Editorial 4th Quarter 2022

                                               EDITORIAL FIRE MAGZINE 

                                                     NOVEMBER, 2022

 

   THOTA  HANUMAIAH   CHIEF  EDITOR

THE INDEPENDENCE OF THE JUDICIARY

 

 The Constitution has provided for a judiciary which will be independent. It is difficult to suggest anything more to make the Supreme Court and the High Courts independent of the influence of the executive  and Legislature.There is an attempt made in the Constitution to make even the lower judiciary  independent of any outside or extraneous influence.

There can be no difference of opinion in  that our judiciary must both be independent of the executive, Legislature and must also be competent in itself.

 

An independent judiciary is necessary for a free society and a constitutional democracy. It ensures the rule of law and realization of human rights and also the prosperity and stability of a society. The independence of  the judiciary is normally assured through the Constitutions but it may also be strengthened through legislation, conventions, and other suitable norms and practices.

 

However,the NDA government has intensified the efforts to push for a dominant say for the government in judicial appointments and transfers leading to a confrontation between the judiciary and executive, between the collegium system and the national judicial appointments commission  that was invalidated by the supreme court.

 

The   democratic opinion is to resist  and oppose all efforts by the  Government for executive control over judicial appointments, infringing the independence of the judiciary. The independence of the judiciary must be upheld by all means, uncompromisingly.

The People  have been advocating for a long time the setting up of a broad-based National Judicial Commission which works in a transparent manner with clearly-defined rules and procedure regarding the selection and appointment of judges. In such a commission, not only will the higher judiciary and the executive be represented, but there will also be distinguished jurists and other representatives of independent bodies. To ensure that the executive cannot have a dominant say, there should be an inbuilt adequate firewall protection against executive control, to uphold the independence of the Judiciary. 

The National Judicial Appointments Commission Act, which was  passed by parliament in 2014 under the NDA government, was flawed as it did not have an adequate firewall protection against executive control. 

 The constitutions or the foundational laws on the 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  public opinion. The independence of the judiciary also needs to be constantly guarded against  unexpected events and changing social, political, and economic conditions; it is too fragile to be left unguarded.

 

India has given  itself a liberal constitution  which aims at establishing a free and democratic society. It also aims at the prosperity and stability of  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 those rights.

 

The independence of the judiciary and the protection of its constitutional position is not achieved in an instant act, but rather over a period of time by a continuous struggle which takes place within the framework of an ongoing and dynamic process.

 

While the doctrine of separation of powers ensures liberty by preventing concentration of powers in one person or body and thereby puts a restraint on the executive and legislature, it also ensures the exercise of judicial power that is unhindered by the other two branches.

Independence of the judiciary means (1) that every judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without any  influences, inducements, or pressures, direct or indirect, from any quarter or for any reason, and (2) that the judiciary is independent of the executive and legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature.

 

The Judiciary is an organ of government, not a part of the executive or the legislative, which is not subject to personal, substantive and collective controls, and which performs the primary function of adjudication.

 

The constitution makers of India had a grand vision of a free and just society based on the rule of law. In the realization of that vision, they had assigned a prominent role to the judiciary which it had to perform     independently and uninfluenced by the other two branches of the government. By and large, the expectations of the Constitution makers have been respected, if not fulfilled, by all concerned. Among all the troubles and tribulations India has faced since the commencement of the constitution, the judiciary has performed its role fairly well. In its times of trouble with the executive, the judiciary has received the spontaneous and sustained support of a powerful legal community and of people in general. Therefore, the judiciary has generally been able to maintain its independence and perform its role along the expected lines. The largest democracy of India , among all its adversities, has been able to sustain and effectively operate its constitution because of the constitution makers' vision of an independent judiciary and the sustenance of their vision by the people of India. In spite of many failings, it is no mean achievement for the people of India and the institutions that they have been able to sustain a democratic constitution. The independence of the judiciary appears to be one of the most prominent factors in the occurrence of this phenomenon. Let us therefore, preserve, protect, and promote it. However, for the harmonious function of all the three organs of government, it is imperative to  honour the “Laxman Rekha” between them.