Independence of Judiciary under the Constitution of India
HOW FAR THE INDEPENDENCE OF JUDICIARY IS ENSURED UNDER THE CONSTITUTION OF INDIA
AUTHOR : SHIKHA MISHRA
INTRODUCTION
Independence of the judiciary is one of the basic structures of the Constitution and has also been perceived as a human right by international conventions. In the Constitution of India, three wings of Government are embodied, and each of these three wings of government has to work independently though they are interrelated with each other. The purpose of justice is deeply embalmed in the Preamble of the Constitution.
The judiciary does not only provide justice between one person and the other or among one group of people and the other, it also does justice in the disputes arising among individuals and States. All the above liabilities and duties can be performed only when the country has an independent, authoritative and impartial judiciary system.
A NEED FOR THE INDEPENDENT JUDICIAL SYSTEM
In republican countries, the judiciary is given a place of great importance. The makers of the Constitution were wide aware of the very important and special part allocated to the judiciary in the system of the Indian Constitution.
It was contemplated as part of the basic structure for protecting the rights of the citizens of India, provided under the Constitution. There was the perception that Judges, specifically the judges of the superior courts, who have been given the power of judicial review of legislative and administrative actions, should work without fear or favor and that the judiciary should remain independent.
The judiciary should validate the rule of law and make sure that the government works according to the legislation. In a democratic country with a written constitution, courts have the additional responsibility of protecting the supremacy of the Constitution by interpreting and applying its rules and regulations and making sure that all authorities work within the constitutional framework. For the preservation of the rule of law and fair and just judicial administration, an independent judiciary is of paramount importance.
INDEPENDENCE OF JUDGES ENCOMPASSES TO AS
- Decisional or Functional independence means the independence of judges to come up with their decisions without submitting to any coercion;
- Personal independence means the judges are not dependent on the elective government in any way in which may affect them in deciding specific cases;
- Collective independence means financial independence and institutional administration of the judicial system as a whole in respect to other divisions of the government that is the executive and the legislative; and
- Internal independence means the independence of judges from the superiors in the judicial system and associates. It refers to, specifically, the independence of a judge or judicial officials from any kind of indication, order, or pressure from his superiors and associates in deciding cases.
The Constitution of India, contrary to the Constitution of America, expressly gives out the power of judicial review by Article 32 to the Supreme Court of India and Article 226 and 227 by the High Courts. The judiciary is the preserver of the Constitution and defender of the rights of the citizens. Ergo, it might even be laid out the Actions of Executive, Administrative or Legislative Acts as unconstitutional. For rule of law to surmount judicial independence is of sheer necessity.
INSTITUTIONAL INDEPENDENCE
The quality of justice indeed depends upon the independence enjoyed by the judiciary. The court must be allowed to perform its function in an atmosphere of independence and it should be free from all kinds of political pressures. Therefore, the founding fathers of the Constitution added a provision in Part-IV of the Constitution which directs the State to make all-out efforts to keep the judiciary out of politics.
This directive notifies the government for the future since the independence of the judiciary means the independence of the judges also. Ergo, the judges shall make them answerable and make sure that their actions should be transparent and within the ambit set by the Constitution.
Independent judiciary is a branch of the principle of separation of powers for cooperation as well as coordination, in particular amongst and between the part of the Government. The Indian Constitution has made various provisions to make sure the independence of the judicial system.
- APPOINTMENTS IN JUDICIAL SYSTEM
The independence of the judiciary is the distinctive feature of the democratic government. The independence of the judicial system starts from the appointment of judges.
Article 124 of the constitution dealt with the appointment of Judges to the Apex Court and Article 217 dealt with the appointment of Judges to High Courts. Articles 124 to 147 in Chapter IV of Part V under the title Union Judiciary deals with the establishment and composition of Apex Court, the appointment of judges and their powers, jurisdiction, rights and service conditions, etc., while Article 214 to 231 in Chapter V of the Part VI under the title The High court’s in the states dealt with the composition of High Court, jurisdiction, the appointment and service conditions of a Judges of a High Court, powers, rights, service conditions, which also includes transfer from one High Court to another High court, etc. The power to appoint a judge to the Supreme Court or a High Court entrusts the President. - QUALIFICATIONS IN JUDICIAL SYSTEM
The next point which has direct relevance to the Independence of the judiciary is the attribute of the individual who is urged to serve in the courts. The attributes of the judges depend on the necessary conditions for the appointment of judges.
According to Article 124(3) defined qualifications of a person qualifies for appointment as a Judge of the Supreme Court, these are:
A person shall not be qualified for appointment as a Judge of the Apex Court except he is an Indian citizen and
- has been for at least five years a Judge of a High Court or two or more such court in elevation; or
- has been for at least ten years an advocate of a High Court or two or more such court in elevation; or
- is, at the discretion of the President.
The qualification of a High Court judge is defined in Article 217(2) “A person must not be qualified for appointment as a Judge of a High Court except he is an Indian Citizen and
- has for at least ten years held a judicial office in the Indian territory; or
- has for at least ten years been an advocate of a High Court or two or more such court in continuance.”
(3) SALARIES AND ALLOWANCES:
The salaries and allowances of the judges are also an element that makes the judges independent and impartial as their salaries and allowances are fixed. They are remitted to the Consolidated Fund in the case of judges of the Apex Court and the State Consolidated Fund in the case of judges of the High Court. Their honorarium cannot be revised to their disadvantage provided in the event of a financial emergency.
(4) REMOVAL OF JUDGES:
In India, both the judges of Apex Court and High Court are appointed by the President under Article 124 and 217, and they enjoyed a fixed term of office and are removable under Articles 124(4) and 217 on proved misconduct or incapacity after an impeachment order passed by each house supported by a set forth majority.
(5) POWER OF PUNISHMENT FOR CONTEMPT OF COURT:
The reasoning behind the Contempt of court is that the court shall have the power to secure compliance to their orders, to serve this object of administering justice. Contempt of Court can cite both civil contempt and criminal contempt.
Contempt of Court finds a place in the Indian Constitution under Article 19(2), 129, and 215. According to Article 19(2) of the Constitution, contempt of the Court is one of the grounds on which the State can legislate to place reasonable restrictions on freedom of speech. Article 129 of the Constitution stated that the Supreme Court must be a ‘court of record’. Article 215 provides a similar position to the High Courts.
(6) ESTABLISHMENT OF COURT
Besides independence of judges, the other aspect which is necessary for the independence of the judiciary is the setup of courts. By setting up the court we mean the administrative set-up. The Constitutional consists of specific provisions for the set up of a court.
According to the provisions of the Indian Constitution, there must be officers and other persons with the courts for administrative service. The Constitution authorized the Chief Justice of India to make appointments of the staff of administration of the Supreme Court. Likewise, the Chief Justice of the High Courts has been authorized to make recruitment to the respective High Courts. Not only this High court is empowered to make appointments to the lower judiciary.
CONCLUSION
Courts have always tried to sustain the independence of the judiciary and have always considered that the independence of the judiciary is a basic attribute of the Indian Constitution. Courts have said so since the independence of the judiciary is the essential requirement for the undisturbed functioning of the Indian Constitution and a realization of democracy is based on the principle of rule of law.
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