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- There is nothing more important than to “preserve, protect and promote” the independence of the judiciary at all levels” CJI N V Ramana said.
What is Independence of the Judiciary?
- Fair and neutral judicial system:
- Which can take its decision without any interference of the executive or legislative branch of government.
- Mentioned in Basic Structure of Constitution:
- Judicial Independence is guaranteed in the constitution and reaffirmed by the Kesavananda Bharati (1973) Judgement.
- Principle of separation of powers:
- The Judiciary keeps in check the executive and Legislature in accordance with the derived from Article 13.
- Separation of judiciary from the executive (Article 50)
Provisions that ensure Judicial Independence
- Security of Tenure:
- Judges continue to remain in office till they reach the age of 65 years in the case of judges of the Supreme Court (Art. 124(2)) and
- 62 years in the case of judges of the High Courts (Art. 217(1)).
- Removal of Judges:
- They cannot be removed from the office except by an order of the President and that too on the ground of proven misbehaviour and incapacity.
- The resolution has also to be accepted to that effect by a majority of the total membership of each House of Parliament.
- Also by a majority of no less than two-third of the members of the house present and voting.
- It is so complicated that there has been no case of the removal of a Judge of the Supreme Court or High Court under this provision.
- Salaries and Allowances of Judges:
- The judges are independent as their salaries and allowances are fixed and are not subject to a vote of the legislature.
- Powers and Jurisdiction of Supreme Court:
- Parliament can only add to the powers and jurisdiction of the Supreme Court but cannot curtail them.
- In civil cases, Parliament may change the pecuniary limit for the appeals to the Supreme Court.
- Power to Punish for Contempt:
- Both the Supreme Court and the High Court have the power to punish any person for their contempt.
- Article 129 provides that the Supreme Court shall have the power to punish for contempt of itself.
- Likewise, Art. 215 lays down that every High Court shall have the power to punish for contempt of itself.
- Separation of the Judiciary from the Executive:
- Article 50 states that the state shall take steps to separate the judiciary from the executive in the public services of the state.
Need for Independent judiciary
- Welfare State:
- The decisions of the constitutional courts of this country have enabled social democracy to thrive
- To function with absolute independence and necessary boldness in the face of adversity defines the character of the Indian judiciary.
- Live up to people’s aspirations:
- Judiciary’s ability to uphold the Constitution sustains its impeccable character.
- The immense trust reposed by the public at large upon the judiciary, as a last resort of hope.
- Checks and balances in a political democracy:
- A robust justice delivery system at the grassroots level ensures better functioning of the state.
- Accountability to the people:
- To uphold the democratic principle of accountability.
- It helps to keep the executive and legislature accountable to the people through judicial review and judicial activism.
- Constitution interpretation:
- The written constitution is considered as the basic law of the land and requires some authority to interpret it without prejudice and self-interest.
- Protection of individual rights:
- Independent India inherited a deeply fragmented society from its colonial past
- The stark divide between the haves and have nots is still a reality
- Only an impartial and independent judiciary protects the rights of the individual without fear and favour.
- Independent India inherited a deeply fragmented society from its colonial past
- Prevent autocracy:
- Without an independent judiciary, we will have a dictatorship, as the executive will be able to do whatever it likes.
Issues with Judicial Independence
- Opacity in judge’s appointment:
- India’s judges have been appointed by a “Collegium” of judges.
- Collegium considers the opinion of the government when appointing judges, but the final decision about who to appoint rests with the judiciary.
- Their decisions are taken behind closed doors, and the opacity of the process has been a long-standing issue.
- Roaster System:
- There is opacity in the internal workings of the Court that impact independent decision-making.
- The Chief Justice of India, as the senior-most judge of the Court, decides the allocation of certain cases to judges and benches of judges.
- Some judges have spoken out publicly on the opaqueness and case allocation procedures of the Supreme Court.
- Criticisms point to many issues with the procedure, which included the allocation of politically sensitive cases to favourable judges.
- Nepotism, Favouritism and Politically Biased:
- Often, judges who have favours or relationships with senior judges of the Supreme Court or the Executive get promoted to or appointed to more favourable positions.
- Judicial overreach:
- Since there is no system of checks on the Supreme Court, it can interfere with the purview of the legislature and judiciary.
Way Forward
- Judicial independence ensures public confidence as an institute of the last resort where justice will be served despite any opposition and Influence.
- People place high credibility and trust in the judiciary to get justice in case of any kind of misconduct by the executive.
- The latter clause and confidence will be meaningless if executive interference is allowed into the process of judicial proceedings as well as judicial bias over the executive.
Source: IE
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