If they lack wisdom, probity, and freedom of decision, the high purposes for which the judiciary is established cannot be secured. Bacon had succinctly said that there was no worse torture than the torture of laws.
The torture of law can only be removed or mitigated when judges who apply and interpret the law are independent and impartial. Impartiality and independence go together. By the independence of the judiciary we mean that judges should exercise unfettered discretion in the interpretation of laws and administration of justice, and they should remain uninfluenced in the discharge of their duties.
The maintenance of the independence and impartiality of the judiciary both in letter and spirit is the basic condition of the Rule of Law and, as such, that of the liberty of the people, and human progress.
An independent judiciary is as much the need of a popular government as it is that of governments of an autocratic character. In the latter, it is essential to protect the people against the arbitrary interference and oppression of one single person, and in the former it is essential to protect the minorities against the tyranny of the majority and uphold the rights of the people.
Truly speaking, no tyranny is as great as that of a majority and a people establishing a popular government had never been oblivious of this.
They devised means to avoid this danger and entrusted to the courts the duty of seeing that no branch of government exceeded its powers and that no temporary majority shall infringe the rights of the minority.
This point was most cogently explained by President Taft of the United States in his address on the “Judiciary and Progress.” He said, “But the judiciary is not representative in any such sense, whether appointed or elected.
The moment they assume their duties they must enforce the law as they find it. They must not only interpret or enforce valid enactments of the legislature according to its intention, but when the legislature in its enactments has transgressed the limitations set upon its powers in the constitution the judicial branch of government must enforce the fundamental and higher law by annulling and declaring invalid the offending legislative enactment.
Then, the judges are to decide between individuals on principles of right and justice. The great body of the law is unwritten, determined by precedent, and founded on the eternal principles of right and morality. The courts have to declare and enforce.
As between the individual and the State, as between the majority and the minority, as between the powerful and the weak, financially, politically, or socially, courts must hold an even hand and give judgment without fear or favour.
In so doing they are performing a governmental function, but it is a complete misunderstanding of our form of government or any kind of government that exalts justice and righteousness to assume, that judges are bound to follow the will of the majority of an electorate in respect of the issue of their decision.”
The judges must, accordingly, do everything possible to create confidence among the people in the purity, fairness and impartiality of the administration of justice.
The need for independence of the judiciary has acquired an added dimension. Under modern conditions of the Welfare State the more modern government interferes, administers, and regulates, the more urgent is the need to preserve a check on the way these activities affect individuals and groups.
The helplessness of the individual in the absence of such control is all too obvious in systems where the judiciary is either dependent or powerless. The courts must, therefore, be separate, independent agencies, bound by their own rules of procedure and determining cases according to publicly known law.