How to secure the independence of the judiciary?
Conditions for protecting the independence of the judiciary.
How to secure the independence of the judiciary?
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Conditions for protecting the independence of the judiciary.
The judiciary is the main protector of the fundamental rights of the citizens and democracy. The judiciary resists the authoritarian mentality of the government, prevents or nullifies the enactment of laws against the public interest and establishes social justice. Therefore, it is absolutely essential to protect the independence of the judiciary. The impartiality and independence of the judiciary depend on several factors. For example -
1. Application of the principle of separation of powers: -
The three main branches of government - legislature, executive and judiciary. If the principle of separation of powers is adopted in state policy, the other two branches can have less influence or lose the ability to control the judiciary. If the executive or the legislature can easily remove judges, it will have a negative impact on the judicial process. Therefore, it is absolutely desirable to follow the principle of separation of powers to protect the independence of the judiciary.
2. Qualifications of judges: -
Along with professional qualifications, judges have to possess several other humanistic and social qualifications. Among these qualifications the essentials are - honesty, fearlessness, rationality, political neutrality - etc. It is also essential to maintain a clean image of the judges.
3. Appointment of judges: -
There are differences in the appointment system of judges in different countries. For example, in countries like India, the United States, etc., the judges of the high courts are appointed by the executive branch. In this case, it is often not possible to keep the judges completely free from the influence of the executive branch.
Again, in countries like Switzerland, Bulgaria, etc., the judges are appointed by the legislature. As a result, the appointment and tenure of the judges depend on the will of the members of the legislative branch.
On the other hand, even if the judges are appointed by the people, it is not possible for the judges to conduct impartial judicial work.
In this regard, it is necessary to mention that no judicial branch has been able to follow a completely error-free method of appointing judges so far.
4. Tenure of Judges:-
If judges are appointed for a short period, there is a possibility of them becoming corrupt and there is a possibility of loyalty to the appointing authority. Therefore, it is highly desirable that the tenure of judges should be up to a certain age or period.
5. Removal of Judges:-
The issue of removal of judges is deeply related to the question of protecting the independence of the judiciary. Generally, the responsibility of removing high-ranking judges is entrusted to the legislature and executive branches. But if any narrow interest of the legislature or executive is involved in the removal of judges, then it is not conducive to protecting the independence of the judiciary. Therefore, in most of the systems, judges cannot be removed except for sensitive allegations such as incompetence, corruption, violation of constitutional rights, etc.
6. Issues related to the salary of judges:-
The salary, allowances, etc. of the judges of each court should be determined in accordance with the rank and position. If the salary of judges is not sufficient compared to the need, then various problems are likely to arise; such as -
(a) There may be a tendency for corruption among judges.
(b) Qualified persons may be reluctant to accept the post of judge.
(c) Judges may be involved in other professions or businesses while in service - which is not at all befitting the dignity of the judiciary.
7. Job security provisions: -
If security is established in terms of various conditions of service of judges, permanence of service and tenure of service, etc., judges can concentrate on conducting judicial work independently.
8. Social security provisions: -
While performing judicial work impartially, judges often have to give judgments and provide punishments against influential businessmen, political leaders, anti-social elements, etc. Therefore, the social security of judges should be impeccable so that they do not face any kind of threat or intimidation.
9. In addition, necessary education and training should be provided to keep judges free from the influence of public opinion. The influence of public opinion in judicial work is not desirable for impartial judgment.
Finally, it can be said that the independence of the judiciary largely depends on the personal character and personality of the judges. Because, the legislature and in most cases the executive department want to influence the judiciary for the purpose of fulfilling narrow interests. Therefore, it is not possible to protect the complete independence of the judiciary. Alan Ball has called the issue of protecting the independence of the judiciary - a semi-fiction.
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