The Independence of judiciary plays a major role in giving fair justice. Any interference of any organ of the country, in the proceedings of the judiciary, makes the decision biased. The independence of judiciary in India protects fundamental rights and protects our constitution of India. We will discuss how and why the judiciary is independent and the doctrine of Separation of Powers.
Meaning of Independence of Judiciary
The meaning of the term “the independence of judiciary” is not clear until now. The constitution of India through the way of its article just talks about independence, but even the constitution does not define the actual meaning of the term.
In simple terms, Independence of Judiciary means that-
- The other organs of the government, i.e., the Executive and Legislature must not restrain the functioning of the judiciary in such a way that it is unable to distribute justice;
- The other organs of the government should not obstruct or stand in the way of the decisions of the judiciary;
- Judges must be able to perform their functions without terror (fear) or favour. In other words, judges should be autonomous and free from restrictions, temptation, influence, constraints and threats direct or indirect from the executive or legislative. Not only this, judges must be independent and free of their colleagues and superiors in the discharge of their judicial functions.
Independence of Judiciary
The independence of judiciary means the independence of the institution of the judiciary and the judges who are the part of the judiciary. There is only the base of the independence of judiciary is the doctrine of separation of powers.
The Doctrine of Separation of Powers
There are three organs in the constitution there are given the three organs of the country which are executive, legislature and the Judiciary. The doctrine of separation of powers was brought in the constitution to have a check or to make the boundaries for the functioning of these three organs.
The doctrine of separation of powers gives the power to the judiciary for acting as the guardian for the protestation of law and to check the working of the legislature. With this doctrine of separation of powers, all three organs do not interfere in the functioning of each other and do their tasks.
Factors that Make the Judiciary Independent
In order to make the Judiciary independent, the following methods are adopted in different countries:
Mode of Appointment of Judges
In advanced countries of the world, generally, three modes are adopted for the appointment of judges. These are (a) Election by the people; (b) Election by the Legislature; (c) Appointment by the Executive.
The system of the appointment of judges by the people is in vogue in many states of America In the Indian states of Assam, Bihar and Maharashtra, the Presidents of the Judicial Panchayats are also elected by the people.
Long Tenure
For the independence of judiciary, the long tenure of the judges is as essential as a good mode of their appointment. If the tenure of the judges is short, its consequences will be bad. In case of short tenure, the judge will remain busy planning for his re-election. If the tenure is short, the judge is unable to comprehend fully the various complications of the law.
Security Of Service
For the independence of judiciary, it is essential that there should be security of service for the judges and the executive should not remove them at will. If the judges are under constant fear of being removed from office, then they will not give decisions against the executive (government) even if it is wrong. Thus there will be no protection of the constitution and fundamental rights of the people.
Adequate salary for the Judges
In order to make the judges independent it is necessary that they should be paid adequately so that they are able to maintain a good standard of living. If the judges are adequately paid, able persons will be attracted towards this profession and they will enjoy an honourable place in society.
Separation of the Judiciary from the Control of the Executive
For the independence of judiciary, Montesquieu emphasised that it should be free from the control of the executive. In the ancient and Middle Ages, the judiciary was under the control of the executive. It destroyed the freedom of the people. Therefore, today efforts are made to free the judiciary from the control of the executive, so that the judges may give decisions fearlessly.
Need and Importance of Independence of Judiciary
An impartial and independent judiciary can stand as a defensive wall for the protection of the rights of individuals and mete out even-handed justice without fear or favour. An independent judiciary is a sine qua non of a democratic system of government. The judiciary is the protector of the constitution and it has the power to strike down particular laws passed by the Parliament if it believes that these are unconstitutional. Also, for the rule of law to prevail, judicial independence is of prime necessity.
Keeping in view the functions of the judiciary, it is essential that the judiciary should be made autonomous and independent. If the judiciary is not sovereign, it will not be able to give decisions against the government and protect the fundamental rights and the constitution. Today in all democratic countries, the independence of the judiciary is considered essential so that the fundamental rights of the people are protected. That is why in democratic countries, the judiciary is considered the custodian of the freedom of the people and also of the constitution. In countries, where there is no democracy, the judiciary is not independent or free, and the fundamental rights of the people are not protected.
The need for the independence of the judiciary is upon the following points, which are:
- The judiciary makes sure that all the organs of the country are functioning within there limits and according to the provision which is given under the Constitution of India.
- It acts as the guardian of the fundamental rights and the constitution of India and also aids in securing the doctrine of separation of powers.
Interpreting the provisions of the Constitution
It was known to the framers of the Constitution of India that there would be the arisen of ambiguity in the future with the provisions of the Constitution. They ensured that the judiciary must be independent and competent to interpret the provisions in such a way as to clear or remove the ambiguity. They also ensure that the interpretation done by the judiciary must be unbiased, which means free from any pressure from other organs of the country. If the judiciary is not independent; the other organs may pressure the Judiciary to interpret the provisions of the constitution as they want.
Disputes referred to the judiciary
Everyone expected that the justice delivered by the judiciary must not be partial. If the judiciary will not be independent, the chances are there that the decision given by the judiciary may be biased.
What made the framers of our constitution make the judicial system independent?
The framers of the constitution at that time understood that there must be fundamental rights for the society and to guard and enforce those rights, there is the need for independence of the judiciary.
Constitutional provisions related to the Independence of Judiciary
There are many provisions given in our constitution that ensure the independence of judiciary:
Appointment of the Judges:
Article 124 of the constitution of India specifies that the Chief Justice of India shall be appointed by the president of India after consultation with the judges to the Supreme Court and High Courts. Further, for the appointment of other judges, the CJI must be consulted by the President of India. Thus article 124 of the Constitution prevents the executive from having completed discretionary powers for the appointment of judges because the President of India; cannot appoint any judge without consultation with other judges.
Until 1973
Until 1073, the senior-most judge of the SC was appointed as the CJI. But this rule was broken when Justice AN Ray was appointed as CJI when there were 3 more senior judges. In that case, the government pleaded that the word consult does not mean that the President of India is bound by the advice of other judges. He is free to make his own decision about this.
In the case of Union of India vs. Sankalchand Seth (1977), which becomes associated with the transfer of a Judge from one high court docket to some other court under article 222 of the Constitution of India, SC held that the President of India has the right to differ from the advice provided through the consultants.
Judges Transfer Case 1
In the case of SP Gupta vs. Union of India, the SC said that the most effective ground on which the decision of the government can be challenged is that it’s far based on mala fide aim and irrelevant attention. In doing so, it drastically reduced its strength in appointing the judges and gave control to the government.
Judges Transfer Case 2
This depend becomes raised again inside the case of SC Advocates on Record Association vs. Union of India. In this case, the SC overruled the selection of the S P Gupta case and held that in the depend on appointment of judges of high courts and Supreme Court; the CJ must have the primacy and the appointment of the CJ should be based totally on seniority. It besides held that the CJ needs to consult his two senior-most judges, and the advice needs to be made simplest if there is a consensus amongst them.
Judges Transfer Case 3
A controversy arose once more when the CJ advocated the names for an appointment without consulting with other judges in 1999. The president sought advice from the SC (re Presidential Reference 1999); and a 9 member bench held that a piece of advice given utilizing the CJI; without proper consultation with different judges isn’t always binding on the government.
As of now, because of the selection in Judges Transfer Case 2, the appointment of the judges in SC and HC are fairly unfastened from government control. This is a critical component that ensures the independence of judiciary.
Security of Tenure
The Constitution of India gives the security of tenure to the judges of the Supreme Court and High Courts. Once the judge appointed, he will continue to remain in the office till the age of retirement. The age of retirement for SC and HC judges are different.
Establishment and Constitution of Supreme Court
Article 124 of the Constitution of India provides the rules for the Supreme Court that every judge of the SC shall be appointed by the president of India by giving the warrant under his hand and seal after the consultation of the CJI and in the case of appointing the CJI the other judges of Supreme Court. The judge of SC shall hold office until he attains the age of 65 years.
Appointment and conditions of the office of a Judge of a High Court
Article 217 of the Constitution of India gives the power to the president of India for the appointment of judges of High Courts. The President of India shall appoint the judge of HC in consultation with the CJI. The judge of HC shall hold office until he attains the age of 62 years.
Impeachment
The Judges cannot be removed from office except by the order of the President of India. The grounds for impeachment are misbehaviour and incapacity. There must be a resolution passed by both the houses of parliament by a majority not less than two-thirds of the members of the house present and voting.
Salaries and Allowances
The salaries and allowances of the judges of all courts are also a factor that makes the judges independent. The salaries and allowances of the judges are fixed and are not subject to a vote of the legislature. The legislature cannot interfere in this matter. According to article 125 of the Constitution of India; they are charged on the Consolidated Fund of India in case of Supreme Court judges; and the Consolidated Fund of State in the case of High Court judges. (Art.125)
Conclusion of Independence of Judiciary
The Independence of Judiciary is the sine qua non of a democratic system of government and is important for the purpose of fair justice. Judicial Independence means the executive or legislature should not intervene in the functioning or decisions of the judiciary as well as judges could perform their duties without any fear or favour. In case of intervention, the judges may fail to make a fair decision and there may be an element of bias on the part of the judges. To make the judiciary independent, the mode of the appointment of judges should be good, their dismissal should be very difficult, their tenure should be long and they should be paid adequately. The Independence of the Judiciary plays a central role in upholding the law and protecting the rights of individuals. The judiciary is the guardian of the constitution and defender of the fundamental rights of the people. For the performance of this role, it is essential that the judiciary must be independent.
I conclude my article by saying; according to my knowledge, the Independence of the judiciary plays a major role in giving fair justice. There should not be any interference of any organ of the country in the proceedings of the judiciary so; they can make the judgment without any pressure and unbiased.