Daily News Analysis

JUDICIAL INDEPENDENCE

24th July, 2021 Polity

Context:

  • The Supreme court of India reaffirmed the importance of judicial independence.

Background

  • An independent judiciary is necessary for a free society and a constitutional democracy.
  • It ensures the rule of law and realization of human rights and also the prosperity and stability of a society.
  • The independence of the judiciary is normally assured through the constitution but it may also be assured through legislation, conventions, and other suitable norms and practices.
  • Following the Constitution of the United States, almost all constitutions lay down at least the foundations, if not the entire edifices, of an independent judiciary.
  • Ultimately the independence of the judiciary depends on the totality of a favorable environment created and backed by all state organs, including the judiciary and the public opinion.
  • The independence of the judiciary also needs to be constantly guarded against unexpected events and changing social, political, and economic conditions.
  • India has given to itself a liberal constitution in the Euro-American traditions which aims at establishing a free and democratic society.
  • It also aims at the prosperity and stability of the society.
  • Its makers believed that such a society could be created through the guarantee of fundamental rights and an independent judiciary to guard and enforce those rights.
  • Therefore, the framers of India's Constitution dealt with these two aspects with maximum and identical idealism.
  • Courts have always tried to uphold the independence of judiciary and have always said that the independence of the judiciary is a basic feature of the Constitution.
  • Courts have said so because the independence of judiciary is the prerequisite for the smooth functioning of the Constitution and for a realization of a democratic society based on the rule of law.

What judicial independence means

  • The independence of the judiciary is not a new concept but its meaning is still imprecise.
  • The starting and the central point of the concept is apparently the doctrine of the separation of powers.
  • Therefore, primarily it means the independence of the judiciary from the executive and the legislature.
  • But that amounts to only the independence of the judiciary as an institution from the other two institutions of the state without regard to the independence of judges in the exercise of their functions as judges.
  • The independence of the judiciary does not mean just the creation of an autonomous institution free from the control and influence of the executive and the legislature.
  • The underlying purpose of the independence of the judiciary is that judges must be able to decide a dispute before them according to law, uninfluenced by any other factor.
  • For that reason, the independence of the judiciary is the independence of each and every judge.

Need of judicial independence

  • In democratic countries, the judiciary is given a place of great significance.
  • The architects of the Indian Constitution were conscious of the very significant and special role assigned to the judiciary in the scheme of the Constitution.
  • It was envisaged as the organ for protecting the rights of the citizens, guaranteed under the Constitution.
  • There was the recognition that Judges, particularly the judges of the superior courts, who have been given the power of judicial review of administrative and legislative actions, should function without fear or favour.
  • It is a function of the courts to uphold the rule of law and to ensure that the government runs according to the law.
  • In a country with a Written Constitution, courts have the additional function of safeguarding the supremacy of the Constitution by interpreting and applying its provisions and keeping all authorities within the constitutional framework.
  • For the maintenance of the rule of law and fair judicial administration, an independent judiciary is of utmost importance.

Provisions by Indian Constitution to ensure independence judiciary

Judicial Appointments:

  • Independence and impartiality of the judiciary is the hallmark of democratic set-up of the government. Independence of the judiciary starts from appointment of judges.
  • Article 124 deals with the appointment of Judges to the Supreme Court and Article 217 regarding appointment of Judges to High Courts.

Qualifications:

  • The next issue which has a direct bearing on the Independence of judiciary is the quality of the person who is asked to serve in the courts. The quality of the judges depends on the conditions necessary for the appointment of judges.
  • Article 124(3) prescribes qualifications of a person who can be appointed as a Judge of the Supreme Court.
  • The qualification of a High Court judge is set out in Article 217(2).

Salaries And Allowances

  • The salaries and allowances of the judges is also a factor which makes the judges independent as their salaries and allowances are fixed and are not subject to a vote of the legislature

Removal Of Judges:

  • In India, both the Supreme Court and High Court Judges are appointed by the President under Article 124 and 217, and they enjoyed a fixed tenure and are removable under Articles 124(4) and 217 on proved misbehaviour or incapacity after an impeachment motion passed by each house supported by a stipulated majority.
  • No judge has been removed till now.

Transfer Of Judges

  • Article 222(1) empowers the President after consultation with the Chief Justice of India to transfer a judge from one High Court to another.
  • The Constitution makes provisions for granting compensatory allowances when a judge is transferred from one High Court to another.
  • The power of transfer of a judge vested with the President is not absolute. He takes into consideration two things:
    • Public interest
    • Effective consultation with the Chief Justice of India.

Power To Punish For Its Contempt

  • The rationale behind Contempt of court is that courts must have the power to secure obedience to their judgements, in order to serve this purpose of administering justice.
  • Contempt of Court can refer to both civil and criminal contempt.
  • Contempt of Court finds a place in the Indian Constitution under Article 19(2), Article 129 and Article 215.
  • According to Article 19(2) of the Constitution, contempt of Court is one of the grounds on which the State can legislate to place reasonable restrictions on freedom of speech.
  • Article 129 of the Constitution of India says that the Supreme Court shall be a 'court of record'.
  • Article 215 grants a similar status to the High Courts.

Prohibition On Practice After Retirement

  • The Constitution debars the Judges of the Supreme Court from pleading or appearing before any court or tribunal or judicial authority in India after retirement.