“INDEPENDENCE OF JUDICIARY: A COMPARATIVE ANALYSIS BETWEEN INDIA AND NEW ZEALAND” BY - SHRISHTI VERMA
“INDEPENDENCE OF JUDICIARY: A COMPARATIVE
ANALYSIS BETWEEN INDIA AND NEW ZEALAND”
AUTHORED BY - SHRISHTI VERMA
Chapter 1
1.1Abstract
India ranked 53 in an independent
judiciary ranking by the world economic forum in 2017-18 with a score of 4.3
out of 7 based on how independent the judicial system is from government,
individuals and company.[1] From the
preceding few years New Zealand has been under the groups of world’s highest
scoring countries, handing over to this field by scoring 6.7 points and
upholding the world’s second best level of independence for judicial
authorities.[2] If we
acquiesce with the trend from past few years of ranking of India in this
particular index, formerly we can analyze that it keeps fluctuating from point
3 to point 4 and the highest point secured by India in this index was 5.3 in
the year 2007[3] and after
that India never achieved that point again and on the separate hand New Zealand
is persistent in accomplishing these points and indeed improving itself in this
peculiar subject signified by new reformative actions in a measure to attain
the full score.”
“Judicial independence is the most
substantial subject for a democratic country as it is instantaneously
proportional to the quality of democracy which abounds in any country, so in
other words it’s the mirror of democracy and other various even if it possesses
a written constitution like India or an unwritten constitution like New
Zealand. This term “Judicial Independence” was first emphasized by the legal
jurist and political philosopher Montesquieu in his book Spirit of laws after
expanding the modern concept of doctrine of separation of power.[4] The
central point of this comprehensive research study is to examine every element
ascribed to judicial independence, its philosophical view, its historical view
and constitutional view, modern applicability view of both the respective countries
India and New Zealand.”
New Zealand is singled out for the
comparative evaluation with India as they reside to the same historical
colonial domination and both were influenced by it in some aspect but they are
divergent from each other at numerous levels. But despite all this, New Zealand
has one of the most powerful judiciary systems in the world and India is on the
way of getting it with understanding and examining about the new reformative
actions which should be drawn for the judiciary so that we can reconstruct a
trail contributing to one of the most potent and effective judicial systems.”
1.2 Research Methodology
At the preparatory stage of
research, the researcher has retained the doctrinal form of Research to compose
the primary and secondary sources of data from the library like books,
journals, law commission reports, conventions, precedents, articles and
research paper, acts, code to formulate an initial base of research. So the
researcher can be apprehensive of previously written data on the discussing
issues. The reception of research has been based on contemporary principles
presented by the judiciary through various case laws, jurisprudential aspects
which a researcher uses as the evidence to accentuate her new arguments.
Besides, this comparative form of research has been organized to accomplish the
focus of this research study that is to discover a trail which could be adhered
to reach the goal of establishing Indian judicial system one of the most
compelling arrangements in the world by magnifying understanding of the subject
matter that is the Judicial independence: a comparative interpretation and
analysis between India and New Zealand.
1.3 Research Objective
The basic goal of this research
paper is to understand and determine the term judicial independence in various
aspects like historical, jurisprudential, constitutional and legislative basis
for better interpretation and scrutinizing the significance of the terms linked
to the subject matter. Then the onus of objective shift towards narrowing down
the issue by examining the consideration of the judicial independence level of
both the respective countries and to strike out the reason why they both stand
at different levels in the subsequent subject matter. The focused intention of
this comparative analysis is to figure out the level of gap in between the two
respective countries and recognizing the elements contributing towards this
gap, Absolute objective is to think markedly about the reformative actions
toward filling this gap which will operate as the intensities for India towards
constructing strong judicial independence system.”
1.4 Research Questions
·
What
is the expression, scope, types, meaning, various prospects of ‘judicial
independence’ and associated terms? (Historical, jurisprudential,
constitutional and legislative prospects)
?
Examining
the ‘judicial influence level’ of both the countries and to grasp why there is
the level of gaps in between them due to subject matter and what are the
different elements hindering ‘Indian judiciary’ for achieving one of the most
powerful judiciary systems in the world?
?
What
are the reforms which could be chosen for India-based on the comparative
analysis which is conducted in between the respective countries?
1.5 Literature Review
The research paper singled out as “Independence
of Judiciary in India[5]”
which accumulates on the historical prospects of judicial independence in
India and also tries to explain about all the conditioned research like its
varied interpretations, meaning, objective, its importance in India in a hasty
manner. It also seeks to feature the elements like the legislative actions and
external forces which try to manipulate the Indian judiciary. It was the
constructive article for the researcher which tries to express visions and
perspectives about the numerous substantial topics referred to this subject
matter.”
A research editorial titled “Independence Of The Judiciary: A
constitutional Response[6]”
which is the most comprehensive article concentrates about describing the
conception of judicial interpretation and specifically researching its
inclination toward the constitution of India with the help of various
precedents. It likewise likes to convey the view on judicial accountability,
which is the complementary term used together with judicial independence. This
article allows the researcher to understand the constitutional view of judicial
independence and other pertinent concepts with resourceful insights of case law
and evolution of the complementary concept in India.
Transparency
and Accountability in the Indian Judicial System[7] is the research article which
highlights and also makes the researcher aware of the other view of the subject
matter that is the exploitation of judicial independence in India by judges in
order to escape from their accountability.
The law review titled The Essence of Judicial Independence[8]
covers the various important aspects like evolution, jurisprudential view
considering the subject matter, and was a constructive article for the deep
jurisprudential knowledge on the examined subject. Independence of Judiciary[9],
this research article focuses on the constitutional provision related to
the subject matter with the help of the precedents. .
“Judicial
Independence: The New Zealand Experience[10]” the research article which
concentrates on not only to disparate views which are explaining judicial
independence but also critically evaluate the legislature which are competent
for the higher level of judicial independence in the country. Beside this it
also discusses the numerous provision and case laws looking upon the subject
matter. This was the most vital article which gives a new outlook to this
current research paper and also helps the research to analyze sharply the
components which are attending to a moderate level of independence in the
judicial system and requires to be administered in a convincing alternative.”
“Law
Reform in New Zealand[11]”
This article solely accrues on the
law reforms which took place after 1987, which encompasses the historical
prospect of the development of the
perception of judicial independence in New Zealand. This article is a means to
determine the consequential steps which took place for obtaining judicial
independence and will cooperate to facilitate and dispose of some reformative
processes ascribed to the subject matter at an Indian level of judiciary.
The
Rise of Judicial Activism in New Zealand[12] it discusses about the circumstances
where the judicial activism plays a decisive aspect in bringing up the reform
in the country and it is recognized as the raising of judicial independence of
that country, establishing it stronger by eliminating pollutants like
corruptions, etc, on the premise of which the researcher works to set up path
free from the hindrance of influence which ultimately result in the development
of the judicial system of India
Chapter 2
What is judicial independence ?
This chapter with solely deals with
screening the numerous prospects and interpretation of judicial independence
and related aspects of the subject matter of both respective countries (India
and New Zealand):
2.1) Jurisprudential and Historical Roots Of the Judicial
Independence
“The provenance of the dogma of
judicial independence is to be encountered in the evolution of a constitutional
democratic state in Europe”[13] Expressed
by Joseph Diescho This doctrine is positioning towards the roots in
Montesquieu’s book, Spirit of the Laws (1748) In which he analysed the
conception of separation of powers, that each significant work like
legislation, administration, executive and judicial functional should be
administered under distinct bodies.[14]
Where the independence of the judiciary emerged as the fundamental value of
separation of powers.
Independence, in other words, is not
an end in itself, but an ?instrumental value, a mechanism of shielding a
fundamental value, that of the impartiality of the judge which for centuries
has been symbolised by the blindfolded Lady of Justice. The essence of judicial
activity endures in the circumstance that it is exerted by an equitable and
neutral third party which propel the core purposes of every country and take
care of it from any deterioration by modifying the way of it.[15]
The judiciary is a substantial
social institution, advances to constructing the life of the community.[16] The appropriate handling of governmental
authority is a preconditioned prospect of the rule of law stipulation or
limitation on the authority of the government is the soul of constitutional
democracy.[17][18] The rule
of law is particularly ensured for the maintenance of justice between man and
man, man and State and the only security for a moderated and ordered liberty.[19] In
fulfilling this role, the courts become powerful actors in sustaining the
capitulation of the State to law.[20] Until the
18th century, judicial independence was an interpretation unknown to the
British legal system. The emergence of judicial independence as a modern
concept in the United Kingdom (‘UK’) can be ascertained to 1701 when the Act of
Settlement was drawn up. This is what Shetreet refers to as the first phase of British
judicial independence when the proposition was domestically owned.[21] The Act
of Settlement among diverse things diminished the Crown’s judicial powers and
sported as an insured against future monarchs’ squandering of power after the
1688 Great Revolution. This was complied to by the second state when the
British perception of judicial independence happened to be employed
internationally.[22] The
endorsement of the speculative design of separation of powers doctrine by
alternative states and the manual of Article III US Constitution are
illustrations of the exportation of judicial independence during the second
phase.[23]
The independence of the judiciary is
the substance which is likewise emphasized and reinforced at an international
level by numerous conventions where it inspires the various countries for
completing the independence of the judiciary. As its level of indicator for the
world how any country is adequate, assessable and efficient on the basis of
parameters of the independent judiciary.
We can say that the level of
independent judiciary expresses the substantial constitutional foundation,
effective government and prosperity of any country. In other expressions, it
can likewise be exhibited as the ability to fight for any country. Judicial
Independence can be instantaneously commensurate to the prerogative of any
country. Various conventions emphasising on Independence of Judiciary are:
Article 10
of the Universal Declaration of Human Rights maintains [24]:
Independence of the judiciary is the only instrument through which the Human
rights can be secured, can evolve, harmful social norms can be blurred. Article
14 (1) of the International Covenant on Civil and Political Rights (1996)
states that « (...) everyone shall be empowered to a fair and public hearing by
a competent, independent and impartial tribunal established by law.»[25]
Where it marks out the principle of
equality of justice to each and everyone and the quality of justice which
should be received to everyone that carries impartiality, independency and
competency with it. So that that justice could be delivered in the absence of
corruption, and any kind of pressure from the judiciary so that the evolution
of ideas, interpretation can be supplemented.
The EU
Charter of Fundamental Rights, under Article 47 (2), demonstrates that
«everyone is entitled to a fair and public hearing within a reasonable time by
an independent and impartial tribunal previously established by law».[26]
Further with the same intent but it
specially concentrates about the time which likewise depends on the hindrance
which is induced because of the dependency of judiciary on alternative factors.
It depends on cases to cases, circumstances to circumstances. Even if we delve into the independence of the
judiciary and its preconditions, dilemmas, and performance, it modifies from
country to country. It likewise depends and manifests the core aspects of the
constitution which is outlined.
From the normative elements
enunciated, it forthwith reflects that the perception of independence appears
usually accompanied with the provision of the fair trial, that it, as a
paramount right of the citizens.[27]
Bangalore Principles of Judicial
Conduct, which determine independence, primarily, as a value: «judicial
independence is a prerequisite to the rule of law and an indispensable
guarantee of a fair trial. A judge shall therefore uphold and exemplify
judicial independence in both its individual and institutional aspects»[28];
This convention highlights the form of justice which ought to be delivered in
society so that fair can be achieved. Ought means direction towards something -
the value being that something and ought being the modus essendi of the value.[29] It also
encompasses the other aspect of independence of the judges which are
accountable to hold to the two forms of independence that is the independence
of the judges and the independence of the institution of judiciary, so that a
fair justice can be delivered. The
Bangalore Principles point out, in Article 1.1., that «a judge shall exercise
the judicial function independently on the basis of the judge’s assessment of
the facts and in accordance with a conscientious understanding of the law, free
of any extraneous influences, inducements, pressures, threats or interference,
direct or indirect, from any quarter or for any reason».[30]
It talks about the kinds of requirements needed in order to avail independence
of the judiciary in any country, including the sources of dependencies of the
judiciary which need to be eradicated or worked upon so that the intensity of
effectiveness of these factors can be
reduced.
Various new amendments, evolution is
taking around all over the world in order to secure judicial independence
around the country. Various different experiments are being conducted for
enhancing judicial independence. Evolution is continuing on around the world
which commenced earlier but still shaping judicial independence in various
countries.
“Incal v Turkey
(Judgment of 9 June 1998) is an influential case on judicial independence. In
Incal, the ? European Court of Human Rights (ECHR) defined certain yardsticks
to be adhered to in evaluating the independence and impartiality of judges
within the intent of section 6 (1) of the European Convention for protecting
Human Rights and Fundamental Freedoms (1950)—the right to be heard before an
independent and impartial tribunal. Various significant provisions were
determined and studied like various criteria which to be developed to
accomplish the augmented standard of judicial independence such as the
appearance of appointment of judges; their term of office; the continuation of
safeguards against foreign pressure; and whether they present an appearance of
independence. The criteria formulated in Incal has been cited by many
international courts. Evolution of these categories also help us analyse the
common features and perspective related to judicial independence in any
country. [31]”
The African Commission on Human and
Peoples’ Rights with Media Rights v Nigeria (2000) paragraph 60 referred to
Principle 10 of the UN Basic Principles. The case involved the banning of
several publications in Nigeria after a modern law was proposed, compelling the
registration of newspapers and magazines with retroactive penalties for
non-registration. The new law further removed the jurisdiction of the courts,
which was reported to imperil the autonomy of the judicial system.[32]It was
emphasized in the ground-breaking Pinochet case. This issue revolved around the
insisting that one of the Law Lords, Lord Hoffman, had a conflict of benefit
and should have recused himself from the case. Here it was observed that the
case fell under the category of cases where a judge is to be automatically
disqualified if they have an interest in the case.[33]
[34] Where another aspect of judicial independence
is complied with, which is compromising with the Judge's individual
independence, was focussed. Also, the judges contribute towards enhancing
judicial independence and if they fail to secure or engage in the practice of
corruption, formerly they lack quality as judicial officers which demand to be
succeeded.[35]
“In the Canadian case Valente v The
Queen (1985) (Can), the Supreme Court of Canada looked at that the stipulation
that judges must be judiciously distinguished as being independent is
noteworthy because it is a goal of judicial independence to safeguard public
confidence in the justice system. The court articulated that ‘Without that
assurance the system cannot regulate the respect and affirmation that are
preconditioned to its effective operation’ This case measured one of the most
imperative prospects of judicial independence that is Public faith on the
judicial authority which can be gained through an impartial, competent
judiciary. Where a public have a belief that if some conflict will happen in
any case, or their right is infringed in any manner than justice can be done to
them through the judiciary established in their country, heedless of what they
are, where they reside, and justice will be turned over even if the exploiter
is dominant, reputed or in any cost.”[36]
Every democracy in the world had
completed their special legal provisions for safeguarding the judicial
independence brainstormed by the constitution. Moreover, they are reinforcing
their arrangements for further safeguarding nature so that it can not be
encroached by any other considerations responsible for influencing the judicial
system in political, individual or social processes. These key components are a
general and profound stone of judicial independence.
2.1.1) Judicial
Selection and Appointment
“It is the introductory and foremost
proposition of the foundation of judicial independence as it exhibits the
quality of the same. If the judicial selection and appointment is without the
prejudice of politics, corruption, formerly the truly determine the management
of justice which is moreover reliable for sustaining the public faith in the
pedestal of justice. Public confidence in the judiciary primarily depends on
the specifications of justice promulgated by judges, but the specifications of
justice mostly depend on the aspect of judges. Hence the public quality is
decidedly exceptionally reliant on the quality of judges.[37]
[38]
Conclusively in order to have public confidence, it is eminently significant to
have confidence in the appointment of the judicial system.[39]
In expansion, the public needs to be assured that judicial functions are
pardoned in consonance with established precepts and procedures.[40] Loss of
public confidence can result in disbelief in the existence of the judiciary.
Further it will also destroy the bridge between peace and justice as the people
may create violence without following any order, as there is no system to
provide them justice, they will be in their self survival mode where they are
their individual king and can do whatever they want even can infringe the
rights of the people for their own benefit.
Even public confidence is one of the
most important criteria on which the judicial independence of the country is
judged. Because the confidence of the public on the system of judiciary is the
fuel for the judicial system to run. As if they don’t entrust the judiciary,
then the person whose right is infringed will not get the confidence to fight
back for his right. It will be a country without a skeleton where the powerful
communities will be worms who eat the whole body of the country as there are no
assured rights of the people, if there is the establishment of lawlessness.
An important instrument or the
bridge between the public confidence and judicial system is transparency and
openness, which is further directly linked to the criteria and mechanisms for
judicial appointment.[41]
Generally their two key focus points
in this part of section: first the criteria for the appointment of judges and
second the mechanism in which they are appointed.
If we first determine the criteria
by which the judges should be appointed then it may vary from country to
country, but the general rule about this is that it should be transparent and
publicly known criteria which will also enhance the judicial accountability
toward the public. So these criteria should be discrimination free, merit based
and even stretch to publically known but whatever it may should be written and
fully expressed so that there can be no grounds of manipulation so that
aspiring candidates can assess their suitability and can make his contribution
in the life of the people through the judicial system established.
If we talk about the appointments,
there are no standardised systems of judicial appointment, but this mechanism
has various options available for the appointment where every country can
accord to their needs in their country and further based on the transparency.[42] Some
famous appointment systems which can be used by many countries are the elective
system, and the appointive system.[43]
Switzerland and America If we talk
about the elective system, the two types of election processes which are
popular election and election by legislature. Under political election the
judges are elected by the partisan election or non-partisan election.[44] This
election is mainly followed by the United state of America, and even a mixed
system of both the types is further followed where both the features of appointment
and popular election.[45] If we talk about the election by legislation,
then it is also in the same way followed by the few states of the USA, even by
the federal judges of Switzerland. But this trend of the elective system
reduced after the nineteenth century.[46]
Usually in this electorate system the judges are compelled to acknowledge
themselves to the electorate and secondly they should be singled out by the
people who will be influenced by those laws so that the accountability can be
preserved, correspondingly.[47] But
indeed this criterion is condemned on the assumption that less experienced
people are getting selected through this process, as the voters are not
competent enough to guess their suitability for this duty.
Appointment system is widely applied
all over the world under this system, mainly the government reimburses a
considerable appearance in designating the judge. But various principles state
that for continuing judicial independence the whole power of the judge should
not be bestowed exclusively in the executive government. Considering this as
the executive duty the judicial independence is consistently at compromise that
they will receive advantage of their power or moreover it can maintain the
condition where the political powers can abrogate the merit qualification of
the judges which will infringe the judicial independence of the judges. Solely
for the appointment if the power is endowed in the executive, formerly this
type of appointment is not rightly comprehended. Further, if we express the
appointment system then it is further partitioned into three parts
parliamentary recommendation, consultation with Judiciary and Legal Profession
and third method is use of independent commission. If we talk about the
parliamentary approval under these mechanisms initially the government selects
the candidates for this judicial qualification, but the eventual call is of the
parliament. For case, the United States the President proposes and ‘by and with
the suggestion and Consent of the Senate’ appoints federal judges.[48]
It is understood that this method is
better as there is the option of a parliamentary scrutiny but further it was
argued that at the initial level of selection of the candidate the parliament
does have any role in it. Initial selection is a vital selection process which
needs to be checked by someone [49]and it
also creates the various possibilities of political bargaining and also the
coalition between the judge and the other legislative matters which can be seen
as the serious drawback of this type of appointive system.
The second type of appointive system
is through Consultation with Judiciary and Legal Profession in which the
government may appoint the judge through the consultations of the senior
members like senior judges and senior legal professionals. Further consultation
can be formal and also can be informal. But here the judges are in the position
to influence the lawyers so that is why it is necessary to consult the higher
authority in this case the senior most judges. The way through which the
independence of the judiciary will be secured.[50]
On the other side the consultation of the legal professionals is also important
as can guess the lawyer who possesses the characteristics of the judge. However
this system also has the limitation that if the executive is not obliged to
follow the consultations of the legal professionals and senior most judges. As
again then it depends on the discretion of the executive solely to appoint a
judge.
It is understood that this approach
is better as effectively is the option of a parliamentary scrutiny, but further
it was contended that at the introductory stage of selection of the candidate
the parliament does have any role in it. Initial selection is a critical
selection process which requires to be looked at by character and it likewise
establishes the numerous probabilities of political understanding and likewise
the coalition between the judge and the alternative legislative matters which
can be viewed as the significant shortcoming of this type of appointive system.
The second type of appointive system
is through Consultation with Judiciary and Legal Profession, in which the
government may appoint the judge through the consultations of the senior
members like senior judges and senior legal professionals. Further consultation
can be formal and also can be informal. But here the judges are in the position
to persuade the lawyers, so that is why it is indispensable to consult the
higher authority in this case the senior most judges. The procedure through
which the independence of the judiciary will be guaranteed. On the diverse
side, the deliberation of the legal professionals is also noteworthy, since can
guess the lawyer who retains the characteristics of the judge. However, this
arrangement likewise considers the limitation that if the executive is not
accommodated to follow the consultations of the legal professionals and senior
most judges. As again, it depends on the prudence of the executive merely to
appoint a judge.
Another important system is use of “independent
commission for assigning the judges”, this system is particularly popular
mechanisms around the contemporary world. This type of system of appointment is
predominantly reflected by Canada, the same jurisdiction of the USA and also by
South Africa.[51] Such
commissions and committees are turned over with the task of either performing
the substantial selection of the candidates, or forming ‘recommendations only’,
or requiring ‘a shortlist outside of which’ appointments should not be
conducted by the executive without advocating the figures out for doing so.[52] The impact of the commission depends on the
composition of the same. The commission may be empowered with senior judges,
senior lawyers, and discriminating legal academics. Community representatives
and parliamentary representatives may also be incorporated.[53][54] One of
the figures out for the popularity of this system is that it provides the
special scrutiny of qualification of judicial candidates. Beside this it also
furnished the scrutiny which is translucent and publicly accessible to all.
This system is referring to the
composition of the commission and the system that may be employed by it, “the
South African Model of Judicial Service Commission” is a noteworthy
illustration.[55]
The commission system is perhaps
considered being the best mechanism for judicial appointment to maintain public
confidence in the appointment system, as it will also safeguard the
accountability of the future.
2.1.2) “Tenure
Security”
After examining the appointment of
the judges the text corollary topic is ensuring their years of service as
justice for lifetime, As it is the imperative component of judicial
independence as when they are free from the pressure that they can be eliminated
by everyone then the justice cannot be delivered accurately and will be
prejudiced. In other words, if they will be removed in arbitrary manners then
they may not be that liberal in delivering justice against anyone as they have
to operate in mind, they are under the control of particular authorities. Their
tenure should be competently guaranteed.[56].
As the contentment of this condition is a precondition for the personal
independence of the judicial officer. This service should be accessible for
lifetime or till the age of retirement, but it should be continuous there
should be no divergence in the case as this variation can manipulate the
judgement expressed by the judge. It is
a conditioned process through which the judge is preserved from the disproportionate
political influence. Any kind of pressure on the judges will emerge in them
acting unnaturally and will eradicate the flow of transparency and public
confidence over the whole arrangement of justice delivery. However these tenure should be secured by the
lifetime or for a determined period of allegiance but the ‘Sheteert’ indicated
a disadvantage of it as he states: Perhaps the age may be more tolerable than
life tenure, as payable to their physical capacity of the judges can be
shortened. There are arguments against this witness that there can be some
cases where the judges despite their old age factor with the help of their
understanding can work for safeguarding justice. In that case, the
extension of the service term can be
provided. But this power also cannot be given in the hands of the executive as
can manipulate the judicial minds for their benefit and the justice can be
influenced by it. If they want to work
even after the retirement period they can work by being the advisory members of
disparate institutions around the province which will stimulate those tribunals
to get developed through the experience of the retired judge.
2.1.3)
Further in aspect also have to include the Remuneration
and Financial Independence of the judges where they are secured financially
also, as in the sense that their judgement should not be depending or be
influenced by the money factor. If they will be financially dependent on
someone, then they can be influenced by the people who want the judgement to be
delivered in their favour. Financial independence is one of the crucial factors
of judicial independence. That’s why the fixed salary amount should be given so
that they can be financially adequacy of the judge’s coil be assured. The issue of budgetary autonomy is of great
importance. The judiciary in Latin America countries had been seen as corrupted
for a long time before judicial reforms happened.[57]
The Constitution in every single country has the provision regarding the salary
of the judges. So that financial autonomy can be provided to the judicial
officers and judicial independence with the personal independence of the judge
can be maintained. On the contrary, the US Congress has a large control on the
judiciary’s budget that keeps judges worrying about funds.[58]
The power of Congress to inflict de facto pay cuts on judges may arguably
threaten the independence of the judiciary.[59]
2.1.4) “Next
we talk about the factor impartiality in
the judiciary. In other words, we can say that judges should follow the
rule of law and keep them away from any kind of biased perception. This quality
is the major source behind judicial independence, and even the public
confidence is based on this concept and is a determining element of judicial
independence. The judges can not be biased because of their previously formed
perception of an individual. Another significant concept in this section is
that they cannot be even impartial on the basis of their relationship or personal
interest in the case, and if we extend this thought, then the judge cannot be a
judge in his own case. As perfectly captured by maxim nemo iudex in re sua.”
2.1.5)
Another aspect or the factor responsible for maintaining judicial independence
is that the judges should be free from
the extraneous pressure it can be of any kind so that they can be prepared
to maintain their personal independence. External factors pressure in the sense
that it should not be prejudiced by any sort of external pressure that can be
created by the media, political party, government, executive and indeed
occasionally by the public of the country. Only relevant facts and law should
be the explanation of the notion to form the judgement in a measure to do the
duty which is handled by the constitution in the soul of the judiciary. The
prospect of external pressure also encompasses the pressure from the various
pressure groups, legislature, executive free from the external pressure.
2.1.6) “German
law forbids even indirect mechanisms of altering, such as recommendations,
solicitations as well as psychological influence Judges in Germany are further
shielded from obstruction from the judiciary itself[60]:
a chief judge may not alter the judgement of a judge sitting singly[61] If we
spoke about the “Personal Immunity” of
the judges from the civil suits for financial damages, or wrongful acts or
omissions in the exercise of their judicial functions. This rule was developed
in the common law tradition according to which ‘the king can do no wrong.’[62] This
means that a judge has immunity for acts relating to cases before the court,
but not for acts pertaining to processes beyond the court’s reach.”[63]
Further, if we associate to
Diversity and representation where slowly unveiling the representation of
minority groups to regulate the gender imbalance. No classes should be
withdrawn behind the aim of bringing above justice and maintaining and judicial
independence and public assurance in every single portrayal of the group.
Now if we talk about the judge’s
jurisdiction and the judicial independence relation where it is significant to
allocate cases in every court neutrally so that the autonomy of the justice for
the case can not be concerned by fluctuating the jurisdiction. So it’s an obligation
that the judges should prescribe or provide the justice after confirming their
competence in those cases.
2.1.7) Judicial Discipline It is recognized as an instrument
through which judicial accountability is maintained and judges take the
responsibility of the legal action they are issuing. Beside this it is a litmus
test for checking the corruption and misconduct in the administration of
justice. In other words, it is there to emphasize the tremendous quality of
justice which desires to be expressed to society. In elementary terms, we can
say that it’s an advance or strict action taken against the referee so that it
could act as a deterrence for other courts to commit something like this. It is
used to maintain the quality of the judges. These strict actions can vary from
state to state, including censure, reduction to a lower rank and salary, forced
transfer, compulsory retirement and removal. The disciplinary actions can
directly affect the tenure of the judges, or certain actions can be accepted.
Every disciplinary action can be isolated into parts that are the cause of discipline
and mechanisms of discipline. If we determine the cause of discipline arises
when the legal duties which are enforced as a judge are not performed or
performed in a corruptive way. [64] A judge
should consistently be accountable for the judicial conducts imposed by
them. In Bruce v Cole the Court of
Appeal of New South Wales it also defines unreasonable delay in delivering
something by the judge can also be considered as an incompetent. Because when
the allegations were put on Justice Vince Bruce who was the judge of the
supreme court that the extensive delays were made in delivering the judgement,
further it is important to the judge to be physically, mentally and intellectually
fit or competent enough to discharge the legal duties. But it should be
maintained in mind that this incompetency should not be mis-utilized. Further
the misconduct can also be a universally accepted ground for removal of the
judges.[65]
2.1.7.1) Now, if we focus on mechanisms of judicial
Discipline, these
mechanisms should be transparent and accessible to the public. This mechanism
is also divided into two types: formal and informal. Informal mainly occurs
under the jurisdiction of the chief justice. It is to assure the judicial
conduct and judicial duties are imposed correctly or not. Here all the
jurisdiction is with the chief justice and he can exercise his jurisdiction to
maintain judicial discipline by the lower court to sustain the quality or to
hurrying up in delivering the judgement.
In reverence of formal judicial
discipline, effectively are two prominent functions: institution of
disciplinary procedures and its adjudication. In this context, the Montreal
Declaration 1983 requires that proceedings for discipline or elimination should
be ‘held before a court or a board predominantly constituted of members of the
judiciary and singled out by the judiciary’[66]
In this the parliament retains the power to reprimand the judge because of his
undisciplined judicial conduct. Solely the executive should have the power of
impeachment against the judges as they can mis-utilize it. But some also
believe that even the parliament's impeachment of the judiciary is not free
from executive interference therefore it can tamper the judicial independence.
If the judiciary is contained in the impeachment process.
Chapter 3
Judicial system defined in both the
countries?
3.1) Judicial System in New Zealand
After realizing what is judicial
independence, how it is considered by different legal provisions, after
examining why it is so effective, what are the historical and jurisprudentially
of judicial independence. Now if we are understanding the conception of
judicial independence, then it’s the time to analyze the judiciary system
inaugurated by the constitution of both the countries after their independence.
Newland is the Parliamentary
democratic design of government in the country with no written constitution as
it exactly inherits its constitutional culture exactly from the Britain who
were their colonial masters at the time. New Zealand constitutions are spread
across a wide range of formal documents, decisions and conventions: Acts of
parliament. Legal document decision of courts and conventions. Put together defines
the separation of power between the three branches of the constitution that is
legislative, executive and judiciary.[67]
Where everyone has the role to perform beside this check and balance the other
branches. For instance, the judiciary examines the actions of the executive
through the process of judicial review. Conversely, the executive is notably
implicated in the selection of Judges, and both the executive and Parliament
would be involved in the dismissal of Judges in the event of misconduct.[68]
New Zealand possesses two types of
courts: “the general court” and “the specialist court”. Where general courts
dealt with cases which have general jurisdiction mainly, the matters pertained
to civil and criminal nature whereas the specialist court dealt with the cases
ascribed to employment laws, family laws, youth laws cases, the M?ori Land
matters and environment laws. There are four types of general courts: District
courts, High court, Appeal court and Supreme court.[69]
“The Supreme Court is the ‘court of
final appeal’. It hears appeals in both civil and criminal cases, although they
must be of universal or legal implication to arrive at this level. The Supreme
Court was set up in 2004 to take over the London-based Judicial Committee of
the Privy Council and to boost New Zealand’s status as an autonomous nation
with its own history and traditions.[70]
The Supreme Court consists of the Chief Justice and four to five other Judges.
Judges of the Supreme Court are also Judges of the High Court. Retired judges
of the Court of Appeal and Supreme Court who have not ultimately arrived at the
age of 75 years may be appointed as acting judges. Appointments to the Supreme
Court are made under the Supreme Court Act 2003.[71]
The Appeal Court hears civil and criminal appeals from the High Court, District
Courts and the Employment Court. It also influences the law of New Zealand and
resolves conflicting court decisions.[72]
The Court of Appeal consists of a President and five to nine other Judges.
Judges of the Court of Appeal are also Judges of the High Court. Additional
High Court Judges may be elevated to sit on divisions of the Court of Appeal.
Appointments to the Court of Appeal are made under the Senior Courts Act 2016.[73] The High
Court deals with serious crimes and the more substantial civil needs. It also
hears appeals from lower courts and specialist tribunals. There are 46 High Court judges, consisting of 7
associate judges and the Chief Judge of the High Court. From their bases in
Auckland, Wellington and Christchurch, these judges travel on a circuit to 16
other centres across New Zealand.[74] The High
Court consists of the Chief Justice and up to 55 other Judges. The Chief High
Court Judge is competent for the conduct of the High Court’s business. Former
High Court Judges may be appointed as Acting Judges if indispensable to cover
vacancies or periods of absence on the part of any Judge. High Court Judges and
Associate Judges are assigned under the Senior Courts Act 2016.[75] Most
civil and criminal matters start off in a District Court. New Zealand currently
has 58 District Courts throughout the country.”
3.1.1) numerous other
significant components of Judicial Independence in New Zealand
The appointment of judges in
Zealand: “The Attorney-General places great importance on maintaining the
quality and integrity of the judiciary. Appointments are made based on merit.
There is a commitment to actively promoting diversity in the judiciary, taking
into account all pertinent attributes. Putting the responsibility for all these
appointments in the hands of the Attorney-General should help to ensure a
consistent and principled approach to these important decisions. In the case of
appointments to the Supreme Court, Court of Appeal and the High Court (Judges
and Associate Judges), the administrative process is carried out under the
direction of the Solicitor- General. For appointments to the District Court,
Family Court, Environment Court and Employment Court, the process is displayed
under the direction of the Secretary for Justice.”
Every court in New Zealand has their
regulations for appointment but mainly the executive retains the power to
appoint following the several consultations and procedures. But mainly the
criteria revolve around some proficiencies which revolve around various acts.
If we talk about some general criteria, then they look upon.
In appointment of high courts
Section 94 of the Senior Courts Act 2016 specifies that no person shall be
appointed a High Court Judge unless he or she has maintained a practising
certificate as a barrister or solicitor for at least seven years.[76]
Main criteria which we require
consolidating upon during studying the appointment of the judges in New Zealand
are: Legal liability, Quality of characters, personal technical skills,
Reflection of society. Legal accountability is the yardstick, where they mainly
focus upon a legal knowledge of law and its experience in its application.
Legal knowledge, in particular, indicates intellectual efficiency and subtlety.
‘Lord Cooke, the former President of the
New Zealand Court of Appeal, expressed that our system of government is built
upon two complementary and lawfully unalterable principles: the operation of a
democratic legislature and the operation of independent courts’.[77]
The steps for appointment: “Approximately
every three years (or more frequently if necessary), expressions of intrigue
are called for by public advertisement. Prospective candidates respond to the
request for expressions of interest. Alternatively, as a result of the
consultation process outlined below, prospective candidates may be nominated,
encouraged to express their interest and to enter the process. All prospective
candidates are furnished with an Expression of Interest form for completion.
The names of those who meet the statutory criteria for appointment are held on
a confidential register maintained by the Attorney-General’s Appointments Unit
(the Appointments Unit). Persons expressing interest are advised when their
names have been reflected. The Appointments Unit uses the register to diagnose
all those who have expressed an interest in appointment to the High Court. The
Solicitor-General examines the names and consults the Attorney-General, the
Chief Justice, the President of the Court of Appeal, the Chief High Court Judge
and the Secretary for Justice. The purpose of this deliberation is to determine
whether additional names should be regarded and combined to the list. The
Solicitor-General seeks comments about those on the list from a range of key
people and organisations. Those consulted are classified below.”
“The Solicitor-General seeks the
Chief Justice, the President of the Court of Appeal, and the Chief High Court
Judge to give all proposed candidates a rating. The outcome of this handling is
an indication of those deemed reasonable for immediate appointment, those
possibly suitable in two to three years, and those in neither category (the
long list). The Solicitor-General presents the long list to the
Attorney-General. The Solicitor- General’s advice includes the results of his
or her consultation process. In reverence of the long list, the
Solicitor-General confers annually with the Chief Justice, Chief High Court
Judge, President of the Court of Appeal and Presidents of the Law Society and
Bar Association, to safeguard the long list remains current and compatible. In
respect of any upcoming vacancy in, or appointment to, the High Court, the
Attorney-General, after such consultation as he or she believes necessary, and
with the agreement of the Chief Justice (who will consult as appropriate with
other judges), will determine a shortlist of possible appointees. The shortlist
will accommodate no oftener than three names. The Attorney-General may resolve
to seek an interview with, or arrange for an interview by the Solicitor-General
of, a person interested in appointment to the High Court. The Solicitor-General
undertakes checks on the personal reputation of those on the shortlist. The
Solicitor-General also asks shortlisted candidates to complete a declaration
intended to confirm there are no matters in their background of a sort that
might lead to difficulties after appointment. The response to the declaration
is signed, along with an undertaking that, if appointed, the eventual candidate
will not resume practice before the courts on retirement or earlier termination
of his or her appointment. The Attorney-General will single out from the
shortlist the candidate whom he or she wishes to recommend to the
Governor-General for appointment. Once the Attorney-General is reassured as to
the suitability of the preferred candidate, and his or her willingness to
undertake the appointment, the Attorney-General acknowledges the appointment in
Cabinet. Finally, the Attorney tenders formal advice to the Governor-General to
conduct the appointment. The short-listing process is frequented in
consideration of each upcoming High Court vacancy or appointment.”[78]
The guarantee of tenure of the
judges - their immunity from dismissal by the Crown - has long been recognized
as a conditioned ingredient of judicial independence. The Act of Settlement
1700 (UK) provided that judges’ commissions were henceforth to be detained
during good behaviour rather than at the Crown’s pleasure.[79]
As already noticed, the first Supreme Court judges in New Zealand held office
at the Crown’s pleasure, The Constitution Act 1986 requires the most recent
ratification of the underlying precept: A Judge of the High Court shall not be
removed from office except by the Sovereign or the Governor-General, acting
upon an address of the House of Representatives, which address may be moved
entirely on the grounds of that Judge’s misbehaviour or of that Judge’s
incapacity to discharge the service of that Judge’s office.[80]
For the removal of judges In 1978
the Royal Commission on the Courts suggested that judicial independence would
be strengthened by elaborating upon the precedents and mechanisms for removing
a judge. The Commission endorsed the Judges Act 1971 (Canada) as a model, a
statute which sets up a committee of judges to investigate whether (and if
necessary recommend that) a judge should be removed from office.[81]
If we say about the financial
autonomy of the judges, The Constitution Act 1986 prohibits reducing the salary
of a High Court judge while he or she progresses in office. 63 Similar
arrangements can be found in the Judicature Act 1908, Supreme Court Act 1882
and Supreme Court Judges Act 1858. The New Zealand Constitution Act 1852 (UK)
bound the New Zealand Parliament, in supplement to the Government, to the same
effect until the endorsement of the Statute of Westminster in 1947.[82] If we
talk about individual independence, which is precisely tied in to the quality
of judgement, formerly the conventional prerogative of the judges also
broadened to international jurisdiction. It exactly illustrates the
independence of the individual judges, and in particular their ability to be
free from Government influence when determining cases. Administering the court
system, subsidizing and evolving new courtrooms, and engaging and controlling
court staff, has traditionally been surrendered to the executive, the judge’s
role being seen as one of adjudication not administration. They also believe
that to achieve the institutional independence we also have to work on
adjudicative independence which is generally administering the court system,
funding and building new courtrooms, and employing and controlling court staff,
has traditionally been left to the executive, the judge’s role being seen as
one of adjudication not administration.[83]
Immunity of judges from political
attack The importance of judicial independence is further embodied in the
convention that the executive, both ministers and public servants, should
desist from criticising the judiciary. The Cabinet Official Manual enjoins ministers
from asserting any views which “could be considered as manifesting skeptically
on the probity, personal views or ability of any Judge”. Ministers are
admonished to “avoid commenting on any sentences within the appeal period”. “If
a Minister feels he or she has grounds for concern over a sentencing
arrangement, the Attorney-General should be cautioned.”[84]
The Standing Orders of the House of Representatives impose lesser, nevertheless
compelling, stipulations on members of Parliament, proscribing “unbecoming
words” against members of the judiciary or referring to matters currently
before the courts if this might prejudice judicial proceedings. The New Zealand
Bill of Rights Act 1990 guarantees every person charged with an offence “the
right to a fair and public hearing by an independent and impartial court.”[85]
3.2) Judicial System in India
India possesses the written
constitutions and is the supreme document which is the foundational source and
governor of all the enterprises taking place in the country through the three
branches of the constitution, specifically identified Legislature, executive
and judiciary. Through the constitutional provisions the explicit demarcation
has been indicated toward the separation of power where the legislature is the
lawmaking body, executive is administering those laws, and if the dispute
ensues between them, or between people, then the role of judiciary comes into
picture. Certainly it is acknowledged as the guardian of the constitution. In
the same way indian judiciary derives its autonomous and restrictive privileges
from the constitution.
3.2.1) Numerous Related Observation regarding Indian
Judicial System
“The judiciary becomes a simple pyramidal
structure with the lower or subordinate courts at the underside, the High
Courts in the middle, and the Supreme Court at the top. The High Courts are
essentially under the regulative powers of the Union, subject to some
responsibility of the States in the appointment of judges and other staff and
in the finances. The Supreme Court is completely under the regulative powers of
the Union. Subject to territorial limitations, all courts are efficient to
cherish and determine disputes both under the Union and the State laws. The
unitary character of the judiciary is not a setback but considerably a
conscious and deliberate act of the constitution makers for whom a single
integrated judiciary and consistency of law were preconditioned for the
maintenance of the unity of the country and of uniform specifications of
judicial behavior and independence.”
Constitutional articles from 124 to
147 certainly talk about the supreme courts and various features related to it
on the other hand from 214 to 237 is dedicated to the state judiciary which
talks about the high court and subordinate court.
In appointment of judges of supreme
and high court changed after the 99th amendment as before this under article
124 (2) the president has the power to appoint judges of the high court and
supreme court where in appointment of high court he must take the advice of the
chief justice of India. But in the case of a chief justice of India, he may
take advice, consultants.
But after 99th amendment act 2014,
article 124 (2), 127 and 128. It inserted 124A, 124B, 124C. Under the amendment
in 124(2): every judge of the supreme court shall be appointed by the president
by warrant under his hand and seal on the recommendation of the national
judicial appointments commission referred to article 124 (A). This statutory
body will have the power concerning all the subjects of appointment of judges
of supreme court, high court, transfer of judges and other related issues to
it. It will subsist of various main members The chief justice of India, 2 other
senior judges of supreme court, union minister of law and justice, further two
eminent members from the committee of prime minister, chief justice and the leader
of opposition in the house of the people etc and at last one eminent person
from highly backward class.[86]
After this, no consultation is
recommended by the president with the judges of the supreme court and the high
court. But in the case of Supreme Court Advocates-on-Record Assn. v. Union of
India where this amendment was declared unconstitutional. Further, this system was denounced and the
‘collegium system’ reoccurred which was occurring previous to the constitutional
amendment. Beside this they enhanced the working of the collegium system by
introduction of the guidelines and numerous important procedural amendments.
The NJAC amendment was held unconstitutional because it was not within the
hands of the parliament to determine the significance of appointment of judges
or any matter connected to it. Also, section 5 of the NJAC act was held
unconstitutional as it was held unconstitutional because the position of chief
justice of India’s position was uncertain where even the criteria of seniority
can be ignored. Various sections like 6 (6) related to veto power in the hands
of any two members of NJAC which will primarily affect the appointment of
judges and their transfer and ultimately will affect the aspect of independence
of judiciary.[87]
Further, the guidelines of the
collegium system were reformulated to cover its opacity where a committee was
formed and various suggestions were invited from private individuals and public
suggestions.[88] Where the
collegium will be composed of four senior most judges and they shall take these
criteria into consideration, that are: Eligibility criteria-where the
memorandum of procedure may indicate the minimum age; Transparency in the
appointment process- where the eligibility criteria and the procedure as
detailed in the memorandum of procedure for the appointment of judges and ought
to be published in the court website; Secretariat- for the interest of better
management in appointment process, where the memorandum of procedure will
establish the position of secretariat for each high court and supreme court,
its function, responsibilities will be defined in that; Complaints where the
procedures for complaints against anyone who is appointed as judge will be
recognized; Miscellaneous- where the diverse means deemed appropriate for
providing transparency and liability referred to collegium and its process.[89][90]
If we spoke about the qualification
for being a supreme court judge is determined under 124 (6) of the Indian
constitution which sets forth that he/she must be the citizen of India, the
second condition he/she must be the high court judge for at least five years,
or be an advocate in high court for 10 years, third in the opinion of president
he must be a distinguished jurist. In the case for being the high court judge he
must qualify as: first the citizen of India, then secondly he/she must have
held the judicial office for at least 10 years; third condition must have been
an advocate of a high court for at least 10 years.[91]
If we move toward the removal of
judges, then a judge of the supreme court must hold the office until he reaps
the age of 65 years. Judge may resign from his office by writing to the
president. The High Court also has a complementary arrangement concerning this,
but their retirement age is 62 years.
In the cases when the judge had been
pulled out from their office in the case of malpractices or misbehaviour or
incapacity of a judge under such circumstances corresponding to Judges inquiry
act 1968 a committee will be constituted of three members (one member from
super court judges, one member from high court judges and one member shall be
the person who in the speaker's opinion or chairman, is a distinguished jurist)
and this formed committee shall be ratified by both the houses of parliament.
Beside this that committee shall frame definite changes brought forth against
the particular judge based on investigation, further where the judge shall be
given the feasible convenience of displaying a written statement, hearing and
cross-examining witnesses. If the committee found the judge guilty of the
fabricated charges, then further proceedings shall be taken corresponding to
the legal provisions permitted under clause (4) of article 124 or in consonance
with the clause read with article 218 of the constitution. The misbehaviour or
incapacity shall be the only ground for removal of the judge by the order of
the president. This order can only be passed if it is approved by both the
houses of the parliament and passed by a special majority. The security of
tenure of the judges has been settled by the Indian constitution, except in the
condition of order of the president. Parliament may however determine the
procedure for presentation of the address and for investigation and proof of
the behaviour and incapacity of a judge. But parliament cannot corrupt this
power, because the legal provision must be accompanied.[92]
In regards to financial independence
the salary of judges, worked out, not studied to vote of legislature: the
salaries of the judges are regulated by the constitution and charged on the
centralized fund of India. It is not ruled to the vote of the legislature, and
their salaries and allowances cannot be amended except in the case of grave
financial emergency.
The judiciary is safeguarded from
the interference of the executive and legislative interference by numerous
articles like Article 50, article 32, article 138 and many more which are
embedded in the Indian constitution for ensuring institutional independence.
Indian constitution depended on the
thoughts that only an equitable and autonomous judiciary can secure the rights
of the individual and understand the substantial essence of implementing
justice in an actual sense. Distinct arrangements in the Indian constitution
are solely concerned to safeguard the rights of the judicial institution so
that it can be in the enhanced place in order to act as the guardian of the
Indian constitution. Beside this it protects the constitution from any
infringing element and can further as the messenger of peace in the country by
resolving disputes and directing the path to the other institution so they can
act in an undoubtedly invigorating manner.
But still there are disparate
loopholes which can be engraved in between these legal provisions which affect
the functionality, objectivity of the institution established by the
constitution, which need to be abridged for their magnified efficiency in
dealing with the numerous perspectives.
Chapter 4
4.1) Conclusion and suggestions
After the comprehensive study of
Judicial Independence of both the countries India and New Zealand which are
coming out of the same historical background but diverge in numerous respects,
like constitutional point which further drives the division to all the
constitutional existing bodies. New Zealand has its own way in dealing with the
judiciary, where there is a segregation of the major courts based on the matter
they are dealing with. In India there are divisions too but mainly the three
hierarchy of courts are established and other tribunals are formulated to
compromise with the peculiar matters. Both have the same judicial history where
the role of privy council was recognized, though it is still constituted in the
New Zealand land. This not only the point of difference recognized but in
appointment of judges, there powers, all different in both the countries. The
researcher observed that their judicial system is mainly the product of the
influence they have on their history, present scenario, mechanism of justice,
population, Quality and quantity of population they have, their empowering
underlying statues are all the main factors which represent their judiciary.
Both the countries vary in calls of processes they pursue in requiring to
distribute justice. Here we can distinctly appreciate that the product of
justice is the same in both the countries but factors influencing it, and the
way in which it is expressed differs.
The number of cases, type of cases,
number of judges, quantity and quality of problems, economic development,
employment among the citizens differs in both the countries. In which New
Zealand is a refined and developed country, when compared to India most of the
population is educated, have jobs and settled life, there standard of livelihood
is considerably much higher. It carries all the contrasts which are perceived
between developed and developing countries.
The particular element which require
to be concentrated by India after proceeding from the New Zealand experience of
judiciary is that the appropriate implementation of laws which are previously
determined and also it indicate toward the requiring of appropriate
administration of laws in the society through the other remains like
legislature and executive, which is designing the society further which is
characterized by Judiciary. With the appropriate implementations of the
instituted requirements, the unnecessary interruptions initiated by the
outlying world will weaken and will stimulate the judiciary to advance at its
own arena and be autonomous from any kind of pressure inside and outside the
judicial arrangement in India. Furthermore, the researcher analysed that not
only Judicial independence is completely encompassed as the responsibility of
the judiciary, but altogether it should be examined as every institutional
responsibility to restrict themselves to the curb where it does not contravene
the independence of judiciary.
4.2) List of cases
? Valente v The Queen [1985] 2 SCR 673
at 687.
? Buckley v Edwards [1892] AC 387.
?
Bole v. Civil City of Ligonier (1959) 130
Ind Appl. 362, 373.
?
Bruce v Cole (1998) 45 NSWLR 163, 197.
? R v Campbell (1995) 25 Alberta LR
(3d) 158
? Lowther v Prince Edward Island
(1995) 118 DLR (4d) 665
? Atkins v United States 556 F 2d 1028
(1977)
?
Quilter
v Attorney-General CA200/96 [1997] NZCA 207.
?
S.P.
Gupta v. Union of India AIR
1982 SC 149.
?
A.C.
Thalwal v. High Court of Himachal Pradesh (AIR 2000 SC 2732)
?
State
of West Bengal v. Nripendra Nath Bagchi, AIR 1966 SC 447
?
Justice
V. Ramaswami's case (1991) 3 SCR 189.
?
Ananga
D.S. Deo v. Ranga Nath Mishra, AIR 2001 Orissa 24
?
All
India Judges Association v. Union of India,46 AIR 1982 SC 149
?
Barr v Matteo (1959) 360 US 564 (US).
4.3) References
·
World
Economic Forum Global Competitive Index, WBG Rep. On Judicial Independence
2017-2018, https://tcdata360.worldbank.org/indicators/h5ebaeb47?country=IND&indicator=669&countries=NZL&viz=line_chart&years=2007,2017 (Between New Zealand and India)
·
WBG
Rep., (1.06) Judicial Independence,
https://reports.weforum.org/pdf/gci-2017-2018-scorecard/WEF_GCI_2017_2018_Scorecard_EOSQ144.pdf
·
Montesquieu,
Spirit of laws, 152 (Nugent ed. 1823).
·
Santosh
Kumar Pandey, Independence of Judiciary
in India, 4 IJl 95, 95-97 (2014).
·
Dinesh Singh Chauhan, Independence
Of The Judiciary: A constitutional Response, (2017) https://shodhganga.inflibnet.ac.in/bitstream/10603/128562/17/11_chapter%204.pdf
·
Gayatri
Rokade, Prof Abhijit Vasmatkar &
Prof. Richa Dwivedi, 6 JCR 293, 293-296 (2019).
·
Irving
R. Kaufman, The Essence of Judicial
Independence,80 Columbia Law Review
Association Inc. 671, 671-701 (1980).
·
Pratik
patnaik, Independence of Judiciary, SSRN
2, 2-23.
·
Drew
A. Linzer & Jeffrey K. Staton, A
Measurement Model for Synthesizing Multiple Comparative Indicators: The Case of
Judicial Independence, (Jan 2011), https://www.researchgate.net/publication/254068044_A_Measurement_Model_for_Synthesizing_Multiple_Comparative_Indicators_The_Case_of_Judicial_Independence
·
Andrew
P. Stockley, Judicial Independence: The
New Zealand Experience, 3 Austl. J. Legal Hist. 145 (1997).
·
J.
H. Farrar, Law Reform in New Zealand, 7
Oxford Journal of Legal Studies
151, 151-154 (1987).
·
James
Allan, The Rise of Judicial Activism in
New Zealand, 4 A Journal of Policy
Analysis and Reform 465, 465-474 (1997).
·
Mia Swart, Independence of the Judiciary,
MPECCoL, 2-19 (2019).
·
Montesquieu, Spirit of the Laws (1748)
·
Marcel Storme, Independence of the Judiciary: The
European Perspective‘ in Shimon Shetreet and Christopher Forsyth
85 (Martinus NIJHOFF Publishers 2012)
·
Harold J. Laski, Studies in Law and Politics, 163 (New York: George Allen &
Unwin Ltd., 1932).
·
J.J.
Spigelman AC, “The Rule of Law and
Enforcement,” 201 UNSW L. J.
(2003).
·
Thomas C. Grey, “Constitutionalism: An Analytic
Framework,” 218 (New York: New York University Press, 1979).
·
Rajeev Dhavan & Thomas Paul, Nehru and the
Constitution, 64 ( N. M. Tripathi Pvt. Ltd., 1992).
·
Christopher
M. Larkins, “Judicial Independence and
Democratization: A Theoretical and Conceptual Analysis,” 44 Am. J. Comp. L. 605 (1996).
·
Clinton Rossiter , The Federalist, 465- 466 (Signet Classic, 1961).
·
S
Shetreet, Judges on Trial: a Study of the
Appointment and Accountability of the English Judiciary (1976).
·
S Shetreet, ‘The
Normative Cycle of Shaping Judicial Independence in Domestic andInternational
Law: The Mutual Impact of National and International Jurisprudence and
Contemporary Practical and Conceptual
Challenges’ 10 Chicago J of
Intl Law 275 (2009).
·
United Nations, universal declaration
human rights, https://www.un.org/en/universal-declaration-human-rights/ (last
visited Oct. 20, 2020).
·
European Union,
https://fra.europa.eu/en/eu-charter/article/47-right-effective-remedy-and-fair-trial
·
JOHANNES HESSEN 87, 86 (1974).
·
LORENZO DEL RÍO FERNÁNDEZ, 117 (2009)
·
S Shetreet, 'Who will Judge: Reflections on the Process and Standards of Judicial
Selection', 61 Australian Law Journal
766 (1987b).
·
S Shetreet, Judges on Trial, North-Holland Pubhshmg Company, (1976).
·
E Handsley, 'Issues Paper on Judicial Accountability, 10 Journal of Judicial Administration
181(2001).
·
M Gleeson, 'The Role of the judge and Becoming a Judge', National Judicial Orientation Programme,
(1998); J Goldring, 'The Accountability
of Judges', 59 Australian Quarterly
145 (1987).
·
A Mason, 'The Appointment and Removal of
Judges', 66 Judicial independence in the
Nineties and Beyond (1997)
·
MW Bamett, 'The 1997-98 Florida Constimtion Revision Commission: Judicial Election
or Merit Selection', 52 Florida Law
Review 411(2000).
·
UN Congress on the
Prevention of Crime and the Treatment of Offenders (7th) ‘Basic Principles on
the Independence of the Judiciary’, 58 (1985).
·
E Skordaki, Judicial Appointments: An International Review of Existing Models,
The Law Society (1991)
·
HJ Abraham, The
Judicial Process, Oxford University Press (1986).
·
S Shetreet, 'Who will Judge: Reflections on the Process and Standards of Judicial
Selection', 61 Australian Law Journal
766.
·
M Comisky & PC
Patterson, The Judiciary - Selection, Compensation, Ethics and Discipline,
Quorum Books (1987).
·
Constitution of the United States of
America, Art II, s 2.
·
C Baar,
'Comparative Perspectives on Judicial Selection Processes'
, Ontario Law Commission, (1991).
·
H Gibbs H, 'The Appointment and Removal of Judges', 17 Federal Law Review 141(1987b)
·
M
Lavarch, Judicial Appointments -
Procedure and Criteria, Discussion Paper, Attomey General's Department,
Canberra 22 (1993).
·
M Spry, 'Executive and High Court
Appointments', Research Paper, Parliamentary Library, (2000).
·
K
Malleson, The New Judiciary, Ashgate, Aldershot 13, (1999).
·
LJ King, 'Minimum Standards of Judicial Independence', 58 Australian L.
J. 340 (1984).
·
A Hamilton, The
Federalist No. 78 Basil Blackwell, Oxford (1948)
·
Law Commission of India, Fourteenth Report
(1958) 46. (India)
·
L E Nagle, ‘the Cinderella of Government: Judicial Reform in Latin America’,
30 CalWIntlLJ 345 (1999).
·
J Ferejohn, ‘Independent Judges, Dependent Judiciary: Explaining Judicial
Independence’ 72 SCalLRev 382 (1998).
·
R Wolfrum & E Riedel, ‘Constitutional Guarantees of the
Independence of the German’, 267 Recent Trends in German and European
Constitutional Law (2006).
·
Potas, 'The
Judicial Commission of New South Wales: Treading a Fine Line between Judicial
independence and Judicial Accountability', 18 Law in the Context 102 (2001).
·
K Malleson, 'Judicial Training and Performance Appraisal: The Problem of Judicial
independence', 60 Modern Law Review 655 (1997).
·
UN Basic Principles 1985, Art 18.
·
Thomas JB,
Judicial Ethics in Australia, 200 (LBC information Services., 2nd
eds. 1997)
·
Kenrick's Case (1826) 14 Pari Deb,
2'"' Ser 507 (N.Z).
·
C G Geyh, 'Methods
of Judicial Discipline', 142 University of Pennsylvania Law Review
(1993),
·
Montreal Declaration 1983, Art 2.33(a)
(N.Z).
·
European Union,
https://www.newzealandnow.govt.nz/living-in-nz/history-government/our-constitution
·
Judiciary appointment protocols,
(government of new zealand) 2019
·
Constitution Act 1986 (N.Z).
·
https://www.newzealandnow.govt.nz/living-in-nz/history-government/legal-system
·
The
Supreme Court Act 2003 (N.Z).
·
https://www.newzealandnow.govt.nz/living-in-nz/history-government/legal-system
·
The
Senior Courts Act 2016 (N.Z).
·
Judiciary appointment protocols,
(government of New Zealand) 2019.
·
Cooke, "Fundamentals"
[1988] NZLU 158-164.
·
Judiciary appointment protocols, (government
of New Zealand) 2019.
·
The Colonial Leave of Absence Act 1782,
(N.Z).
·
Palmer,
"Judicial Selection and Accountability: Can the New Zealand System
Survive?" 28 (Gray & McClintock Courts and Policy: Checking
the Balance)
·
Royal Commission on the Courts, 217 NZLR
(1978).
·
New Zealand Constitution (Amendment) Act
1947 (UK).
·
Colvin, "The Executive and the Independence of the Judiciary" 51 Sask LR 229-230 (1986-87).
·
Cabinet Office Manual (1991), HI and H2.
·
The
Speaker ruled in 1951 that suggesting a sentence was inappropriate would be in
breach of Standing Orders: NZ, Parl, Debates 294-329 (1951).
·
Indian
constitution amendment 99th
·
Advocates-on-Record Assn. v. Union of India 2015
SCC OnLine SC 964.
·
Second
judges case AIr 1994 SC 258.
·
Judges transfer case III AIR 1999 SC 1
·
Law commission of India, Report on Reforms
of judicial Amendment, Vol 1 pp. 36-37---sec CAD Vol III, p 254
·
India consti. 224.
·
India consti
124 (6).
[1] World Economic Forum Global Competitive Index, WBG Rep. On
Judicial Independence 2017-2018, https://tcdata360.worldbank.org/indicators/h5ebaeb47?country=IND&indicator=669&countries=NZL&viz=line_chart&years=2007,2017 (Between New Zealand and India)
[2] WBG Rep., (1.06) Judicial Independence,
https://reports.weforum.org/pdf/gci-2017-2018-scorecard/WEF_GCI_2017_2018_Scorecard_EOSQ144.pdf
[6] Dinesh Singh
Chauhan, Independence
Of The Judiciary: A constitutional Response, (2017) https://shodhganga.inflibnet.ac.in/bitstream/10603/128562/17/11_chapter%204.pdf
[8] Irving R. Kaufman, The
Essence of Judicial Independence,80 Columbia
Law Review Association Inc. 671, 671-701 (1980).
[10] Andrew P. Stockley, Judicial
Independence: The New Zealand Experience, 3 Austl. J. Legal Hist. 145
(1997).
[11] J. H. Farrar, Law
Reform in New Zealand, 7 Oxford
Journal of Legal Studies 151, 151-154 (1987).
[12] James Allan, The Rise of Judicial Activism in New
Zealand, 4 A
Journal of Policy Analysis and Reform 465, 5-474 (1997).
[15] Marcel Storme, Independence of the
Judiciary: The European Perspective‘ in Shimon Shetreet and Christopher Forsyth 85 (Martinus NIJHOFF
Publishers 2012)
[18] Thomas C. Grey, “Constitutionalism: An
Analytic Framework,” 218 (New York: New York University Press, 1979).
[20] Christopher M. Larkins,
“Judicial Independence and Democratization: A Theoretical and Conceptual
Analysis,” 44 Am. J. Comp. L.
605 (1996).
[21] S Shetreet, Judges on
Trial: a Study of the Appointment and Accountability of the English Judiciary
(1976).
[22] S Shetreet, ‘The Normative Cycle of Shaping Judicial
Independence in Domestic andInternational Law: The Mutual Impact of National
and International Jurisprudence and Contemporary Practical and Conceptual Challenges’ 10 Chicago J of Intl Law 275 (2009).
[24] United Nations,
universal declaration human rights,
https://www.un.org/en/universal-declaration-human-rights/ (last visited Oct.
20, 2020).
[25] United Nations
Human Rights, https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
(last visited Oct. 20, 2020).
[26] European Union,
https://fra.europa.eu/en/eu-charter/article/47-right-effective-remedy-and-fair-trial
[27] ECtHR Baka v.
Hungary (2016); Procola v. Luxembourg (1995); McGonnell v. UK (2000); Findlay
v. UK (1997); R(Brooke) v. Parole Board (2008).
[28] Id. at 31.
[29] JOHANNES HESSEN
87, 86 (1974).
[30] LORENZO DEL RÍO
FERNÁNDEZ, 117 (2009)
[32] Media Rights v
Nigeria (6 November 2000) No 224/98 (Nigeria).
[33] R v Bow Street
Metropolitan Stipendiary Magistrate, (No. 1) [1998] UKHL 41 (UK).
[34] R v Bow Street
Metropolitan Stipendiary Magistrate, (No. 2) [1999] UKHL 1 (UK).
[35] Id. at 36.
[36] Valente v The
Queen (1985) 2 SCR (Can).
[37] S Shetreet, 'Who will Judge: Reflections on the Process
and Standards of Judicial Selection', 61 Australian
Law Journal 766 (1987b).
[38] S Shetreet, Judges on Trial, North-Holland Pubhshmg
Company, (1976).
[39] E Handsley, 'Issues Paper on Judicial Accountability,
10 Journal of Judicial Administration
181(2001).
[40]M Gleeson, 'The Role of the judge and Becoming a Judge', National Judicial Orientation Programme, (1998);
J Goldring, 'The Accountability of
Judges', 59 Australian Quarterly
145 (1987).
[41] MW Bamett, 'The 1997-98 Florida Constimtion Revision
Commission: Judicial Election or Merit Selection', 52 Florida Law Review 411(2000).
[42] E Skordaki, Judicial Appointments: An International Review of Existing Models,
The Law Society (1991)
[43] Id. at 45.
[44] Supra note 48.
[45] HJ Abraham, The Judicial Process, Oxford
University Press (1986).
[46]S Shetreet, 'Who will Judge: Reflections on the Process
and Standards of Judicial Selection', 61 Australian
Law Journal 766.
[47] M Comisky & PC Patterson, The Judiciary -
Selection, Compensation, Ethics and Discipline, Quorum Books (1987).
[48] Constitution of
the United States of America, Art II, s 2.
[49] C Baar, 'Comparative Perspectives on Judicial
Selection Processes' , Ontario Law Commission, (1991).
[50] H Gibbs H, 'The Appointment and Removal of Judges',
17 Federal Law Review 141(1987b)
[51] Id. at 43.
[52]M Lavarch, Judicial
Appointments - Procedure and Criteria, Discussion Paper, Attomey General's
Department, Canberra 22 (1993).
[53] M Spry,
'Executive and High Court Appointments', Research Paper, Parliamentary Library,
(2000).
[54]K Malleson, The New Judiciary, Ashgate,
Aldershot 13, (1999).
[55] Id. at 60.
[56] Id. at 60.
[57] L E Nagle, ‘the Cinderella of Government: Judicial
Reform in Latin America’, 30 CalWIntlLJ 345 (1999).
[58] J Ferejohn, ‘Independent Judges, Dependent Judiciary:
Explaining Judicial Independence’ 72 SCalLRev 382 (1998).
[59] Id. at 69.
[60] R Wolfrum & E
Riedel, ‘Constitutional Guarantees of the
Independence of the German’, 267 Recent Trends in German and European
Constitutional Law (2006).
[61] Id. at 71.
[62] Barr v Matteo
(1959) 360 US 564 (US).
[64] K Malleson, 'Judicial Training and Performance
Appraisal: The Problem of Judicial independence', 60 Modern Law Review 655
(1997).
[65] Bruce v Cole
(1998) 45 NSWLR 163, 197.
[66] Montreal
Declaration 1983, Art 2.33(a) (N.Z).
[67] European Union,
https://www.newzealandnow.govt.nz/living-in-nz/history-government/our-constitution
[68] Judiciary
appointment protocols, (government of new zealand) 2019
[70]
https://www.newzealandnow.govt.nz/living-in-nz/history-government/legal-system
[72]
https://www.newzealandnow.govt.nz/living-in-nz/history-government/legal-system
[74] Supra notes at 91.
[77] Cooke, "Fundamentals" [1988] NZLU
158-164.
[78] Judiciary appointment
protocols, (government of New Zealand) 2019.
[79] The Colonial
Leave of Absence Act 1782, (N.Z).
[80] Palmer, "Judicial Selection and
Accountability: Can the New Zealand System Survive?" 28 (Gray &
McClintock Courts and Policy: Checking the Balance)
[81]Royal Commission
on the Courts, 217 NZLR (1978).
[82] New Zealand
Constitution (Amendment) Act 1947 (UK).
[83] Colvin, "The Executive and the Independence of
the Judiciary" 51 Sask LR
229-230 (1986-87).
[84] Cabinet Office
Manual (1991), HI and H2.
[85] The Speaker ruled in 1951 that suggesting a
sentence was inappropriate would be in breach of Standing Orders: NZ, Parl,
Debates 294-329 (1951).
[88] Second judges case AIr 1994 SC 258.
[89] Judges transfer
case III AIR 1999 SC 1
[90] Law commission of
India, Report on Reforms of judicial Amendment, Vol 1 pp. 36-37---sec CAD Vol
III, p 254
[91] India consti. art 124.
[92] India consti. art. 124, cl. 6.