Judicial independence

2025 SCMR 1150 SUPREME-COURT-OF-CANADA Judicial Precedent

Courts martialMilitary judgesIndependent and impartial tribunalScopeJudicial independenceScopePersons tried before courts martial entitled to constitutional guarantee of judicial independence and impartiality

Whether military status of military judges violates such constitutional guarantee of person tried by a court martial.

2024 PLD 515 SUPREME-COURT Judicial Precedent

Art. 4Judicial independenceScope

Concept of judicial independence and significance of internal and institutional independence explained.

2015 PLD 31 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

Ss. 3(2) & 6Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.4(4), 42(4) & 43(2-A)Azad Jammu and Kashmir Shariat CourtAppointment of judgesProcedureJudicial independence

Appointment of judge of the Shariat Court, Azad Jammu and Kashmir without consultation with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of the Shariat Court of Azad Jammu and Kashmir

Constitutionality

Favouritism and nepotism in appointment of judges

According to the modern principles of the jurisprudence and universally accepted constitutional provisions, the basic essence and spirit in all the constitutions of the civilized states was the establishment of an independent judiciary and access to justice

Shariat Court of Azad Jammu and Kashmir according to the scope of its jurisdiction assigned under the provisions of Azad Jammu and Kashmir Shariat Court Act, 1993 or by any other law had to perform an important role in the system of administration of justice

According to its scope and jurisdiction the Azad Jammu and Kashmir Shariat Court was directly and indirectly concerned with the constitutionally guaranteed fundamental rights, thus, its independence was constitutionally required

According to the nature of the judicial functions of the Shariat Court it was an important judicial institution for the purpose of administration of justice and its complete independence according to the spirit and scheme of the constitution was inevitable

For attaining and maintaining the independent status of judicial organs, the mode of appointment (of judiciary) was of much importance and without following the mode which was required according to the constitution for an independent judiciary, no court could be established

Common feature of constitutions of different countries around the world, whether democratic or non-democratic, was that the appointments were made in the judiciary in consultation with or on the recommendations of the concerned bodies consisting of the Chief Justices, or judges or jurists of the country, or the persons or office holders concerned with the field of administration of justice

Such method of (judicial) appointments upheld the independence and dignity of the judiciary

Power of judicial appointments did not arbitrarily or solely vest in the ruler

According to the universally applicable principles, there was no concept of subservient judiciary in the world rather there was a universal consensus on the independent status of the judiciary

For independence of judiciary, the appointments in Shariat Court of Azad Jammu and Kashmir in consultation with the Chief Justice of High Court/Shariat Court and the Chief Justice of Azad Jammu and Kashmir was a mandatory constitutional requirement

Appointments in the judiciary without consultation with the Chief Justices were against the spirit of the Azad Jammu and Kashmir Interim Constitution Act, 1974

For establishment of an independent judiciary and to protect the constitutionally guaranteed fundamental rights, if any court was established in violation of the spirit of the constitution without consultation of the Chief Justices, it amounted to abridging and taking away the fundamental rights

For appointment of a Judge of Shariat Court, the Azad Jammu and Kashmir Shariat Court Act, 1993, did not contain any provision for consultation with the Chief Justices, which meant that such appointment was purely dependent upon the arbitrary discretion of the appointing authority i.e. the President

Such mode of appointment was violative of the independence of judiciary

Subservient judiciary could not safeguard or protect the constitutionally guaranteed fundamental rights which amounted to abridging the fundamental rights of access to justice

Present mode of appointment of judges of Shariat Court raised the presumption that such appointments were made in an arbitrary manner without any meaningful consultation, application of mind, necessary required deliberations or comparison among the eligible state subjects for determination of merit, eligibility and suitability

Adopting a mechanism of bypassing the constitutional provisions providing requirement of consultation with the Chief Justices before appointment of judges of the Shariat Court , was one of the reasons which created doubts in the minds of the public at large regarding (Shariat) Court's establishment for accommodation of some persons on the basis of favouritism and nepotism

Such doubts resulted in damaging the dignity of the judiciary and shaking the public confidence upon such an important state organ

Provisions of S.3 of the Azad Jammu and Kashmir Shariat Court Act, 1993 (in their present shape) empowered the executive authority to appoint the Judge Shariat Court without consultation with the Chief Justices which was in negation of the constitutional spirit of the independence of judiciary, and also amounted to abridging and taking away the fundamental rights

Any law which was against the independence of judiciary whether regarding exercise of its jurisdiction or powers for administration of justice or the mode of appointment amounted to taking away and abridging the constitutionally guaranteed fundamental rights

Section 3 of the Azad Jammu and Kashmir Shariat Court Act, 1993,was declared to be partly ultra vires to the Azad Jammu and Kashmir Interim Constitution Act, 1974 to the extent of empowering the appointing authority to appoint the judges of the Shariat Court without consultation of the Chief Justices

Supreme Court directed that the appointment of all the judges of Shariat Court of Azad Jammu and Kashmir from the year 1993 under S.3 of the Azad Jammu and Kashmir Shariat Court Act, 1993 (except the proviso of S.3(2) of said Act), were void, however, all the acts done by such judges were declared to be valid on the principle of de-facto doctrine including the drawing of the financial benefits etc; that for establishment of the Shariat Court according to the spirit of the constitution and for achieving the object mentioned in the Azad Jammu and Kashmir Shariat Court Act, 1993, legislation was required which provided for mode of appointment of judges (of Shariat Court) with consultation of the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of High Court who was also Chief Justice of Shariat Court

Appeal was disposed of accordingly.