INDEPENDENCE OF JUDICIARY

INTRODUCTION:

Independence of Judiciary means that the Judges of the Courts must be independent and impartial in the administration of justice. The judgments given by the judges shall not be affected by any fear or favor. Thus, other organs of the legal system of India such as Legislature, Executive, Bureaucrats, Political Parties, should neither influence nor threaten the decision-making process of the judges. The judges should have the liberty to adjudicate and give judgments as per their understanding of all the facts, evidence, and testimony given during the hearing of the case. Their decisions should be so fair and unbiased that they ensure the faith of the common masses in the judiciary. Judiciary is regarded as the custodian and protector of the Constitution. As the Supreme Court of India is the highest judicial organ and is entrusted to protect the fundamental rights of the people of India. In maintaining the independence of the judiciary, the hierarchy of the judicial system plays a vital role.. The Supreme Court of India is the apex court of appeal. Then comes the High Courts and the District Courts of every State. Then comes the Lok Adalat also known as the People’s Courts.

PROVISIONS IN THE CONSTITUTION FOR PROTECTING INDEPENDENCE OF JUDICIARY:

The Constitution of India has made several provisions to establish the independence of the Indian Judiciary. These provisions are as follows-

  • Appointment of Judges by the President with the consultation of legal experts– The judges of the Supreme Court and High Court are appointed by the President of India after consultation with the Chief Justice of the Supreme Court, the Governor of the State, the Chief Justice of the High Court and other judges of the Supreme Court and the High Court. The Appointment of the judges is not left to the unguided discretion of the Executive. Thus, the appointment of the judges by the Parliament or Cabinet has been avoided.
  • Tenure and Security– The judges of the Supreme Court and High Court enjoy the security of service. A judge of the Supreme Court stays in the office until he attains the retirement age of 65 years and a judge of the High Court stays in his office until he attains the age of 62 years. By giving the judges the permanent security of service, the Constitution has placed them beyond the purview of hire and fire policy that may be adopted by the Cabinet. Thus, the tenure of judges of the Supreme Court and the High Court is not dependent on the pleasure of the President. The judges cannot be arbitrarily removed by the President. The Impeachment process has to be followed for removing the judges.
  • Removal of the judges– The judges of the Supreme Court can be removed from his office only by an order of the President which is passed by him after an address by both houses of the Parliament. Further, this should be supported by a majority of the total membership of that House and also a majority of not less than two-thirds of the members of that house present and voting. A judge can be removed on the ground of incapacity or proved misbehavior by the judge.
  • Salaries and allowances– The Second Schedule of the Constitution has fixed the salaries and allowances of the judges. Once a judge is appointed his salary, allowances, privileges, and rights cannot be altered to his disadvantage. The salary of the judges is not subject to the vote of the Parliament or the Legislature. Thus, even if any new law is made by the Parliament after the appointment of a judge relating to his salary, the law cannot adversely affect a judge’s salary and allowances. However, when a Financial Emergency is imposed the President can reduce the salaries and allowances given to the judges.
  • Charge on Consolidated Fund– The salaries, allowances, and pensions that are paid to the Judges of the Supreme Court and High Court are charged on the Consolidated Fund of India and the States respectively. As the sum charged upon the Consolidated Fund is not put before the Parliament for voting the independence of the Judiciary is ensured.
  • Conduct of judge not to be discussed in Parliament– To ensure that the judges make judgments freely and without any pressure, the makers of the Constitution of India have forbidden any kind of discussion about the conduct of judges of the Supreme Court and the High Courts while discharging their duties in Parliament or State Legislature. The only exception to this is discussion is allowed when a motion of removal of a judge is to be decided by the Parliament.
  • No right to practice after retirement– Article 124(7) of the Constitution states that anyone who has been earlier a Judge of the Supreme Court cannot plead in any Court of India.  Thus a retired judge is not allowed to appear or plead before any Court or any judicial authority within India.
  • Suitable Qualifications– Only those people are appointed as the judges of the Supreme Court and High Court who possess the legal knowledge and practical experience and are considered as distinguished jurists in the opinion of the President of India.
  • Parliament cannot curtail the jurisdiction and powers of the Supreme Court-The Parliament can change the pecuniary limit for appeals to the Supreme Court in civil cases. It can enhance the appellate jurisdiction of the Supreme Court by conferring upon it the supplementary powers for its effective working. Thus, as per Article 138 of the Constitution, the Parliament can exceed the limits of the Supreme Court and High Courts but it cannot curtail the jurisdiction and powers of the Supreme Court.
  • Power to punish for Contempt of Court– The judges are empowered under Article 129 and 215 to punish any person for contempt of court if he or she tries to interfere in the proceedings of the Court.
  • Separation of Judiciary from Executive– Article 50 of the Constitution directs the State to take steps to separate the Judiciary from the Executive in the public services of the State.

THREATS TO INDEPENDENCE OF JUDICIARY:

 Article 124 of the Constitution vests the legal power of appointment of the judges in the executive i.e. the President of India. The Supreme Court in S. P. Gupta V. Union of India held that while appointing the judges of the Supreme and the High Court the President takes the advice of the other judges. But the President is not bound by the advice of the other judges. The President while making appointing judges consults the other judges of the Supreme Court and the High Court. But practically, this power of the President is merely formal as in making such appointments he acts as per the advice of the Council of Ministers who may do politics in the appointment of the judges. By conceding the power of appointment to the Executive the independence of the judiciary is in danger. Further, the power of the President under article 222 to transfer a Judge from one High Court to another may be used to undermine the Independence of Judiciary. Further, the non-effectiveness of impeachment proceedings under Article 124 (4) and (5) based on political maneuvering causes harm to the independence of the judiciary as the erring judge is not being afraid of any action being taken against him. Moreover, increasing corruption and indiscipline charges against judges have also damaged the independence of the judiciary. The interference of the Governments in the decision-making process of the Courts has further added to this misery.

In Union of India V. Pratibha Banerjee, 1995, the Court held that the judges are not government servants. There is no master-servant relationship between the Government and the judges. The judges have been appointed by the head of the State to uphold constitutional sovereignty.  Thus, the independence of the judiciary is the cornerstone of one of the founding pillars of the very existence of India.

CONCLUSION:

From the above discussion, we can conclude that only an impartial and independent judiciary can protect the fundamental rights guaranteed by the Constitution of India and provide justice to all without any kind of fear or favor. Thus, the Courts should be allowed to dispense justice in an atmosphere of independence. No political pressure should be used against the judges for giving favorable judgments. Neither the Parliament nor the State Legislatures should interfere in the proceedings of the Judiciary. The judges should neither be influenced nor threatened by the Government to give judgments as per the wishes of the Government Officials. A judge while making judicial decisions shall not be subject to any authority other than law.

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