The judiciary, on the other hand, can and should be kept completely independent of the other organs of government so that it can act independently, unhampered by interference of the executive branch in safeguarding the individual rights and liberties and protecting the constitution. The requirements for ensuring the independence of the judiciary should, among other things, include their method of appointment, salaries, tenure and permanence of office. The appointment procedure should be fair and impartial, requiring approval by a different body other than the appointing authority. The salaries should be adequate so that they can maintain a standard of living commensurate with their status. The removal of judges from the office should be rigid so that the security of the tenure of their office can be maintained. Most of these requirements have been adopted by the constitution of Bangladesh to secure the independence of the judiciary. In order to make the appointment procedure more fair and impartial a provision should be included in the constitution to get the appointment of the judges of the High Court and Supreme Court approved by two third members of the Parliament. Such procedure, if adopted, would prove effective in preventing the party in power from making partisan appointments.

The judiciary in the modern states, apart from acting as a guardian of the constitution, also plays a significant role in protecting the individual rights and liberties. Fundamental right is a basic human right. It includes among other things, the right to life, liberty and property, freedom of thought, opinion, movement, expression and worship. There cannot be any compromise on the basic right and freedom of the citizen. Any attempt to violate such right by any body, no matter whether it is a government or individual person, should be thwarted by all possible means. In order to ensure that such rights can be properly safeguarded, most of the modern democratic states have made provisions for their incorporation in the constitution and enforcement by the court. The function of the judiciary in the modern states is not confined to settling any dispute between man and man, but also extends to deal with the efficient administration of justice between the individual and the state. Such disputes between the individual and the state are likely to arise when the misuse of the executive powers results in the violation of individual rights. It is not the use of the executive powers but their misuse, which the court will try to prevent. The court should insist that such powers must be exercised genuinely for the purpose for which they were conferred and not for any extraneous purpose. Any likely interference by the executive in the judicial matters involving a dispute between an individual and the state will certainly jeopardise individual rights and liberties.

The demand for the incorporation of the fundamental rights and their enforcement by the court gained ground in India and Pakistan after their independence. After the independence of Bangladesh, provisions were made for the incorporation of such rights in the constitution. Despite the fact that such rights are enforceable in the court of law, the inability of the judiciary to act independently has made it possible for the ruling party to exercise its powers arbitrarily to serve their political purposes. The magistrates court at the bottom layer of the judicial system, while dealing with cases involving disputes between the individual and the state, abused in most cases the judicial powers conferred on them in order to legally justify the arbitrary actions of the government. They did not, while dealing with such cases, as expected of them, maintain a balance between the security of the state and the basic rights and liberties of the citizen. The British authorities in their attempt to suppress the terrorists, granted some judicial powers to some officers of the executive branch so that they could be in a better position to influence any verdict involving cases connected with the freedom movement. It is a pity that such a two-tier system devised by the British government has been retained by the successive governments in Pakistan and Bangladesh to suppress the opposition parties. The abuse of the executive powers in Bangladesh, resulting in the violation of individual rights and liberties, can be attributed to the failure of the judiciary to act effectively and independently.

It is true that there has been deterioration of law and order all over the world due to changed socio-economic and political conditions, technological developments and rapid industrialisation. In the West, however, the determination of the government to bring down the rate of crimes, coupled with the role of the police and the judiciary to ensure that the offenders are punished, have gone a long way to minimise the ill effects of such rapid deterioration of law and order. The independence of the judiciary in the West has been secured through the process of evolution from autocracy to democracy. In the process of such evolution, the powers of the executive have gradually diminished, paving the way for the judiciary to act independently in order to ensure that the rights and liberties of the individuals can be protected. On the other hand, in the underdeveloped countries of South East Asia and Africa the law and order situation did not improve due to the failure of the police and the judiciary to deal with the offenders effectively. The failure of the judiciary in Bangladesh to act independently in safeguarding individual rights and liberties resulted from the lack of courage, determination and independent attitude on the part of the judges to respect the constitution and their inability to remain above party politics.

The judicial system in Bangladesh should be reviewed thoroughly, making necessary changes so that it can function promptly and effectively commensurate with its role as an independent body in safeguarding the constitution as well as protecting the individual's rights and liberties. The abolition of the two-tier system at the bottom layer of the judicial system will pave the way for laying the foundation of its independence. As part of an effort to achieve such independence, the procedures for their appointment, promotion and transfer should be regulated by the judicial department. A separate system of examination and a training package designed to improve the morality, motivation; self-discipline and independent attitude of the candidates should be devised. A screening procedure should be adopted to eliminate the candidates who are involved in politics or have political affiliations. A selection method, including a screening procedure to eliminate the candidates with political affiliation and a training scheme to train the candidates selected to improve their ethical standard, should lay the foundational framework towards the development of an independent judiciary. Such review will supplement the measures already adopted by the present government to secure the independence of the judiciary.

The independence of the judiciary which is so vital to safeguard the individual's rights and liberties, if secured and maintained, will not only restore law and order but will also help to create an environment conducive towards the growth and development of a democratic society. The authorities in Bangladesh should take immediate steps to implement the measures already adopted to secure the independence of the judiciary. The delay in implanting such measures will result in further deterioration of law and order, creating a sense of hopelessness among 130 million people of Bangladesh.