Essay on the Independence of Judiciary of India

The administration of justice is the vital task of judiciary. Justice which is the soul of the state must be administered without fear or favor. Hence judiciary should remain as far as possible outside politics. In interpreting laws and administering justice the judges must be impartial and honest. The vital need is to organize the judiciary properly. The appointment and tenure of the judges, their relation to other agencies of government— these and other similar considerations are important in maintaining the independence and integrity of the judiciary.

1) Organization of Judiciary :

The degree of independence enjoyed by the judiciary is largely dependent on the mode of its organization. In the modern states the judiciary may be organized in three different ways: (1) it may be elected by the legislature; (2) It may be elected by the people; or (3) it may be appointed by the executive.

The system of election exists in many of the states in the USA. One of the defects of this system is incapable judges may be elected who func­tion according to the wishes of the people. Election by the legislature is somewhat better though the process is not free form the influence of party politics, and the judiciary may function under the control of the legislature. The system of appointment by executive has been found by practice to be satisfactory. The executive is a better judge of the merits and suitability of those appointed than that of the legislature or the people but once appointed the judges should remain outside the influence of the executive. This system has been adopted in most of the states.

2. Tenure :

The security of tenure is essential for the independence of the judiciary, though the opinions and practices widely differ. In most of the American states the judges hold office for limited terms. The federal judges in the United States, however, hold office during good behavior although the Indian constitution does not provide for any tenure the ex­isting provision provides for a long tenure. Long tenure enables judges to gather experience and to dispense justice without fear or favour.

3. Method of Removal :

The judges should not be removed on filmy grounds or by the whims and caprices of either the executive or the leg­islature. They should continue in office during good behavior. It means in Great Britain that the judges shall be removed by the crown except upon an address of both houses of parliament. In the United States the usual practice is to remove the judges through impeachment. In India a judge of the Supreme Court or a High Court can be removed only on the ground of proved misbehavior or incapacity.

In order to ensure independence it is also necessary that the judges should not practice after retirement. Any judge who practices law after retire­ment may not remain quite fair in the discharge of his duties while in service. In India the judges of Supreme Court are not allowed to practice after retirement as it hampers the independence of judiciary.

4. Salary:

Properly qualified and efficient persons will not be attracted to the judiciary unless the salary is attractive. Adequate remuneration keeps judges above corruption. Salary, allowance and retirement benefits ought to be lucrative for the independence of judiciary.

5. Qualification :

The nature of Judicial function requires technical com­petence hence the judges should have requisite qualifications. The usual practice is that almost all the countries are to appoint judges from among the distinguished member of the legal profession. In India for instance, the Constitution provides that to be a judge of the Supreme Court a per­son must have been a judge of the High Court for at least five years standing or the person concerned is, in the opinion of the president, a distinguished jurist.

6. Separation of the Judiciary from the executive:

Judiciary should be free from the influence of the executive so that justice can be provided to the aggrieved parties. Executive should not interfere or exercise con­trol over the working of courts.