This article is written by Deepika, pursuing BA-LLB from IIMT & School of Law, GGSIPU, Delhi. In this article, he has discussed the importance of judiciary as the third pillar of democracy and independence of the judiciary.
Judiciary is considered as the third pillar of democracy, as the role of the judiciary is indispensable in a democratic system of governance. Judiciary plays a vital role in order to maintain a balance between individual interest and society and also ensures that the law of land is implemented in its true sense. Merely mentioning of fundamental rights in the Constitution without any provision of their proper safeguards them, serves no purpose. Obviously the very existence of a right depends upon the remedy for its enforcement. For this purpose, an independent and impartial judiciary with a power of Judicial review has been established under the Constitution of India. It is the custodian of the rights of citizens. Besides, in a federal constitution, it plays another significant role of determining the limits of power of the centre and states and also checks the misuse of power by legislature or executive by the instrument of Judicial review. The judicial system in a country is central to the protection of human rights and freedoms. Independence of judiciary is a pre-requisite for the realization of a democratic society based on the principle of rule of law.
Independence of Judiciary
The independence of judiciary is a sine qua non for the very existence of democracy. judicial independence means the freedom of judges to exercise judicial power without any interference or influence. It requires that judges should not subject to control by political or executive branches of government and they should get protection from any kind of threats, interference or manipulation which may force them to unjustly favour someone. Only an independent and impartial judiciary can protect the rights of the people and provide equal justice without fear or favour. The judiciary in addition to maintaining the supremacy of the constitution is also the guardian of the fundamental rights of the people. So whenever there is unreasonable interference in these fundamental rights of any individual the judiciary comes to take action.. Judicial independence is a significant component of government culture in every country. It is shaped by relations between the branches of government and is one of the basic values which lie at the foundation of the administration of justice. The culture of Judicial independence can only exist in a system which is based on the doctrine of separation of powers. Though in India separation of power is not in its true sense, there is both structural and functional overlapping at many instances but at the same time within this type of arrangement in our country sufficient independence is given to judiciary to promote a society based on the principle of rule of law and for realising the ideals of social, economic and political justice given in the preamble of our constitution.
Nature and scope of independence of judiciary
The nature and idea of independence of the judiciary is of modern origin, It got recognition after the evolution of the concept of separation of powers. The dictionary meaning of independence is ‘the state of being not dependent on another person or things for support or supplies’. In a literal sense, independence means the absence of external control or support. In legal point of view independence of judiciary mean the power of upholding without fear or favour, the rule of law, personal freedom and liberty, equality before the law and impartial and effective judicial control over various actions of the government. independence of judiciary means a fair and unbiased judicial system of a country which can afford to take its decision without any interference of the executive or legislative branch of government.
Rationale of Judicial independence
In a civil society, we want some of our relations with each other and with our government to be regulated by reasonably well define laws setting out mutual rights and duties and whenever disputes arise about these legal rights and duties, we want a mutually accepted third party adjudicator to settle the dispute.
Necessity for independence of Judicial
In democratic countries judiciary is given a very place this is because the courts settle disputes and deliver justice not only in disputes between one citizen and another but also resolve disputes between any citizen and state or the various organs of the state. The need for an independent judiciary is indispensable in a country having written constitution as the constitution is considered as the basic law of the land and it requires some impartial authority to interpret it. In the absence of such authority, the constitution would create a disorder in the society by having thousands of interpretation of a single provision. So the judiciary plays a significant role of interpreting the law in the case of any ambiguity and applying the law and further adjudicating upon the controversies between one citizen and another and between a citizen and the state. The architects of the Indian constitution were conscious of the very significant and special role of Judicial review and acting as a guardian of fundamental rights assigned to our judiciary so the salient feature of independence of judiciary which is also one of the basic features of the constitution was incorporated in our constitution so that the judiciary can function without fear or favour.
The primary need for the independence of the judiciary rests upon the following points:
- To check the functioning of all the organs of the state
Judiciary acts as a watchdog as it has to ensure that all the organs of the state function within their respective areas and according to the provisions of the constitution.
- Interpreting the provisions of the constitution
Any ambiguity regarding the provisions of the constitution is interpreted by the judiciary. So for unbiased interpretation, we need an independent judiciary.
- Disputes referred to the judiciary
All the disputes are adjudicated by the judiciary. It is expected of the judiciary to deliver judicial justice and act in a fair and unbiased manner. This can only be done by an independent judiciary
So, for the maintenance of the rule of law and fair judicial administration, an independent judiciary is of utmost importance.
The framers of the constitution enshrined various provision in our constitution to secure the independence of the judiciary
- Separation of Judiciary from executive
Article 50 provided under directive principles of states policy directs the state to take steps to separate the judiciary from the executive in the public services of the state. It emphasises the need for securing the judiciary from the interference by the executive.
- Security of tenure
They can’t be removed from office except by an order of the president and that also only on the ground of proved misbehaviour or incapacity, supported by a resolution adopted by a majority of the total membership of each house and also by a majority of not less than 2/3 of the member of the house present and voting.
- Salary of judges fixed, not subject to the will of the legislature
The salaries and allowances of the judges of the Supreme court and High court are not subject to the will of the legislature. They are fixed by the constitution and charged on the consolidated fund of India and state respectively. They are not subject to the vote of the legislature. During the term of their office, their salaries and allowances cannot be altered to their disadvantage except in grave financial emergency.
- No discussion in the legislature on the conduct of the judges
Neither in the parliament nor in the state legislature a discussion can take place with respect to the conduct of a judge of Supreme court or High court in the discharge of his duties.
- Power to punish for its contempt
The Supreme court and the High court have the power to punish any person for its contempt(Article 129 and 215).
- Judges of the supreme court are appointed by the Executive after the consultation of legal experts
The constitution doesn’t leave the appointment of the judges of Supreme court and High Court to the unguided discretion of the executive. The executive is required to consult judges of the Supreme court and High court in the appointment of the judges.
- Prohibition on practice after retirement
Article 124(7) doesn’t allow a retired judge of the Supreme court to appear and plead in any court or before any authority within the territory of India.
- Freedom in recruitment of staff
The supreme court and High courts are given authority to recruit their staff and frame their own rules.
Cases on independence of judiciary
The independence of judiciary is adequately guaranteed. However in judges transfer case I (S. P. Gupta v. Union of India) The supreme court held that the word ‘consultation’ under Article 124& 217 did not mean concurrence and the executive was not bound by the advice given by the judges. Thus the power of appointment big the judges of the supreme court and the transfer of High court judges was solely vested in the executive from whose dominance the executive was expected to be free.
The Judges transfer case II (S. C. Advocate On Record Association v. Union Of India) led to judicial supremacy from the supremacy of executive
The Supreme court by a 7:2 majority overruled S. P. Gupta’s case and held that the opinion of the chief justice of India must be given weight in the selection of the judges of the Supreme court and High court and transfer of High court judges. The selection of judges should be made as a result of a participatory consultative process. The Chief Justice was required to consult two senior-most judges of the Supreme court before sending his recommendations to the Government.
Thus the executive element in the appointment process was reduced to a minimum and any political influence is eliminated.
In Transfer of judges case III, ( In Re Presidential Reference)a nine judges bench of the Supreme court has unanimously held that the recommendations made by the chief justice of India on the appointment of the judges to the Supreme court without following Consultation process are not binding on the Government. The court held that the “ The process of consultation which is to be adopted by the CJI requires consultation of plurality of judges “. The court held that the recommendations made by the CJI without complying with the norms and guidelines regarding the consultation process are not binding on the government. This case led to the expansion of collegium as the CJI is required to consult four senior-most judges of the supreme court.
The constitution of India provides for a judiciary which is independent. Independence of judiciary is important for the purpose of fair justice as judiciary acts as a watchdog by ensuring all the organs of the state function within their respective area according to the provision of the constitution. Interference of legislature or the executive in the proceedings of the judiciary can bring an element of bias, threat, fear and manipulation which can pose a great danger for a democratic society wedded with rule of law. A judiciary acting under fear or pressure can shake the roots of democracy. So an independent judiciary is of paramount importance for upholding ideals of a democratic state.
- Dr J. N. Pandey, 56th edition
- MP Jain, 8th edition