Is Judiciary Really Independent, by Advocate Prashant Tyagi

The term judiciary refers to the higher officials of the government i.e judges of all the hierarchy of the courts. The constitution of India gives greater importance to the independence of the Indian judiciary. Every democratic country set up its own independent judiciary for the welfare of its citizens.

The independence of the judiciary i.e the courts and judges should be kept separate from all other branches of the government. The other two bodies of the government i.e the legislative body and the executive body should not interfere with the judiciary system of the government. Not only the judiciary system but also the other two body of the government should be independent so that the work flow in all the three branches can be regulated with ease.

Every democratic country has a constitutional sovereignty and parliamentary sovereignty where there is a separation of powers i.e in USA. In England there is only constitutional sovereignty where the separation of powers is all together removed. In India there is a blending of both constitutional sovereignty and parliamentary sovereignty.

Firstly the chief justice of India is appointed who intern issues the list of the judges to be appointed at the supreme court and at the high court of India to the president of India. The president is guided by the cabinet members for electing them. The judges are elected by an electoral vote at both the house of the parliament i.e at the house of the people and at the council of the states. Before entering into the office as a judge, they have to take an oath or pledge that they will work with their ill-will, endure, and abide with all their duties faithfully and honestly and for the independence of all the citizens of India.

The tenure of the supreme court judge is till they attain the age of sixty five years and the tenure of the high court judge is till they attain the age of sixty two years.

The salaries and allowances of the judges are not affected during their tenure of the office except where there is financial emergency under article 360 of the constitution of India.

The activities of the judges of supreme court and the high court should be kept separate with that of the other higher officials of the legislative body and executive body.

If the activities are blended together then it would become a cumbersome task for the judges to make a judgement for any of the civil or criminal cases he deals with not only at the national level but also at the international level. Whether he/she might is a judge of the supreme court or a high court, they have to deal with any of the cases with much determination and perseverance so that the innocent prosecution gets the justice and the offender is imprisoned.

The provisions have also been made in the constitution of India for the retirement of judges after serving to the citizens to their fullest. The judge of a supreme court cannot practice again in supreme court and the judge of a high court can practice in any of the high court other than the court in which he/she has practiced after his/her retirement for the effective independence of the judiciary, a judge can be removed from his office on proved misbehaviour or incapacity after giving a chance of hearing and expressing his statement on such matter by that judge.
A judge can be impeached from his office only after the members of the legislative body passes a majority of the vote in that house. Such judge has to face conviction in the legislative house and after that he is removed from the office.

The hierarchy of the judicial council is that at the apex level stands the supreme court of india next comes the high court under which comes the district court. The district court is further sub-divided into civil court, criminal court and court for small causes. Every high court in a state has its one branch in that particular state, so all the reports regarding the judgements should be submitted in the main branch. If the petitioner is not satisfied with the decision of the high court then he may appeal in the supreme court against such high court.

For the effective independence of the judiciary, it must be noted that the decisions of the judges are not politically influenced and there should not be any sort of coercion applied on him/her. Many a times there are cases where a judge is forcefully imparted to give falsified decision by any corrupt politician, civil servants, and respondent etc. there are also cases where the judges themselves are corrupt and fraud and keeps the judgement pending for a number of years only for the purpose of making money.

The most recent case between the very well known advocate Mr.Ram Jethmalani and his client and also the chief minister of Delhi Mr. Arvind kejriwal who forced or abused his advocate to use foul language in front of advocate Mr. Arun Jaitley in the high court. So this kind of misbehaviour by the advocate leads to the contempt of court and independence of justice is not protected at all.

A national judicial appointment commission  is formed by the government where a judge is appointed from among the members themselves. According to chief justice Jagdish Singh Khehar, independence of the judiciary depends upon the basic structure of the constitution.

It is the duty of every judge of the supreme court and of the high court to defend its constitution and also to fight for all its citizens due to corrupt and political charges levied against them. whenever there arises the mention of the judicial independence there is always a concern of the latent dangers of the judicial independence and there arises a judicial accountability.

the law commission has also framed the provision for the whistle blowers who make the complaints against the corrupt judges. A draft bill is prepared in which a written provision is made for those whistle blowers making complaints and also for the removal of the judges. The independence of the judiciary was long ago realized by the framers of the Indian constitution so as to meet the changing needs of the society. So to meet these needs of the society the law needs to be amended from time to time. Similarly the independence of the judiciary also needs to be changed. It is also to be seen that the judicial independence and judicial accountability goes hand in hand.

The constitution ensures that the judges do their job faithfully and also ensure that they should do their job without abusing their power. The judges of the supreme court and the high court should step down from the case if they find any of the personal bias. And also there is a conflict of interest between the petitioner and the defendant.

The judges can also step down if they find the political bias in any of the cases. till today there are lakhs of cases which have been pending in overall hierarchy of courts. So if the judiciary doesnt speed their work process and are unnecessary influenced by the other two organs of the government then the number of pending cases will keep on increasing.

A recent case of all the trees to cut down which has grown in the nearby area of the Taj Mahal for building up the railway lines stretching from Chandigarh to Delhi. The well known environmentalist M.C Mehta has raised a voice against it because it is matter which affects the environment by the railway authorities and the supreme court ought to make an immediate decision on it.

Many a times there are cases for which the supreme court cannot give their judgement and the case passes on to the president for his assent. the constitution provides that the decision of the supreme court is final and no appeal can be made there after even a president can raise no voice against the decision of the supreme court. If this is done then it would violate the provision of the constitution and it would be a bad day for the judges of the supreme court and would indirectly affect the independence of the judiciary.

Affecting the independence of the judiciary means affecting the basic components of the Indian constitution and thereby all the rights of a particular citizen. the judges in their personal lives should not speak any words, make actions which would disobey any lawyer, client or witnesses. The judges should respect the lawyers, clients and witnesses. Outside the courtroom the judges should not socialise himself in front of any media or with any person about the hearing of the cases.

Judges are given the benefit of immunity from the prosecution for the acts being carried out by them during the independence of the judiciary. Judges are also given the benefit of immunity for the defamation of the things being published by them in any report or spoke by them while hearing the cases.

This principle suggests many people to tell that the judges are above the law. In fact this principle is incorrect and the law is equal to all the citizens of the country. The principle of equality before the law and equal protection of law is applied.

 

Prashant Tyagi (Intern)

LEXIS & COMPANY

21/06/2021

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