INDEPENDENCE OF JUDICIARY: COMPARITIVE ANALYSIS (Part-1)
Our country India is a democratic country, means that the government has to be` by the people, for the people and of the people`. It guarantees to its citizens various rights through its Constitution and the supremacy of the constitution can be maintained only through an impartial and independent judiciary.
But the meaning of independence is judiciary is still not very clear and that has lead to the inherent tussle between the legislature, executive and judiciary from quite a long time now. In S.P. Gupta vs. Union of India , this Court has held that:-
“The concept of independence of the judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law thereby making the rule of law meaningful and effective.”
It is well understood that if the judiciary by their performance and conduct does not meet the expectations for which such Constitutional protection has been provided, the judiciary will be reduced to any other organ of the State which we have come to distrust in recent times. During the last few years, the question of independence of judiciary has been hotly debated in India. This question has agitated the minds of jurists, politicians and the laymen. The supporters and the opponents have both given very effective and sound arguments. Those who believe in the absolute independence of judiciary say that democracy cannot be possible in the absence of an independent judiciary. They say that rule of law can only be upheld by a supreme judiciary. And this rule of law is very essential for the successful working of democracy.
There are various provisions in the constitution of India themselves which ensure the independence of the judiciary. Some of the provisions are:
- Article 50 says that Separation of judiciary from executive is one direct provision which ensures the independence and no interference from the executive.
- Article 211 and Article 121 say that No discussion on the conduct of any judge from the High Court/Supreme Court in the Parliament or the state legislature with respect to their discharge of the duties or their workings. International Journal of Academic Research and Development 1488
- Tenure: Judges of the High Court’s /Supreme Court cannot be removed from the office except by an order of the President and that too on the ground of proven misbehaviour and incapacity. A resolution has also to be accepted to that effect by a majority of total membership of each House of Parliament and also by a majority of no less than two third of the members of the house present and voting.
MEANING OF INDEPENDENCE OF JUDICIARY
The independence of judiciary is not a novel concept; however, its complete meaning is still largely undeciphered. The starting and the central point of this concept is apparently the doctrine of separation of powers. Therefore, it primarily means the independence of judiciary from legislature and executive. But that amounts to only the independence of judiciary as an independent institution form the other two institutions of the state without regards to the independence of the judges in exercising of their functions. In such a case there is not much that is achieved.
The independence of judiciary does not mean just creation of an autonomous institution free from control and influence of the legislature and the executive. The underlying purpose of independence of judiciary is that judges must be able to decide disputes before them, according to the law, uninfluenced by any other factor. For this reason, itself, independence of judiciary is the independence of each and every judge. Whether such independence would be ensured to the judge only as members of an institution or irrespective of it is one of the most important considerations in determining and understanding the meaning of independence of judiciary.
In a comprehensive analysis based on the contribution of leading jurists and international bodies on independence of judiciary, all these noteworthy and numerous considerations had been taken into account. Explaining the distinct terminologies ‘independence’ and ‘judiciary’ separately, it has been explained that the judiciary is the organ of the government not forming a part of the executive or the legislative, which is not subject to personal, substantive or collective control and which perform the primary function of adjudication. Dealing with independence, a differentiation is made between the independence of the individual judges and the collective independence of the judiciary that together constitutes ‘independence’.
To the ordaining jurists, independence of individual judges consists of the judge’s substantive and personal independence. The former means subjection of the judge to no other authority other than law in making of judicial decisions and exercising other official duties while the latter means adequate security of judicial terms of office and tenure. The independence of the individual judges also includes independence from their judicial superior and colleagues.
According to this understanding, it is established that the independence of judiciary means and includes the independence of judiciary as a collective body or organ of the government from its two other organs as well as independence of each and every member of the judiciary-the judges- in the performance of their roles as judges. Without the former the latter cannot be secured and without the latter the former does not serve much purpose. Therefore, the two, though separable, must be pursued together. A system that ignores one or the other cannot make much progress towards, much less achieve, the independence of judiciary.
Aishwarya Says:
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
Do follow me on Facebook, Twitter Youtube and Instagram.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com
We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.
We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge
You may also like to read: