Answer:
APPROACH AND STRUCTURE
THE INTRODUCTION: Write that the judiciary in a democracy act as a check on the arbitrary actions of the other two organs.
THE BODY
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- Then write basics about the judiciary.
- Then, explain why constitutional protection for the judiciary is a prerequisite for democracy.
- Write some challenges to the judicial independence.
THE CONCLUSION: Constitutionally guaranteed independence of the judiciary is necessary.
THE INTRODUCTION:
The judiciary in a democracy act as a check on the arbitrary actions of the other two organs and thereby ensures constitutional governance, which is essential for democracy.
THE BODY:
The Indian Constitution provides for the structure, powers and functions of the Indian judiciary which is integrated and independent. The judiciary is the guardian of the Constitution, the protector of FRs of people and maintain rule of law in the polity. The Constitutional courts also have the power of judicial review, which ensures the executive and the legislature work as per the Constitution.
Since democracy involves procedural and substantive dimensions, it has not only electoral salience but also socio-economic significance. Democracy as a form of government requires not only procedure established by law but also due process of law. A democratic government is a limited government which cannot breach the bounds of the Constitution and the law. And whenever it tries to do, and thereby become tyrannical, it is the judiciary that checks these transgressions. In order to carry out these functions, the judiciary needs to be independent, which should be guaranteed by the Constitution and not merely by a law. That is why the Constitution has ensured that the personnel management processes of the judges are immune from executive or legislative interference. The judges of the SC and HCs are appointed by the President after consultation with judges, which is crystalised in the collegium system. They also have security of tenure, their conduct cannot be discussed in legislature unless during an impeachment proceeding, and their remunerations are charged on the Consolidated Fund of India.
This independence is necessary for the judiciary to enforce the procedure established by law and due process of law, which are cornerstones of a democratic form of government. Only constitutional independence can equip the judiciary to effectively use the power under Art 32 and 226 for protection of rights of people. As constitutional independence cannot be diluted easily unlike in an ordinary legislation. The judiciary’s independence cannot be a casualty of changing political fortunes.
The supreme court in the NJAC judgement has reaffirmed this principle of judicial independent because of the composition of the NJ AC which has given primacy to the executive with the supreme court viewed as a threat to its independence there by endangering the democratic system of government.
However simply constitutionally guaranteed independence may not be enough for protecting a democracy, as there have been allegations of the supreme court and many high courts having a pro executive biasness. There have been a significant number of important cases which have not been heard by the Supreme Court, which resulted in the phrases of judicial evasion like in electoral bonds issue, Citizenship Amendment Act, etc. Post-retirement jobs for judges have also been criticized as undermining the independence of the judiciary.
THE CONCLUSION:
Nevertheless, constitutionally guaranteed independence of the judiciary is necessary to carry out its functions without fear or favour so that it can act as a counter- majoritarian institution for protecting, promoting and safeguarding democracy, which is the basic structure of the Constitution.
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