Within the framework of parliamentary democracy and federalism, judiciary plays an important role in the governance of the country. The judiciary is an indispensable part of governance and an efficient and independent judiciary is the greatest guarantee of well being of society.
Indeed, the Indian judiciary was seen to be an arm of the social revolution, upholding the equality and dignity of men that the people of India suffered long during the colonial days, but it has not been gained as yet.
Historically speaking, the Indian judicial system has had a glorious past.. The framers of the Indian Constitution conceived of a judicial system, which was free from the control of the executive as well as the legislature. India opted for a single judicial system and by creating a single judiciary with the Supreme Court at the top, the framers of the Constitution obviously intended to introduce certain judicial reforms.
In the governance of a democracy, judiciary plays a very important role, which is second to none. The Constitution accords a place of pride to the judiciary by conferring the power of judicial review of legislative and administrative actions and entrusting it with the task of enforcement of the fundamental rights guaranteed under the Constitution.
In fact, the judiciary assumes a significant and special importance by virtue of its very task of sitting on judgment on the actions of the other two organs and power of interpreting the constitutional provisions.
Judiciary – the organisation for giving justice to the society, occupies a position of pre-eminence among the three organs of the State. Justice is considered, as a logical requirement of any society for it is a part of human nature to expect justice and be intolerant to injustice. Justice enjoins upon everybody to preserve the basic order of society and prohibits everyone to disturb it.
The promotion of good governance through judiciary depends on its independence to a great extent. An independent, unbiased and able judiciary is the first requirement of justice. Independence of the judiciary means independence from the government in power since judges have to provide justice not only between citizens but also between a citizen and the State.
The Indian Constitution makes provision for an independent and impartial judiciary. Former Chief Justice Chandra HUD opines that the independence of judiciary is the “cardinal feature” and observed that the “judiciary which is to act as a bastion of the rights and freedom of the people is given certain constitutional guarantees to safeguard the independence of judiciary”.
Firstly, in order to ensure the independence and impartiality of the judiciary, certain provisions are provided in the Constitution. One such provision is the appointment of judges.
The Constitutional provisions regarding the appointment of a judge is that only those persons can be appointed as a judge of the Supreme Court, who are citizens of India and (a) has been judge of a High Court or of two or more courts in succession at least for five years; or (b) has been an advocate of a High Court or of two or more such courts in succession at least for ten years; or (c) is a distinguished jurist, in the opinion of the President.
These provisions show that no ordinary person can become a judge. In other words, highly qualified persons can become a judge of the Supreme Court. In the lower, appointments are made on the basis of written examinations those who clear the examinations an appointed. Here too, we see that the appointments are strictly made on the basis of merit.
Secondly, they are provided security of tenure. Once appointed, they can stay in office till they attain the age of 65 and 62 (Supreme Court and High Court respectively). They can be removed from their post only on the ground of proved misbehavior or incapacity through a process of impeachment.
This impeachment process is so tough that till date no judge has been removed from the post. Once, the proceedings were initiated against Justice Ramaswamy for financial irregularities but the resolution could not be passed for want of required support in the House.
Thirdly, in case of Supreme Court judges, they have been prohibited from practicing law before any court of authority within the territory of India after retirement.
Fourthly, they are paid handsome salary and are entitled to a free house and certain other allowances and privileges neither the salary allowances and privileges, nor their rights in respect of leave of absence or pension can varied to their disadvantage after their appointment. During a grave financial emergency, the salaries of the judges may be reduced.
Fifthly, all the actions and decisions of the judges in their official capacity are immune from criticism. Besides, the conduct of a judge may not be discussed in the parliament except when a resolution for his removal is before it.
Finally, the Supreme Court has been authorized to have its own establishment and to have complete control over it. It is further authorized to make appointments of officers and servants of the court and determine their service conditions.
All these provisions were made in order to ensure the independence and impartiality of the judges. As Ambedkar said in the Assembly, it was the intention of the framers to create a judiciary and to give it ample independence so that it could act without fear or favour of the executive or anybody else