INDEPENDENCE OF JUDICIARY
Justice is considered to be one of the divine attributes and a judge is described as a blindfolded person who holds the scales of justice which he administers even handed. It means judges should be impartial.
The need for independence of the judiciary has acquired an added dimension under modern conditions of the welfare state. The more modern government interferes, administers and regulates the more urgent is the need to preserve a check on the way. These activities affect individuals and groups. The factors which ensure independence of judiciary and enable judges to fearlessly discharge their duties are the following. Dr.Garner says, If the judges lack wisdom, probity and freedom of decision, the high purpose for which the judiciary is established cannot be realised”. If the judiciary is independent only when the system of the appointment of the judges is good, if they have the security of service and interference and control.
Conditions or factors which make the judiciary independent, are the following:
1. Mode of appointment of judges:
In advanced countries of the world generally three modes are adopted for the appointment of the judges. They are
(a) Election by the people. Eg., Many states of America.
(b) Election by legislature. Eg., Switzerland
(c) Appointment by the executive. Eg., India, U.K, U.S.A.
Election by the people
The system of popular election of judges was first introduced in France in conformity to the theories of popular sovereignty and the separation of powers. It now prevails in some of the cantons of Switzerland, and in a few states of the United States of America. According to Laski “that of election by people at large is without exception the worst. Popularly elected judges can never be impartial, honest, independent and dignified”.
Prof. Garner also says, “Election of the judges lowers the character of the judiciary, tends to make a politician, of the judge and subjects the judicial mind to a strain which it is not always able to resist”.
Election by the legislature
The election of the judges by the legislature is seen in Switzerland. Election by the legislature is not a common and
accredited method of appointing judges, because this system is a violation of the principle of the separation of powers. But more important is it makes the judiciary subservient to the legislature.
Moreover election by the legislature means elections of party candidates when party affinities intervene in the selection of judges merit is discounted and independence of the judiciary disappears.
Appointment by the Executive
The third mode of appointement of judges is appointment by the head of the state (the King or the President). This system of appointment of judges is adopted in India, England, the United States, Canada, Australia, Japan and South Africa.
The appointment of judges by the executive is the most common and the best available method of choice and it is in practice in nearly all countries of the world. Judges chosen by the executive are likely to be independent of popular influence and political or sectional considerations. In India too, recruitment to the subordinate courts is through a competitive examination, whereas in the case of courts above, it is according to the method as presented in the constitution, but the appointing authority is the executive.
In order to remove the defects of this system. Laski does not consider simple nomination by the executive as an adequate system. He suggests that judicial appointments should be made on the recommendations of the Ministry of justice with the consent of a standing committee of the judges which would represent all sides of their work. In England and other common wealth countries, the judges are selected from among the advocates and pleaders working in the courts. In certain countries of Europe, the judges are selected by the ministry of justice through competitive examinations. Thus this is the best system of the appointment of the judges and it is prevalent in many countries of the world.
2. Long Tenure:
For the independence of judiciary, a long tenure of the judges is essential. If the tenure of the judges is short, its consequences will be bad. In case of a short tenure the judge will remain busy in planning for his re-election, sometimes he indulges in corrupt practices when he loses the hope to win the election. If the tenure is short, the judge is unable to comprehend fully the various implications of the laws.
Today in many countries of the world the judges remain in office till they attain the age of 65 or 70 provided their conduct is above board.
Hamilton says, The standard of good behaviour for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government.
3. Security of Service:
For the independence of judiciary it is essential that there should be security of service for the judges and the executive should not remove them at will.
In Great Britain, the judges have been guaranteed the security of service and they can be removed only when both the houses pass a resolution jointly, levelling allegations against the judges and send it to the monarch for his/her assent.
In the United States, the judges of the supreme court are removed by a process of impeachment.
If the judges are under constant fear of being removed from office, they give decision against the executive (government) they will not give decisions against the government. Thus there will be no protection of the constitution and fundamental rights of the people. Therefore in most advanced countries of the world the
parliament removes corrupt and incapable judges by a majority vote, but the honest and able judges are granted the security of service, even if they give decisions against the executive.
4. Adequate salary to the judges:
In order to make the judges independent, it is necessary that they should be paid adequately so that they are able to maintain a good standard of living and they do not amass wealth by adopting corrupt practices. If the judges are adequately paid able persons will be attracted towards this profession and they will enjoy an honourable place in the society. If they are not paid adequately, able persons shall not be attracted towards this profession and they will have no place of prestige in society. A low paid judge may be attracted by opportunities for accepting illegal gratification.
Whereas it is necessary that a judge should be paid adequately, it is also necessary that during his tenure of office, his allowances and emoluments are not reduced by the executive. Besides this after retirement a judge should receive pension so that during his tenure he should not indulge in corrupt practices and he should lead a peaceful retired life. The salaries for the judges are paid from the voted funds of the national government. This ensures financial independence of judiciary.
5. High Qualification:
For the independence of judiciary it is also important that the judges should be able persons since only an able judge can give correct decisions and express his views freely.
6. Separation of judiciary from the control of the executive:
For the independence of judiciary Montesqueiu emphasised that it should be free of the control of the executive. In ancient and middle ages the judiciary was under the control of the executive. Hence, there was violation of justice and the king decided the cases arbitrarily. It destroyed the freedom of the people. Therefore, today efforts are made to free the judiciary from the control of the executive, so that the judges may give decision fearlessly.
7. No practice after retirement:
The judge should not be allowed to do legal practice after retirement, because his previous colleagues would favour him in the cases in which he appears as a lawyer.
On the basis of the views expressed above, in order to make the judiciary independent, the mode of the appointment of the judges should be good, their dismissal should be very difficult, their tenure should be long and they should be paid adequately.