There are various conditions which can create an independent judiciary. These conditions may be discussed as follows :
Mode of appointment:
The independence of judiciary depends upon to a very great extent on the method according to which the judges arc appointed. There are three alternative methods of making the appointment of judges.
(a) The judges may be elected by the people.
(b) They may be elected by the legislature.
(c) They may be appointed by the executive.
The election of the judges by the people is done in certain states of the U.S.A. and Cantons of Switzerland. This method is very defective. It makes a politician of a judge.
A politician cannot be expected to be impartial, independent and honest judge. Popularly elected judges remain subservient to party-machine. Election of judges by the legislature is similarly faulty. The election of judges by the legislature makes them nominees of the party in power.
This leaves the judges open to partly intrigue and influence and it becomes difficult for them to deal out even handed and impartial justice. The method makes them completely subordinate to the wishes of the majority party. This method is prevalent m Switzerland, U.S.S.R. and some states of U.S.A. The third alternative is the appointment of judges by the executive. This is considered to be the best method.
Prof. Laski suggests that the executive should make the appointment of judges with the consultation of some other senior judges. The constitution of India provides for a similar method of appointment of judges of the Supreme Court and the High Courts. Appointments made by the executive are usually free from political considerations. They are determined more by the qualifications necessary in a judicial officer than by extraneous considerations. The method is calculated to secure independence of the judiciary.
2. Security of Service:
For independence of judiciary, it is also important that the judge should enjoy full security of service so that he is able to perform his duties without fear or favour.
In England, as also in India, a judge cannot be removed from service unless the chief executive head receives a joint address from both the Houses of the Parliament to this effect.
A judge must feel that he is secure in his job if he has to act honestly and impartially. Security of service is thus vital to make a judge independent and fearless in his views.
3. Separation of Judicial Functions:
Separation of judiciary from the executive and legislature has also been regarded as an indispensable requisite of an independent judiciary. Combination of judicial and executive functions, as is the position in India regarding the District Office, is highly prejudicial to the cause of justice.
A person should not be the prosecutor as well as judge at the same time, because such a person cannot maintain impartiality in judgment. Combination of judicial and legislative functions can likewise result in the abuse of authority.
4. Long Tenure of Service:
A judge should be given a long tenure of service. The judges of Supreme Court and High Court retire at the age of 65 and 62 respectively. That is quite enough. A short-term appointment is dangerous as it is liable to make a judge corrupt and rob him of his independence.
5. Decent Salary:
A judge should be given a decent salary befitting his position and status. A good salary will make him contented. He will not be tempted to accept bribes and will maintain a decent behavior in the conduct of his business.
6. Talents and Qualifications:
A judge should be highly qualified in law. It is preferable if an advocate who win distinction at the bar is given an opportunity to serve as judge. A person who is appointed as judge should also be known for his integrity and honesty of purpose.
Points to Remember
The judiciary is the custodian of individual liberty. Its independence can be guaranteed under the following conditions :
(a) The judges should not be elected by the people or the legislature. They should be appointed by the executive with the consultation of some other judges.
(b) The judges should be given complete security of service. Executive should not be in a position to remove them.
(c) They should enjoy a good behavior tenure.
(d) They should be given decent salaries befitting their position and status.
(e) The judiciary should be kept separate from the executive and the legislature as far as possible.
(f) The judges should be highly qualified and experienced.