Why is judiciary independent

However vaguely it may be perceived, however unarticulated may be the thought, there is an aspiration in the hearts of all men and women for the rule of law. That aspiration depends for its fulfilment on the competent and impartial application of the law by judges. In order to discharge that responsibility, it is essential that judges be, and be seen to be, independent.

We have become accustomed to the notion that judicial independence includes independence from the dictates of the Executive Government. Lord Coke's denial of the King's right to judge cases and the provisions of the Act of Settlement are landmarks in the development of that notion. But modern decisions are so varied and important that independence must be predicated of any influence that might tend, or be thought reasonably to tend, to a want of impartiality in decision-making.

Independence of the Executive Government is central to the notion but it is no longer the only independence that is relevant. Appearance, no less than the reality, of independence is essential. The judiciary, the least dangerous branch of government 1 , has public confidence as its necessary but sufficient power base. It has not got, nor does it need, the power of the purse or the power of the sword to make the rule of law effective, provided the people whom we serve have confidence in the exercise of the power of judgment.

In earlier times in this century, that confidence was undoubted. Then institutions were not questioned and the work of the judiciary was not well understood. Judges were the revered symbols of justice.

You may remember Lord Devlin's observation that "[t]he English judiciary is popularly treated as a national institution, like the navy, and tends to be admired to excess" 2. That is no longer the position in Australia. Judges are more important now; judges are more criticized. And judges face more difficult tasks than they ever have before faced in the history of the Commonwealth.

Today the community looks to the courts to adjudicate disputes in areas extending far beyond the areas of jurisdiction invoked 50 years ago.

Reposing that function in the judiciary, the community examines judicial performance of the function more critically than hitherto. Of course, this development demonstrates the confidence of the community in the judicial branch of government: a confidence that is not misplaced so long as independence from impermissible influences is jealously maintained. Impermissible influences may be of different kinds. First, take the changes that have occurred in the distribution of political power.

The Diceyan theory which translated the political sovereignty of the people into the legal sovereignty of the Parliament and thus into laws which corresponded with the wishes of the electorate 4 may have been a logical construct rather than a description of political reality.

But, however that may be, the political machinery of today led Lord Hailsham to describe the modern democratic system as "an elective dictatorship, absolute in theory if hitherto thought tolerable in practice" 5. It is beyond question that the contemporary form of Westminster government keeps the Parliament in line with Executive policy, rather than the reverse.

And the exigencies of administration coupled with the demands of political success expose the interests of minorities and individuals to risk. That leaves the courts in a singular position. It has many dimensions, fearlessness of other power centres, economic or political. Impartiality, independence, fairness and reasonableness in decision-making are the hallmarks of the judiciary. Without independence, impartiality cannot thrive.

It is the independence of judicial thought. It is the freedom from interference and pressures which provides the judicial atmosphere where a judge can work with absolute commitment to the cause of justice and constitutional values. Its existence depends, however, not only on philosophical, ethical or moral aspects but also upon several mundane things namely security in tenure, freedom from ordinary monetary worries, freedom from influences and pressures within from others in the judiciary and without from the executive.

Independence of the judiciary is a part of its basic structure. The constitutional ethos of an independent judiciary cannot be permitted to be diluted by acts of implied intervention or undue interference by the executive in the impartial administration of justice, directly or indirectly. Justice Ranjan Gogoi is not the first Chief justice to accept post retirement benefits from the government. Justice P. Sathasivam was appointed as the governer of Kerala after his retirement in the first regime of the Bharatiya Janata Party BJP -led government in Justice M.

In the USA, the tenure of judges is lifetime. Therefore no question of post retirement appointments arises. The reason is to provide judges with job security so that they can work according to the law and free from any kind of fear. In the USA, even the president cannot diminish the compensation of the federal judges. This is to exclude executive and legislative interference. In the United Kingdom, the situation is much like India, but in contrast, there is no law to stop them from assuming any position after completing their services.

Many retired judges become crossbench peers. In fact, the current convenor is also a retired Chief Justice of England and Wales. A certain cooling off period should be imposed, which needs to be completed before reinstating any public office.

It will make sure that there were no political or executive involvements in decision-making of the judge. For example, it is clearly inappropriate for the judge in charge of a criminal trial against an individual citizen to be influenced by the state. It would be unacceptable for the judge to come under pressure to admit or not admit certain evidence, how to direct the jury, or to pass a particular sentence. Decisions must be made on the basis of the facts of the case and the law alone.

Judicial independence is important whether the judge is dealing with a civil or a criminal case. This requirement that judges be free from any improper influence also underpins the duty placed on them to declare personal interests in any case before it starts, to ensure that there is neither any bias or partiality, or any appearance of such.

A practical example of the importance of judicial independence is where a high profile matter, which has generated a great deal of media interest comes before the court. Such matters range from the criminal trial of a person accused of a shocking murder, the divorce of celebrities, and challenges to the legality of government policy, for example the availability of a new and expensive drug to NHS patients.

In the 24 hour media age in which we live, it stands to reason that the judge hearing the case will often be under intense scrutiny, with decisions open to intense debate. It is right that this is so. But it is important that decisions in the courts are made in accordance with the law and are not influenced by such external factors.

It is also important however to observe one or two points which will have an impact on the outcome of the trial and our understanding of it:. The purpose of the above examples is not to suggest that judges never get it wrong, or that in criminal cases they have no say in the sentence handed down, but to give an idea of the factors they must consider when making decisions.

The protection of judicial independence has been the focus of international resolutions, the most prominent of which are:. Other bodies have endorsed judicial independence. For instance, in , the group of Asian — Pacific Chief Justices adopted a common set of standards for the promotion and protection of their judicial institutions, which included judicial independence. The essence of the commitment to judicial independence can be found in the oath that all judges in England and Wales have to swear when they take up their office.

The fundamental concept of judicial independence came into being in England and Wales in with the enactment of the Act of Settlement. This statute formally recognised the principles of security of judicial tenure by establishing that High Court Judges and Lords Justice of Appeal hold office during good behaviour.

Appropriate and formal mechanisms had to be in place before a judge could be removed. Since the Act of Settlement it has only been possible to remove a senior judge from office through an Address to the Queen agreed by both Houses of Parliament.

Yes No. Tell us what you were looking for. About the judiciary About the judiciary The judiciary, the government and the constitution The justice system Who are the judiciary?