The principle of the independence of the judiciary further requires that a judge, once appointed, should feel secure in his office as regards its tenure and promotion. In the judicial department, however, promotion cannot go by seniority alone, because inefficient judges would then be promoted to important positions. Nevertheless, an able judge should feel that his chances of promotion will not be dimmed by a clever colleague who knows how to pull political wires at the right time and place. Hence neither the promotion, nor the removal of the judges should depend upon the pleasure of the executive.
They must be decided by the principle of good behaviour. Then only able and efficient judges will be promoted and corrupt and inefficient ones removed from office. Good behaviour should be judged by an impartial body, like the legislature. This method is followed in England, Pakistan, India, etc. In England, a judge is dismissed-from office only when the two Houses of Parliament by a joint address request the Queen to remove him on grounds of corruption or moral turpitude.
Fixed and adequate salary
Another condition which makes for freedom and independence of the judiciary is an adequate and fixed salary, which makes a judge feel secure, independent and fearless in the performance of his duties. A low- paid judge is inclined to be corrupt: he endeavours to supplement his meagre salary with bribery. Such a judge will not dispense justice. The salary should be adequate to befit the social position of the judge. Finally, the constitution of the State should provide that the salaries of the judges should not be alterable during their term of office.
Qualifications of Judges
The administration of justice presupposes an adequate knowledge of law. Law is a technical subject. Only such persons who have studied it carefully can properly understand its technicalities. The judges, therefore, must be professional experts who can determine legal rights and duties in particular cases with knowledge and skill. Hence only men of legal and forensic qualifications should be appointed as judges. A judge, however, must possess not only the qualities of head but also of heart. He must be a man reputed for his impartiality and independent views. He must be honest and profoundly learned in law. In early Islam, the moral and intellectual qualities of a man were essential prerequisites for a judicial appointment. In present times, the qualified judges are sometimes chosen from among the practising lawyers and advocates.
Separation of the Judiciary
One of the merits of the theory of separation of powers is that it emphasises the separation of the judiciary from the other two organs of the State, especially from the executive. The same person should not be a judge as well as a prosecutor. If so, there will be a miscarriage of justice. The prosecutor being also the judge will necessarily punish the accused. This has been the experience of the British rule in Indo-Pakistan subcontinent, where the Deputy Commissioners act both as judicial and executive officers.