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An Article on Independence of Judiciary





Ø THE JUDICIARY – INTRODUCTION :-

The Judiciary is regarded as the watchdog of the rights and freedoms of the people and also of the constitution. It is one of the three branches of Government; the other two are the Legislature (or the Parliament) and the Executive. These three organs of the government are closely associated to one another, as the Legislature makes the law, the Executive implements them and the Judiciary interprets them. Each of these three branches of government has to work independently in spite of the fact that they are inter-connected with each other. The principle work of the judiciary is to be the adjudicator (arbitrator) of disputes. It is the branch of the government whose task is the administration of justice and is empowered to decide legal disputes. The primary role of the judiciary is to protect rule of law and ensure supremacy of law. It secures rights of the individuals, settles disputes in accordance with the law and ensures that democracy does not give way to individual or group dictatorship. Garner has rightly said, “A society without legislative organs is conceivable and indeed, fully developed legislative organs did not make their appearance in the life of the state until modern times, but a civilized state without judicial organs is hardly conceivable.”[1] Thus, the judiciary is an indispensable part of a democratic state and is essential for maintaining peace and imparting justice, and also for the enjoyment of fundamental rights.



Ø MEANING OF INDEPENDENCE OF JUDICIARY :-

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 executive or legislative. Not only this, judges must be independent and free of their colleagues and superiors in discharge of their judicial functions.


Ø NEED AND IMPORTANCE OF INDEPENDENCE OF JUDICIARY :-

President Taft of U.S.A., while emphasizing the independence of judiciary said, “As between the individual and the State, as between the majority and the minority, as between the powerful and the weak, financially, politically, socially, courts must hold an even hand and give judgement without fear or favour.”[2] Thus only an impartial and independent judiciary can stand as a defensive wall for the protection of the rights of the individuals and mete out even handed justice without fear or favour. An independent judiciary is the 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 (Judicial Review). 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 judiciary is considered essential so that the fundamental rights of the people are protected. That is why in democratic countries, judiciary is considered as 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. This is the position in China, North Korea, Laos, Vietnam and other communist countries. Thus the independence and impartiality of the judiciary is one of the attributes of the democratic system of the government.


Ø CONDITIONS OR FACTORS WHICH MAKE THE JUDICIARY INDEPENDENT[3]:-


In order to make the Judiciary independent, the following methods are adopted in different countries :-

1. Mode Of Appointment Of Judges :-


In advanced countries of the world, generally three modes are adopted for the appointment of the 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.

The election of the judges by the Parliament or the legislature is seen in Switzerland. The Judges of the Federal Tribunal are elected there by the National Assembly for six years.

The third mode of appointment of the judges is appointment by the Head of the State (the King or the President). This system of appointment of the judges is adopted in India, England, the United States, Canada, Australia, Japan and South Africa. However, the judges are free from all influence after their appointment.

2. Long Tenure :-

For the independence of judiciary, a long tenure of the judges is as essential as a good mode of their appointment is. If the tenure of the judges is short, its consequences will be bad. In case of a short tenure, the judge will remain busy in planning for his re-election. If the tenure is short, the judge is unable to comprehend fully the various complications of the law.


3. 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.


4. Adequate salary to 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 and they do not amass wealth by adopting corrupt practices. If the judges are adequately paid, able persons will be attracted towards this profession and they will enjoy an honourable place in the society. If they are not aid adequately, able persons shall not be attracted towards this profession and they will have no place of prestige in the society. There should be a fairly high salary for the office of a judge so that his social position and his mode of living inspire confidence and attract really capable and deserving men from the bar.


5. High Qualification of the Judges :-

For the independence of judiciary it is also important that the judges should be able persons since only an able judge can give correct decisions and express his views freely. Incapable judges are swayed by the arguments of the pleaders and they give wrong decisions.


6. Separation of Judiciary from the Control of Executive :-

For the independence of judiciary, Montesquieu emphasised that it should be free from the control of the executive. In ancient and middle ages the judiciary was under the control of the executive. Hence, there was violation of justice and the kings decided the cases arbitrarily. 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.

7. No legal practice after retirement :-

The judge should not be allowed to do legal practice after retirement, because his previous colleagues would favour him in their cases in which he appears as a lawyer. In Article 220 of the Indian Constitution says, “No person, who after the commencement of this Constitution, has held office as a permanent Judge of a High Court shall plead or act in any court or before any authority in India except the Supreme Court and the other High Courts.”[4]

Ø CONCLUSION :-

An Independent Judiciary is the sine qua non of a democratic system of government and is important for the purpose of fair justice. Judicial Independence means 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 take a fair decision and there may be an element of bias on the part of the judges. In order 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 Judiciary play a central role in upholding the law and protecting the rights of individuals. Judiciary is the guardian of the constitution and defender of fundamental rights of the people. For the performance of this role, it is essential that the judiciary must be independent.

[1] James Wilford Garner, Political Science and Government 684 (American Book Company, New York, 1928).

[2] A. C. Kapur, Principles of Political Science (S. Chand & Company Ltd., Delhi).

[3] R. C. Agarwal, Political Theory:Principles Of Political Science (S. Chand & Company Pvt. Ltd., New Delhi, 2016).

[4] Article 220 in The Constitution of India.


Author Details: Aafreen Naaz (Faculty of Law, Jamia Millia Islamia, New Delhi)

The views of the author are personal only. (if any)


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