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Report No. 80

2.2. Importance of independent judiciary.-

It is needless to emphasise the importance of an independent judiciary. The basic postulate of democracy is that the adjudication of disputes both between citizen and citizen as also between the citizen and the State ought to proceed on the basis of law and not on extraneous considerations. Justice must be done, as the judicial oath has it, without fear or favour, affection or Citizens must have an assurance of equal treatment under the laws. Such assurance can only emanate from a general feeling that the forum which is to adjudicate upon the rights and liabilities of parties would keep the scales even and be imbued with a sense of utmost impartiality.

An independent judiciary is absolutely indispensable for ensuring the rule of law. Experience tells us that attempt to undermine the independence of the judiciary is preceded by an attack upon the judiciary. Such attacks are symptomatic of the feeling of indignation and chagrin arising out of the inability to control the judiciary. Such attacks would also reveal on occasions a design to browbeat and overawe the judiciary. As observed by a writer: 1

"[And] in a free democracy like ours, the principal function of the law is to protect the weak from the strong-whether the strong take the shape of the Crown, feudal barons, iron-masters, multinational corporations-or trade unions. Whenever such groups begin to whine about the unfairness of the law or the judges, that is a sure sign not that they are weak, but that their power has grown to a point where the law must begin to control it-because in the interest of the community at large, they can no longer be trusted to exercise the necessary control themselves."

1. Guardin Gazette, extracted in (2nd August, 1977), New Zealand LJ 304.

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