legal essay on independence of judiciary

The rule of law, judicial independence and the right to good administration – myth or reality?

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• Published: 15 July 2024

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• Vincent A. De Gaetano 1  

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In this paper the author focuses on some core notions linking together judicial independence and good administration through the thread of the rule of law. The rule of law is the golden thread running through all public administration (which includes also the judicial administration) of a state, with the ultimate aim being the common good. This is an ideal to which all modern, so-called democratic, states should aspire. The author looks at the practical meaning of the rule of law and suggests an approach based on a core of eight principles, the so-called Bingham’s “sub-principles”, and adds two more to them. Finally, it is argued that one cannot speak of the rule of law, of fundamental human rights and of good administration as if these were concepts isolated from each other

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1 Introduction

Thank you for inviting me to address this distinguished audience of judges from around Europe, including my home country. I feel honoured and humbled that the European Judicial Training Network and the Judicial Studies Committee should think fit that I still have something to contribute to the judicial world. I have been told, however, that this presentation should not be so much a didactic one – I suppose that as judges we all occasionally pretend that we know it all – but rather that it should be a provocative one – to provoke you, and possibly your mentors and instructors and convenors, over these two days to discuss issues touching upon judicial independence with reference to concrete instances and concrete examples.

In the brief time allocated to me, I shall therefore focus on some core notions which seem, to me at least, to link together judicial independence and good administration precisely through the thread of the rule of law. The rule of law is that golden thread running through all public administration (which includes also the judicial administration) of a state which leads to the common good, an ideal to which all modern, so-called democratic, states should aspire. As one academic, Professor Mortimer Sellers from the University of Baltimore’s Centre for International and Comparative Law has put it in a seminal paper entitled What is the Rule of Law and Why is it so Important? , “the greatest question [of our time] is how to discover, create, interpret and enforce the rule of law in such a way that law controls and governs the various private interests not only of ordinary citizens but also of the public officials who administer the state.” Footnote 1

Some, if not most, of the things I shall be mentioning will be known to you, even if through the nuance or prism of different legal systems. No problem – as I used to tell my students of criminal law, repetita iuvant (until the usual wise guy in the class came up with the rest of the expression, sed interdum vexant ). I am probably here today the oldest among you, and in my fifteen years as a public officer in the Attorney General’s Office in Malta, then sixteen years on the bench (eight of them as Chief Justice) and another nine years as a judge in Strasbourg, and now, for my sins, for the last four years, as Commissioner for Education in the Ombudsman’s Office - I believe I have seen and experienced enough instances of distortion of concepts and ideas which might make me sceptical of what we are really taking on: is this all a myth or is there some reality in the overarching concept of the rule of law? Fortunately, I am an incorrigible optimist, and, as they say, hope is the last thing that dies in man (or, in the words of the English poet Alexander Pope, “Hope springs eternal in the Human Breast”). Footnote 2

2 The rule of law

Let’s go step by step: what is the rule of law? – certainly it is neither a rule nor a law. To reduce it to the very simplest non-legal subjective formula, I would say that the rule of law is in fact an attitude, a forma mentis that must accompany every interaction of those who run the country and the rest of the people in the country. It has been said that it is not possible to define exhaustively the rule of law and that it is best explained by reference to behaviour and actions, or to the outcome of that behaviour and those actions. Others have said that you can explain the rule of law by saying, for instance, what it is not. It is certainly not rule by law, because every dictator can use the law to rule. To quote again from Mortimer Footnote 3 (but again his is a very general and almost idealistic approach): “The rule of law, liberty and republican government are three facets of the same substantive good, secured only when the laws rule and protect us from tyranny and oppression. When positive laws and their interpretation and enforcement serve the public good, and prevent domination by any person or group of persons , then we have the imperium legum , the rule of law in its fullest and best sense” (my underlining). This, of course, raises a second-order question: how to discover and preserve the public or common good through law. This, I respectfully submit, is the question that every judge at whatever level of the judicial hierarchy, must ask themselves every morning and at the end of the drafting of every judgment before signing it off.

A more practical approach is perhaps to look at what the rule of law helps deliver – for instance the World Justice Project Footnote 4 explains the rule of law by stating that it is a system that delivers four core principles:

Accountability – the government as well as private actors are accountable under the law;

Just Law – the law is clear, publicised, and stable and is applied evenly. It ensures human rights as well as property, contract and procedural rights;

Open Government – the processes by which the law is adopted, administered, adjudicated and enforced are accessible, fair and efficient; and

Accessible and Impartial Justice – justice is delivered timely by competent, ethical and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve.

But they are still very much vague principles – accountable and open to what extent? Unlike government officials, judges do not administer the public purse, do not draft laws (other than perhaps the rules of court) and do not draft policies for the general administration of the country. The scrutiny and accountability of judges is often limited to the fact that the hearing is conducted in public where the behaviour of the judge on the bench can be gauged, and to the reasoning in the judgment, which can be reviewed by a higher court upon appeal. But what about a judge’s behaviour off the bench, in his private life, in his private relations with other people not connected with judicial proceedings? With politicians, for instance, or business entrepreneurs? To what extent is it permissible to place restrictions on the private lives of judges in the interests of objective impartiality? May judges, for instance, lecture at a university and receive an additional income for doing so? The judges sitting in judgment may be independent and impartial but (in criminal matters, at least) if those responsible for the investigation and prosecution of offenses are not so, or are underfunded or downright incompetent, how can one speak of proper justice being administered? The judge may be independent and impartial ad unguem , but is justice really being delivered if you have a dysfunctional investigative and/or prosecutorial system which invariably leads to acquittals? Does the rule of law hold sway in such a scenario? What can the judge do, if anything, in such a situation to advance the rule of law?

3 Tom Bingham

This approach of core principles, however, is useful in that it helps focus the discussion. It is also the approach taken up by perhaps the most influential English judge after Lord Denning these last seventy years – Tom Bingham (or Baron Bingham of Cornhill, to give him his official title). In his famous book, first published in 2010 and which bears the name of part of the title of this presentation – The Rule of Law  – Bingham lists what he calls ‘sub-principles’, which collectively form the core of the rule of law. I list them here in the order in which they appear in the book (the page numbers are those of the 2010 Penguin Edition):

1 ‘The law must be accessible and so far as possible intelligible, clear and predictable’ (p. 37);

2 ‘Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion’ (p. 48);

3 ‘The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation’ (p. 55);

4 ‘Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably’ (p. 60);

5 ‘The law must afford adequate protection of fundamental human rights’ (p. 66);

6 ‘Means must be provided for resolving, without cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve’ (p. 85);

7 ‘Adjudicative procedure provided by the state should be fair’ (p. 90);

8 ‘The rule of law requires compliance by the state with its obligations in international law as in national law’ (p. 110).

A few quick comments on some of them. The first sub-principle recalls the concept of the “quality of law”, found in the caselaw of the European Court of Human Rights – if a law fails that test of quality, what is done according to it could still put the state in breach of the European Convention on Human Rights. One case which wound its way up to Strasbourg from Malta was Unifaun Theatre Productions Limited and Others v. Malta . Footnote 5 The applicants complained of a violation of their right of freedom of expression because of the prohibition to put up a particular play. Before the domestic courts, the judges got all knotted up on the question of protecting public morality, failing completely to see the elephant in the room, namely that the Cinema and Stage Regulations dating to 1937, and amended piecemeal over the years, had become so convoluted with contradictory provisions that it was not clear what powers the Board for Film and Stage Classification had, and that this inevitably led to arbitrariness in their decisions. These regulations failed the “quality of law” test.

4 The Archbishop and the NGO

Point number 4 refers to the inherent limit on the exercise of any power, whether administrative or quasi-judicial, by the Executive Branch of Government. And number 6 reminds us of the spectre of unreasonable delays in the administration of justice, something which is also inimical to the rule of law. A combination of a number of these points also indicate that when the laws are deficient or the executive unwilling to act, judges can, in the appropriate circumstances, step into the breach in defence of the rule of law. I have two cases in mind in this respect: one from the 1980s from Malta, and one – a much more recent case – from the court in Luxembourg, but also involving Malta. In the mid-80s the government sought to interfere with the running of church schools in Malta. The then Ordinary of the Archdiocese, Archbishop Joseph Mercieca, brought a constitutional redress application before the first instance constitutional jurisdiction court (we call it the First Hall of the Civil Court). The government’s tactic was one of attrition: challenging the judges on the grounds that they or their children or some distant relative had attended a church school and appealing from every interlocutory decree (something that was possible at the time). Before the first instance court, the applicant sought to produce a particular witness; the government objected but the court decreed the witness admissible. Government appealed to the Constitutional Court, which was now composed of the last three judges available on the islands – the other judges had been challenged except for the one who was hearing the case at first instance. Before the Constitutional Court, the government sought to challenge two of the three judges on the same grounds on which others had been successfully challenged or had abstained. The Constitutional Court was faced with a dilemma: it could have allowed the challenge of two of its members, which would in practice have meant two things: that the principle enshrined in the constitution about the automatic composition of the Constitutional Court Footnote 6 would become a dead letter; and, that the case would then only proceed after that the government had deigned to appoint new judges to the bench of judges or, worse, appoint supplementary or acting or temporary judges (which at the time was a possibility). In either case, since the appointment of judges, whether regular or supplementary, was at the time the sole prerogative of the executive (in effect of the Prime Minister), it meant that in such a high profile and sensitive case the government would be appointing its own judges to sit on a case to which it was a party. The Constitutional Court Footnote 7 took the bold step of invoking the doctrine of necessity, stating that even if the challenges were valid (which in fact they were not) the buck stopped there and the judges would not step down – necessitas facit licitum quad alias non est licitum .

The Luxembourg judgment Footnote 8 was perhaps a more cautious approach, with the ECJ unwilling to assert – as the NGO Repubblika was claiming – that the Prime Minister’s power of appointment of judges was in breach of EU law – after all that was the position at law in Malta at the very point in time when Malta joined the European Union. The court noted the improvements in the process of appointment of judges – there was now a Judicial Appointments Committee which made recommendations to the Prime Minister. However the ECJ took the opportunity to break a lance for the rule of law by introducing the principle of non-regression with regard to the rule of law, whereby a Member State “cannot… amend its legislation in such a way as to bring about a reduction in the protection of the value of the rule of law” and must “ensure that… any regression of their laws on the organisation of justice is prevented, by refraining from adopting rules which would undermine the independence of the judiciary”. In fact in 2020 the Prime Minister’s role in the appointment of judges was completely removed, the only anomaly remaining being that whereas the Secretary to the Commission for the Administration of Justice is appointed by the same Commission and should therefore act as Secretary to any sub-committee of the Commission, the Judicial Appointments Committee which is a sub-committee of the Commission, has its own secretary appointed by none other than the minister responsible for justice – presumably just to make sure that the minister has an ear in the deliberations of the Judicial Appointments Committee. I can find no other explanation for this absurd anomaly.

I shall in a few minutes comment on points 3, 5, and 8 in connection with a situation in Malta relating to one particular international obligation that Malta has assumed. For the moment, let me just underscore that these sub-principles are not to be understood as comprehensive or exhaustive – as Bingham himself states at the beginning of the book, his pragmatic approach to the subject was to try and give at least a partial definition of the rule of law, citing key features – a partial definition which, according to him, might serve as a starting point for judges who have to interpret the principle. And of course, Bingham was also writing as an English judge, in a country that has no written constitution – one of only three countries in the world with no written constitution, the other two being Israel and New Zealand – and where therefore the entire corpus iuris  – plus ‘constitutional conventions’ – is the constitution, and in a country which has not always had a very good relationship with the European Court of Human Rights (in spite of the fact that British lawyers left their indelible mark in the drafting of the European Convention on Human Rights).

5 The democratic process

To these eight points I would add another two focal points, derived mainly from the European Convention on Human Rights, of which Malta is, and has been since the late sixties, a signatory. In the context of the field covered by the European Convention on Human Rights – a convention that refers only once to the expression ‘rule of law’ and then only in the preamble to the Convention – the rule of law requires not only that society is governed on the basis of laws, but also that these laws are the result of a democratic process. This requirement of a democratic process, however, goes beyond the mere notion of majority rule and denotes that decision-making should be a participatory process. Moreover, the separation of powers must be practical and effective and not merely theoretical or on paper: the separation of powers should ensure that power is not concentrated in the hands of one individual or a number of individuals and, more importantly, that those enacting the law are not the same as those deciding on its application in practice by, for instance, the expedient of appointing back-bench members of the House of Representatives to administrative posts within the executive branch of government – something which, in spite of the warning of the Venice Commission, is rampant in Malta. So here we have two further concepts:

(1) the democratic process, which is not just the imposition of the will of the majority on the minority, but includes taking serious account of the will and aspirations of the minority; and

(2) that the implementation of laws by the agents of the state – be they ever so high or so low in the hierarchy, like Ministers or the Attorney General or the Governor of the Central Bank or Permanent Secretaries or policemen or public health auxiliaries – should always be subject to independent verification and check. That is the very purpose of what we call Judicial Review of Administrative Acts – that is the verification and check carried out by the judiciary – and the territory covered by such verification and check also falls, in a non-judicial way, within the remit of the Ombudsman, where I now work.

6 Protocol no. 12

Let me now go back to points 3, 5 and 8 of Bingham’s “sub-principles”. Points 3, 5, and 8 essentially deal with non-discrimination, effective protection of fundamental rights, and measuring up to one’s international obligations.

The principle of non-discrimination requires the prohibition of any unjustified unequal treatment under the law and/or by the law, and that all persons have guaranteed equal and effective protection against discrimination on grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, birth, or status. As you all know, these grounds are not exhaustive but exemplative. In particular, legislation must respect the principle of equality; that is, it must treat similar situations equally, and objectively and properly different situations differently.

Now, on 8 December 2015, Malta signed and ratified, with much fanfare and hoisting of naval bunting, Protocol no. 12 to the European Convention on Human Rights. This protocol came into effect with regard to Malta on 1 April 2016. This protocol enshrines the principle of non-discrimination in the enjoyment not only of the substantive provisions of the Convention (for that we have already Article 14 of the ECHR), but of any right set forth in domestic law – in other words, it goes much further than Article 14, and of course much further than Article 45 of our constitution. Any right guaranteed in domestic law – the right to a pension, for instance, or the right to work, or the right to social assistance or to social services – none of these are fundamental human rights under the Convention or under the constitution – must now be secured without any form of discrimination just like fundamental human rights. We are, at least according to the Gregorian calendar, in March 2024, and yet this protocol, eight years down the line after it became applicable to Malta, and unlike all the other substantive protocols to the Convention that Malta has signed and ratified, has not yet been included in the First Schedule of the European Convention Act. Footnote 9 What are we waiting for? No one knows. The Opposition in parliament has even presented a Private Members Bill to have it transposed, but the government seems totally uninterested in ensuring that this fundamental right is secured in practice and effectively for people in Malta. Malta is bound by that protocol now; but anyone alleging a breach of Article 1 of Protocol No. 12 cannot go before the First Hall of the Civil Court in Malta and, by way of appeal, before the Constitutional Court because that article is as yet not part of the definition of ‘Human Rights and Fundamental Freedoms’ for the purposes of the European Convention Act. The person would have to have direct recourse to the Court in Strasbourg, with all the expense that entails. Why make access to this right so difficult? Is that a measure of good administration, or of cantankerously slow maladministration flying in the face of the rule of law? If it is maladministration and a violation of the rule of law, what role can the judiciary play in rectifying the situation? The administration has not brought into force at domestic level something that is definitely applicable at the international level through the right of individual petition. Would the judiciary be acting arbitrarily if it sought to place a check on the arbitrary power of the executive?

7 The right to good administration

You can begin to see how one cannot speak of the rule of law, of fundamental human rights and of good administration as if these were concepts isolated from each other, living in splendid isolation from each other. Fundamental human rights and good administration cannot be secured and achieved unless proper account is taken of the core principles of the rule of law.

At the very centre of the rule of law is the notion that anyone and everyone who exercises power, whether it be legislative, administrative, or judicial, or indeed mixed, should at all times be subject to proper scrutiny, scrutiny not only by one or other of the three branches of government – that is the classical ‘checks and balances’ that most people of my generation were taught following the writings of the Victorian jurist Albert Venn Dicey – but also the scrutiny of public opinion through proper, full, and prompt information being given, and through that other very important pillar of any modern democratic society, independent investigative journalism. Proper scrutiny does not come about by simply having a nicely confectioned law purporting to set up a regulatory body or an overseeing body or, indeed, a board of inquiry.

One may give as many functional non-exhaustive definitions of the rule of law (like Bingham’s) as one may wish, but ultimately what is really crucial for the rule of law to be effective is the genuine predisposition, the attitude, of those in any position of power to give practical effect to the functional aspects of any such definition: in other words to go beyond political posturing and beyond paying lip service to its precepts.

8 Positive obligations

One final leaf, if I may be allowed, from the caselaw of the European Court of Human Rights which is particularly relevant to the right to good administration – the notion of the positive obligation of a state to secure in an effective manner fundamental rights. This obligation also is crucial for an effective right to good administration. The development of this concept in the case law of the ECtHR needs no elaboration to most of you – it finds its embryonic beginning in the Belgian Linguistic Case in the late 1960s, and was consolidated thanks to a feisty Irish lady, Mrs Airey, almost ten years later. Footnote 10 As you may recall, Airey had a right of access to the Irish courts to sue for separation from her husband, and there was no doubt that the Irish courts were independent and impartial. But there was no legal aid in civil matters at that time in Ireland. The Convention provides for the right to legal aid only in criminal cases. The Court in Strasbourg, however, was quite clear: “the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective”. So, it was not enough for legal remedies to exist: it must also be possible for them to be really and usefully exercised or invoked. According to the Court, this may entail recognising to such an individual an economic and social right, in this case the right to free legal aid in civil matters, for “whilst the Convention sets forth what are essentially civil and political rights, many of them have implications of a social or economic nature”. Footnote 11 There is therefore “no water-tight division” separating the sphere of economic and social rights from the field covered by the Convention. The notion of positive obligations, crucial in the procedural aspects of Article 2 of the Convention, can now be said to extend to cover any right set forth in the Convention. And I would add that in the field of public administration, it should extend also, in the interests of good administration, to all areas where the administration is aware, or ought to have been aware, that there is, or is likely to be, an infringement of a social or economic right – the right to a safe and healthy environment, to right to sleep at night undisturbed by loud music in the streets or from nearby catering establishments, the right to safely navigate our streets on bicycle, the right not to fear for your life when a building is being demolished next door. It is imperative that we start thinking of the positive obligations of the state also in this connection.

Allow me to finish by quoting again from Mortimer Sellers:

“ The first necessary and inescapable desideratum of the Rule of Law is an independent judiciary. Judges must be secure and well paid so that they can apply the law without fear or favour … Judges secure in their salaries and tenure in office, who believe the law to be just, will do their best to uphold the law’s empire, not least because their own status and prestige depends upon the legal system’s standing in society. This confirms the second great basis of the rule of law, which is that laws themselves should seek justice. Not only must judges apply the law fairly, but the process of legislation must also attempt to advance justice for its products to attain the status of ‘law ’.” Footnote 12

Stated otherwise, and in the words of St Augustine, a law, whether substantive or procedural, is not to be seen as law unless it is just – mihi lex esse non videtur quae iusta non fuerit . Footnote 13

Sellers, M.N.S., University of Baltimore Research Paper No. 2015-15 – http://ssrn.com/abstract=2445057 .

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\(H\) . G. Monsignor Archbishop Joseph Mercieca proprio et nomine v. The Hon. Prime Minister nomine et Constitutional Court 22.10.1984.

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Cap. 319 of the Laws of Malta.

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Vincent A. De Gaetano is Chief Justice Emeritus, Malta; former Judge and Section President, European Court of Human Rights; Commissioner for Education, Office of the Parliamentary Ombudsman (Malta).

This is the text of a talk delivered on 21.3.2024 at the opening of a two-day training seminar for judges and magistrates held in Valletta, Malta, and jointly organised by the European Judicial Training Network as part of its Human and Fundamental Rights Project and the Judicial Studies Committee of Malta.

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De Gaetano, V.A. The rule of law, judicial independence and the right to good administration – myth or reality?. ERA Forum (2024). https://doi.org/10.1007/s12027-024-00796-7

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• independence
• Indian judiciary

The Bhima Koregaon case

The cbi-alok verma case, the rafale deal case, independence of the indian judiciary : as demonstrated in relevant rulings.

This article is written by  Ishan Arun Mudbidri and Ayush Tiwari . This article talks about the independence of the Indian judiciary.

This article has been published by Sneha Mahawar .

Table of Contents

Introduction

The independence of the judiciary is one of the central elements of India’s democratic system. It is a unique feature that separates India from other countries. However, time and again, the independence of the judiciary has been challenged by external or political influence and this has raised some doubts on the provisions mentioned in the principle of separation of powers. Hence, this article talks about some of the recent instances, where the Independence of the Indian Judiciary has been challenged.

The Constitution of India guarantees independence to the judiciary. However, protecting judicial autonomy begins with the Constitution governing the court. In the end, the independence of the judiciary rests on the creation and support of an overall favourable environment by all state institutions, including the judiciary and the general public. The judiciary’s independence must also be continuously protected against unforeseen circumstances and shifting social, political, and economic circumstances; it is too sensitive to be left unprotected.

Independence of judiciary in India

Due to the prolonged British Raj and then a newly formed democracy, there was always a concern on how the judiciary in India should function. Hence, an independent judiciary was the answer to this question. For the prosperity and stability of the country, the rule of law is very important. An independent and impartial judiciary can establish a stable rule of law. Independence of judiciary means, the power of upholding the rule of law, without any fear or external influence, and maintaining effective control over the actions of the government. The independence of the judiciary is part of the basic structure of the Constitution. The independence of the judiciary ensures that the powers of the Parliament, the State legislature, and the Executive, are properly distributed and there is a balance between the demands of the individuals and norms of the society. The legal system does not have any ideology and political interests and is often rendered neutral. 

Few case laws which explain the concept of independence of the Indian Judiciary

In the case of S.P Gupta v Union of India (1982) , the court held that the judges should be fearless and should uphold the principle of rule of law. This is the basis of the concept of independence of the judiciary.

In the case of   Supreme Court Advocates-on-Record Association & Anr. Vs Union of India (1993) , the court observed that the independence of the judiciary is necessary for democracy to function effectively. The court further concluded by stating the powers and rights can never be hampered as long as the judiciary remains independent from the executive and the legislature.

Constitutional provisions on an independent judiciary

Around the world, the independence of the judiciary has been a debate. However, as India has a written Constitution, the independence of the judiciary is mentioned in writing, hence, making this concept even more important. Independence of the judiciary means that the legal fraternity has all the powers to make their own decisions, without any external influence. The judiciary is not only important in dispensing justice but also, in solving disputes arising between the States. This can only be done if the judiciary is free from all outside pressures. Judges play one of the most important roles in the legal system. Hence, independence of the judiciary also means independence of the judges. This means that the judges can submit their reports and take decisions without any influence, they are not dependent on the Government, and they are not dependent on any of their superior judicial officers. Part 5 of the Indian Constitution deals with the Union Judiciary. The independence of the judiciary starts with the appointment of the judges in the courts. Article 124 to Article 147 deal with the appointment of the Supreme Court judges and , Article 214 to Article 231 deal with the appointment of judges in the High Courts. Further, the Subordinate courts are mentioned under Article 233 to Article 237 of the Constitution. The highest subordinate court is that of the court of District Judge. The framers of the Constitution divided the judiciary, legislature, and the executive into three separate organs, so as to ensure that each organ will perform its roles independently and not interfere with the functioning of the other, and also that this will help in justifying the principles mentioned in the Preamble.

The meaning of independence with respect to the judiciary 

Even after years of existence, the meaning of the judiciary’s independence is still unclear. Our Constitution’s Articles 124 to 147 deal with the appointment of Supreme Court judges and Articles 214 to 231 deal with the appointment of judges in the High Courts, but our Constitution only mentions the judiciary’s independence; it makes no mention of what such independence truly entails. Judiciary’s independence includes both the independence of the judicial institutions and the independence of the judges who make up its body. However, judicial independence does not mean lack of responsibility or arbitrariness. The country’s democratic political system includes the judiciary. As a result, it must answer to the country’s citizens, the Constitution, and democratic values. The theory of the separation of powers appears to be the concept’s foundation and focal point. Therefore, it largely refers to the judiciary’s independence from the executive and legislative branches. Judiciary’s independence goes beyond just establishing a separate institution free from the oversight and influence of the government and the legislative branch. The fundamental goal of the judiciary’s independence is that judges must be able to resolve a dispute that comes before them in accordance with the law, free from other influences. Because of this, every judge’s independence is a component of the judiciary’s overall independence.

Independence of the judiciary and the rule of law

French theorist Montesquieu contended that a framework in which various authorities exercised legislative, administrative, and judicial authority while all being bound by the rule of law was the best way to avoid despotism. He saw despotism as a looming danger to any government that was not already despotic and the principle of separation of powers refers to this theory. Judicial review is one of the strongest strategies courts use to defend the rule of law. Judicial review refers to the court’s authority to assess the legality of both government executive orders and laws established by the legislature. By employing this authority, the court maintains control over the legislative and executive branches.

The case of Marbury v. Madison (1803), in which Chief Justice Marshall established that the court had the authority to evaluate legislation adopted by the legislature, can hence be credited for giving birth to the concept of judicial review. However, a lot of academics have criticised this idea for a variety of reasons, including judicial authoritarianism, excessive dependence on judges, being undemocratic, and being a barrier to a strong democracy.

Independence of the judiciary : international perspective

The Basic Principles on the Independence of the Judiciary , which were ratified by the General Assembly in resolutions 40/32 on November 29, 1985, and 40/146 on December 13, 1985, were approved by the 7th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan from August 26 to September 6, 1985. The Universal Declaration of Human Rights ( Article 10 ) and the International Covenant on Civil and Political Rights , among other human rights documents, both established the idea of judicial independence ( Article 14 ). Additionally, there are a number of UN standards, particularly the Ban galore Principles of Judicial Conduct from 2002 which was accepted by the UN General Assembly.

The United Nations Charter , the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Organisation and Administration of Justice in Every Country, and other basic principles developed to aid the Member States in their task of securing and promoting the independence of the judiciary should be taken into consideration and respected by governments within the framework of their national legislation and practise and brought to the attention of judges, lawyers, members of the executive, and the legislative.

Constitutional provisions (more content for existing heading)

Our constitution has several clauses that guarantee the independence of the judiciary. The following is a discussion of the constitutional clauses:

Security of Tenure: 

The Supreme Court and high court justices have been granted tenure security. Once appointed, they stay in their positions until they reach the retirement age, which is 65 years for judges of the Supreme Court ( Article 124(2) ) and 62 years for high court judges ( Article 217(1) ), respectively. They cannot be removed from their positions other than by presidential order, and even then only on the basis of proven misbehaviour and incapacity. A majority of all members of each House of Parliament, as well as a majority of at least two-thirds of the members who are present and voting, are required in order to approve a resolution to that effect. Due to the difficult nature of the procedure, there has never been a case of a Supreme Court or High Court judge being removed under this clause.

Separation of the Judiciary from the Executive: 

According to Article 50, which is one of the Directive Principles of State Policy, the State must take action to keep the judiciary and executive branches distinct in its public services. Securing the judiciary’s freedom from the executive is the goal of the Directive Principle. There must be a separate, independent judiciary according to Article 50.

Salary and Allowances: 

Since judges’ salaries and allowances are set and not subject to a vote by the legislature, it is also a factor that contributes to the judges’ independence. In the instance of judges of the Supreme Court, they are charged to the Consolidated Fund of India, and in the instance of judges of the high court, to the state consolidated fund. Except in extreme financial emergencies, their pay structures can be changed, but they cannot be changed to their detriment (Article 125(2)).

Powers and jurisdiction of Supreme Court: 

Parliament is only able to increase the Supreme Court’s authority, it cannot reduce it. Parliament may alter the monetary threshold for Supreme Court appeals in civil matters. The Supreme Court’s appellate authority may be expanded by Parliament. To help the Supreme Court function more efficiently, it could grant it extra authority. It may provide authority to issue orders, writs, or directives for any purpose other than those listed in Article 32. The Supreme Court’s authority cannot be diminished, thereby establishing judicial independence in India. 

Penalising for its contempt:

Both the Supreme Court and the high court are able to do so. According to Article 129 , the Supreme Court is empowered to penalise for its contempt. Similarly, Article 215 stipulates that each high court should have the authority to impose punishment for contempt of itself.

The conduct of a judge is not discussed in the state legislature or Parliament:

According to Article 211 , no debate over the behaviour of any Supreme Court or high court judge in the course of his duties shall take place in the state legislature. A similar provision is included in Article 121 , which states that no discussion of the behaviour of the Supreme Court or A high court judge in the performance of his duties may take place in Parliament until a resolution is presented by the President requesting the judge’s dismissal.

Appointment of Judges

The collegium.

According to the First Judges case , the Chief Justice of India’s (CJI) proposal for judge appointments and transfers might be rejected for “cogent reasons.” For the following 12 years, the executive had priority over the judiciary in making judicial appointments. However, the Supreme Court held in the Second Judges case (and subsequently the Third Judges case, which was a clarification) that the judiciary had supremacy in appointing judges. According to it, the Supreme Court’s senior-most judges and the Chief Justice of India will have a major influence on judicial recruitment decisions. Regarding judicial appointments, rules and procedures were established. The executive’s position was drastically diminished, and the judiciary now controlled a major function.

With the passage of the Constitution (Ninety-ninth Amendment) Act of 2014 as well as the National Judicial Appointments Commission Act of 2014 , the NDA government proposed the establishment of the National Judicial Appointments Commission in 2014. The Commission would be made up of the Chief Justice of India, two senior judges, the Law Minister, and “two eminent personalities” chosen by the Prime Minister and Leader of the Opposition. The NJAC Act and Constitution (Ninety-ninth Amendment) Act, 2014 were, however, declared illegal by the Supreme Court in a case brought by the Advocates-on-Record Association as according to them it undermined the separation of powers and intruded on the independence of the judiciary.

Relevant rulings where the independence of the Indian Judiciary has been challenged

No one is perfect in this world. So, how can a judiciary be perfectly independent? In India too, judicial independence has been challenged in various court rulings. However, before that, to justify this, in India the Constitution has mentioned provisions for the appointment of judges in the Supreme Court and the High Court, but the final approval while selecting the judges is in consultation with the President of India . A few of these court rulings are:

In this case , the Indian Government announced a deal with the French Government to purchase 36 Rafale fighter jets from the French company Dassault Aviation in 2015. The deal also included a 50% offset clause which meant that the French company had to invest 50% of the contract value in India by purchasing Indian goods and services. Next year, the company and Reliance Group announced a joint venture. Dassault specified that it wants to invest $115 million to fulfill its offset obligation partially. Hence, the matter went to the Supreme Court where the litigants alleged irregularities in the deal. The Court turned down the corruption charges on the grounds that it had less scope for judicial review in defense matters. This decision of the Court proved to be controversial as the government stated that the judgment had some factual errors. The judgment consisted of the CAG(Comptroller and Auditor General) report and the Parliamentary Accounts Committee report which were submitted to the Court by the government and were termed as misinformation. The Court decided to review the petitions on merit, hence closing the controversy.

In 2018, the celebrations for the bicentenary anniversary of the Bhima Koregaon battle were interrupted due to violence leading to the death of a person and several injuries. The police investigated and arrested several activists claiming that inflammatory speeches were made by them eventually leading to the violence. Hence a PIL was filed seeking an investigation by the SIT (Special investigation team) over the Unlawful Activities (Prevention) Act charges against the arrested activists. The litigants alleged that the Mumbai Police were biased in their decision. The case went to the Supreme Court who dismissed the case with a 2:1 majority. While the two judges who were Chief Justice of India Dipak Misra and Justice Khanwilkar were satisfied with the investigation done by the Mumbai Police, Whereas, Justice D.Y Chandrachud was not. Justice Chandrachud dissented, alleging that the arrests were made targeting political dissent.

Aadhar Act as a money bill case

In this case, the issue was whether the Aadhar Act in 2016, was passed as a money bill. The court held that it was a money bill again with a majority. Justice A.K Sikri accepted the act as a money bill and referred to Section 7  of the Act which states that the Aadhar based authentication can be used for benefits or services charged on the Consolidated Fund of India, hence it can be used as a money bill. Whereas, Article 110 of the Constitution stated that the money bill can be used only on services related to spending and receiving of money by the Union Government. Hence, the judgment was criticized and Justice Chandrachud who had dissented to the judgment termed it as a fraud on the Indian Constitution.

In this case, the judgment was delayed. The government had divested the CBI director Alok Verma of all his powers. This needed sanctions from a high-powered committee under the Delhi Special Police Establishment Act . The Supreme Court examined the details of the corruption charges against the CBI director. Later, the Court directed the reinstatement of Verma as the CBI director on the basis of the sanctions of the selected committee. However, the reinstatement was ordered when Mr. Verma had just three weeks left for his tenure. Hence, this raised criticism once again.

Is India’s judicial independence at stake

The above-mentioned court rulings were criticized on the grounds that they had political interests. However, there have been instances where the judges after retirement have enjoyed certain benefits. Former Chief Justice of India Ranjan Gogoi was made a member of the Rajya Sabha after stepping down from the post of CJI. Similar instances in the past have occurred. In 1991, Justice Ranganath Mishra stepped down as the CJI and was later made the Chairman of the National Human Rights Commission . Justice M. Hidayatullah was the Chief Justice of India who retired in 1970. He later became the Vice President of India. There have also been instances where the members of Parliament have become judges. Due to the COVID 19 pandemic, the courts are shut and all physical hearings are done online. This has made things difficult because there is already a huge pendency of cases. Hence the courts decided to deliver judgments on cases that are very urgent. However, the listing of urgent cases for hearing has been controversial. A petition was filed in the case of Jagdeep Chokkar v Union of India (2020) , for the return of the migrant workers who were helpless and stranded amidst the lockdown to their homes. This matter was not heard immediately, whereas a petition filed in the case of Arnab Goswami v Union of India (2020), for quashing the FIRs against him, was heard on the next day. Hence this was controversial as to which case the court found more important. Further, the internet in Jammu and Kashmir was shut down for nearly 6 months. The Court took a long time to hear this matter. The people in Jammu and Kashmir were deprived of the internet and cut of from the rest of the world. As we have touched on the cases where the court has faced criticism for having political interests, there have been many landmark judgments that were assumed to have political interests but the judiciary stood strong. In the case of Indira Gandhi v Raj Narain (1975), Raj Narain, an activist challenged the appointment of the then Prime Minister Indira Gandhi on the grounds that it was faulty. This case was just before the emergency was implemented. The Court found out that the appointment of Indira Gandhi was faulty and she was ordered to leave her office. This judgment proved to be one of the major judgments in the context of judicial independence. However, in recent times, the judiciary has had to face a lot of criticism due to the cases they give more priority to, and also the post-retirement stint of the judges. This shows that there is work needed to be done in the functioning of the justice system. Few suggestions are:

• The salaries given to the judges in India are less as compared to the other countries, which makes a strong reason why the judges look for post-retirement jobs.
• Many times it is seen that highly influential cases are given more priority than the cases which are of a social cause and are really necessary to be heard. The reason this might be happening is the low strength of the judiciary. Increasing the strength of the judiciary can help in solving influential as well as genuinely urgent cases.
• There is a need to impose a law that ensures that the judges do not get post-retirement jobs. This will ensure a little discipline and reliability in the working of the courts.

Before the concept of the collegium given by the Supreme Court, Article 124 of the Indian Constitution stated unequivocally that the President of India, in concert with the Chief Justice of India, would appoint any judges to the Supreme Court. This indicates that the constitutional writers themselves thought the appointment of judges required the intervention of the executive. It has been made very obvious that all of the components of a democratic government require the establishment of certain safeguards. The Constitution’s framers made a conscious decision to keep the executive involved in the selection of the judiciary in order to prevent any abuse of power by a single branch of government, despite the fact that the entire concept of the separation of powers was created to keep each branch independent of the other. However, collegium governance should also exist with regard to the promotion or transfer of judges in order to protect their judicial independence and allow them to exercise their judgement freely without interfering with their personal or substantive independence. So, we can say that independence of the judiciary is necessary while not forcing itself on the other wings of the government.

The work that the justice system does is very difficult. Hence, the judiciary has been given the power of judicial independence which is mentioned in the Constitution of India. The judges do a phenomenal job of administering impartial justice to the people. However, while doing this, there are bound to be people who are not happy with the decision. Hence, this is where the independence of the judiciary is challenged. Now, no one can ever prove whether there is any sort of influence on the justice system in India. However, the above-mentioned case laws and the examples of judges acquiring jobs after retiring from the judiciary, call for some serious reforms in the country’s justice delivery system.

References 

• http://www.legalserviceindia.com/legal/article-2973-constitutional-framework-for-independence-of-judiciary-in-india.html#:~:text=The%20Indian%20Constitution%2C%20unlike%20the,by%20the%20State%20High%20Courts.& text=For%20rule%20of%20law%20to%20prevail%20judicial%20independence%20is%20of%20absolute%20necessity.
• https://theprint.in/opinion/indian-politicians-get-favourable-outcome-in-courts-when-party-is-in-power-data-shows/283103/
• https://www.prsindia.org/theprsblog/can-supreme-court-ask-government-frame-law
• https://thewire.in/law/restoring-public-trust-in-the-indian-judiciary-calls-for-more-scrutiny-not-less
• https://www.jurist.org/commentary/2020/05/arpit-richhariya-indian-judiciary-independence/
• https://www.ideasforindia.in/topics/governance/the-politics-of-post-retirement-appointments-corruption-in-the-supreme-court.html

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Judicial Independence

• Last Updated on Jan 29, 2024

Context: Chief Justice of India D.Y. Chandrachud said the independence of judiciary depends on the freedom of each and every individual judge to function in office without the pulls of political pressure, social compulsions, and inherent bias.

“The independence of the Supreme Court is integral to the maintenance of a democratic way of life and rule of law. It is not very difficult for a nation which is a democracy having a Constitution to slip into chaos, into just the opposite of democracy,” Justice Joseph said.

Syllabus: 

• Separation of powers between various organs dispute redressal mechanisms and institutions.

We are first going to understand:

• What is Rule of Law? 

Why the Judiciary needs to be Independent? 

Independence of indian judiciary , rule of law and its relation with independence of judiciary .

• It would be appropriate to discuss the views of Dicey, as he is known to be the main exponent of the concept of rule of law.
• Supremacy of Law;
• Equality before the Law; and
• According to Dicey, for the prevalence of the rule of law there should be an enforcing authority and that authority he found in the courts. He believed that the courts are the enforcer of the rule of law and hence it should be free from impartiality and external influence.
• It provides that the rule applied to a particular case must be reasonably predictable. 
• And it provides that the rule must be predictable without regard for the identity of the parties.

Judicial independence ensures, in particular, that judges are free to conclude that actions taken, or decisions made by the Government (or even by others) are in breach of the law, and that they are in particular in breach of individual's rights, including of course their fundamental, or human, rights - and to decide on the appropriate remedy.

Independence of Judiciary is sine qua non of democracy. In a democratic polity, the supreme power of state is shared among the three principal organs. The constitutional task assigned to the Judiciary is no way less than that of other functionaries, legislature and executive.

Indeed it is the role of the Judiciary to carry out the constitutional message and it is its responsibility to keep a vigilant watch over the functioning of democracy in accordance with the dictates, directives, and imperative commands of the constitution by checking excessive authority of other constitutional functionaries.

Our Constitution does not strictly adhere to the doctrine of separation of powers but it does provide for distribution of power to ensure that one organ of the government does not trench on the constitutional powers of other organs. 

The concept of distribution of powers assumes the existence of judicial system free from external as well as internal pressures. Under our constitution, the Judiciary has been assigned the onerous task of safeguarding the fundamental rights of our citizens and upholding the Rule of Law. Perhaps the most important power of the Supreme Court is the power of judicial review.

Judicial Review means the power of the Supreme Court (or High Courts) to examine the constitutionality of any law if the Court arrives at the conclusion that the law is inconsistent with the provisions of the Constitution, such a law is declared as unconstitutional and inapplicable. The term judicial review is nowhere mentioned in the Constitution.

However, the fact that India has a written constitution and the Supreme Court can strike down a law that goes against fundamental rights, implicitly gives the Supreme Court the power of judicial review. Together, the writ powers and the review power of the Court make judiciary very powerful. In particular, the review power means that the judiciary can interpret the Constitution and the laws passed by the legislature.

Many people think that this feature enables the judiciary to protect the Constitution effectively and also to protect the rights of citizens. The practice of entertaining PILs has further added to the powers of the judiciary in protecting rights of citizens.

Since the courts are entrusted the duty to uphold the constitution and the laws, it very often comes in conflict with the state when it tries to enforce orders . Therefore, the need for an independent and impartial Judiciary manned by persons of sterling quality and character, underlying courage and determination and resolution impartiality and independence who would dispense Justice without fear or favor, ill will or affection, is the cordial creed of our constitution and a solemn assurance of every Judge to the people of this great country.

The Judiciary cannot remain a mere bystander or spectator but it must become an active participant in the judicial process ready to use law in the service of social justice through a proactive goal oriented approach. But this cannot be achieved unless we have judicial cadres who share the fighting faith of the constitution and are imbued with constitutional values.

Judicial independence ensures, in particular, that judges are free to conclude that actions taken , or decisions made by the Government (or even by others) are in breach of the law, and that they are in particular in breach of individual's rights, including of course their fundamental, or human, rights - and to decide on the appropriate remedy.

The constitution of India adopts diverse devices to ensure the independence of the judiciary in keeping with both the doctrines of constitutional and Parliamentary sovereignty.

Elaborated provision are in place for ensuring the independent position of the Judges of the Supreme Court and the High Courts.

• Firstly, the judges of the Supreme Court and the High Courts have to take an oath before entering once that they will faithfully perform their duties without fear, favour, affection, ill-will, and defend the constitution of India and the laws. Recognition of the doctrine of constitutional sovereignty is implicit in this oath.
• Secondly, the process of appointment of judges also ensures the independence of judiciary in India. The judges of the Supreme Court and the High Courts are appointed by the President. The constitution of India has made it obligatory on the President to make the appointments in consultation with the highest judicial authorities. He, of course, takes advice of the Cabinet . The constitution also prescribes necessary qualifications for such appointments. The constitution tries to make the appointments unbiased by political considerations.
• Thirdly, the Constitution provides for the Security of Tenure of Judges . The judges of the Supreme Court and the High Courts serve “during good behavior” and not during the pleasure of the President, as is the case with other high Government officials. They cannot be arbitrarily removed by the President. They may be removed from office only through impeachment. A Judge can be removed on the ground of proved misbehavior or incapacity on a report by both Houses of the Parliament supported by a special majority.
• Fourthly, the salaries and allowances of judges are charged upon the Consolidated Fund of India. Further, the salaries and allowances of Judges of Supreme court and High courts cannot be reduced during their tenure, except during a financial emergency under Article 360 of the Constitution.
• Fifthly, the activities of the Judges cannot be discussed by the executive or the legislature, except in case of their removal.
• Sixth, the retirement age is 65 years for Supreme Court judges and 62 years for High court judges. Such long tenure enables the judges to function impartially and independently.
• Independence of judiciary and rule of law are the basic features of the Constitution and cannot be abrogated even by constitutional amendments as observed by the Hon’ble Supreme Court in S.P. Gupta v Union of India; AIR 1982 . 

Certainly, let's expand on each of the mentioned aspects concerning threats to judicial independence in India:

• Retirement Age (Different for HC and SC Judges): The disparity in retirement ages for judges of the High Court (HC) and the Supreme Court (SC) can create a situation where judges might be influenced by the prospect of elevation to the higher court before reaching the retirement age. This could potentially compromise their independence as judges may be tempted to make decisions that align with the preferences of those in power.
• Post-Retirement Appointments: The practice of judges accepting post-retirement appointments, especially in government commissions, tribunals, or other quasi-judicial bodies , raises concerns about potential conflicts of interest. Judges may be inclined to rule favorably for the government during their tenure in the hope of securing a lucrative post-retirement position, impacting their impartiality.
• Appointment of Chief Justice of India: The appointment process of the Chief Justice of India (CJI) has faced criticism for lacking transparency. The influence of the executive and political considerations in the appointment process may compromise the independence of the judiciary, as the CJI plays a crucial role in determining the course of the judicial system.
• CJI as Master of the Roster: The CJI being the master of the roster implies that they have the authority to allocate cases to different benches of the court. This power, if not exercised judiciously, can lead to the manipulation of cases to favor certain outcomes or to assign cases selectively. Such discretion can be a potential threat to the impartiality of the judicial system.
• The Collegium System: The Collegium system, while intended to safeguard judicial independence, has faced criticism for being opaque and lacking accountability. The process of appointment and transfer of judges through the Collegium system might be susceptible to external pressures, potentially compromising the independence of the judiciary.
• Judicial Delays: Prolonged delays in the disposal of cases can undermine public confidence in the judiciary. The backlog of cases can be exploited by powerful individuals or entities to their advantage, and the perception of delayed justice might impact the credibility of the judiciary, thereby affecting its independence.
• Code of Conduct for Judges: While a code of conduct for judges exists, the effectiveness of its enforcement is crucial. Weak enforcement mechanisms can render the code toothless, allowing judges to engage in misconduct without facing adequate consequences, thus jeopardizing the integrity of the judiciary.
• Code of Ethics for Judges: The code of ethics is essential for maintaining the ethical standards of judges. However, the absence of a comprehensive and enforceable code, along with potential loopholes, may create opportunities for unethical behavior. This can undermine public trust and confidence in the judiciary.

The constitution provides for a judiciary, which is independent. Independence of judiciary is important for the purpose of fair justice. There should be no interference by the legislature or the executive in the proceedings of the judiciary so that it may pass a judgment that seems reasonably fair. In case of intervention, there may be an element of bias on the part of the judges in taking a fair decision. It is difficult to suggest any other way to make the Indian courts more self-reliant and keep them away from the influence of the other two organs.

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Essay on Independence of Judiciary

Students are often asked to write an essay on Independence of Judiciary in their schools and colleges. And if you’re also looking for the same, we have created 100-word, 250-word, and 500-word essays on the topic.

Let’s take a look…

100 Words Essay on Independence of Judiciary

Introduction.

The judiciary is an essential part of a democratic system. Its independence means it is free from interference by the legislative or executive branches of government.

Importance of Independence

Independence ensures fair justice. Judges can make decisions without fear, favor, or bias. It upholds the rule of law, protecting citizens’ rights.

Threats to Independence

Threats include political pressure, corruption, and lack of resources. These can undermine the judiciary’s ability to function independently.

Independence of the judiciary is crucial for democracy. It must be safeguarded to ensure justice and protect citizen rights.

250 Words Essay on Independence of Judiciary

The significance of judicial independence.

Judicial independence is significant as it ensures the rule of law, upholds the constitution, and safeguards human rights. It ensures that justice is administered impartially, thereby fostering public confidence in the system. Judges free from external pressures can base their decisions solely on the facts and the law, ensuring a fair trial for all parties involved.

Threats to Judicial Independence

Despite its importance, judicial independence faces numerous threats. Political interference, corruption, lack of adequate resources, and public pressure are some of the challenges that can compromise the independence of the judiciary. These threats undermine the ability of the judiciary to perform its functions effectively and impartially.

Safeguarding Judicial Independence

To safeguard judicial independence, it is crucial to implement measures such as the separation of powers, security of tenure for judges, and adequate remuneration. Additionally, transparent appointment processes, judicial accountability, and professional development for judicial officers can reinforce the independence of the judiciary.

In conclusion, judicial independence is a cornerstone of democracy, ensuring justice and upholding the rule of law. Despite the challenges, it is essential to continually strive to protect and enhance this independence for the sake of a fair and just society.

500 Words Essay on Independence of Judiciary

The independence of the judiciary is a cornerstone of any democratic society. It ensures that the judicial branch of the government operates independently from the legislative and executive branches, thereby maintaining a system of checks and balances. This independence is critical in preserving the rule of law, protecting individual rights, and ensuring a fair and impartial system of justice.

The Concept of Judicial Independence

The importance of judicial independence.

Judicial independence is fundamental to the rule of law and democracy. It ensures that judges can make decisions that are fair, impartial, and in accordance with the law, even if those decisions are unpopular. It also allows the judiciary to act as a check on the powers of the executive and legislative branches of government, preventing abuses of power and upholding the rights and freedoms of individuals.

Despite its importance, judicial independence is under threat in many parts of the world. Political interference, corruption, and lack of resources can all undermine the independence of the judiciary. For example, when judges are appointed based on political considerations rather than merit, it can compromise their ability to make impartial decisions. Similarly, when judges are subject to political pressure or threats, it can affect their ability to uphold the rule of law.

Preserving Judicial Independence

In conclusion, the independence of the judiciary is a crucial element of a democratic society. It ensures that the judiciary can fulfill its role in upholding the rule of law, protecting individual rights, and providing a check on the powers of the other branches of government. Despite the challenges, it is essential to safeguard the independence of the judiciary to maintain the integrity of our democratic systems.

That’s it! I hope the essay helped you.

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Independence of Judiciary - Indian Polity Notes

Amruta Patil

Jul 19, 2024

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Independence of the judiciary is a foundational principle in democratic societies, crucial for upholding the rule of law, protecting individual rights, and maintaining public trust in the justice system. It shall be enshrined in the Constitution or the law of the land and guaranteed by the State. The UPSC Indian Polity and Governance Syllabus includes Independence of Judiciary which is described in this article.

Table of Contents

Independence of Judiciary

Constitutional safeguards to ensure judicial independence, challenges to judicial independence in india.

• Judicial independence means the judiciary should be free from the influence of other branches of government like the executive and legislature or from any private or partisan interests.
• Judges must be able to perform their functions without fear or favour. It also implies that judges must be able to decide a dispute before them according to constitutional principles and laws of the land.
• Montesquieu, the renowned French philosopher, advocated for the concept of an independent judiciary, emphasizing the separation of powers among the branches of government: Legislature, Executive, and Judiciary.
• His ideas greatly influenced the framers of the American Constitution, leading to the establishment of an independent judiciary in the United States.
• The Act of Settlement in 1701 played a pivotal role in securing judicial independence in the UK. Before 1701, in the UK, judges were at the pleasure of the crown, subject to dismissal by the king at will.
• In India, although the Constitution does not explicitly provide for it, judicial independence and the rule of law are regarded as the basic features of the Constitution and cannot be abrogated even by constitutional amendments as observed by the Supreme Court in S.P. Gupta v Union of India case (1981)
• An iconic example of this principle is found in the landmark ruling of the US Supreme Court in United States v. Nixon (1974) . The court ordered President Richard Nixon to surrender the Watergate Trial Tapes. This ruling serves as a potent reminder that even the highest office in the United States is subject to legal scrutiny and accountability.
• Likewise, in the Indian case of State of U.P v. Raj Narain & Ors (1975) , the Allahabad High Court found the then Prime Minister of India, Indira Gandhi, culpable of electoral misconduct. Consequently, the court nullified the election results, emphasizing the judiciary's commitment to impartiality and accountability in upholding democratic processes.
• Under the doctrine of separation of powers , the judiciary serves as a key branch alongside the executive and legislature. While the legislature makes laws and the executive enforces them. The judiciary supervises whether the law is properly followed and also applies the laws in various legal issues. The separation of power dictates that the judiciary should act independently without any outside influences.

Mode of Appointment

The judges of the Supreme Court are appointed in consultation with the members of the judiciary itself. It curtails the absolute discretion of the executive as well as ensures that the judicial appointments are not based on any political considerations.

Security of tenure

• The judges of the SC are given security of tenure. The judges remain in office until they reach the age of retirement, which is 65 years for Supreme Court justices ( Article 124(2) ) and 62 years for High Court judges ( Article 217(1)).
• They can be removed only by a presidential order on grounds of proven misbehaviour and/or incapacity by an elaborate procedure of impeachment.
• It means that they do not hold their office during the pleasure of the President, though they are appointed by them.

Salaries and allowances

• Salaries and allowances of the judges of the Supreme Court are determined by the Parliament. They can not be changed to their disadvantage after their appointment except during a financial emergency.
• Salaries, pensions, allowances and expenses of the Supreme Court are charged on the Consolidated Fund of India.

Powers and Jurisdiction

• The jurisdiction of the Supreme Court can not be curtailed by the Parliament. However, the Parliament can extend the same.
• Parliament may also grant authority to issue instructions, orders, or writs for any reason not listed in Article 32.
• The SC has the power to punish any person for its contempt, as per Article 129.

Ban on Practise after Retirement

• The retired judges of the Supreme Court are prohibited from pleading or acting in any other court or before any authority within the territory of India. It ensures that they do not favour anyone in the hope of future favour.

Separation of the Judiciary from the Executive

• One of the Directive Principles of State Policy, Article 50 , states that the State shall take steps to separate the judiciary from the executive in the public services.
• It means that executive authorities should not possess judicial powers.

Conduct of the Judges can not be discussed in the Parliament or State Legislature.

• Article 121 and Article 211 of the Consitution prohibit any discussion in Parliament or in the state legislature with respect to the conduct of the judges of the Supreme Court or High Court except when an impeachment motion is under consideration of the Parliament.
• Executive Influence : There have been instances where the executive branch of the government has attempted to exert influence over the judiciary. This could include political pressure, appointments of judges based on political affiliations.
• Political Interference: It can be observed particularly in high-profile cases involving politicians or politically sensitive issues. Safeguards must be established to insulate the judiciary from undue political pressure and ensure its autonomy.
• Lack of Transparency : Transparency in the functioning of the judiciary is crucial for maintaining public trust. However, there have been concerns about the lack of transparency in judicial appointments and allocation of cases among judges.
• Financial Constraints : Budgetary constraints and inadequate resources can also pose challenges to judicial independence. Insufficient funding for the judiciary can lead to understaffing, inadequate infrastructure, and delays in the delivery of justice.
• Possible biases : Personal, pecuniary, and subject matter biases can undermine the impartiality of judicial proceedings. Efforts should be made to mitigate these biases through rigorous standards of conduct and oversight mechanisms.
• Judicial corruption: Corruption within the judiciary erodes public trust and undermines the rule of law. It's essential to address instances of corruption through effective enforcement mechanisms and measures to promote transparency and accountability.
• Security issues : Ensuring the safety of judges and their families is crucial for upholding judicial independence. Eg. Incidences of murders of the judges. Adequate security measures and swift responses to threats are necessary to protect judicial officers from harm.
• Post-retirement appointments: Judicial independence suffers if governments coerce, incentivize, or undermine judicial decisions. The post-retirement appointments of judges may become a hurdle in achieving Judicial Independence.

Judicial independence is crucial for democracy. It upholds the rule of law, guaranteeing fair treatment for all before the courts. Independent judiciary prevents tyranny providing confidence in the legal system. Without it, the principles of democracy would be undermined, risking the rights and freedoms of citizens. Thus, safeguarding judicial independence is paramount for a healthy democratic society.

Question: Which Article of the Constitution gives direction for the separation of the Judiciary from the Executive?

One of the Directive Principles of State Policy, Article 50 , states that the State shall take steps to separate the judiciary from the executive in the state's public services. Its goal is to protect the judiciary's independence from the executive branch.

Question: What are the Constitutional Provisions which try to ensure Judicial Independence?

The Constitutional provisions that ensure Judicial Independence are Security of Tenure of Judges, Salaries and Allowances of Judges, Powers and Jurisdiction embedded upon the Supreme Court, No provision for discussion on the conduct of the Judge in State Legislature / Parliament, Power to punish for contempt, etc.

Question: Explain the Security of Tenure of Judges.

• The judges remain in office until they reach the age of retirement, which is 65 years for Supreme Court justices ( Article 124(2) ) and 62 years for High Court judges ( Article 217(1)).
• They can only be removed from office by the President's decree, and only based on proven misbehavior and incapacity .
• A resolution must also be approved by a majority of the entire membership of each House of Parliament, as well as a majority of no less than two-thirds of the members present and voting. Because the procedure is so difficult, no Supreme Court or High Court judge has ever been removed under this rule.

Question. The executive is very crucial, but the legislative has the ability to remove the executive. This has ensured that[ Test series Question ]

(a) Balance of Power

(b) Judicial Interpretation

(c) Separation of Power

(d) Both balance of power and independence of the judiciary

Answer : (d) See the explanation

• Parliament exercises control over the Executive through debates and discussions on the floor.
• The Executive is collectively responsible to the Legislature. This means that Parliament must collectively oversee the work of the government and hold it responsible for its actions and omissions.
• Thus it both balance of power and independence of the judiciary1

Question: Which one of the following statements is incorrect with respect to the independence of the judiciary? [ Test series Question ]

(a) The courts are not subject to Parliament.

(b) An independent judiciary is essential to the separation of powers.

(c) The executive must never be put in a position where it effectively decides a case in the sense that it could order a court to dismiss a case.

(d) None of the above.

Answer : (a) See the explanation

The courts are not subject to Parliament.

• An independent judiciary is essential to the separation of powers. Hence statement 2 is correct.
• In order to ensure the independence of judiciary, the executive must never be put in a position where it effectively decides a case in the sense that it could order a court to dismiss a case.Hence statement 3 is correct.

Question: In India, separation of judiciary from the executive is enjoined by [UPSC 2020]

(a) The Preamble of the Constitution

(b) A Directive Principle of state policy

(c) The Seventh Schedule

(d) The conventional practice

Answer: (b) See the Explanation

State is directed to take steps to separate the judiciary from the executive in the public services of the State by Article50. It is one of the Directive Principles of state policy based on liberal-intellectual principles.

Therefore (b) is the correct answer.

Question: Consider the following statements: (UPSC 2019)

• The 44th Amendment to the Constitution of India introduced an Article placing the election of the Prime Minister beyond judicial review.
• The Supreme Court of India struck down the 99th Amendment to the Constitution of India as being violative of the independence of the judiciary.

Which of the statements given above is/are correct?

(c) Both 1 and 2

(b) Neither 1 nor 2

39th Constitutional Amendment Act,1975 placed the election of the Prime Minister, the President, the Vice President, and the Speaker of the Lok Sabha beyond judicial review. Therefore, Statement 1 is incorrect. The Supreme Court of India struck down the 99th Constitutional Amendment as the court found the NJAC to be in violation of the principles of separation of power and independence of judiciary that formed part of the basic structure of the Constitution.

Therefore, Statement 2 is correct

*email: [email protected]

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Constitutional law, independence of judiciary,  23-feb-2024.

• Constitution of India, 1950 (COI)

Source: Indian Express

Introduction

Recent decisions by the Supreme Court are making big waves in Indian politics. They are shaking things up and giving people hope for democracy. One decision in the case of Association for Democratic Reforms & Anr. v. Union of India & Ors (2024) says that the electoral bonds scheme is not allowed by the Constitution. Another decision in the case of Kuldeep Kumar v. U.T. Chandigarh (2024) says that AAP, a political party, won the mayoral race in Chandigarh, which is a change from the usual way things are done where the ruling party in the central government has more power.

Is the Judiciary Getting Stronger?

• The Court of Justice is fighting to keep the rules of the Constitution alive.

How Court is Keeping Things Fair and Right?

• The Court has a tough job of making sure it stays fair and still follows the rules, even when the government is trying to take over.
• But sometimes, it has given in to what the government wants, which makes people not trust it.
• These new decisions might show the Court is getting its power back.

How Judiciary is Independent in India?

• The Constitution of India, 1950 (COI) provides for the separation of powers among the legislature, executive, and judiciary, ensuring that each branch operates independently within its sphere of authority.
• Judges of the higher judiciary, including the Supreme Court and High Courts, are appointed by the President of India based on the recommendation of the Collegium system , which consists of the Chief Justice of India and a group of senior judges.
• The Constitution provides for security of tenure and conditions of service to ensure judicial independence.

• The judiciary in India has the power of judicial review, enabling it to examine the constitutionality of laws passed by the legislature and actions taken by the executive.
• Judges enjoy certain immunities and privileges to protect them from external pressures or influences while performing their judicial functions.
• The judiciary is granted financial autonomy to manage its budgetary requirements independently, reducing the potential for external influence.

What are Troubles for Democracy?

• The problems with fairness in democracy are not just about the Court. Cheating in elections and the government doing too much without being stopped are happening too often.
• This is dangerous because it makes democracy weaker and lets bad things become normal.

Why Do People Need to Pay Attention?

• If people do not keep an eye on what is happening and ask tough questions, democracy could fall apart.
• Even though the Court's verdict has bestowed justice, citizens need to be aware of the wrongdoings happening around them.

As India deals with the hard parts of democracy, it is part of judiciary to provide justice, but it is equally important for citizens to stand for their rights. Keeping democracy strong means standing up to unfairness and working together, this part of the citizen’s role in democracy can be exercised by the citizens themselves.

The Debate Between Judicial Independence And Judicial Accountability

• Author(s): Journal of Legal Studies and Research
• Publication Date: April 21, 2017
• Tags: Judicial Accountability , Judicial Independence , NJAC

THE DEBATE BETWEEN JUDICIAL INDEPENDENCE AND JUDICIAL ACCOUNTABILITY: WHO IS JUDGING THE JUDGES?

Written Maushumi Bhattacharjee* & Prakhar Galaw **

* 4th Year B.B.A. LL.B Student, Institute of Law, Nirma University

** 4th Year B.A. LL.B Student, Institute of Law, Nirma University

Through this article, the author tries to discuss about the imminent need for the accountability in the Indian Judicial system or the Indian Judiciary.  Accountability or Accountable means actions which require justifiable explanations for that particular action, to the people who are directly are indirectly related with the consequence of that action.

In recent times the actions and decisions of the Indian Judicial system in the matters of appointments, transfers, judgements and orders; calls for a serious question of accountability because of the widespread corruption. The Indian judiciary which is the guardian and protector of the constitution (law of the land) has itself fallen into the prey of corruption and nepotism which is against the preamble which forms the basic structure of the constitution which cannot be amended. Now the question is why the Indian Judiciary is entangled in so much corruption and nepotism. Answer to that is power, absolute powers which are held by the judiciary, which remain unchecked. And as the saying goes “power corrupts and absolute power corrupts absolutely” goes well with the Indian judicial system. All this is happening because of lack of judicial accountability. With powers like contempt of court the judiciary could terrorize anyone. They have many more powers of which they are not answerable to anyone. There some provisions like judges enquiry which does make the deviant judges accountable to an extent, but since the enquiries are done by the judicial committees themselves, the outcomes are biased and not very surprising. Moreover the impeachment procedure is so complex that not a single judge till date has been removed from his office.

This article tries to discuss about the issue of accountability in the judiciary in exhaustive manner taking into consideration the past present and future events related appointments .transfer, judgements and misuse of the post for personal benefits and also tries to discuss various solutions of accountability like national judicial appointment commission (NJAC).

INTRODUCTION

In India the Judiciary is the most important organ of the government which has the main function of rule adjudication which are made by the legislature i.e. the rule making body and are implemented by the executive body of the government. The judiciary is the 3 rd and most important pillar of the Union followed by the legislature and the executive. The main principle behind such separation of powers is that each institutions in its own domain works for the maximum welfare of the citizens of the democracy, and judiciary is the watchdog which protects, preserves and enforces our fundamental and legal rights against the arbitrary violations. And the legislature and executive are accountable to the judiciary.

But the question is to whom the judiciary is accountable. Are the powers of judiciary unlimited? And if these powers are unlimited and absolute they would likely corrupt the institution, in short absolute power without accountability leads to corruption. Recently there were corruption charges against Calcutta high court judge Soumitra Sen who was found guilty of misappropriating large sums of money and Chief Justice of Karnataka High Court, P D Dinakaran, alleged for land grabbing and corruption but corruption in judiciary is not a new thing, it has always been there, only less talked and reported about in the mainstream media. But due to drastic increase in the case of corruption against the judiciary one needs to ask who is judging the judges ?

In reality and practical sense there is no organisation which is acting as watchdog over the Indian judiciary. On paper there are many provisions in the advocates act; judge’s enquiry act etc. which prescribes codes of ethics, norms, enquiry provisions and many other procedures against the offenders, but all have proven their hollowness due to lack of implementation and nepotism within the judiciary which leads to acquittals.

The main argument which propends the current judicial system against the question of accountability is of the independence of judiciary. The independence of judiciary is another important concept which should be studied together with the concept of accountability. And since the judiciary is the public institutions, which is for the people, it should be accountable to the people. And work according to the provisions of the constitution, keeping an eye on the preamble which is the soul of the constitution.

INDEPENDENCE OF JUDICIARY

Independence of Judiciary is a very important concept which is mentioned in the constitution. It is the part of the basic structure of the constitution which cannot be sacrificed in any circumstance as judiciary is the adjudicatory body of the union, which acts as an umpire between the parties in the dispute (adversarial system). So for giving a sound, lucid and unbiased decision umpires should be free from any kind pressure from litigants, cabinet ministers, influential personalities, big corporations, rich businessmen and also criminal elements of the society.

When the framers of our constitution were anxious about the kind of judicial system or judiciary India must have, Dr. B.R. Ambedkar gave the answer to their concerns. He stated that:

“There can be no difference of opinion in the House that our judiciary must be both independent of the executive and must also be competent in itself and the question is how these two objects can be secured.”

Independence of judiciary essentially means that separating the judiciary from other organs of the government, that is, executive and the legislature. However, the major problem in understanding this independence is that, judiciary is independent from the legislature and the executive and not accountability. It also means independence of the judges that form the judiciary.

Independence of judiciary is needed because:

• Judiciary is the watchdog of Indian Constitution and it checks the functioning of other organs of the government.
• The judiciary plays a vital role in interpreting the provisions of the constitution and it is important that such interpretation is unbiased ad free from any sort of pressure from the executive or legislature.
• The judiciary is expected to deliver impartial justice. This is what makes it the most important organ of the government. It is important that the judgements are not influenced by any sort of political inflictions.

Independence of judiciary concept has however faced many criticisms and problems when it comes to appointment and transfer of judges. It is important that Judicial Independence and Judicial Accountability co-exist and go hand in hand in order to maintain harmony in the judicial system. Article 235 of the Indian Constitution gives power to the High Courts over subordinate courts, thus establishing a perfect example of judicial independence.

JUDICIAL ACCOUNTABILITY

Judicial accountability is nothing but a consequence of the concept of judicial independence. Accountability generally means to be responsible for one’s actions and decisions. Judiciary being the most important organ of our government is responsible for passing orders and judgements and providing justice to society. Thus it is absolutely essential that judiciary is accountable for its actions and decisions and is not compromised by biasness and corruption.

However, it is not clear whether the judiciary is accountable to anyone, as diplomatically stating, the judiciary neither stands accountable to the people or the two organs of the government. That being said, the need of accountability in the judicial system is evident. The judiciary has been given the right to award capital punishment to the law breakers. It is the organ of government that performs essential checks and balances and hence judicial accountability must be taken seriously.

Judicial accountability brings about transparency and it can only be achieved if the accountability is ensured and corruption in the system is brought to a stop. Many questions arise as to what has gone wrong with the system. Pt. Nehru has said in a statement, “Judges of the Supreme Court sit on ivory towers far removed from ordinary men and know nothing about them.” Judges are also humans after all and can make errors all the time. So how can one achieve accountability in such a system?

Thus, the problems and solutions with judicial accountability have been discussed below.

ISSUES IN MAKING THE JUDICIAL SYSTEM ACCOUNTABLE

• IMPEACHMENT

Article 124(4) of the Indian Constitution specifies the process of impeachment that is removal of a judge of Supreme Court on the grounds of proven misbehaviour or incapacity. This is the only possible and available mechanism in the judicial system of making the higher judiciary accountable for their actions. According to the Judges Enquiry Act, 1968, a complaint against a judge can be made by passing a resolution signed by either 100 members of Lok Sabha or 50 members of Rajya Sabha. Then there is a three member committee two judges from the Supreme Court and the other chief justice of India. Investigations have to be made before passing a resolution. In the procedure for removal or impeachment of the judges, a resolution must be passed in each house of parliament by the total majority of members of the house and not less than two-thirds majority of the house present and voting. The process must take place in a single sitting. The resolution has to be presented before the president for his approval.

No judge has been impeached till date. However this does mean that there is no corruption in the system. The whole impeachment process is considered to be a failure as it is so lengthy and clumsy.

Justice Ramaswamy’s case:

This was the first impeachment case ever against a Supreme Court judge. Justice V. Ramaswamy was appointed as the chief justice of Punjab and Haryana High Court on November 12, 1987. He got promoted to Supreme Court in October, 1989. In 1990, there were complaints about him in press that he had spent a large amount of office money on himself and misused it grossly. In February 1991, 108 members of the Bharatiya Janta Party (opposition party), signed and submitted a notice of motion to the speaker of Lok Sabha for the removal of Justice Ramaswamy. However, Ramaswamy survived the impeachment because of the huge support from the Southern region MPs. 196 MPs voted for the motion which was less than what was required, that is, two-thirds. The motion failed regardless of the two yearlong proceedings that took place and unanimous votes from the opposition. Thus there is a very strong lesson to be learnt from the failure of this impeachment process, that is, this process of removal of judges is ineffective and obsolete. There is a dire need for an entire new system to restore judicial accountability and correct the failing standards of integrity of the judiciary. This case also demonstrates how corruption in judiciary was allowed to exist in the end. Ramaswamy was allowed to continue as a judge in the apex court of the country even after losing integrity in the public. The question we need to ask is, can the judgements made by a judge of such character be authentic?

Another issue is that the investigating committees also consist of judges and they are hesitant to charge their colleagues for corruption. They all work together like a union. The answer to this problem can be forming a National Judicial Commission, an independent body having its own investigating mechanism.

As already seen in the case of Justice Ramaswamy, a two-thirds majority is not the best option while dealing with such an important organ of the government that has such regulatory functions. A simple majority would prove to be more helpful for faster decision making.

• CORRUPTION IN JUDICIARY

Judicial corruption includes dishonest use or ‘misuse’ of judicial powers by the court authorities leading to unfair and unjust judgements. Due to corruption in judiciary, the public is deprived of the right to fair trial and right to equality. The judicial system of a country is responsible for keeping check over the functioning of other organs of the government and the functioning of the society. It is responsible for eliminating corruption from the country, but when corruption reaches the judiciary itself, it shows signs of a weak democracy.

India is the world’s largest democracy. Indian judicial system plays the important role of checks and balances over the executive and the legislature. However, corruption in Indian judiciary is a major threat and it largely diminishes judicial accountability. Citizens need to have faith that the country’s judiciary will provide them justice and equal protection by law. Here are some cases showing how corruption has crippled Indian judiciary:

Justice K. Veeraswamy’s case: [1]

Justice K. Veeraswamy was the chief justice of Madras High Court. A case was filed against him by the CBI under Prevention of Corruption Act, charging him for possession of assets inconsistent with his income sources. The Madras High Court referred the case to the Supreme Court for dealing with important issues of law. The Supreme Court laid down some stern guidelines for the protection of judicial independence.

• No F.I.R. can be registered against a Judge or Chief Justice of the High Court, or a Judge of the Supreme Court without the sanction of the Chief Justice of India in the matter.
• It was held that the Supreme Court is not a court of limited jurisdiction of only dispute settling, and that the court has been a law maker and it is the courts responsibility and duty to apply the existing law in a form more favourable to the independence of the judiciary.
• It was also said that any complaint against a Judge and its investigation by the CBI, if given publicity will have a far reaching impact on the judge and the litigant public therefore there is need of a judicious use of taking action under the Prevention of Corruption Act.

The Supreme Court’s judgement in this case has been criticized on the ground that this is sheer misuse of judicial independence and it completely overlooks the concept of judicial accountability. It provides an unfair shield to the judges for arbitrary behaviour and use of judicial powers.

Justice Soumitra Sen’s case:

Soumitra Sen is a former judge of Calcutta High Court. There were allegations against him that he had miss appropriated Rs. 32 lakhs as a court worker in a case from 1993 between Steel Authority of India Limited (SAIL) and Shipping Corporation of India. A three judge committee was formed which found him guilty of depositing public funds into his personal account. In 2006, he returned the money due to passing of the High Court order. A year later the Chief Justice of India, KG Balkrishnan recommended his impeachment to the Prime Minister. This was the 2 nd case after the Ramaswamy case where the parliament initiated impeachment proceedings against a High Court judge. In 2009, 53 Members of Parliament passed a resolution in the Rajya Sabha for the removal of Justice Sen. In 2011 the Rajya Sabha passed the motion with a majority of 189 votes in fovor of the motion. Before the motion could be passed in Lok Sabha, Justice Soumitra Sen resigned. He was found guilty of miss appropriating public funds and misrepresenting the facts to the court.

Such corrupt judges diminish the accountability of judiciary in the eyes of the public. If such case is repeated then it would be a matter of grave public disgrace for the Indian Judiciary.

Ghaziabad Provident Fund Case:

This is serious case of embezzlement of funds and a wide scaled scam. Ashutosh Asthana, a Ghaziabad court official confessed before the court and blew the whistle by naming 36 judges involved in the scam. These included 1 Supreme Court and 10 High Court judges. After testifying against these 36 judges, he was surprisingly found dead in jail under suspicious circumstances. He gave a detailed account of the scam explaining how most of the funds were withdrawn as provident fund advances from the Treasury and used in purchase of household appliances. There was a miss appropriation of about Rs. 49 crore funds from the provident funds of employees. Due to lack of evidence, and death of a key witness the police found it extremely hard to investigate the matter.

Sexual Harassment Cases:

A retired Supreme Court judge and former Chief Justice of the Orissa High Court, Judge AK Ganguly was accused by a woman intern for sexually harassing her. He was found guilty by the three judge committee even though he continually denied all allegations. He resigned from the West Bengal Human Rights Commission in 2014.

In another recent case, a sexual harassment complaint was filed against Madhya Pradesh High Court judge SK Gangeela. The committee has investigated the matter and 58 Rajya Sabha MPs have passed a resolution for his impeachment.

Such cases of gross misconduct on behalf of higher judiciary judges are a shame for the Indian Judiciary. High court and Supreme Court judges that are supposed to provide justice to the society are themselves involved in such criminal activities is highly unfortunate. They must not be given the immunity from proper criminal proceedings. They must be tried like any other offender. If such cases keep on rising then there would be no accountability left in the judiciary.

Uncle Judges Syndrome:

There are many cases where lawyers have father, uncle or brother as a judge in High Courts and also in Supreme Courts. These lawyers charge exorbitant prices from their clients as they “know” the judge and can ensure a favourable order.

The former Union Law Minister, Mr Shanti Bhushan, has explained the term in a simplified manner. He stated, “Let’s say there are four judges whose sons are practicing as lawyers in the same court. Obviously, the son of A will not appear in his father’s court and son of B will not appear in his father’s court and so on. But they will appear in each other’s courts and there is a general understanding that if you help my son, I will help your son. This is happening in many cases”

Advocates that are not blessed with uncle-judges have no other option but to keep their mouths shut or else they will be ill-treated by the judges and will face hell in courts. Such criminal contempt is spread across the Indian judiciary and there is no morality left in the judicial proceedings. Sadly, justice has also turned into a game of money.

• CONTEMPT OF COURT

In a democracy, the people have the power. And the government bodies or judges, courts etc. are public servants or servants of people. Now, the power of contempt is given to the judges to allow the smooth functioning of the judiciary. However, that does not deprive the right of people of freedom of speech. They can criticise the judges all they want.

Article 19(1)(a) gives the right to freedom of speech and expression to the people. But article 129 and 215 give the contempt powers to judges and limit the rights of people. Contempt is generally defined as an act that critically harms the dignity of the court and lowers its authority. There can be two types of contempt: Civil and Criminal.

Civil contempt can be defined as wilful disobedience of any order, decree or discretion of the court. Criminal contempt can be defined as any publication or any act that lowers the authority and harms the dignity of the court.

The Contempt of Court Act has also been panned that it violates two of the fundamental rights, that is, right to personal liberty and right to freedom of speech and expression.

Arundhati Roy issue:

Arundhati Roy and Medha Pathkar were activists from Narmada Bachao Andolan who protested against the Supreme Court’s order of increasing the height of Sardar Sarovar dam by 90 meters which would further lead to destruction of nearby villages. Ms Arundhati Roy and other protesters participated in a dharna and gave a demonstration outside the court criticizing the court’s order. The Supreme Court without giving any prior notification or chance to be heard served Ms Roy with a notice of contempt of court and violation of principles of natural justice. Their advocate Mr. Prashant Bhushan stated that the court had abused its powers of contempt. Ms Roy was merely practicing her rights of freedom of speech and expression. The court’s order clearly violates her rights. The court without any justification cannot practice its powers of contempt arbitrarily. How does that justify judicial accountability?

Recently the laws of contempt have been relaxed in U.S. and U.K. In US the defence against the order of contempt is to provide truth. The contempt order must not pose any danger in the administration of justice.

Judiciary can earn respect only by being accountable for its actions. If criticising the judges’ decision amounts to contempt then protests against the legislature and executive will also have the same cause, as they are also public servants. There is no doubt that the proper functioning of judiciary must be ensure but should it be at the cost of people’s rights? Is there no way to stop the judiciary from arbitrarily using its powers of contempt?

• RIGHT TO INFORMATION(RTI) AND JUDICIARY

In the famous judgement of Indira Gandhi v Raj Narain, the Supreme Court stated the importance of Right to Information and explained eloquently how the right was guaranteed to individuals by the constitution. The Supreme Court held that right to receive and impart information is a part of the right to freedom of speech under the constitution. The court rejected the government’s claim for privacy over the Blue Book that contained information about security measures for Prime Minister in Indira Gandhi’s case. The Supreme Court stated that the government had a responsibility to not keep any secrets regarding public functions and disclose all information that is related to public functionaries.

However the Indian judiciary has shown some serious hypocrisy and double standards about practicing Right to Information. If the Right to Information Act is applicable to the legislative and the judiciary, then how is the judiciary exempted from its provisions? Why does judiciary get special treatment?

The double standards of courts can be clearly seen after the Right to Information Act has been enacted. The RTI Act clearly applies to the judiciary that is court officials or judges as they are also included under the definition of public servants.

So, when Subhash Agarwal, asked for the disclosure of information on Supreme Court judges and whether they were complying with the Code Of Conduct, the Public Information Officer asked the court to provide information regarding the same from the Chief Justice’s office to the applicant. But in response, a writ petition was filed in Delhi High Court claiming that such information cannot be disclosed as it was communicated by the judges to the CJI under “fiduciary relationship”.

The judiciary will always play the card of judicial independence to escape judicial accountability which cannot be tolerated.

• JUDICIAL ACTIVISM OR JUDICIAL OVERREACH?

Judicial activism has recently been seen trespassing its limits and turning to judicial overreach. Judicial intervention in matters of labour policy, ecological and environmental policies, fiscal policy etc. tends to look like judiciary oversteps its authority and interferes with the functioning of the legislature and executive. This is called judicial overreach. Justice JS Verma once stated, “Judicial activism is appropriate when it is in the domain of legitimate judicial review. It should neither be judicial ‘adhocism’ nor judicial tyranny.”

It is essential for the smooth functioning of democracy that the difference between “judicial activism” and “judicial overreach” is clearly recognized. The lack of accountability requires judiciary to step back and restrain in its activities.

• APPOINTMENT OF JUDGES

Over the course of three judges cases the court evolved the concept of judicial independence to mean that no branch of state, that is, executive or the legislature will have any say in the appointment of judges. The court created the collegium system and put it in function giving exorbitant powers to the senior judges to select and refer the appointments to the government. This whole process is arbitrary as it leads to political favouritism when the appointments are in hands of the executive and judicial overreach when they are in hands of the judiciary.

SOLUTIONS TO PROBLEMS

• FORMATION OF NATIIONAL JUDICIAL COMMISSION(NJC)

The 80 th and 121 st Law Commission Reports of India have made the suggestion to form NJC. It is supposed to consist of 5 members:

• One member nominated by all the Supreme Court judges
• One member nominated by the Chief Justices of the High Courts
• One member nominated by the cabinet of ministers
• One member nominated by the speaker and the Leader of Opposition of both the houses
• The last one member nominated by Chief Vigilance Commissioner of the Central Vigilance Commission (CVC), Comptroller and Auditor General (CAG) and the Chairperson of the National Human Rights Commission (NHRC)

The NJC shall have its own investigative mechanism that shall investigate in the matters of removal of judges. Also the NJC will select the judges for appointment in HC and SC, the information of which will be available to the public. In this way the independence of judiciary is maintained and its accountability to the public too.

• JUDICIAL ACCOUNTABILITY BILL

The bill was introduced in Lok Sabha on December1, 2010.

• The bill shall lay down judicial standards and provide for accountability of the judiciary. It will establish certain mechanisms to investigate the complaints made against the judges individually. Also, it shall provide a mechanism for the removal of judges. It will replace the old Judges Inquiry Act, 1968.
• A five member commission shall be appointed by the president of the recommendation of the prime minister and its cabinet of ministers including the leader of opposition and a minority member.
• Declaration of assets of judges’ shall be made mandatory.
• When a complaint is received against the judges, it shall go to the investigating committee. If the charges are serious then the committee can ask the judge to resign, and if he refuses the case will move forward towards the process of removal.
• All the investigation proceeding information shall be made available to the public.
• JUDICIAL RESTRAINT (NEED OF THE HOUR)

It is important for the judiciary to practice judicial restraint for maintaining the balance between the different organs of democracy. The courts must be concerned with legality and law. Extreme judicial activism can raise questions on its accountability. Curbing judicial activism is required as the judiciary cannot start performing the functions of other organs which shall be totally against the principle of separation of powers. The benchmark of an independent judiciary has been its exclusion from the political and administrative process. Judges must not act like legislators or administrators.

• AMENDING THE CONTEMPT OF COURT ACT

The Contempt of Court Act has a lot of loopholes and it gives arbitrary powers to the judiciary. Few suggestions for the amendment were made. The accused must be provided with a reasonable opportunity to defend himself. The contempt cases should not be tried by courts but by independent commissions. The Act must make changes to the definition of criminal contempt so that it does not infringe the rights of the people.

The time has come when the judicial independence needs to be interfered with. Judicial independence must go hand in hand with judicial accountability. It is important to acknowledge the fact that the judiciary is not appointed by the people directly. Thus its accountability is questionable. The main task of judiciary is to provide fair trial and speedy justice. It is the organ that protects the society from injustice. It is only through this that the public can acknowledge its accountability.

This does not mean that the judiciary has failed completely. If the solutions to the problems are entertained and show a green light then proper functioning of judiciary and judicial accountability can definitely be ensured.

[1] K.Veeraswami v. Union of India, (1991) 3 SCC 655

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Judicial Independence in India: Rule of Law & Access to Justice

Introduction to Judicial Independence

Judicial Independence means that the judiciary is able to uphold constitutional sovereignty against the invasion of power by legislature and executive. The other organs of the government should not interfere with the decisions of the judiciary and the judges must be able to perform their functions without any fear or favor.

Check Misuse of Power: Judicial Independence that allows the courts to play a central role in ensuring that there is no misuse of power by the legislature and the executive .

• To protect and maintain the Rule of Law: It means that all the people are equally subject to the ordinary law of the land. 
• Independence from Executive and Legislature: One aspect of this independence is the ‘separation of powers .’ 
• Separation of power means the judges should not act on the direction of the government or according to the wishes of the party in power. 
• That is why all modern democracies have courts that are independent of the legislature and the executive .
• To protect the democratic rights of the people.
• To uphold constitutional supremacy against other organs of the government.

How can we secure Judicial Independence?

Appointment of Judges :

• Appointment: The judges of the Supreme Court and the High Courts are appointed by the President in consultation with the Chief Justice of the Supreme Court .
• Judicial Primacy: Ensuring Judicial Independence, appointments and transfer of judges , which means that here party politics would not play any role.
• Chief Justice of India: From 1950 to 1973, the senior-most judge of the Supreme Court was appointed as the Chief Justice of India.
• Departures from Tradition: But this convention was broken twice when Justice A. N. Ray (1973) and Justice M. H. Beg (1975) was appointed as CJI superseding their senior judges. Hence, only the senior most judge is appointed as CJI, emphasizing the importance of Judicial Independence. 
• Collegium System: After 1998, the SC suggested that the chief justice should recommend names of persons to be appointed in consultation with 4 senior-most judges. 
• Thus, it established the principle of collegiality.

  Removal of the Judges :

• Removal: A judge can be removed only by an impeachment motion passed separately in both Houses of the Parliament .
• Special Majority: The motion must be approved by a special majority in both Houses of the Parliament , underscoring the importance of Judicial Independence. 
• Ground for removal: Proved Misbehavior or incapacity.
• In 1991, an attempt was made to remove Justice Ramaswamy , but the removal motion was not passed in the House as the Congress party abstained from voting in the House.

  Tenure of the Judges:

• The judges have a fixed tenure, and they hold the office till the age of retirement .
• They have the security of tenure , which ensures that they function without fear or favor. Hence the constitution provides a very difficult procedure for their removal.

Protection to the Judiciary:

• The salaries and allowances of the judges are not subjected to the approval of Parliament.
• The decisions of the judges are immune from personal criticisms.
• They have the power to penalize those who are found guilty of contempt of court.
• Parliament cannot discuss the conduct of judges except when the proceeding to remove a judge is being carried out, emphasizing the significance of Judicial Independence. 

Ensuring Judicial Independence: Overcoming Challenges for Access, Equality, and Justice in the Indian Legal System

Does everyone have access to the courts.

• Equal Access: In principle, all citizens of India can access the courts in this country. 
• This implies that every citizen has a right to justice through the courts, underlining the importance of Judicial Independence. 
• Right to Justice: If any citizen believes that their rights are being violated, then they can approach the court for justice to be done.
• Barriers to Access: While the courts are available for all, in reality access to courts has always been difficult for a vast majority of the poor in India as the Indian judicial system faces many issues, highlighting the importance of Judicial Independence.

Hurdles in Access to Justice:

• Costly Legal Procedures: Legal procedures in India involve a lot of money and paperwork as well as take up a lot of time . 
• Impact on the Poor: For a poor person who cannot read and whose family depends on a daily wage, the idea of going to court to get justice often seems remote. 
• Justice Delayed: Another issue that affects the common person’s access to justice is the inordinately long number of years that courts take to hear a case . 
• The phrase ‘justice delayed is justice denied’ is often used to characterize this extended time period that courts take, emphasizing the significance of Judicial Independence.
• Improving Access to Justice: These hurdles have been dealt with to certain extent by mechanisms of Public Interest Litigation (PIL) and Social Interest Litigation (SIL) to increase access to justice. 

Preserving judicial independence is crucial for an equitable and accessible legal system in India. Overcoming barriers requires ongoing efforts and a commitment to uphold justice for all, irrespective of socio-economic status.

UPDATED :     

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THE INDEPENDENCE OF JUDICIARY IN TANZANIA

2013, Asherry Magalla

""ABSTRACT. This research is mainly focused on the topic, “Independence of Judiciary and Administration of Justice in Tanzania: A Critical Assessment of its Interpretation and Practical Application by the Courts in Tanzania”, hence research will be divided in four main chapters. Chapter One which will discuss the background of the problem, the statement of the problem, the aims and objectives, research methodology and significance of this study. The focus of Chapter Two will be on the Overview of the doctrine of independence of judiciary in Tanzania. Hence, this chapter will provide for the definition of the doctrine of independence of judiciary, discuss the laws governing the doctrine in Tanzania, the rationale of the doctrine in the administration of justice in Tanzania, advantages of the doctrine and finally the conclusion. In Chapter Three there will be a discussion on assessment on the interpretation and application of the doctrine of independence of judiciary in Tanzania from which a reflection will be made on the interpretation of the doctrine in the Tanzanian context, different interpretation of the doctrine by scholars and legal practitioners, the practical application of the doctrine in Tanzania and Frictions for disparities in interpretation of the doctrine and the implications of the narrow interpretation of the doctrine of independence of judiciary in Tanzania. And to wind up the research Chapter Four will provide for the Conclusion and Recommendation of this research. Independence of judiciary has become a problem in Tanzanian due to the fact that the misleading interpretation of the doctrine which allows the Executive and Legislative organs of the state to overpower the Judiciary in course of application of the doctrine by interfering its decisions and sometimes command it to comply with their decisions. ""

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Asherry B P Magalla , EMMANUEL MBUGA

When you are looking at the title of this work someone may notice that, this work is not mainly based on legal circumstances. But I believe that no lawyer who is a writer writes something of no legal significance. This work mainly looks on the power and the stand of judges in making laws in Tanzania mainland particularly on what is the history behind the judges in Tanzania to make laws and the motive behind them making such laws. Further it looks on the problem that is the lacunae in the applicability of the doctrine of precedents in Tanzania in relation to the development of the science and technology in this present digital era. The issue is where does this lacuna come from? As the title stated, stand and power of the Judges in law making in Tanzania can be looked in a narrow way but in wider sense the title also includes the power of Court because judges cannot make judgment and laws in their home or in street but only in the Courts. One author Richard H. Bruce provided that the judges have stand an power to decide different cases and dispute brought with consideration a legal procedure and rules to them, in this they make different decision which form part of laws and thus they are described to as law makers. United Republic of Tanzania as a follower of common law system as established by its laws follows the doctrine precedent .The doctrine of precedents tend to make the subordinate to follow the decisions of the higher courts. The essence of this is to avoid giving the parties and the general public a false impression that results of cases in courts of law perhaps depend more on the personalities of the judges than on the laws of the land. Another author called Spencer, J,R, Jackson, provided that the doctrine is there to bind the lower courts by the decisions of courts of records, it is there to give directives, thus in order for the said issue to be followed there must be communication of the two and also other users of the Judicial organ like the people with conflict and even lawyers and advocates, thus the doctrine goes hand in hand with accessibility and communication of the decisions of the Courts of records and to other lower courts and different personnel. In United Republic of Tanzania the said accessibility and communication is adhered by which the some of the cases from the courts of record are kept together in different publications and books like the Tanzania Law Report and the High Court Digest also they are kept in the East Africa Law Reports. This report is done in some sometimes after the case has been decided, but the problem is that the said report does not place all cases decision. The said problem affects the determination of justice in to a greater extent since there can rise different problems like the conflicting decisions and also the disregarding of the doctrine due to the unaware of the said decision to the magistrates or any umpire side in deciding a case on table, not only the deciding umpire but also to their legal personnel as the lawyers and the advocates due the unaware of the said decisions and thus they mislead the Courts of law in deciding a matter on merit and also breach their duty as officer of the court in helping it to reach in justice final. In reflection to the digital environment is that the said problem occurs because the essential element of accessibility is not well looked by the judicial, but to the advance of science and technology, the said accessibility can be in a greater extent to the fact that an individual from different jurisdiction can access the said binding decision easily and use it for the purpose of precedent. So the main issue here it is not the insufficient of the doctrine of precedent particularly on its normal use, but it is mainly on the applicability of the doctrine in relation to the development of science and technology in Tanzania. The question here is how the development of science and technology assists the applicability, availability and accessibility of these cases in solving various disputes arises before the court of law particularly when a judge or a lawyer or any other person with such knowledge wants to apply the doctrine of precedent? Can this inaccessibility of information (cases) undermine the applicability of the doctrine of precedent? What is the role played by the technology in the development of the doctrine of precedent? It is from this paper which consists of not more than four (4) parts whereby the above questions are going to be answered.

Deogratius B . Massawe

This research on the equality before the law between the State and individuals was carried out to ascertain whether the State is conferred with more privileges than individuals particularly by the Law of Limitation Act[Cap. 89 R.E. 2002]. This study focused on the limitation period available to institute suits between the State and individuals. Many authors have written about equality before the law and most of them have touched the aspect of special privileges accorded to the State but little has been written about the unequal treatment between the State and individuals which is considered to violate the principle of equality before the law. The State is given a longer period of limitation to institute suits in the court while individuals faced with the same situation are given much lesser period as opposed to the State. Futhermore, the powers of Minister to grant extension of time to institute suits after expiration of the stipulated period of limitation by the law is considered as violating the doctrine of separation of powers. This research which was conducted through reviewing various literatures, legislations, case laws and field research has come up with the findings which has proved that the Law of Limitation Act violates the principle of equality before the law. Although it is right to confer special treatment to the State due to the nature of its functions, still it is the violation of the principle of equality before the law. Moreover, the powers of the Minister to grant extension of time to institute suits after the expiration of the stipulated time by the law is a violation of the doctrine of separation of powers. The Minister who is an executive, should not be permitted to exercise the functions of the judiciary. Finally, the researcher has come up with some recommendations to the Law Reform Commission, the Legislature and the Judiciary.

NASSORO KARIM

nassoro karim

Human rights are the fundamental rights which a person has by virtue of being a human being. They are dependent on being provided for a particular legal instrument. These rights are inherent and therefore should be recognized and respected. Traditionally, human rights are demanded basically against the state. However, with time, it is becoming apparent that individuals are also involved in the violation of human rights. In facts research was done in recent time indicate that about 40% of all human rights violations are committed by individuals and therefore demands against violations can also be legitimately be made against individuals. There are demands for stoppage of violations and compensation and reparations.

Rachel Ellett

Ibrahim Majura

The principle of constitutionalism requires the government to adhere to the existing constitution and the said constitution must uphold justice. When violation occurs the court vested power to protect the constitution for hearing the allegations made by the victims or any interested party. The court in doing so led to the development of Constitutionalism.

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Justice is neither to be denied nor delayed’ means that, order for a person to achieve justice in any country, proper laws and procedures are very important in achieving fair and proper justice to a person. Fair and proper justice (substantive justice) it is not only to the person who claimed to be offended but also to the offender himself/herself, by means of giving proper and fair decision, and fair procedure during the trial sessions. Criminal Justice System in Tanzania has a lot of challenges that in end led to injustice and unfair decisions or sometimes no decision at all, which resulted to infringement some of human rights such as torture to the offender who is waiting for a long time for the trial or decision to be made. This paper intends to explain on the nature of the Criminal Justice in Tanzania, before and after the colonialism so as to trace a number of challenges in providing fair and proper justice to both the offender and the victim. In the end the author provides for the possible solutions to overcome such challenges as explained earlier.

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The summary highlights the major findings and recommendations of the Tanzania Human Rights Report, 2017; themed 'Unknown Assailants, a Threat to Human Rights'

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Zambia Law Development Commission

THE INDEPENDENCE OF THE JUDICIARY AND ITS IMPORTANT ROLE OF DISPENSING JUSTICE FAIRLY AND PROTECTING HUMAN RIGHTS

By Mordecai Mweene, Noel Chulu and Zindaba Lwara

Introduction

President Hakainde Hichilema on 17 th November 2021 appointed Supreme Court Judge Mumba Malila as Chief Justice. Justice Malila took over from late Chief Justice Ireen Mambilima. President Hichilema stated that he had made the decision after considering the recommendation of the Judicial Service Commission and that the decision was subject to parliamentary approval. [1]

Commenting on the appointment of the Chief Justice, Former Law Association of Zambia (LAZ) President Eddie Mwitwa applauded the appointment of Hon. Justice Dr Mumba Malila State Counsel as Chief Justice stating that it was a solid appointment. Mr Mwitwa expressed delight over the appointment of Dr Malila and congratulated him noting that he is ably qualified, has the necessary independence credentials for the position and is more than deserving of the appointment. He noted that it is a constitutional mandate that every Chief Justice upholds the independence of the judiciary and it is the obligation of the Chief Justice to ensure that is achieved, therefore, there is no doubt that Malila will ensure that is attained given his vast experience and various capabilities. [2]

Following the national discussion on the appointment of the chief justice, the need for transparency in the appointment process, and the need to have an independent judicial system, the Zambia Law Development Commission was prompted to publish this Article entitled “The independence of the judiciary and its important role of dispensing justice fairly and protecting human rights.”

The article attempts to define judicial Independence and give a legal position on its role in dispensing justice fairly and the protection of human rights. Further, it also seeks to compare the implementation of judicial independence in other African countries and consider whether or not there is a need for law reform in our legislation on the same.

A snap survey was carried out on a cross-cutting mix of respondents on their understanding of what judicial independence is, who it protects, if it promotes fairness and what they expect of the judiciary under the new government.

Defining Judicial Independence

Judicial Independence is the ability of judges and judicial officers of all ranks to carry out their judicial functions in respect of all people, regardless of status and in respect of all causes, in accordance with the law and the facts applicable thereto, without any additives, pressure or inducement from any other source, person or authority. [3]

Independence of the judiciary is the principle that the judiciary should be politically insulated from the legislative and the executive power. That is, courts should not be subject to improper influence from the other branches of government, or from private or partisan interests.

Judicial independence rests on the pillars of institutional and financial autonomy. These pillars encompass the need for an appropriate appointment procedure, security of tenure, satisfactory conditions of service that the executive cannot adversely affect, the provision of adequate financial resources, and appropriate terms and conditions for all those involved in the administration of justice. [4]

In Zambia judicial independence is provided for in the Constitution under article 122 which states that:

• in the exercise of the judicial authority, the Judiciary shall be subject only to this Constitution and the law and not be subject to the control or direction of a person or an authority.

(2) A person and a person holding a public office shall not interfere with the performance of a judicial function by a judge or judicial officer.

(3) The Judiciary shall not, in the performance of its administrative functions and management of its financial affairs, be subject to the control or direction of a person or an authority.

(4) A person and a person holding a public office shall protect the independence, dignity and effectiveness of the Judiciary.

(5) The office of a judge or judicial officer shall not be abolished while there is a substantive holder of the office.

The Role of the Judiciary in Dispensing Fair Justice and Protecting Human Rights

Article 118 of the Constitution in highlighting the principles of judicial authority stipulates among other principles that:

(2) In exercising judicial authority, the courts shall be guided by the following principles:

(f) the values and principles of this Constitution shall be protected and promoted.

It follows that in dispensing justice fairly the Judicature’s constitutional role integrates public interest on the one arm and safeguarding fundamental rights and freedoms on the other. In order to achieve this, the Judicature must perform its functions free of interference from any person or body, without fear, discrimination or bias.

The enjoyment of rights and freedoms is the preserve of every person in society. At its core, the Judiciary fundamentally operates to justly and fairly uphold human rights and guard against injustices to law-abiding and legally upright persons. In its independent capacity, it provides a haven for the legally aggrieved.

The Constitution [5] provides in its preamble, in part, that:

WE, THE PEOPLE OF ZAMBIA: …UPHOLD the human rights and fundamental freedoms of every person.

Article 11 states that; It is recognised and declared that every person in Zambia has been and shall continue to be entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed, sex or marital status” [6] .

The delicate nature and life-altering consequences of judicial action, however, often are the cause of judicial interference. At a national level, previous governments in Zambia have been criticised by public, private and political persons alike for meddling in the judiciary and judicial affairs. This in turn has brought distrust and a lack of confidence in the judiciary and its ability to dispense justice fairly. The disrepute of the judiciary brings into question the character and credibility of the very people appointed and entrusted with this responsibility.

The judiciary is charged with the protection of human rights through enforcing legislation that boarders on issues of human rights. Courts play a major role in ensuring that victims or potential victims of human rights violations obtain effective remedies and protection and that perpetrators of human rights violations are brought to justice. The judiciary also ensures that anyone suspected of a criminal offence receives a fair trial.

John Sangwa SC, a key proponent of the need for judicial independence and transparency, proposed, in his letter to the President that there should be a change in Zambia’s judicial appointments process in order to restore credibility in the judiciary.

The current judicial appointments process as provided for in the Constitution read with the Service Commissions Act [7] requires that the chief justice and judges of the Republic of Zambia are appointed by the President following a recommendation of the Judicial Service Commission (JSC) subject to ratification by the National Assembly in accordance with Article 140.

Article 216 goes further to stipulate that:

A commission shall—

• be subject only to this Constitution and the law;
• be independent and not be subject to the control of a person or an authority in the performance of its functions;
• act with dignity, professionalism, propriety and integrity;
• be non-partisan; and
• be impartial in the exercise of its authority

Read with section 23 (1) of the Service Commissions Act, the JSC in its constitutional function of appointing the Chief Justice and judges is also mandated to regulate its own procedure without external influence or interference.

In his letter, Sangwa more specifically focused on the manner in which the Chief Justice is to be appointed. Criticising the previous government, he wrote:

“Accordingly, I write to ask you not to embrace the practice followed by your predecessors in the appointment of the Chief Justice and other judges of the Superior Courts. Previously, the process of appointing judges was a sham: it did not have any semblance of transparency or fairness. It eroded the independence and integrity of the Judiciary and institutionalised political nepotism in the judicature.” [8]

Inference can be drawn from Sangwa’s statements that gross impropriety has in the past been rife in the selection and appointment process of the Chief Justice and judges.

One may ask what the correlation is between the appointment of justices and the role of the judiciary in dispensing justice fairly. The two can be said to be intertwined in that the characteristics, values, expertise, experience and track record of the candidates speak to their capacity to perform their constitutional judicial duties upholding the values and principles espoused in the Constitution.

To this effect, international organisations and media have heralded the President recognising his appointment of Honourable Justice Dr Mumba Malila as a commitment to human rights, the rule of law and the independence of the judiciary [9] .

Comparative study

The Constitution of South Africa

The Constitution recognises judicial independence as it provides the judicial authority of the courts. The courts are subject to the Constitution and the law which they must apply objectively and without fear or favour. It is vital to state that judicial independence is implicit in the rule of law, which is one of the founding values of the Constitution [10] .

The Constitution of South Africa under Section 165 states that:

Judicial authority vests in the courts and that the courts are independent and are only subject to the law which must be applied impartially and without fear or prejudice. Under the above stated section, the Constitution prohibits any person or organ of state from interfering with the functions of the courts. It therefore, enjoins the state through legislative and other measures to assist and ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts [11] .

In accordance with section 174(3) of the Constitution, the president is authorised to appoint a chief justice after consulting the Judicial Service Commission and the leaders of all political parties in the National Assembly for the sake of transparency. It should be noted that the president is not bound by the advice given as stated above. Further, section 174(6) of the Constitution empowers the president to appoint judges of all courts except the Constitutional Court on the advice of the Judicial Service Commission.

It is vital to reiterate that, in South Africa, a judge can be removed from office by the president only after a two-thirds majority resolution is adopted by the National Assembly. It must be recognised that until such a resolution is adopted by the National Assembly, a judge may not be removed from office despite adverse findings by the tribunal [12] .

The Constitution of Kenya (2010)

Article 161 of the Constitution vests judicial authority in the courts, thus, in exercising the authority, courts are subject to the Constitution and the law without any control or direction of any person or authority.

Article 166(1) of the Constitution prescribes that the power to appoint the chief justice and the deputy chief justice is vested in the president following the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly. Further, all other judges are appointed on the basis of the recommendation of the Judicial Service Commission [13] .

There is a range of best practice measures in the form of guidelines and principles that have been adopted at both international and regional level in order to secure judicial independence, security of tenure, appointment and removal procedures of judicial officers [14] . In Kenya, for example, unlike Zambia, the judicial appointment process is public. The Judicial Service Commission publishes the names of the judicial candidates in the Kenya Gazette following which it invites members of the public to submit information on any of the applicants. The Commission uses this information during interviews with shortlisted applicants [15] in accordance with Rule 9(1)(c) and (d) of the Judicial Service Act No.1 of 2011.

This process can be said to increase transparency in the way the judges are appointed and go a long way to ensuring judicial independence.

The Snap Survey Findings

The Commission conducted a snap survey using a semi-structured questionnaire which had both close-ended and open-ended questions. The analysis of the findings was done using the Statistical Package for Social Sciences, Version 20 as well as Thematic analysis. This snap survey had a total of 25 respondents consisting of 17 males and 9 females to ensure gender parity. It must be underscored from the onset that this exercise was a snap purposive survey whose central aim was to get an overview of how people understand the concepts of judicial independence, protection of human rights, as well as their expectations of the New Dawn government. This follows, therefore, that the snap survey had limitations in terms of the sample size that was used meaning that it cannot be generalized to the larger population of Lusaka Province.

READ THE SNAP SURVEY FINDINGS HERE: http://www.zambialawdevelopment.org/download/the-independence-of-the-judiciary-and-its-important-role-of-dispensing-justice-fairly-and-protecting-human-rights/

[1] https://www.lusakatimes.com/2021/11/17/president-hichilema-appoints-supreme-court-judge-mumba-malila-as-chief-justice/

[2] https://l.facebook.com/l.php?u=https%3A%2F%2Fzambianbusinesstimes.com%2Fmwitwa-nods-cj-mumba-malilaappointment%2F%3Ffbclid%3DIwAR2gdHKK_OiwXIWgPe5ozetRXuNlbVcz54HWA1IcVSp18bo5wMzkDgdu8-o&h=AT0m5YQ2p-pqQ5A3OpSDq52BLKhj2eK7Wo9cyk4g8wq4iqdxt0zkHQJgclV35cUJy5DyGt5R9ikqDXq3Dj1wT1a_Jc88wQhLjm22PpX54fw_0nBiNZJBT7pwnsdXT26xj0k&__tn__=-UK-R&c[0]=AT0duq5r_98j0jBBzHXVWUyvMNJD9mVVTX86F_RfnWT0nl-FZEdqD2HgWgjrOdoKiGKLsC1S6wIaeDHm13FgIalNXTXzCu0hc0s-FtD6ywHIolNiHkmgphmEdhmNC_LdTLkL03lz9jMqH7fGzRfCOUaHHz3YRmasZmzVpGken4DUsh4

[3] https://www.southernafricalitigationcentre.org/wp-content/uploads/2017/08/GOAL-16-Book-Masuku.pdf

[4] Muna Ndulo, Law Association Annual General Meeting 2012

[5] Act No. 2 of 2016 of the Laws of Zambia

[6] 1996 Constitution of the Laws of Zambia

[7] Act No. 10 of 2016

[8] The Mast Online. https://www.themastonline.com/2021/10/04/an-unfit-chief-justice-will-undermine-judiciary-sangwa/

[9] The Centre for Human Rights, Faculty of Law, University of Pretoria. https://www.chr.up.ac.za/latest-news/2742-press-statement-centre-for-human-rights-welcomes-appointment-of-dr-mumba-malila-to-the-position-of-chief-justice-of-zambia

[10] http://www.judiciary.org.zm>ocj  on 22/11/21

[11] The Constitution of South Africa (1996)

[12] http://www.scielo.org.za>scielo  on 24/11/21

[13] The Constitution of Kenya (2010)

[14] LVD Vijver (ed) The judicial institutions in Southern Africa: A comparative study of common law jurisdictions (2006) 1; see also the International Commission of Jurists (ICJ) International principles on the independence and accountability of judges, lawyers and prosecutors: A practitioners’ guide (2004). The international standards are discussed in detail in chapter two.

[15] https://www.nomos-elibrary.de/10.5771/2363-6262-2016-3-312.pdf?download_full_pdf=1

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Essay on the Importance of Independence of Judiciary

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In ancient times much attention was not paid towards the independence of judiciary and the monarchs wielded executive, legislative and judicial powers. Later on it was realized that it did not ensure full justice. Bodin and Montesquieu emphasised the independence of judiciary. Today in all democratic countries, the independence of judiciary is considered essential so that the fundamental rights of the people are protected.

That is why in democratic countries, judiciary is considered the guardian of the freedom of the people and also of the constitution. In countries, where there is no democracy, the judiciary is not free, and the fundamental rights of the people are not protected. This is the position in Spain, Portugal, Russia, China and other Communist countries.

Thus independence of judiciary is essential for the protection of the freedom and the rights of the people. Bryce has rightly said, “There are no better test of excellence of a Government than the efficiency of its judicial system, for nothing more nearly touches the welfare and security of the average citizen than his knowledge that he can rely on the certain and prompt administration of justice”.

Bryce has further said, “Law is respected and supported when it is trusted as the shield of innocence and the impartial guardian of every private civil right….if the law be dishonestly administered, the salt has lost its flavour, if it be weakly or fitfully enforced, the guarantees of order fail if the lamp of justice goes out in darkness, how great is that darkness.

Therefore, the judiciary is regarded as the guardian of the rights and freedoms of the people and also of the constitution. In many countries the judiciary is the adviser to the executive in legal matters.

Bryce says, “The significance of Judiciary is emphasized by Marriot who observes, ‘It matters not how elaborate the machinery of legislation may be, how scientific the product, how perfect the organisation of the executive, the life of individual citizen may nevertheless be rendered miserable, his person and property will be alike insecure, if there be any defect or delay in the administration of justice or any partiality or ambiguity in the interpretation of law”.

Garner also observes: “A society without legislative organs is conceivable and indeed, fully developed legislative organs did not make their appearance in the life of the state until modern times, but a civilized state without judicial organs is hardly conceivable”. Thus the judiciary is essential. In the absence of judiciary the thieves, dacoits and other tough people will usurp the property of the gentry and of the weak persons through force and violence.

There will be widespread injustice in the society. Therefore, the judiciary is essential for maintaining peace and imparting justice, and also for the enjoyment of fundamental rights.

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Essay On Judicial Independence And Rule Of Law

Type of paper: Essay

Topic: Government , Law , Influence , Politics , Supreme Court , England , Judge , Criminal Justice

Words: 1250

Published: 12/04/2019

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Judicial Independence

The concept of judicial independence is recognized by almost all constitutions of the world and the basic reason behind judicial independence is to keep the judiciary liberated from every kind of influences by executive, legislative or any other force. The Chief Justice of Canada in a recent judgment explained the importance of judicial independence:"Judicial independence is valued, because it serves important societal goals - it is a means to secure those goals. One of these goals is the maintenance of public confidence in the impartiality of the judiciary, which is essential to the effectiveness of the court system. Independence contributes to the perception that justice will be done in individual cases. Another social goal, served by judicial independence is the maintenance of the rule of law, one aspect of which is the constitutional principle that the exercise of all public power must find its ultimate source in a legal rule". The doctrine “separation of powers” suggests that all the parts of government i.e. legislative, executive and judiciary should work in their own periphery and should never try to interfere unnecessarily in the other’s jurisdiction. This arrangement assures that there is a balance of power among all the parts of government and no one should consider itself above the constitution of the land. The common perception in this regard is that if fair justice has to be done the judges, while delivering the verdict or during the trial should not be under influence of any body, whether it is any powerful individual, government, media, public opinion or any other power. Different provisions are made to keep the judiciary uninfluenced and independent in different countries by governments across the world. Since judiciary is a part of the government, scholars often put across that there is no any foolproof arrangement to keep judiciary uninfluenced especially by the other branches of the government. A number of suggestions, a number of debates and seminars have been organized by the constitutionalists to keep the judiciary out of influence by any sources. In England separation of powers was not much visible till very recent times and it was perhaps due to lack of written constitution and monarchy but the system has been changed and a number of provisions are made according to the doctrine of separation of powers. British government provisioned a number of changes in the traditional system in the year 2003.

Rule of Law and Judicial Independence

The principle “Rule of law” is a basic rule that suggests that law of the land is supreme, everybody is equal and nobody is above the law of land. The principle says that law and the truth can be discovered but it can not be interpreted in favor of any particular with intention to benefit him or her. This is the rule of law that keeps an eye on the government and restricts its acts when government try to cross the limits ascertained by the law. Government or its agencies can work according to the settled law and prescribed procedures and in no way can interpret the rules according to their convenience or interests. The principal of Rule of Law was extensively elaborated by Albert Venn Dicey, a British jurist and thinker who said that Rule of Law is bedrock of the British Legal System, according to Dicey- a. A person can be punished for his acts, if contrary to the law by a competent court of law only. b. Everybody is equal before the law, irrespective of his economic, social or political status. c. Rights given by the constitution to the individuals should be provided to them and not on the papers only but in practicality. After observing the concepts of judicial independence and rule of law, it is very explicit that if the rule of law has to be established in any society, the idea of judicial independence is absolutely essential. The moment, judicial proceedings are influenced or interfered by any source, the rule of law is breached then and there. Any interference or influence in the judicial proceedings by any body breaches the guarantee that is assured to a common man by the rule of law that all people are equal before the law. The reason is that the person in whose favor the law has been interpreted, considering his interest has not been treated equally by the law of the land.

Constitutional Reform Act 2005

Constitutional reform act 2005 was passed in the year 2005 by the British parliament and came in force in the year 2006. This was the biggest step taken by the British parliament towards judicial independence. Need for such regulation was felt by the English for a long time and finally it came into effect. There is no doubt that this law will finish the scope of all kinds of interference from the politicians and other effective sources on the judicial proceedings. Let us have a look over the provisions of constitutional reform act, 2005 and how they terminate the scope of any influence or interference in the independence of judicial proceedings in England. a. Ministers are barred to influence the judges; they can not interfere in the judicial proceedings directly or indirectly. All the special access to judges has been terminated. The responsibility to maintain the independency of judiciary has been put on the shoulders of ministers and in case such efforts or instances occur, they will be held liable. b. The post of Lord Chancellor has been terminated and according to new provision all the powers vested in the Lord Chancellor have been transferred to the lord chief justice who is also the president of the courts of the England and the Wales. In new system all the powers of deployment, training and guidance have been given to the lord chief justice who has the power to express his views on the behalf of judiciary of England and Wales. c. As per the provisions of this act, a new independent Supreme Court has been established. Supreme Court will be looking after recruitments, budget, maintenance and other factors related to it and there will be no interference in this affair from any other body. d. Provision for a new and independent judicial commission has been done in the new act. This commission will be responsible for maintaining the quality in the candidates who are to be recommended for judicial services by this body. e. Arrangement of a judicial ombudsman to look into the quality of judicial services and complaints related to judiciary within the scope of provisions of constitution. After having a complete study on various aspects of constitutional reform, act 2005, it is not difficult to understand that this act has played a very important role in the judicial independence in the England.

Works Cited

Bingham, Tom. The Rule of Law. London: Penguin Books Ltd., 2011. Cheryl Saunders and Katherine Le Roy. The rule of law. Sydney: Federation Press, 2003. Daniel C. Prefontaine, Q.C. and Joanne Lee. "The Rule of Law and The Independence of The Judiciary." 7 December 1998. icclr.law.ubc. 31 October 2011 . "Judiciary of England and Wales." judiciary. 31 October 2011 . Shimon Shetreet and Jules Deschenes. Judicial independence: the contemporary debate. Dordrecht: Martinus Nijhoff Publishers, 1985.

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The Importance of an Independent Judiciary in Democracy: South Africa

An independent judiciary is a cornerstone of democracy , ensuring that laws are applied fairly and justice is administered without bias. In South Africa, the independence of the judiciary is particularly crucial given the country’s historical context and ongoing efforts to consolidate democracy.

This article explores the importance of an independent judiciary in South Africa and its role in upholding democratic principles.

Table of Contents

The Importance of an Independent Judiciary in Democracy

• Upholding the Rule of Law : Ensures that laws are applied consistently and impartially, holding everyone accountable.
• Protecting Human Rights : Provides a mechanism for individuals to challenge violations and seek redress.
• Ensuring Checks and Balances : Acts as a check on the executive and legislative branches to maintain constitutional authority.
• Promoting Public Confidence : Fosters trust by ensuring decisions are based on law, free from political influence.
• Safeguarding Against Corruption : Impartially adjudicates cases to hold corrupt officials accountable.
• Interpreting the Constitution : Ensures constitutional principles are upheld and adapted to contemporary issues.
• Providing Legal Recourse : Offers a forum for peaceful dispute resolution and justice for rights violations.

1. Upholding the Rule of Law

The rule of law is a fundamental principle of democracy, requiring that all individuals and institutions, including the government, are subject to the law. An independent judiciary ensures that laws are applied consistently and impartially , holding everyone accountable regardless of their position or power.

In South Africa, the judiciary has played a pivotal role in upholding the rule of law. Landmark cases such as t he Constitutional Court’s decision in Glenister v President of the Republic of South Africa reinforced the principle that even government actions must comply with the Constitution, demonstrating the judiciary’s critical role in maintaining legal integrity.

2. Protecting Human Rights

An independent judiciary is essential for protecting human rights , providing a mechanism for individuals to challenge violations and seek redress. In South Africa, the judiciary has been instrumental in advancing human rights, particularly in the post-apartheid era.

The Constitutional Court has delivered numerous judgments that safeguard fundamental rights, such as the right to equality, freedom of expression , and protection from discrimination. For example, the court’s decision in National Coalition for Gay and Lesbian Equality v Minister of Justice struck down laws criminalizing same-sex relations, affirming the judiciary’s role in protecting marginalized groups.

3. Ensuring Checks and Balances

A robust democracy requires a system of checks and balances, where different branches of government can limit each other’s power. The judiciary acts as a check on the executive and legislative branches, ensuring that their actions comply with the Constitution and the law.

In South Africa, the judiciary’s independence allows it to review and, if necessary, invalidate actions by other branches of government that exceed their constitutional authority. The case of Economic Freedom Fighters v Speaker of the National Assembly exemplifies this, where the Constitutional Court found that the National Assembly failed to hold the President accountable, thus reinforcing the judiciary’s role in maintaining democratic balance.

4. Promoting Public Confidence

Public confidence in the legal system is vital for the legitimacy and functioning of a democracy. An independent judiciary fosters trust by ensuring that legal decisions are made based on the law and not influenced by political or external pressures.

In South Africa, maintaining public confidence in the judiciary is particularly important given the country’s history of political interference in the legal system during apartheid. Post-1994, efforts to establish and maintain judicial independence have been crucial in rebuilding trust and confidence in the legal system.

5. Safeguarding Against Corruption

Corruption undermines democracy by eroding trust in public institutions and skewing the application of laws. An independent judiciary is essential for combating corruption, as it can impartially adjudicate cases and hold corrupt officials accountable.

South Africa has faced significant challenges with corruption, making the judiciary’s role even more critical. The judiciary’s ability to operate independently ensures that anti-corruption laws are enforced, and corrupt practices are addressed. The Zondo Commission , which investigated state capture, highlighted the judiciary’s role in uncovering and addressing corruption at the highest levels of government.

6. Interpreting the Constitution

An independent judiciary is responsible for interpreting the Constitution, ensuring that its principles are upheld and adapted to contemporary issues. In South Africa, the Constitutional Court has the authority to make binding interpretations of the Constitution, shaping the country’s legal landscape.

Cases such as Minister of Home Affairs v NICRO demonstrate the judiciary’s role in interpreting constitutional rights, where the court ruled that prisoners retain their right to vote, thereby reinforcing the principles of democracy and human dignity.

7. Providing Legal Recourse

An independent judiciary ensures that individuals have legal recourse when their rights are violated. It provides a forum for disputes to be resolved peacefully and according to the law, which is fundamental for social stability and justice.

In South Africa, the judiciary has provided recourse for victims of apartheid-era injustices and continues to address contemporary grievances. Access to justice is a crucial component of democracy, and the judiciary’s independence ensures that it can operate without fear or favor.

The independence of the judiciary in South Africa is paramount for sustaining and advancing democracy. By upholding the rule of law, protecting human rights, ensuring checks and balances, promoting public confidence, safeguarding against corruption, interpreting the Constitution, and providing legal recourse, the judiciary plays a vital role in maintaining a fair and just society. As South Africa continues to evolve, the judiciary’s independence remains a crucial pillar of its democratic framework, ensuring that justice prevails and democratic principles are upheld for all citizens.

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Essay on Judicial independence and its importance

Essay on Judicial independence and its importance – Judicial independence is the bedrock of any democratic society. Refers to the concept that the judiciary should be free from undue influence or interference by other branches of government, political parties or external bodies.

Introduction

Judicial independence is the bedrock of any democratic society. Refers to the concept that the judiciary should be free from undue influence or interference by other branches of government, political parties or external bodies. This freedom is critical to upholding the rule of law, protecting individual rights and liberties, and ensuring a fair and impartial legal system. In this essay, we will explore the importance of judicial independence, its historical development and the challenges it faces in today’s world.

Historical Development of Judicial Independence

The concept of judicial independence has evolved over centuries, dating back to ancient civilizations. For example, in ancient Greece, there were practices intended to separate the judiciary from political influence. However, the modern understanding of judicial independence took shape during the Age of Enlightenment and was influenced by thinkers such as Montesquieu, who advocated for the separation of powers.

Importance of judicial independence

• Rule of Law: Judicial independence is essential to uphold the rule of law. When judges are free from external pressures, they can interpret and apply the law impartially, ensuring that all persons are treated equally under the law. This increases legal certainty and confidence in the justice system.
• Protection of individual rights : An independent judiciary protects individual rights and freedoms. It provides a forum where citizens can redress grievances and hold the government accountable for any violation of their rights. Without judicial independence, the government can violently violate the rights of citizens.
• Checks and Balances: In a democratic system with separation of powers, the judiciary acts as an important check on the executive and legislative branches. Judges can review the constitutionality of government actions and strike down laws or policies that violate fundamental rights. It helps maintain the balance of power and prevents possible abuse of power.
• Public confidence: Judicial independence increases public confidence in the legal system. When people believe that judges are impartial and free from political bias, they are more likely to trust the judiciary’s decisions and respect the rule of law. This, in turn, contributes to social stability and cohesion.
• International Relations: Judicial independence is also important in international relations. Countries with a strong commitment to the independence of their judiciary are seen as more reliable and trustworthy partners in the global community. This can have a positive impact on diplomatic and economic relations with other nations.

Challenges to judicial independence

Although judicial independence is a fundamental principle, it faces various challenges in contemporary society:

• Political interference : One of the most important challenges to judicial independence is political interference. Politicians may seek to influence the judiciary through appointments, budgetary control, or public criticism. Such interference undermines the impartiality of judges and undermines public confidence in the legal system.
• Financial Pressure : Financial constraints can also threaten judicial independence. When the judiciary’s budget is controlled by the executive branch, it may face financial constraints that hinder its ability to function effectively. This can delay justice and undermine freedom.
• Corruption : Corruption in the judiciary can compromise its independence. Judges susceptible to bribery or other illegitimate influences may render unjust decisions, which undermines the rule of law and public confidence in the legal system.
• Populism and Polarization: Popular movements and political polarization can pressure the judiciary to conform to a particular ideology or sentiment. Judges may face public backlash if their decisions are out of touch with prevailing political or social views, which may deter them from making impartial decisions.
• Threats to security: In some regions, judges and their families face physical threats and violence, making it difficult for them to carry out their duties independently. Their security must be ensured to preserve judicial independence.

Judicial independence is a fundamental pillar of democracy and the rule of law. It provides an important mechanism for protecting individual rights, upholding the Constitution, and maintaining checks and balances in government. Although the concept of judicial independence has deep historical roots, today’s world faces challenges such as political interference, economic pressure, corruption and security threats.

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Essay on Role of Judiciary in the Country for Students and Children

500 words essay on role of judiciary in the country today.

Any judiciary is an integral part of a country, especially democracy . As India is the largest democracy, we have a big judiciary which makes sure it safeguards the interests of its citizens. Similarly, our Supreme Court is at the top of our judiciary system. It is then followed by our high courts which operate at the state level. Further, there are district courts operating at the district level. There are also many more courts below this order. A judiciary has many roles to play.

Role of Judiciary in India

As a judiciary is independent of the executive, it can easily safeguard the rights of the citizen to ensure peace and harmony. However, its role is not just limited to this. It plays different roles to make sure there is smooth functioning in the country.

Firstly, it plays a great role in making new laws. Judiciary is the rightful interpreter of our constitution as well as the current laws. It has the power to create new laws as well as overrule policies that might violate our constitution.

Furthermore, the judiciary also prevents any form of violation of the law. Similarly, it files a lawsuit against the person found guilty of doing the same. After that, a judge passes his verdict after listening to both parties closely and announces the judgment accordingly.

Moreover, it also acts as an advisory body. It happens more than often that the executive or legislature seeks help from the judiciary to clarify issues regarding the constitution.

Moreover, the judiciary decides upon the constitutional questions. For instance, if there is a dispute between states, they are brought to the Supreme Court where it decides how to interpret the constitution on the basis of the on-going dispute. In addition, it also looks after the administrating bit. Like it is responsible for appointing officers, maintaining records, administrating staff and more.

Most importantly, the judiciary is the protector of fundamental rights of the citizens. Everyone has the right to fundamental rights; however, sometimes people try to take them away. Thus, the judiciary ensures no such thing happens and lets every citizen live with harmony.

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Importance in Today’s Scenario

A judiciary is very crucial in upholding a democracy like ours. As we all know, cases of injustice against people have risen nowadays. There is unjust discrimination happening and the judiciary must step in to stop all this.

Therefore, it becomes important more than ever to help people feel safe within their own country and homes. Judiciary checks and balances the ones who have power. This helps in preventing people from misusing that power.

In short, in today’s scenario of our country where crimes are happening rapidly, people turn to the judiciary for justice . Thus, we see how it is so very important that judiciary remains just and empowered in the times of darkness. Sometimes, it remains the single ray of hope for people, which is why it is needed more than ever now.

FAQs on Role of Judiciary in the Country Today

Q.1 What is the role of the judiciary in the country today?

A.1 The judiciary plays a major role in a democracy. It safeguards the fundamental rights of the people. Further, it makes new laws and ensures to punish anyone violating these laws. It also administers and appoints officers.

Q.2 Why is the judiciary important in the country today?

A.2 The judiciary is more important than ever now because injustice against people has risen to a great extent in our country. We need it to monitor the people and punish them for their crimes so everyone feels safe and included.

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Independence through Judicialization: The Politics Surrounding Administrative Adjudicators, 1929-1949

48 Pages Posted: 22 Jul 2024

Lawrence J. Liu

University of California, Berkeley, School of Law, Jurisprudence and Social Policy Program, Students; Yale Law School

Date Written: July 10, 2024

One front in today’s battle to define the scope of the administrative state concerns the authority, status, and future of its 10,000-plus administrative adjudicators. Decisions by federal courts and the executive branch to increase the dependence of administrative adjudicators on the executive have sparked strong reactions from observers, with many advocating for measures to increase adjudicator “independence.” But who should administrative adjudicators be independent of, which ought to be independent, and why?  Calls for administrative adjudicator independence are not new. This Article draws on primary documents produced by private actors, congressional decisionmakers, and federal executive agents to present a political legal history of legislative proposals between 1929 and 1949 to understand whether, how, and why different actors sought to insulate administrative adjudicators from their agencies or the President. Leading up to and following the enactment of the Administrative Procedure Act in 1946, politicians and interested citizens advanced proposals to increase the independence of the individuals who conducted hearings and served as factfinders in administrative agencies. Then, like now, observers debated administrative adjudicator independence in the context of discussions about the power of administrative agencies. The loudest supporters of independence were anti-New Dealers trying to halt and reverse the growth of administrative power, who were joined by a subset of legal professionals interested in using law to check its operation. These critics attempted to “judicialize” administrative adjudication by increasing the resemblance of administrative adjudicators to the federal judiciary.     What does this history teach? First, it illustrates how actors past and present deploy seemingly apolitical terms like judicial values, independence, or administrative procedure to obtain substantive political ends. Indeed, such terms can take on different meanings at different times, perhaps varying with views of the federal judiciary and active government, the policies and political strength of the President, the issues decided by administrative agencies, or the types of claimants subject to adjudication. Second, it highlights how early supporters of administrative agencies emphasized the diversity among administrative adjudicators, while opponents grouped them together to collectively limit their authority. Today, rather than pursuing one-size-fits-all reforms, I suggest that different rules should apply to different administrative adjudicators depending on the questions and claimants involved. Decisions about ratemaking or regulatory enforcement differ from individualized determinations whether citizens qualify for government benefits or licenses. Claims by business interests might be treated differently from those by more vulnerable groups, such as disability-benefits recipients or noncitizens at risk of removal. In any event, when making policy recommendations, reformers should begin by understanding who administrative adjudicators are and the functions they perform, an understanding that also underscores whether and how politics should animate arguments about adjudicator independence.

Keywords: administrative law, regulatory politics, judging and adjudication, law and politics, state-society relations, legal history

Suggested Citation: Suggested Citation

Lawrence J. Liu (Contact Author)

University of california, berkeley, school of law, jurisprudence and social policy program, students ( email ).

Berkeley, CA 94720 United States

Yale Law School

127 Wall Street New Haven, CT 06510 United States

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Essay on “Independence of the Judiciary” for CSS, PMS and Judiciary Examination

• March 28, 2021
• Essay for CSS PMS and Judiciary Exam

Here you will find the Essay on “Independence of the Judiciary” for CSS, PMS, and Judiciary Examination. “Independence of the Judiciary” is the most demanding thing in any state of the world. In easy words, it means that the judiciary should not be under any other institution and it should work independently and fairly to provide justice. The Judges should have no pressure and they are free to give their judgments without any undue favor or influence.

Essay on “Independence of the Judiciary”

In the law, the judiciary or judicial system is the system of courts that administer justice in the name of the sovereign or state, a mechanism for the resolution of disputes. The term is also used to refer collectively to the judges, magistrates, and other adjudicators who form the core of a judiciary, as well as the support personnel who keep the system running smoothly.

Judicial independence is the doctrine that decisions of the judiciary should be impartial and not subject to influence from the other branches of government or from private or political interests. In most cases, judicial independence is secured by giving judges long, and sometimes lifetime, tenure and making them not easily removable.

Judicial independence is generally thought important for the rule of law that judges should not be easily dismissible. This is typically guaranteed in constitutions. There are the following basic principles for the independence of the judiciary:

• The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
•  The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.
• The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
• There shall not be any inappropriate or unwarranted interference with the Judicial process, nor shall judicial decisions by the courts be subject to revision This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the Judiciary, in accordance with the law.
• Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures.  Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.
• The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.
• It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.
• In accordance with the Universal Declaration of Human  Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association, and assembly; provided,  however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.
• Judges shall be free to form and join associations of judges or other organizations to represent their interests, promote their professional training, and protect their judicial independence.
• Persons selected for judicial office shall be individuals of the integrity of any ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, color, sex, religion, political or other opinions, national or social origin, property, birth, or status. Except that a requirement, that a candidate for judicial office must be a national of the country concerned shall be not considered discriminatory.
• The term of office of Judges, their independence, security, adequate remuneration, conditions of service, pensions, and the age of retirement shall be adequately secured by law.
• Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age of the expiry of their term of office, where such exists.
• The promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability integrity and experience.
• The assignment of cases to judges within the court to which they belong is an internal matter of judicial administration. professional secrecy and immunity.
• The judiciary shall be bound by professional secrecy with regard to their deliberations and to confidential information acquired in the course of their duties other than in public proceedings, and shall not be completed to testify on such matters.
• Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for mandatory damages for improper acts or omissions in the exercise of their judicial functions.
• A charge or complaint made against a judge in his/her judicial professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judges shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential unless otherwise requested by the judge.
• Judges shall be subject to suspension or removal only for reasons of incapacity or behavior that renders them unfit to discharge their duties.
• All disciplinary, suspension, or removal proceedings shall be determined in accordance with established standards of judicial conduct.
• Decisions in disciplinary, suspension, or removal proceedings should b subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.

Guaranteed judicial independence is the first step towards the meaning of reform and revival of the nation of any country. The holy Quran warned us that the way to destroy people is to facilitate rampant profligacy among the rich.

The moral decay of a country’s elites, whose excessive lust for money, privilege, and power spreads corruption in the fabric of their societies, eventually leads towards total collapse it would, therefore, seem unwise for us as a nation to remain passive in the face of the series of misfortunes that have befallen us in the last few years, ranging from such tragedies as the horrendous fire in a state threat to repeated train and road accidents, the pollution of our air, water, and food, the widespread use of dangerous fertilizers, chaotic traffic, and the disappearance of already scaring prime agricultural land, to name just a few paramount concerns.

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926 Words Essay on independence of judiciary in India

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.

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.

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.

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Farah peterson wins pushcart prize for essay.

Professor Farah Peterson was awarded the prestigious Pushcart Prize for her essay, “Alone with  Kindred ,” which first appeared in the Threepenny Review last year. Established in 1976, the Pushcart Prize honors the best essays, fiction, and poetry published each year by the nation's small presses. 

“Alone with  Kindred ” grew out of the Law School’s 2023 Law and Literature Conference on the evolution of marriage in America. “As a legal historian,” Peterson recalls, “I had planned to trace American writers’ responses to evolving legal restrictions on interracial marriage.” In the end, it was writers’ silence on the issue that inspired Peterson’s essay. “There were so few literary depictions of interracial marriages, that I started to ask ‘why?’” The resulting essay weaves literary criticism together with Peterson’s personal experiences, including her childhood as an avid reader and her own interracial marriage. 

The award is just the latest recognition of Peterson’s creative and interpretive work. In addition to scholarly work on such topics as Founding Era attitudes towards judicial power and debtor-creditor relations in Early America, Peterson is widely published in literary magazines. Her art criticism and personal essays have appeared in  The Atlantic ,  The Best American Magazine   Writing , and  Ploughshares .

The Federal Judiciary Is Looking the Other Way On Workplace Sexual Harassment

As it turns out, a wildly unethical judiciary thinks itself above the law in more ways than one..

It’s 2017, and a prominent federal judge is retiring after over a dozen women came forward about him sexually harassing them on the job. It’s 2020, and a woman is testifying before Congress about a prominent federal judge sexually harassing her on the job. It’s 2024, and a federal judge is resigning after an investigation into him sexually harassing a woman on the job—and later, assaulting her. 

The federal judiciary is not just the branch of government responsible for administering the nation’s laws; it is also a workplace. And as in many other workplaces, sexual harassment is an open secret, discussed in hushed tones by employees who, unlike their bosses, do not enjoy life tenure.

In other workplaces, employees have at least some legal recourse if their rights are violated by bad bosses. In the judiciary? Not so much. Federal antidiscrimination laws don’t apply to the judiciary’s 30,000 employees, which include law clerks, staff attorneys, public defenders, librarians, administrative staffers, and more. They instead have to depend on internal oversight mechanisms, and a new congressionally-funded report shows that those systems are woefully inadequate.

Why Are Judges Above the Laws They Enforce?

Right now, all courts have their own systems for handling workplace conduct issues, which are called Employee Dispute Resolution or “EDR” plans. The judiciary substantially revised its model EDR plans at the height of the #MeToo movement, and the new report assesses how those plans are working. Some revisions have been helpful; for example, the plans created an avenue for employees to receive confidential advice and guidance, and the study points to a “broad consensus” that this has helped employees “seek support or explore options before problems escalate.” Other interviewees mentioned “the explicit prohibition of abusive conduct as a very significant provision in the Model EDR Plan.” It’s a little concerning that judges need to explicitly be told “don’t abuse your employees,” but hey, I’m glad it’s working.

Still, the study unearthed significant room for improvement. Interviewees spoke about the huge power imbalance between judges and their clerks, who still fear “retaliation from within or outside the court.” Some judges acknowledged a “continuing reluctance” to “report on or sit in judgment of their colleagues on the bench.” And judicial branch employees, unlike their peers in the executive or legislative branches, still aren’t permitted to seek money damages in federal court. This not only leaves them uncompensated for the harm they endured, but also makes legal representation more unaffordable, since plaintiffs often pay their attorneys using a percentage of any monetary award. Quite literally, no one is making judges pay for their bad actions.

Judicial Branch Employees Have No Rights At Work. The Judiciary Accountability Act Could Change That

The report offers 34 recommendations to overhaul the judiciary’s response to workplace misconduct, including making monetary compensation available as a remedy; developing guidance for the judges who oversee formal complaint proceedings; and providing training about what constitutes abusive conduct under the policy. California Representative Norma Torres, who directed the study, urged the judiciary to work harder on building systems for handling sexual harassment claims, since, she said, “its longstanding reliance on the good character and conduct of individuals alone has been grossly insufficient.”

Notably, four years ago, Torres requested that the Government Accountability Office conduct an audit of the judiciary’s systems for preventing and handling sexual harassment. But, she says, the GAO was more or less stonewalled by the Administrative Office of the Courts, an agency responsible for a broad range of federal court services and led by Judge Robert J. Conrad, Jr., an appointee of Chief Justice John Roberts. Throughout the two-year study, the Administrative Office only allowed the GAO to speak with a single judicial employee.

The judiciary’s sloppy response to sexual harassment and refusal to cooperate with an investigation into said sloppy response underscores the judiciary’s culture of impunity. The notion that the judiciary is beyond reproach puts workers in unacceptable danger, and erodes the public trust that a legal system requires to function. Whether they’re accepting lavish gifts or ignoring conflicts of interest or abusing their employees, too many judges think they answer to no one. Congress must remind them otherwise, and reports like this one are just the beginning.

Madiba K. Dennie

Madiba K. Dennie is the Deputy Editor and Senior Contributor at Balls & Strikes, and author of The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take it Back . Her writing has been featured in outlets including The Atlantic and The Washington Post . 

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Supreme Court Justice Does Whatever He Felt Like Doing

Maura Healey Is Not Taking Judicial Ethics Seriously

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Latest news, what if the supreme court no longer gets the final word, supreme court term limits are a nice first step, republican attorneys general just want the supreme court to make them feel good, lawyers are already working on trump’s next coup attempt, aileen cannon did exactly what clarence thomas told her to do, affirmative action opponents are saying the racist part out loud now, this is how democrats should be treating the supreme court, the constitution says you have the right to vote for president. the supreme court should say so.

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Hallucinating Law: Legal Mistakes with Large Language Models are Pervasive

A new study finds disturbing and pervasive errors among three popular models on a wide range of legal tasks.

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In May of last year, a Manhattan lawyer became famous for all the wrong reasons. He submitted a legal brief generated largely by ChatGPT. And the judge did not take kindly to the submission. Describing “an unprecedented circumstance,” the judge noted that the brief was littered with “bogus judicial decisions . . . bogus quotes and bogus internal citations.” The story of the “ChatGPT lawyer” went viral as a  New York Times story, sparking none other than  Chief Justice John Roberts to lament the role of “hallucinations” of large language models (LLMs) in his annual report on the federal judiciary. 

Yet how prevalent are such legal hallucinations, really? 

The Legal Transformation  

The legal industry is on the cusp of a major transformation, driven by the emergence of LLMs like ChatGPT, PaLM, Claude, and Llama. These advanced models, equipped with billions of parameters, have the ability not only to process but also to generate extensive, authoritative text on a wide range of topics. Their influence is becoming more evident across various aspects of daily life, including their growing use in legal practices. 

A dizzying number of legal technology startups and law firms are now advertising and leveraging LLM-based tools for a variety of tasks, such as sifting through discovery documents to find relevant evidence, crafting detailed legal memoranda and case briefs, and formulating complex litigation strategies. LLM developers proudly claim that their models can pass the bar exam. But a core problem remains: hallucinations, or the tendency of LLMs to produce content that deviates from actual legal facts or well-established legal principles and precedents. 

Until now, the evidence was largely anecdotal as to the extent of legal hallucinations. Yet the legal system also provides a unique window to systematically study the extent and nature of such hallucinations. 

In a  new preprint study by Stanford RegLab and Institute for Human-Centered AI researchers, we demonstrate that legal hallucinations are pervasive and disturbing: hallucination rates range from 69% to 88% in response to specific legal queries for state-of-the-art language models. Moreover, these models often lack self-awareness about their errors and tend to reinforce incorrect legal assumptions and beliefs. These findings raise significant concerns about the reliability of LLMs in legal contexts, underscoring the importance of careful, supervised integration of these AI technologies into legal practice.

The Correlates of Hallucination

Hallucination rates are alarmingly high for a wide range of verifiable legal facts. Yet the unique structure of the U.S. legal system – with its clear delineations of hierarchy and authority – allowed us to also understand how hallucination rates vary along key dimensions. We designed our study by constructing a number of different tasks, ranging from asking models simple things like the author of an opinion to more complex requests like whether two cases are in tension with one another, a key element of legal reasoning. We tested more than 200,000 queries against each of GPT 3.5, Llama 2, and PaLM 2, stratifying along key dimensions. 

First, we found that performance deteriorates when dealing with more complex tasks that require a nuanced understanding of legal issues or interpretation of legal texts. For instance, in a task measuring the precedential relationship between two different cases, most LLMs do no better than random guessing. And in answering queries about a court’s core ruling (or holding), models hallucinate at least 75% of the time. These findings suggest that LLMs are not yet able to perform the kind of legal reasoning that attorneys perform when they assess the precedential relationship between cases—a core objective of legal research.

Second, case law from lower courts, like district courts, is subject to more frequent hallucinations than case law from higher courts like the Supreme Court. This suggests that LLMs may struggle with localized legal knowledge that is often crucial in lower court cases, and calls into doubt claims that LLMs will reduce longstanding access to justice barriers in the United States. 

Third, LLMs show a tendency to perform better with more prominent cases, particularly those in the Supreme Court. Similarly, performance is best in the influential Second and Ninth Circuits, but worst in circuit courts located in the geographic center of the country. These performance differences could be due to certain cases being more frequently cited and discussed, thus being better represented in the training data of these models. 

Fourth, hallucinations are most common among the Supreme Court’s oldest and newest cases, and least common among later 20th century cases. This suggests that LLMs’ peak performance may lag several years behind current legal doctrine, and that LLMs may fail to internalize case law that is very old but still applicable and relevant law. 

Last, different models exhibit varying degrees of accuracy and biases. For example, GPT 3.5 generally outperforms others but shows certain inclinations, like favoring well-known justices or specific types of cases. When asked who authored an opinion, for instance, GPT 3.5 tends to think Justice Joseph Story wrote far more opinions than he actually did. 

Contrafactual Bias

Another critical danger that we unearth is model susceptibility to what we call “contra-factual bias,” namely the tendency to assume that a factual premise in a query is true, even if it is flatly wrong. For instance, if one queried, “Why did Justice Ruth Bader Ginsburg dissent in  Obergefell ?” (the case that affirmed a right to same-sex marriage), a model might fail to second-guess whether Justice Ginsburg in fact dissented. 

This phenomenon is particularly pronounced in language models like GPT 3.5, which often provide credible responses to queries based on false premises, likely due to its instruction-following training. This tendency escalates in complex legal scenarios or when dealing with lower court cases. Llama 2, on the other hand, frequently rejects false premises, but sometimes mistakenly denies the existence of actual cases or justices.

Relatedly, we also show that models are imperfectly calibrated for legal questions. Model calibration captures whether model confidence is correlated with the correctness of answers. We find some divergence across models: PaLM 2 and ChatGPT (GPT 3.5) show better calibration than Llama 2. Yet, a common thread across all models is a tendency towards overconfidence, irrespective of their actual accuracy. This overconfidence is particularly evident in complex tasks and those pertaining to lower courts, where models often overstate their certainty, especially in well-known or high-profile legal areas.

Implications for the Law  

The implications of these findings are serious. Today, there is much excitement that LLMs will democratize access to justice by providing an easy and low-cost way for members of the public to obtain legal advice. But our findings suggest that the current limitations of LLMs pose a risk of further  deepening existing legal inequalities, rather than alleviating them.

Ideally, LLMs would excel at providing localized legal information, effectively correct users on misguided queries, and qualify their responses with appropriate levels of confidence. However, we find that these capabilities are conspicuously lacking in current models. Thus, the risks of using LLMs for legal research are especially high for:

• Litigants in lower courts or in less prominent jurisdictions,
• Individuals seeking detailed or complex legal information,
• Users formulating questions based on incorrect premises, and 
• Those uncertain about the reliability of LLM responses.

In essence, the users who would benefit the most from legal LLM are precisely those who the LLMs are least well-equipped to serve.

There is also a looming risk of LLMs contributing to legal “ monoculture .” Because LLMs tend to limit users to a narrow judicial perspective, they potentially overlook broader nuances and diversity of legal interpretations. This is substantively alarming, but there is also a version of representational harm: LLMs may systematically erase the contributions of one member of the legal community, such as Justice Ginsburg, by misattributing them to another, such as Justice Story. 

Moving Forward with Caution

Much active technical work is ongoing to address hallucinations in LLMs. Yet addressing  legal hallucinations is not merely a technical problem. We suggest that LLMs face fundamental trade-offs in balancing fidelity to training data, accuracy in responding to user prompts, and adherence to real-world legal facts. Thus, minimizing hallucinations ultimately requires normative judgments about which type of behavior is most important, and transparency in these balancing decisions is critical.

While LLMs hold significant potential for legal practice, the limitations we document in our work warrant significant caution. Responsible integration of AI in legal practice will require more iteration, supervision, and human understanding of AI capabilities and limitations. 

In that respect, our findings underscore the centrality of human-centered AI. Responsible AI integration must augment lawyers, clients, and judges and not, as Chief Justice Roberts put it, risk “dehumanizing the law.” 

Matthew Dahl is a J.D./Ph.D. student at Yale University and graduate student affiliate of Stanford RegLab. 

Varun Magesh is a research fellow at Stanford RegLab. 

Mirac Suzgun is a J.D/Ph.D. student in computer science at Stanford University and a graduate student fellow at Stanford RegLab. 

Daniel E. Ho is the William Benjamin Scott and Luna M. Scott Professor of Law, Professor of Political Science, Professor of Computer Science (by courtesy), Senior Fellow at HAI, Senior Fellow at SIEPR, and Director of the RegLab at Stanford University. 

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Jesse Wegman

Judge Cannon and JD Vance Are on the Same Team

By Jesse Wegman

Mr. Wegman is a member of the editorial board.

In the days since Judge Aileen Cannon issued her inexplicable 93-page dismissal of the classified-documents case against Donald Trump, I’ve been coming back to something JD Vance said on a podcast in 2021.

Mr. Vance, the Ohio senator and now Mr. Trump’s running mate, predicted on the podcast that the former president, who had been recently disgraced by his insurrectionary attempt to overturn the 2020 election, would nevertheless run again in 2024. Should Mr. Trump win, Mr. Vance said , he had some advice: “Fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people.” And if the courts ruled against him? No problem, Mr. Vance said: Just blow them off.

“We are in a late republican period,” he added, alluding to weakness in the ancient Roman Republic. “If we’re going to push back against it, we have to get pretty wild, and pretty far out there, and go in directions that a lot of conservatives right now are uncomfortable with.”

His interviewer, Jack Murphy, prominent in the right-wing pro-masculinity world, agreed and said, “Among some of my circle, the phrase ‘extra-constitutional’ has come up quite a bit.” Mr. Murphy said it was necessary “to become a little more robust in our behavior” in order to “refound the country,” and Mr. Vance responded, “That’s exactly right.”

This exchange — with its disregard for the rule of law, its mockery of expertise and its elevation of outcome over process — gets to the heart of what is so alarming about the dismissal of the documents case, which had been widely regarded as the most airtight of the prosecutions of Mr. Trump. (As a reminder: He removed large quantities of classified national security documents from the White House without authorization, he refused to return them when asked politely, and he lied to the officials who tried to collect them.)

Judge Cannon’s rationale for tossing the case was that Jack Smith, the special prosecutor who brought the charges, was not validly appointed to his post because no federal law authorizes the appointment of someone from outside the Justice Department to perform that task. “Mr. Smith is a private citizen exercising the full power of a United States attorney, and with very little oversight or supervision,” she wrote.

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Introduction

In November 2023, 57% of voters in Ohio voted for Issue 2 , a ballot initiative which legalized adult recreational marijuana use and tasked the Ohio Departments of Commerce and Development with implementing a legal recreational cannabis industry in the state. As of December 7, 2023, individuals 21 years and older can legally consume and possess marijuana throughout Ohio, although recreational dispensaries are not expected to open until the summer or early fall of 2024. Like most other states that have legalized cannabis for recreational use, Ohio allows local jurisdictions to enact ordinances to prohibit or limit the operation of adult-use cannabis businesses within their boundaries.  This page presents information on 68 active local moratoriums enacted by Ohio jurisdictions as of July 19, 2024. Please note that the list of moratoriums may not be comprehensive and will continue to be updated as new information becomes available.

Figure 1. Map of Ohio Jurisdictions That Have Enacted a Moratorium for Adult Use Marijuana Operators

Local Prohibition Statute and Host Community Fund

The incorporation of a local business prohibition statute is common among the 24 states that have legalized adult cannabis use for recreational purposes. Only four states out of these 24—New Mexico, Rhode Island, Maryland, and Minnesota—do not give localities the power to prohibit businesses, although these states give localities the right to enact reasonable restrictions on time, place and manner of consumption. The extent to which localities opt out of the legal recreational market varies. For instance, in Michigan 73% of municipalities (1,300 out of 1,773) opted out; [1] in New York, only about 50% of municipalities (753 out of 1,520) opted out of allowing dispensaries within their boundaries. [2] . In comparison, the 71 Ohio municipalities that have passed moratoriums as of July 19, 2024, represent only a small fraction (just over 3%) of the 924 incorporated municipalities and 1,307 townships in the state of Ohio.

Ohio’s Issue 2 enacted Ohio Revised Code Section 3780.25, under which localities can enact ordinances prohibiting the operation of adult-use businesses, although they may not prohibit the operation of existing medical cannabis operators that are already located within their jurisdiction. Additionally, localities cannot pass ordinances prohibiting or limiting marijuana-related research conducted at state universities, levy a tax, fee, or charge on adult-use operators that are not being levied on other businesses within the municipal corporation or township, and they cannot prohibit or limit home grow, or any other activity authorized under Chapter 3780.

If a dispensary license is issued by the Division of Cannabis Control for a locality that does not have a moratorium in place, the locality has 120 days to enact an ordinance prohibiting the operations of the dispensary. Upon passage of the ordinance, the dispensary has 60 days to cease operations, or begin the process of initiating a petition to operate that would have to be voted on at the next general election.

Host Community Fund

While the current law gives communities the power to prohibit adult-use cannabis operators from their jurisdictions, it also created an incentive for municipalities to allow operators by establishing the Host Community Fund. Thirty-six percent of the recreational cannabis excise tax revenue collected by the state will be directed to the Host Community Fund, which is then distributed to municipal corporations or townships that have adult use dispensaries. This revenue, along with the local sales tax collected from the sale of recreational marijuana, can be used by communities to fund their own priorities. [3]

The State of Local Moratoriums

As of July 19, 2024, 71 Ohio municipal corporations or townships have passed moratoriums prohibiting adult-use cannabis businesses. We were able to collect the language of 59 of these moratoriums. [4] The 68 jurisdictions with active moratoriums represent just over 12% of Ohio’s population, with the average population of these localities hovering just above 21,000 residents.

Figure 2. Ohio Moratoriums by Jurisdiction’s Population Size

Of the 59 ordinances we collected, 58 jurisdictions enacted full moratoriums for all types of adult use operators. As shown in Table 1, 18 of these jurisdictions have left the length of the moratorium undefined, while the other jurisdictions averaged a moratorium of approximately nine months—30 are a full year or longer, while two are six months or shorter. A handful of jurisdictions that enacted adult-use moratoriums already have operating medical marijuana establishments.

Table 1. Ohio Jurisdictions That Have Enacted a Moratorium for Adult Use Marijuana Operators

The moratoriums are generally brief and often describe the need to ensure “public peace, health, safety, and welfare of [the locality’s] citizens.” The moratoriums also often cite the need for time to review current ordinances and identify any conflicting laws with state laws legalizing marijuana, or to wait for lawmakers in the Ohio General Assembly to revise Issue 2 before making any changes to their own code. Multiple jurisdictions have indicated an intent to actively study current law and create recommendations for their locality once the final state rules for the adult-use recreational industry are adopted.

Table 2. Stated Purpose and Intent of Local Moratoriums

Enduring Consideration for Localities

While approaching a recreational cannabis market carefully might be prudent, localities that prohibit adult-use operators are foregoing potentially significant tax revenue stemming from cannabis businesses being located within their boundaries. Though Ohio tax revenues will not begin to accrue until the second half of 2024, revenues soon thereafter are forecasted to be considerable. [5] In addition to money allocated through the Host Community Fund, localities with active adult-use operators will generate local sales tax revenue that can be used for purposes specific to the community.

Moratoriums also limit opportunities for local entrepreneurs seeking to enter the adult-use market as well as possible employment prospects for local residents. For instance, according to some reports, Michigan’s cannabis industry has created 45,000 full-time positions. [6] Because cannabis businesses advance economic development in myriad ways, municipalities and townships considering moratoriums need to weigh not only public health and public safety concerns, but also the potential benefits of economic development, job creation, and tax revenue.

Lastly, localities should consider the possibility that prohibiting adult-use operators could have the unintended effect of increasing efforts to access cannabis through other means by local residents. Localities cannot make cannabis possession or use or even home grow illegal, and some local citizens are likely to seek out cannabis despite local bans through home grow efforts, or by traveling to nearby localities to find legal stores, or by turning to illicit markets to fill the void. Localities should continuously examine whether public health and public safety concerns are best served through local prohibitions or through well-crafted regulatory efforts.

[1]  Ken Haddad, “Here is which Michigan communities are opted out of adult-use marijuana sales”, December 12, 2023. Click on Detroit . https://www.clickondetroit.com/news/michigan/2023/12/12/heres-which-michigan-communities-are-opted-out-of-adult-use-marijuana-sales/

[2] Marijuana Opt-Out Tracker, Rockefeller Institute of Government, SUNY. https://rockinst.org/issue-areas/state-local-government/municipal-opt-out-tracker/

[3] The wording in the statute is as follows: “Thirty-six per cent to the host community cannabis fund for the benefit of municipal corporations or townships that have adult use dispensaries, and the municipal corporations or townships may use such funds for any approved purpose.” It is not clear what “approved purpose” means and which department, if any, is tasked with defining “approved purposes”.

[4] Avon Lake has enacted both a public consumption and adult use retail moratorium ordinances. Our center has collected language for both ordinances but does not include the public consumption ordinance in our count.

[5] Jana Hrdinova and Dexter Ridgway, “What Tax Revenues Should Ohioans Expect If Ohio Legalizes Adult-Use Cannabis?”, August 2023. Drug Enforcement and Policy Center. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4537855

[6] Angela Mulka, “Michigan's cannabis industry employs more than 46,000 workers”, April 26, 2024. Pioneer . https://www.bigrapidsnews.com/news/article/michigan-cannabis-industry-second-largest-in-us-19420833.php

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Reporting by Andrew Goudsward and Sarah N. Lynch; Editing by Scott Malone, Will Dunham, Rosalba O'Brien and Deepa Babington

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Sarah N. Lynch is the lead reporter for Reuters covering the U.S. Justice Department out of Washington, D.C. During her time on the beat, she has covered everything from the Mueller report and the use of federal agents to quell protesters in the wake of George Floyd’s murder, to the rampant spread of COVID-19 in prisons and the department's prosecutions following the Jan. 6 attack on the U.S. Capitol.

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