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.
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
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.
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
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.
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
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
Law Article in India
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