Basic Principles on the Independence of the Judiciary स्वतन्त्र न्यायपालिका - LLB Entrance Exam Preparation 2023

This article recommended to LLB Entrance Preparation 2080 (एल एल बि प्रवेश परिक्षा तयारी कक्षा) (LLB Entrance Preparation 2023) 

The document was approved during the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, which took place in Milan from 26 August to 6 September 1985. It received official support through General Assembly resolutions 40/32 on 29 November 1985 and 40/146 on 13 December 1985.

In the United Nations Charter, the global community expresses its commitment to establishing conditions that uphold justice and foster international cooperation, with the goal of promoting and encouraging respect for human rights and fundamental freedoms for all individuals, without any form of discrimination.

Recognizing the principles enshrined in the Charter of the United Nations, where people worldwide affirm their determination to establish conditions that uphold justice and foster international cooperation, promoting and encouraging respect for human rights and fundamental freedoms without discrimination,

Acknowledging that the Universal Declaration of Human Rights specifically upholds the principles of equality before the law, the presumption of innocence, and the right to a fair and public trial by a competent, independent, and impartial tribunal established by law,

Considering that both the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights guarantee the exercise of these rights, with the Covenant on Civil and Political Rights additionally ensuring the right to a timely trial,

Recognizing that there often exists a disparity between the underlying principles of these instruments and the actual state of affairs,

Emphasizing that the organization and administration of justice in every country should be guided by these principles, and efforts should be made to fully translate them into practice,

Recognizing the importance of rules governing the conduct of judicial officers, which should enable judges to uphold these principles,

Acknowledging that judges are entrusted with the final decision-making authority regarding the lives, freedoms, rights, duties, and property of citizens,

Taking into account Resolution 16 of the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, which calls for the Committee on Crime Prevention and Control to prioritize the development of guidelines concerning the independence of judges, as well as the selection, professional training, and status of judges and prosecutors,

Recognizing the need to examine the role of judges within the justice system, as well as the significance of their selection, training, and conduct,

The following fundamental principles, designed to support Member States in their efforts to ensure and promote judicial independence, should be considered and respected by governments within the framework of their national legislation and practices. They should also be disseminated to judges, lawyers, members of the executive and legislature, and the general public. Although primarily intended for professional judges, these principles are equally applicable, as appropriate, to lay judges where they exist.

Independence of the judiciary 

1. The State shall guarantee and incorporate the independence of the judiciary in the country's Constitution or legal framework. All governmental and other institutions have an obligation to respect and uphold the independence of the judiciary.

2. The judiciary shall decide cases impartially, based on factual evidence and in accordance with the law. They shall not face any limitations, improper influences, inducements, pressures, threats, or interferences, whether direct or indirect, from any source or for any reason.

3. The judiciary shall have jurisdiction over all matters of a judicial nature and possess exclusive authority to determine whether an issue presented for their decision falls within their legally defined competence.

4. Inappropriate or unwarranted interference with the judicial process shall not be allowed, and judicial decisions by courts shall not be subject to revision. However, this principle does not undermine the concept of judicial review or the power of competent authorities to mitigate or commute sentences imposed by the judiciary in accordance with the law.

5. Every individual shall have the right to be tried in regular courts or tribunals that adhere to established legal procedures. Tribunals that deviate from the duly established legal process shall not be established to replace the jurisdiction of ordinary courts or judicial tribunals.

6.The principle of judicial independence obliges the judiciary to ensure fair judicial proceedings and uphold the rights of all parties involved.

7. Each Member State has a responsibility to provide adequate resources to enable the judiciary to perform its functions effectively. 

Freedom of expression and association

8. Judges, like other citizens, are entitled to freedom of expression, belief, association, and assembly, as stated in the Universal Declaration of Human Rights. However, judges must always conduct themselves in a manner that upholds the dignity of their office and preserves the impartiality and independence of the judiciary.

9. Judges have the freedom to form and join associations of judges or other organizations that aim to represent their interests, promote professional training, and protect judicial independence.

Qualifications, selection, and training

10. Individuals selected for judicial positions should possess integrity and competence, along with appropriate legal qualifications or training. Judicial selection processes should safeguard against appointments motivated by improper reasons. Discrimination based on race, color, sex, religion, political or other opinions, national or social origin, property, birth, or status shall not be permitted, except that a requirement for candidates to be nationals of the concerned country shall not be deemed discriminatory.

Conditions of Service and Tenure

11. The law shall adequately secure the term of office, independence, security, appropriate remuneration, conditions of service, pensions, and retirement age of judges.

12. Judges, whether appointed or elected, shall enjoy guaranteed tenure until they reach mandatory retirement age or the end of their term of office, if applicable.

13. The promotion of judges, where such a system exists, should be based on objective factors, including ability, integrity, and experience.

14. The assignment of cases to judges within their respective courts is an internal matter of judicial administration.

Professional secrecy and immunity 

15. The judiciary must maintain professional confidentiality concerning their discussions and any confidential information they acquire while performing their duties, except in public proceedings. They cannot be forced to testify about such matters.

16. Judges, in accordance with national law, should have personal immunity from civil lawsuits seeking monetary damages for any wrongful acts or omissions committed during the performance of their judicial duties, without affecting any disciplinary procedures, rights of appeal, or potential compensation from the State.

Discipline, suspension, and removal 

17. Any accusation or complaint made against a judge in their capacity as a judicial professional should be handled promptly and fairly through an appropriate procedure. The judge is entitled to a fair hearing. During the initial stages of the examination, the matter should be kept confidential unless the judge requests otherwise.

18. Judges may only be suspended or removed for reasons of incapacity or misconduct that renders them unfit to carry out their responsibilities.

19. All disciplinary, suspension, or removal proceedings must adhere to established standards of judicial conduct.

20. Decisions made in disciplinary, suspension, or removal proceedings should be subject to an independent review. However, this principle may not apply to the decisions made by the highest court or those made by the legislature in impeachment or similar proceedings.

The Charter of the United Nations emphasizes the establishment of conditions for maintaining justice and promoting cooperation and respect for human rights. The Universal Declaration of Human Rights and International Covenants guarantee principles such as equality before the law, the right to a fair trial, and timely proceedings. Despite the existing gap between these principles and reality, efforts should be made to align the organization and administration of justice with these principles. The role of judges in the justice system, including their selection, training, and conduct, is of utmost importance. The following basic principles should be respected: independence of the judiciary, impartiality in decision-making, jurisdiction over judicial matters, avoidance of interference, the right to a fair trial, provision of adequate resources, freedom of expression and association for judges, qualifications and training requirements, and ensuring conditions of service and tenure. Additionally, professional secrecy and immunity, fair disciplinary processes, and independent review of disciplinary decisions are crucial aspects to be considered.

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