Judicial Independence

Topics: Separation of powers, Law, Constitution Pages: 10 (3681 words) Published: September 1, 2011

An independent judiciary is necessary for a free society and a constituent democracy. It ensures the rule of law and realization of human rights and also prosperity and stability of the society. The independence of the judiciary is normally assures through the Constitution but it may also be assured through legislations, conventions and other suitable norms and practices. Following the constitution of United States, almost all constitutions lay down at least the foundation if not the entire edifices of an independent judiciary. The constitutions or the foundational laws on judiciary are however, only the starting point in the process of securing judicial independence. Ultimately the independence of the judiciary depends on the totality of a favorable environment created and backed by all state organs including the judiciary and the public opinion. The independence of judiciary also needs to be constantly guarded against the unexpected events and the changing social, political, economic conditions; it is too fragile to be left unguarded. India has given itself a liberal constitution in the Euro- American traditions, which aims at establishing a free and democratic society. It also aims at prosperity and safety of the society. Its makers believed that such a society could be created through the guarantee of fundamental rights and an independent judiciary to guard and enforce these rights. Therefore the framers of the Indian Constitution dealt with these two aspects with maximum and identical idealism.

The independence of judiciary is not a new concept but it’s meaning is still imprecise. The starting and the central point of this concept is apparently the doctrine of separation of powers. Therefore, it primarily means the independence of judiciary from legislature and executive. But that amounts to only the independence of judiciary as an independent institution form the other two institutions of the state without regards to the independence of the judges in exercising of their functions. In such a case there is not much that is achieved. The independence of judiciary does not mean just creation of an autonomous institution free from control and influence of the legislature and the executive. The underlying purpose of independence of judiciary is that judges must be able to decide disputes before them, according to the law, uninfluenced by any other factor. For this reason independence of judiciary is the independence of each and every judge. Whether such independence would be ensured to the judge only as members of an institution or irrespective of it is one of the most important considerations in determining and understanding the meaning of independence of judiciary. In a comprehensive analysis based on the contribution of leading jurists and international bodies on independence of judiciary, Shetreet takes into account all these considerations. Explaining the tern-is 'independence' and 'judiciary' separately, he says that the judiciary is the organ of the government not forming a part of the executive or the legislative, which is not subject to personal, substantive or collective control and which perform the primary function of adjudication. Dealing with independence, he differentiates between the independence of the individual judges and the collective independence of the judiciary that together constitutes 'independence'. To Shetreet, independence of individual judges consists of the judge's substantive and personal independence. The former means subjection of the judge to no other authority other than law in making of judicial decisions and exercising other official duties while the latter means adequate security of judicial terms of office and tenure. The independence of the individual judges also includes independence from their judicial superior and colleagues.Shetreet's treatment establishes that the independence of judiciary means and...
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