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.
NEED AND IMPORTANCE OF INDEPENDENCE OF JUDICIARY: –
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. 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.
FACTORS WHICH MAKE THE JUDICIARY INDEPENDENT: –
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.
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. If the judges are adequately paid, able persons will be attracted towards this profession and they will enjoy an honourable place in the society.
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. 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 and 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.”
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.
Ideal Institute of Management and Technology, 2nd year (BALLB)