Independence of the Judiciary

Independence of the Judiciary and doctrine of Separation of Powers

The Independence of the judiciary plays a major role to give fair justice. Any interference of any organ of the country, in the proceedings of the judiciary, makes the decision biased. The independence of the judiciary in India protects the fundamental rights and protects our constitution of India. We will discuss how and why the judiciary is independent and the doctrine of Separation of Powers.

Meaning of Independence of Judiciary

The meaning of the term “the independence of the judiciary” is not clear until now. The constitution of India through the way of its article just talks about independence, but even the constitution does not define the actual meaning of the term.

Independence of Judiciary

The independence of the judiciary means the independence of the institution of judiciary and judges which are the part of the judiciary. There is only the base of the independence of the judiciary is the doctrine of separation of powers.

The doctrine of Separation of Powers

There are three organs are given in the constitution there are given the three organs of the country which are executive, legislature and the Judiciary. The doctrine of separation of powers was brought in the constitution to have a check or to make the boundaries for the functioning of these three organs.

The doctrine of separation of powers gives the power to the judiciary for acting as the guardian for the protestation of law and to check the working of the legislature. With this doctrine of separation of powers, all three organs do not interfere in the functioning of each other and do their tasks.

What is the need for the independence of the judiciary?

The need for the independence of the judiciary is upon the following points, which are:

  • The judiciary makes sure that all the organs of the country are functioning within there limits and according to the provision which is given under the Constitution of India.
  • It acts as the guardian of the fundamental rights and the constitution of India and also aids in securing the doctrine of separation of powers.

Interpreting the provisions of the constitution

It was known to the framers of the Constitution of India that there will be the arisen of ambiguity in the future with the provisions of the constitution. They ensured that the judiciary must be independent and competent to interpret the provisions in such a way to clear or remove the ambiguity. They also ensure that the interpretation done by the judiciary must be unbiased, which means free form any pressure from other organs of the country. If the judiciary is not independent; the other organs may pressurize the Judiciary to interpret the provisions of the constitution as they want.

Disputes referred to the judiciary

Everyone expected that the justice delivered by the judiciary must not be partial. If the judiciary will not be independent, the chances are there that the decision given by the judiciary may be biased.

What made the framers of our constitution make the judicial system independent?

The framers of the constitution at that time understood that there must be fundamental rights for the society and to guard and enforce those rights, there is the need for independence of the judiciary.

Constitutional provisions

There are many provisions given in our constitution which ensure the independence of judiciary:

Appointment of the Judges:

Article 124 of the constitution of India specifies that the Chief Justice of India shall be appointed by the president of India after the consultation with the judges to the Supreme Court and High Courts. Further, for the appointment of other judges, the CJI must be consulted by the President of India. Thus the article 124 of the Constitution prevents the executive from having completed discretionary powers for the appointment of judges because the President of India; cannot appoint any judge without the consultation with other judges.

Until 1973

Until 1073, the senior-most judge of the SC was appointed as the CJI. But this rule was broken when Justice AN Ray was appointed as CJI when there were 3 more senior judges. In that case, the government pleaded that the word consult does not mean that the President of India is bound by the advice of other judges. He is free for making his own decision about this.

In the case of Union of India vs. Sankalchand Seth (1977), which becomes associated with the transfer of a Judge from one high court docket to some other court under article 222 of the Constitution of India, SC held that the President of India has the right to differ from the advice provided through the consultants.

Judges Transfer Case 1

In the case of SP Gupta vs. Union of India, the SC said that the most effective ground on which the decision of the government can be challenged is that it’s far based on mala fide aim and irrelevant attention. In doing so, it drastically reduced its strength in appointing the judges and gave control to the government.

 Judges Transfer Case 2

This depend becomes raised again inside the case of SC Advocates on Record Association vs. Union of India. In this case, the SC overruled the selection of the S P Gupta case and held that in the depend on appointment of judges of high courts and Supreme Court; the CJ must have the primacy and the appointment of the CJ should be based totally on seniority. It besides held that the CJ needs to consult his two senior-most judges, and the advice needs to be made simplest if there is a consensus amongst them.

 Judges Transfer Case 3

A controversy arose once more when the CJ advocated the names for an appointment without consulting with other judges in 1999. The president sought advice from the SC (re Presidential Reference 1999); and a 9 member bench held that a piece of advice given utilizing the CJI; without proper consultation with different judges isn’t always binding on the government.

As of now, because of the selection in Judges Transfer Case 2, the appointment of the judges in SC and HC are fairly unfastened from government control. This is a critical component that ensures the independence of the judiciary.

Security of Tenure

The Constitution of India gives the security of tenure to the judges of the Supreme Court and High Courts. Once the judge appointed, he will continue to remain in the office till the age of retirement. The age of retirement for SC and HC judges are different.

Establishment and constitution of Supreme Court

Article 124 of the Constitution of India provides the rules for SC that every judge of the SC shall be appointed by the president of India by giving the warrant under his hand and seal after the consultation of CJI and in the case to appoint the CJI the other judges of Supreme Court. The judge of SC shall hold office until he attains the age of 65 years.

Appointment and conditions of the office of a Judge of a High Court

Article 217 of the Constitution of India gives the power to the president of India for the appointment of judg3es of High Courts. President of India shall appoint the judge of HC with the consultation with the CJI. The judge of HC shall hold office until he attains the age of 62 years.

Impeachment

The Judges cannot be removed from the office except by the order of President of India. The grounds for impeachment are misbehaviour and incapacity. There must be the resolution passed by both the houses of parliament by a majority not less than two-thirds of the members of the house present and voting.

Salaries and Allowances

The salaries and allowances of the judges of all courts are also a factor that makes the judges independent. The salaries and allowances of the judges are fixed and are not subject to a vote of the legislature. The legislature cannot interfere in this matter. According to article 125 of the Constitution of India; they are charged on the Consolidated Fund of India in case of Supreme Court judges; and the Consolidated Fund of state in the case of High Court judges. (Art.125)

Conclusion

I conclude my article on saying; according to my knowledge the Independence of the judiciary plays a major role to give fair justice. There should not be any interference of any organ of the country in the proceedings of the judiciary so; they can make the judgment without any pressure and unbiased.

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