This article has been written by Shahil Rangra an engineer cum lawyer
Introduction to Judicial Independence:
Working impartially and without bias certainly brings stable solutions. Influence or personal interest in a subject matter can alter the true objectivity. The judiciary is an institution in which the role of natural justice, impartiality, and neutrality is fundamental. It can only perform its functions seamlessly if it is far from external influences.
Definition and importance of an independent judiciary.
Independence of the judiciary simply means free from the influence of external actors, either the government or the private institutions. Independence of judiciary is a holistic term that covers several concepts like power of judicial review, safety of tenure, appointment, and the removal of judges. There are doctrines upholding the independence of the judiciary such as the Rule of law, Separation of Power, the Doctrine of Basic Structure, etc.
Its importance covers both psychological and societal factors. Being neutral to a subject matter gives clarity and helps in understanding the faults. Therefore brings complete justice. A biased decision negatively affects the future course of a particular case. If the foundation is based on injustice then it may collapse the complete system in the future. Independence of the judiciary ensures that all the institutions and individuals in the country function or behave as per the enshrined provision of the constitution and the limitations prescribed in the statutes of a country. It brings Growth with Stability, Equity, and Justice. It also ensures the accountability and transparency of institutions.
Role of the judiciary in maintaining the rule of law.
The distributions of power under the seventh schedule of our constitution mentions three lists that determine their role yet there are overlapping of functions between union and states. The principle of the Rule of law is that no one is above the law. This concept is often called the King of Kings. All three organs of governance that are judiciary, executive, and legislative drive its authority from the constitution. The rule of law minimizes the arbitrariness and improper discretion by organs. Hence, the judiciary’s role becomes crucial because it is the custodian of our constitution. The judiciary while making thorough interpretations of the constitution keeps the checks and balances on the power exercised by the other organs. Any arbitrary order and misuse of constitutional power by any actor is thereby dealt with by the Judiciary.
Two Western policies have significant roles in our today’s judicial system i.e. Rule of law and Separation of power. Judicial independence started in India by the Act of Settlement 1701. In this, the judges were given some measures of independence by ensuring the salary, their removal was moved only by motion on the approval of both the houses. It provided the security of tenure to the judges and their removal as per the law. In the 19th century, the post of Lord Chancellor was created to ensure the independence of the judiciary. To date, judicial review wasn’t applicable and the parliament supremacy has continued. Gradually, the development of the High Court and Supreme Court gave independence of judiciary strength.
Separation of Powers:
The three organs i.e. Legislative, executive, and judiciary are in general separated with respect to their power. Their role is restricted to their sphere. The legislative is a lawmaking body, the executive is administrative and the judiciary does the role of interpretation. In India, there exists some functional and personal overlapping in the separation of power i.e. an organ performs the work of others and a minister works as a member of parliament.
Principles of Judicial Independence:
Neutral adjudication i.e. ensuring the Fair trial (Article 21). The Rule of Law (Article 14 of COI). The Separation of power (Article 13 and Article 50 of COI). The Kesavananda Bharati case judgment has mentioned the independence of the judiciary as the basic structure of our constitution. Some of the main provisions of independence of the judiciary are as follows:
- Security of Tenure.
- Removal of judges.
- Salaries and allowances of judges
- Power of Higher Judiciary
- Judiciary Separation from Executive.
Checks and Balances:
Checks and Balances pertain to the balance of power among three organs. It is an exception to the separation of power. The Supreme Court of India can declare a law passed by the legislature as unconstitutional. Likewise, the bill can be vetoed by the President. The President can declare an emergency but the approval of parliament requires. The checks and balance ensures the responsibility of organs and brings more accountability.
Judicial review and its significance.
Judicial review in India adopted from the USA. It is impliedly mentioned in Article 13 of COI. Article 137 gives the Supreme Court the power to use judicial review to set aside its order on the basis of an apparent error. Its basis is a procedure established by law, unlike the USA’s due process of law. Judicial review keeps the checks and balances on the acts of legislature and executive. It protects against constitutional misuse by the legislature and executive. It upholds the Rule of law as supreme thereby bringing harmony and equilibrium among separate organs. Judicial review was considered the basic feature of our constitution declared in the Raj Narain case (1975).
Threats to Judicial Independence:
Biasness is of different kinds as personal bias, departmental bias, subject matter bias, etc. Biasness disturbs the neutral adjudication and favors the wrong party. There have been many instances where corruption in the judiciary was caught. This is so dangerous to a country. Also, political parties’ influence may change the outcome of a decision wrongly. Judges are also sometimes considered less accountable. Media also spread distrust in society with respect to the judiciary by glorifying the criminal. Adjudication is a matter of thorough interpretation. Insensitive media can bring chaos by manipulating and displaying the wrong facts before society.
The United Nations adopted the UN Basic Principles on Independence of Judiciary in the year 1985. The principles laid are with respect to the selection, appointment, and conduct of judges, so as to enable the judiciary to perform its function impartially. In India, the concept of Independence of the judiciary has been bought from the USA’s Constitution. In the USA, it is based on the principle of due process of law, whereas in India its base is the procedure established by law. Globally the independence of principle lays the same fundamentals, such as keeping judiciary free from the other branches interference in its functioning. It ensures a fair trial and holds the Rule of law as paramount. Its applicability varies in every country.
Importance for Democracy:
Democracy protects society from tyrannical rulers, monarchy, conquest, and dictatorship. It ensures individual freedom and protects them from exploitation. Without it, society eventually becomes depressed, without it they will not have liberal rights such as freedom of expression and press. People’s participation in the government formation ensures their consultation. The Council of Ministers is responsible to the Lok Sabha. It holds the government accountable for the service of society rather than filling its own pocket. Here the role of the judiciary becomes crucial to protect democracy by declaring the arbitrary acts of executive and legislative as unconstitutional. It delivers justice to people who are deprived of other organs. It ensures the code of conduct and maintains an order of discipline in a country.
Challenges and Reforms:
One of the major challenges before the judiciary is in its justice delivery system. Justice is sometimes delivered in such a delay that justice itself loses its significance. It normally takes a simple matter of two years at least. The strength of judges is also less and the all-India Judicial service is still not applicable. Personal biases of judges, corruption in the judiciary, influence of political parties, lack of transparency of judges, and interference by other organs in judiciary works are some of the paramount challenges to judges. The model code of conduct for judges should be strictly applied. The infrastructure at the lower judiciary is poor and no care is taken. There is a lack of funds. The court administration is not effective because of the judge’s authority. The Chief Justice of India has announced to increase the strength of Supreme Court judges from 34 to 51, by bringing in additional judges. The role of Information and technology is a boon to the judiciary as database storage. Filing of cases and keeping track of cases has become efficient because of the e-Court service app.
Public Perception and Education:
Public perception is highly based on social media display and the Media mostly is biased. So much of the information is manipulated as per the interest of media houses, but now the ongoing live proceedings of the Supreme Court and High Court have started, which ensures judicial transparency. There is a direct link between the source to the public, thereby removing the distortions and even holding the intermediaries accountable. The knowledge of the Constitution is paramount to every citizen. So, it should be included in the syllabus academics. The Judges and advocates must aware the general public aware of their rights and duties. Most people are unaware of their rights due to illiteracy, superstitions poverty, etc. they are subjected to exploitation due to that. There is free legal aid to the victims who can’t afford the court fee. Therefore, public perception highly depends on the influence and that influence if managed well, can bring stability.
The applicability of independence of the judiciary varies from country to country. Its applicability becomes the basis of debate and power struggle. the safeguards of tenure, salary, and allowances are almost similar but the appointment of judges varies from state to state. In the USA, the president appoints the judges with the approval of the Senate. Similarly in the UK, the Constitutional Reforms Act of 2005 ensures the independence of the judiciary. Section 61 mentions The Judicial Appointment Commission consisting of several members. In India, we have witnessed varying developments in the appointment of judges. Starting from the SP Gupta vs UOI 1982 case, where the executive was given supremacy in a judge’s appointment. In S.C. Advocates on Record vs UOI 1993, CJI was given supremacy in judges’ appointments. 99th constitutional amendment laws passed and introduced the Judicial Appointment Commission. Later in SC Advocates on Record vs UOI 2015, the 99th Amendment was declared unconstitutional.s
Predictions and potential changes in the landscape of judicial independence.
The pillars of judiciary independence are as follows:
1. Protecting judge’s service tenure and conditions
2. Salaries and allowances,
3. Dignity of courts be maintained
4. Judges’ appointments and selections.
There is a need for transformation in the judicial appointment mechanism. It is often said by the Current CJI DY Chandrachud that the current mechanism is not perfect but it is the only best we have as of now. Innovative solutions to the criminal justice system should be adopted. Bottom-up development approaches need to be adopted in the district courts. Maximum attention should be given to the lower judiciary. There is a need to form gender parity in the judiciary. All India Judiciary should be made applicable.
The independence of the judiciary is essential for the purpose of fair justice. The neutrality of the judiciary should be kept free from external interference. The safeguards given to the judiciary by the Indian constitution should be respected by the other two organs of the governance. The judiciary in India has proven its significance globally, by handling a large number of cases and propounding such great legal principles. Therefore, its dignity should be maintained with utmost respect.