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INDEPENDENCE OF JUDICIARY

  • INTRODUCTION

Independent judiciary is a key feature of a Democracy. Democracy without independent judiciary is like a lion without teeth. Independence of judiciary signifies the capability of judiciary to perform its specific duties without a external or internal control or support. If judiciary is working without the influence , subordination or fear of any government or private entity then we can call it independent .

However independence does not mean that judiciary can take any action or interfere in functioning of other institution. This independence is a productive concept . judiciary has a specific role and it is expected from it that it perform accordingly . here, independence does not include arbitrariness and non-accountability .judiciary is accountable to the constitution to maintain check and balance, hence judiciary must adhere to the democratic tradition.

  • NEED OF A INDEPENDENT JUDICIARY

Due to diversity and absence of consensus between individuals disputes are common in a society so to resolve such disputes without any bias a independent body is necessary. Independent judiciary promotes supremacy of law and ensures a fair justice system. If we assign a individual to resolve disputes there is surely a chance of involvement of personality guts of individual. Independent judiciary can easily interpret the provision of constitution and balance the interest of individuals and society and to check the functioning of other organs.


  • COMPONENTS OF INDEPENDENT JUDICIARY

SAPARATION OF POWER

In independent judiciary judges have power to work without any pressure or influence of other organs such as legislature and executive . judges are not forced to act in favour of any political party or agenda so that everyone could get impartial justice. No government or private entity can interrupt in the administration of judiciary.



FINANCIAL INDEPENDENCE

Salary and allowance of judges is directly extracted from consolidated fund of India . they are not dependent on government for their salary . Although the salary and allowance is set by the parliament but it can only increase their salary . Parliament can reduce their salary only in the case of financial emergency but it a rare condition, India never faced such financial emergency (ARTICLE 360) till now . This article is only unused article of Indian constitution. We have never used this so far. In this way, financial independence of judiciary leads to the least influence of rich politicians over judiciary.


APPOINTMENT OF JUDGES

In India Legislature does not involve in the appointment process of judges . appointment of judges in totally depends on their knowledge and experience in law. No political stand is checked at the time of appointment hence no political loyalty is required to be a judge. There is no central body like UPSC exist for the appointment of judges which proves the non interference of government in appointment of judges .

The process of appointment of judges is known as collegium system .before 1973 senior most judge of SC was appointed as CJI but in 1958 law commission of India criticised this rule and recommended that experience ,merit and administrative competence must be considered instead of seniority alone. In 1973 justice A.N RAY was selected as a CJI even he was the 4th senior judge of SC and it was realised that for the independence of judiciary there must be a appointment procedure of judges.


SP GUPTA VS UNION OF INDIA ALSO KNOWN AS JUDGES TRANSFER CASE 1

it was held that President is not bound to act according to the consultation of chief justice he can reject consultation of chief justice in appointing judges of SC AND HC .here consultation was limited to mere consultation of views not concurrence of views.

According to this judgement power of appointment of judges was only in hands of central government in this way it was hampering the independence of judiciary.

SC ADVOCATE ON RECORDS ASS. VS UOI (JUDGES TRANSFER CASE 2)

The main aim of this judgement is to reduce political influence from appointment process. This case overruled the judgement of SP GUPTA case and said that the opinion of CJI in appointment of judges of supreme court or high court will be mandatory and should be given primacy. In this case opinion of CJI means collective opinion of CJI and 2 senior most judges of supreme court. Also the senior most judge of supreme court will become CJI.

IN RE PRESIDENTIAL REFERENCE (JUDGES TRANSFER CASE )1993

In this case President referred 9 questions for advisory opinion of supreme court while using ARTICLE 143. 9 judges bench gave its advisory opinion and they came to a conclusion that CJI will be obliged to consult with other judges otherwise the opinion will be not binding on President. CJI should consult with 4 senior most judges in his opinion regarding appointment and the group of these 4 judges is known as collegium. It is also necessary that all 4 judges have consensus if not then CJI will not send the recommendation to the President.

In 2015 , 99th amendment act was introduced to replace the collegium system and form a organisation to conduct appointment of judges at central level. That act says that there will be a NATIONAL JUDICIAL APPOINMENT COMMISSION for appointment of judges . This act amended the article 124(2),127 and 128. And inserted article 124A , 124B and 124C.in article 124(2) it was amended that President will appoint the supreme court judge bases on the recommendation of NJAC.

ARTICLE 124A – Members of NJAC

6 members will be the part of NJAC ,1 CJI, 1 LAW MINISTER ,2 SENIOR JUDGES OF SC and 2 EMINENT PERSONS NOMINATED BY PM, LEADER OF OPPOSITION AND LAW MINISTER.

ARTICLE 124B -FUNCTION OF NJAC (APPOINT AND TRANSFER OF JUDGES OF SC AND HC)

ARTICLE 124C -PROCEDURE OF APPOINTMENT WILL BE REGULATED BY PARLIAMENT.

SC ADVOCATE ON RECORD ASS. VS UOI (JUDGE TRANSFER CASE 4 )

In this case the constitutionality of 99th amendment act was challenged and it was declared null and void ,as it was violating the independence of judiciary and doctrine of separation of power and SC held that the collegium system will be restored.

These all cases are necessary to understand in order to understand collegium system.


COLLEGIUM SYSTEM

Collegium is nowhere defined in the Indian constitution or in any amendment . collegium system means the system of appointing judges of supreme court and high court by the President with the help of a collegium which is nothing but the group of CJI and 4 senior most judges of supreme court in case of appointment of judges of supreme court and 2 senior most judges of supreme court in case of appointment of judges of high court.

Also to overcome problem of transparency in collegium system SC laid down some guidelines to improve collegium system and advised for the MOP ( MEMORANDUM OF PROCEDURE) between government judiciary over that guidelines relating to collegium system.


FIXED TENURE

Tenure of judges is fixed that’s why no one can remove them easily. Even Parliament cannot remove them if they take decision against it while working constitutionally. They have no fear of losing the authority because they have a security of tenure.

Even when they act unconstitutionally there is a difficult procedure of their removal from the post. The process of removing a judge is same as the process of removing President i.e, IMPEACHMENT . for initiating the impeachment for judge there are some conditions that are as follows;

  1. Misbehaviour ( violation of constitution)

  2. Incapacity

  3. Use of excess power

If one of the above condition satisfies then only parliament can initiate impeachment process. after that a special majority in both the houses of parliament ( LOK SABHA AND RAJYA SABHA ) followed by consent of president is required to impeach a judge. In India no judge is impeached till date. This empowers judges to act fearlessly.

NO DICUSSION IN LEGISLATURE ON THE CONDUCT OF JUDGES

Parliament is not entitled to discuss or criticize the judgements of court only the process of impeachment of a judge is discussed in parliament . no one can disrespect or neglect judgement of courts if they do so it will be considered as contempt of court. A judge ,magistrate or other person acting judicially shall also be liable for contempt of his own court or any other court in the same manner as any other individual. everyone should respect it and maintain its dignity.

POWER TO PUNISH FOR ITS CONTEMPT

Contempt means disrespecting , insulting ,ignoring or harming dignity of court. In order to maintain the dignity of court contempt of court 1971 was introduced and this act is applicable throughout the country . this act defines the all aspects of contempt and its punishment. In article 129 0f Indian constitution it is clearly mentioned that supreme court is court of record and it empowers supreme court to punish anyone for its contempt. High court can punish for the contempt of courts subordinate to it under IPC. Contempt of court may be punished with the simple imprisonment for a term which may extend to two thousand rupees ,or with both.

EXAMPLE- Famous lawyer and activist PRASHANT BHUSHAN tweeted some tweets which were against the photographs of CJI S.A .BOBDE on his bike, later proceedings for criminal contempt of court were conducted against him as he had disrespected CJI and fine of 1RUPEE was imposed on him .

Stand up Comedian KUNAL KAMRA commented against Supreme court as well as CJI on tweeter which led to criminal contempt of court proceedings against him . attorney general of India K.K.VENUGOPAL was also in favour of that proceedings against him.

POWERS AND JURIDICTION OF THE SUPREME COURT

Supreme court of india has immense power and jurisdiction some of its powers are as follows :-

1 ORIGINAL JURIDICTION - to resolve dispute between centre and states.

2 APPELLATE JURIDICTION -It is the highest court of appeal anyone can appeal against the judgement of lower courts.

3 WRIT JURIDICTION – In case of violation of fundamental right supreme court can issue a writ that’s why is also known as custodian of fundamental rights.

4 ADVISORY JURIDICTION – Supreme court can give aid and advice to president if he asks for but it is not binding on him.

5 JUDICIAL REVIEW – Supreme court can review on the acts and amendments made by the parliament.



  • FACTORS AFFECTING INDEPENDENCE OF JUDICIARY

-Corruption

- Absence of Tranparency in appointment of judges

- influence of political parties

-interference of other organs of the government

-Dominance of powerful entities


  • JUDICIAL ACTIVISM

The stepping out of judiciary from its office is known as judicial activism . when judiciary flourishes after breaking its so called barriers in order to ensure justice in society is considered as judicial activism. JUSTICE V.R.KRISHNA ,JUSTICE P.N BHAGWATI and others raised the flag of judicial activism. The famous Hussainara khatoon and ors vs home secretary ,state of bihar case of 1979 was the classical entry to the world of PIL. However it is necessary to balance between judicial activism and judicial restraint. Somehow constitution of India allows judicial activism as it helps in ensuring justice. It is clearly visible in public interest litigation as judiciary helps out beyond the boundaries of its office.

However it is risky due to separation of powers that’s why judiciary cannot interfere in administration of other organs , also the judges are elected in undemocratic manner so they are not answerable to people.


  • CONCLUSION

The independence of judiciary holds a prominent position as far as the institution of judiciary is concerned . but as it is clear from the historical overview that judicial independence has faced many obstacle in the past especially in appointment and transfer of judges but court took its stand in every situation and proved that independence of judiciary is a basic feature of constitution as independence of judiciary is must for smooth functioning of a democracy. The concept of independence of judiciary must continue in future to maintain harmony and fraternity in individuals as well as society


-Parushi sharma

Law student

Des SNLFC

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