In Chaos Judicial Independence?

India's Honurable Chief Justice T.S Thakur blamed government for bringing the Judiciary to a stand still by stalling the appointment of judges of High court. Just becoz file related to appointments of judges is dwadle for past eight months in central.where out of 24 H.c there are 478 vacancies open to be filled but due to which about of four million cases are pending in H.c with 43% of scarcity of judges. Hitherto functioning of Judicial system for appointment of judges seems to be unreliable. Now the situation has been taken the form of Tug of war between Judiciary and Central government. As We all know Our Indian constitution possess all the essential features of a federal constitution with separation of power between executive,legislative and judiciary,featuring along with Independence of judiciary which determines the limits of power of centre and state.But NJAC seems to be guise in this context with a bash on judicial independence. Montesquieu has propounded the theory of separation of power,which occupies a very important place in working of any Democratic government.

This doctrine signifies the very fact that "ONE PERSON OR BODY OF PERSON SHOULD NOT EXERCISE ALL THE THREE POWERS OF THE GOVERNMENT".

According to Montesquieu:-

"THERE IS NO LIBERTY IF THE JUDICIARY POWER BE NOT SEPARATED FROM THE LEGISLATIVE AND EXECUTIVE".

"IS APPOINTMENT OF JUDGES THROUGH NJAC IS ONLY HINDRANCE OF JUDICIAL INDEPENDENCE OR SOME DIFFERENT METHOD SHOULD BE ADOPTED"?

Do,Now In present scenario prospective Judges or Chief Justice will have to find political backing for their appointment and their merit will be only a secondary consideration? Taking look at another countries their is a different method practiced for appointment of judges.As In some state of America,the Judges are elected by the people. In the Soviet union,subordinate Judges are elected by the people.However Experience show that this system is not all desirable. In Switzerland the Judges are elected for six years by the two federal chamber sitting together which is quite successive in that country. In France,competitive examinations are held under the control of minister of Justice for recruitment process. Whereas in Australia Judges are appointed by Governor-General in council for lifetime but could be removed also.

Where in Russia also all Judges are nominated by Russian President and are appointed by federal council. Above mention all method of appointment shows that judicial function is never separated from executive for the reason that courts where depend upon the executive for carrying out their decision which is a great handicap to the judiciary. Concluding this,presence of separation of power between different organs of government is still visible, Acquaitant from the history of judiciary but in coherent way,and Independence of judiciary around the world is in vain.

 

sonali sharma 
on 17 August 2016
Published in Students
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