In India, the question of independence of the judiciary has been a subject of heated national debate over the last many years. It has exercised the minds of legislators, jurists, politicians and the laymen. Both the supporters and the opponents have cogent arguments in support of their views. This question assumes great importance whenever the Supreme Court holds a particular Act or particular Clause of an Act passed by Parliament ultra virus of the Constitution or whenever Government supersedes any person while making appointments of judges of the High Courts or the Supreme Court.
The supporters of absolute independence of the judiciary argue that in the absence of an independent judiciary, democracy cannot succeed. They point out that only an independent judiciary can safeguard the rights of the people as enshrined in the Constitution and thereby ensure the rule of law in the country.
On the other hand, the opponents of the theory of the independence of the judiciary say that under our Constitution, it is not the judiciary but the Parliament which is supreme and sovereign. They feel that it is for the Parliament to lay down the laws and for the judiciary to interpret them. The judiciary cannot and should not usurp the powers of the Parliament. If the Parliament passes any laws for the economic and social upliftment of the people and establishment of a socialistic pattern of society, the judiciary should not strike down such laws and stand in the way of progress. Otherwise, the people might resort to revolution to bring about a change.
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The first political philosopher, who propounded the idea of an independent judiciary, was Montesquieu, the famous French philosopher. He believed in the theory of separation of powers of the three branches of the Government- Legislature, Executive and Judiciary. The fathers of the American Constitution were very impressed by his theory. They, therefore, established an independent judiciary in their country. The American people have great faith in the independence of the judiciary. They are convinced that if any fetters are placed on the independence of judiciary, the rights and liberties of the people might be endangered.
In U.K., however, the Parliament is supreme. The judiciary, there, has not separated from the legislature. In fact, there the House of Lords acts as the highest Court of appeal. Though in U.K., the judiciary has not been m^ independent or supreme, yet its judges have been giving decisions with0ut fear or favour on matters coming up before them. They have been independent and impartial in their judgements. The U.K. does not have a written Constitution but still its people enjoy no less liberty than the Americans. In the U.K. no major clash between the Parliament and the judiciary has occurred so far. Each minds its own business.
The judiciary in the U.K. is not competent to declare a law passed by their respective legislatures as unconstitutional. But in the U.S.A. and India, the judiciary has been vested with the power of judicial review. They can hold a law passed by the legislature as unconstitutional and strike it down. In India the Supreme Court strikes down a law only if it violates the basic structure of the Constitution.
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In reality, an independent, impartial and fearless judiciary is a sine qua non for any nation which believes in democracy. Such a judiciary is all the more necessary for a federal type of Government like in India. Unless the judges are independent and fearless, they cannot be expected to protect the rights and liberties of the people. If the judges are weak and prone to pulls and pressures, people will lose faith in the judiciary.
In India, the Constitution has spelt out the fundamental rights of the people and made the judiciary independent so that it can safeguard and uphold these rights. If experience is any guide, the Indian Supreme Court has invariably shown a high degree of independence in giving its judgements. Some of its judgements even went against the Government.
The Supreme Court is held in high esteem by the Parliament, the Government and the people of India for its role in protecting and guarding the rights and liberties of the citizens, advising the Government on complex constitutional issues, dispensing justice to the people, awarding, confirming, reducing or enhancing the punishment awarded by lower courts to the criminals.
The judges of the Supreme Court are appointed by the President. The President also consults the Chief Justice of India in the appointment of other Judges. The age of retirement for the Judges of Supreme Court is sixty-five years. A judge of the Supreme Court can also be removed from his office by order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a of not less than two-thirds of the members of that House present and vat has been presented to the same session for such removal on the ground proved misbehavior or incapacity.
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The salaries of the Judges are charge upon the Consolidated Fund of India and are not notable in the Parliament. Their salaries cannot be reduced during the term of their office. So, the Indian Constitution has taken every step to ensure the independence of judiciary.
However, in the modern age, the judiciary should always keep in view the economic and social ideals and aspirations of the people, particularly of the weaker or oppressed sections of the society. Only then will it continue to command the confidence and faith of the people.