent judiciary, which emerged in the early 18th century from the doctrine of Montesquieu, remains relevant. The framers of the Indian Constitution realised it was important for the independence of the judiciary to be included in the Indian Constitution.

The foundation of our constitution was judicial independence. The separation of powers was considered a cornerstone of the inviolable basic structure. of our Constitution. The powers of selection and dismissal and all other subordinate judicial functions should come under the judiciary, and the government shall only grant or issue formal orders. In consultation with the Chief Justice of the Court to which the appointment is issued, the President is authorised to appoint higher rank judicial officers.

The Indian Constitution guarantees for a judiciary, freedom from the influence of the executive or legislative, so that it can operate in its own domain.Articles like 124, 126, 127, 214, 216, and 217 of the Constitution established the Supreme Court as well as the High Courts in each state, as well as their composition and removal of judges. According to Article. 235, the subordinating courts fall under the authority of the High Court. The Governor of the State shall appoint judges to these courts in consultation with the High Court. Unfortunately, like with most of the cherished principles enshrined in the Indian Constitution, there is a significant gap between the independence of the judiciary promised in the Constitution's Articles and its actual execution.

In the case of SP Gupta v. Union of India The Supreme Court, In what is known as the 1st Judges case, the Supreme Court considered the issue of transferring a judge from one High Court to another without his permission and without the approval of an ad hoc judge. The majority of the seven judges upheld the executive's authority to decide these matters and dismissed the petitions.

The appointment of judges was not the concern, but the majority decision determined that consultation as defined in Articles 124(2) and 217 of the Constitution does not mean Concurrence and held that even if the Chief Justice disagreed, the executive may nominate a judge. Justice Bhagwati ruled that the consultation with the Chief Justice meant collegium to advise the Chief Justice .

The first indication of the presence of judicial independence is the process of selecting and appointing judges to positions at the Higher Judiciary. The policy regarding appointment or selection of judges in India is very ambiguous. In India, a collegium system comprising the Supreme Court's most senior judges decides the composition of judges in the Supreme Court and the High Courts. This system is not aligned to progressive systems worldwide, wherein executive and judicial consultations result in the process of selecting judges.

The rationale for appointing members of the higher judiciary should be that the judiciary must not be given full liberty and left unchecked, because this would result in authoritarianism, wherein the top five members have all of the major decision making powers pertaining to the judiciary.

The tenure of the judges is also another important issue in the context of the independence of the judiciary. Judicial independence is fostered by dynamic judicial systems across the world by providing life tenure to judges, which imparts judicial discretion and allows the Judiciary to adjudicate in compliance with the rule of law and free from the influence of powerful vested interests.

However, The drawback of long-tenure judges is that it may result in incumbency and hinder the adjudicatory process from adjusting with changing times. It is essential that the judiciary be flexible and responsive to changing times. Long-term judges are and are viewed as the cornerstone of judicial independence in countries across the world, including India. In order for this policy to function, a structure that supports it must be in place.

Higher judiciary could perhaps be seen as an exclusive club, in which the individual liberties of the members must be secured, so that the highest judicial standards are maintained. It is necessary to make sure fairness between members of the judiciary and bar members, not to hear any cases in which the judges or their families may have vested interests, not to share their opinion publicly on matters that have been adjudicated before them, to disclose possessions and assets, and to maintain the transparency in financial matters. This is important in terms of establishing judicial independence through restraint on the part of members of the judiciary.

The obligation entrusted in the judiciary to safeguard and impart the ideals enunciated in the Constitution is also essential here. Under the pretense of constitutional interpretation, the judiciary is often seen in conflict with the legislature and the executive for intruding in their legislative and executive actions.

Despite our Constitution's promise of judicial independence, certain unsettling facts regarding the nomination of judges have emerged in recent years. In 2014, Justice Markandey Katju, a former Supreme Court judge, said that three previous Chief Justices of India made improper compromises by approving the appointment of a corrupt judge under government pressure. Justice Katju alleged that under political pressure from a Congress Minister, Justice Lahoti granted an extended term to one of the judges.

Another incident happened when Former CJI Ranjan Gogoi was appointed to Rajya Sabha as a member of eminence by President Ram Nath Kovind, four months after his retirement. After retiring from the Supreme Court, the Supreme Court Judge should not accept alternative government employment.

A large number of High Court cases involve the government, and the average citizen may feel that a Judge who wishes to be nominated by the government after retirement is not doing his duties with the detachment that is required of a Judge in a case in which the government is a party. This practise is detrimental to judicial independence and should be stopped.

There is a call for judicial restraint in accordance with the doctrine of the separation of power in what is considered as judicial activism to prevent a judicial system from usurping the powers of the Executive or the legislature. It is essential for an all-pervading judicial independence to provide the judiciary unhindered powers of judicial review within the limits of the Constitution and also for judicial activism within the limits of the Doctrine of Separation of Power.

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Copyright: An important element of Intel...

Titile

The Intellectual Property Rights (IPR) has its own economic value when it puts into any market ...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Law of Writs In Indian Constitution

Titile

Origin of Writ In common law, Writ is a formal written order issued by a body with administrati...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly