“Justice
without law is lame, law without justice is blind”
Independent judiciary is sine qua non of a vibrant democratic system –
Structure:
1.
Learning outcome
2. Introduction
3. Historical Aspect
4. Meaning of judicial independence
5. Components
6. Constitutional Provisions
7. Transfer of Judges
8. Collegium System
9. NJAC
10.
Judicial Accountability
11.
Conclusion
Abstract-
An independent
judiciary is sine qua non of a
vibrant democratic system. Only an impartial and independent judiciary can
stand as a bulwark for the protection of the rights of the individuals and met
out even handed justice without fear or favour. The judiciary is the protector
of the constitution and, as such, it may have to strike down executive,
administrative and legislative acts of the centre and the states. For Rule of
law to prevail, judicial independence is of prime necessity. The independence
of the judiciary is normally assures through the Constitution but it may also
be assured through legislations, conventions and other suitable norms and
practices. The constitutions or the foundational laws on judiciary are however,
only the starting point in the process of securing judicial independence.
Ultimately the independence of the judiciary depends on the totality of a
favorable environment created and backed by all state organs including the
judiciary and the public opinion. The independence of judiciary also needs to
be constantly guarded against the unexpected events and the changing social,
political, economic conditions; it is too fragile to be left unguarded. In
India, the question of independence of the judiciary has been a subject of
heated national debate over the last many years. It has exercised the minds of
legislators, jurists, politicians and the laymen. Both the supporters and the
opponents have cogent arguments in support of their views. This question
assumes great importance whenever the Supreme Court holds a particular Act or particular
Clause of an Act passed by Parliament ultra virus of the Constitution.
Learning Outcome:
After
going through this lesson on Independence of Judiciary, we shall be able to
learn that:
Judges have the ultimate responsibility for
decisions regarding freedoms, rights and duties of natural and legal persons
within their jurisdiction.
The independence of each individual judge
safeguards every person’s right to have their case decided solely on the basis
of the law, the evidence and facts, without any improper influence.
A
well-functioning, efficient and independent judiciary is an essential requirement
for a fair, consistent and neutral administration of justice.
Consequently,
judicial independence is an indispensable element of the right to due process,
the rule of law and democracy.
INTRODUCTION – An independent judiciary is necessary for a free society and a
constitutional democracy. It ensures the rule of law and realization of human
rights and also the prosperity and stability of a society. The independence of
the judiciary is normally assured through the constitution but it may also be
assured through legislation, conventions, and other suitable norms and
practices. Following the Constitution of the United States, almost all
constitutions lay down at least the foundations, if not the entire edifices, of
an independent judiciary.
The constitutions or the foundational laws on
judiciary are, however, only the starting point in the process of securing
judicial independence. Ultimately the independence of the judiciary depends on
the totality of a favorable environment created and backed by all state organs,
including the judiciary and the public opinion. The independence of the
judiciary also needs to be constantly guarded against the unexpected events and
changing social, political, and economic conditions; it is too fragile to be
left unguarded. India has given to itself a liberal constitution in the
Euro-American traditions which aims at establishing a free and democratic
society. It also aims at the prosperity and stability of the society. Its
makers believed that such a society could be created through the guarantee of
fundamental rights and an independent Judiciary to guard and enforce those
rights. Therefore, the framers of India's Constitution dealt with these two
aspects with maximum and identical idealism.
Independence
of the judiciary means that the judiciary as an organ of the government should
be free from influence and control of the other two organs i.e. the executive
and the legislature, of the government. Freedom from the influence and control
of the executive is of crucial importance. Every democratic country adopts
various means to ensure freedom of the judiciary and thereby to ensure
individual freedom. The Constitution of India has provided for an independent
and impartial judiciary in India as it can only protect the rights of the
individual and provide equal justice to all without fear or favour. The U.S.A. with
Presidential Supremacy has adopted
system of separation of powers to ensure independence of the judiciarY. President-Executive,
Congress-Legislation, Federal Court - Judiciary. But in constitutional systems
based on the concept of Parliamentary sovereignty as in British, the adoption
of separation of powers was not in place upto 1701 AD and the Judiciary was
subordinate to the Crown. This is also partly the case in India, where the doctrines of Parliamentary and Constitutional
sovereignty are blended together.
Historical background:
The concept of independence of Judiciary took time to flourish in England.
Earlier the Judges used to hold the position during the Crown’s pleasure and
like any other servant he could be dismissed by the King at will. Thus the
Judges were subordinate to the Executive. This subordination naturally led the
Judges favour the royal prerogative. The judicial independence was secured by
the Act of Settlement, 1701. This statute formally recognised the principles of
security of judicial tenure by establishing that High Court Judges and Lords
Justice of Appeal hold office during good behavior. Appropriate and formal
mechanisms had to be in place before a judge could be removed. Since the Act of
Settlement it has only been possible to remove a senior judge from office
through an Address to the Queen was agreed by both Houses of Parliament.
The
first political philosopher, who propounded the idea of an independent
judiciary, was Montesquieu, the
famous French philosopher. He believed in the theory of separation of powers of
the three branches of the Government- Legislature, Executive and Judiciary. The
fathers of the American Constitution were very impressed by his theory. They,
therefore, established an independent judiciary in their country. The American
people have great faith in the independence of the judiciary. They are
convinced that if any fetters are placed on the independence of judiciary, the
rights and liberties of the people might be endangered. In U.K., however, the
Parliament is supreme following the doctrine of Supremacy of Parliament and the
Crown in parliamentary affairs is immune. Thus the judiciary, is not separated from the legislature. In fact,
there the House of Lords acts as the highest Court of appeal (Uptil now there
is no supreme Court in UK and the doctrine of Pith and Substance in operation of judicial system is in right
shape ), therefore the independent Judiciary or the requirement of apex court
like Supreme Court is not that required . Though in U.K., the judiciary has not
been independent or supreme, yet its judges have been giving decisions without
fear or\ favour on matters coming up before them. They have been independent
and impartial in their judgments. The U.K. does not have a written Constitution
but still its people enjoy no less liberty than the Americans. In the U.K. no
major clash between the Parliament and the judiciary has occurred so far. The
concept of independence of judiciary took time to grow in England. Before 1701
judges held their office during the pleasure of crown and like any other crown
servant he could be dismissed by the king at will. The judges view thus
subservient to the Executive. This subservience naturally led the judges to
favour the royal prerogative.
NEED FOR THE INDEPENDENCE OF THE
JUDICIARY
The basic need for the independence of the
judiciary rests upon the following points:
1.
To check the functioning of
the organs: Judiciary acts as a watchdog by ensuring that all the organs
of the state function within their respective areas and according to the
provisions of the constitution. Judiciary acts as a guardian of the
constitution and also aids in securing the doctrine of separation of powers.
2.
Interpreting the provisions of
the constitution: It was well known to the framers of the constitution
that in future the ambiguity will arise with the provisions of the constitution
so they ensured that the judiciary must be independent
and self-competent to interpret the provision of the constitution in such a
way to clear the ambiguity but such an interpretation must be unbiased i.e.
free from any pressure from any organs like executive. If the judiciary is not
independent and competent , the other organs may pressurize the judiciary to
interpret the provision of the constitution according to them. Judiciary is
given the job to interpret the constitution according to the constitutional
philosophy and the constitutional norms.
3.
Disputes referred to the
judiciary: It is expected of the Judiciary to deliver judicial justice
and not partial or committed justice. By committed justice we mean to say, when
a judge emphasizes on a particular aspect while giving justice and not considering
all the aspects involved in a particular situation. Similarly judiciary must
act in an unbiased manner. The framers of the Indian Constitution at the time
of framing of our constitution were concerned about the kind of judiciary our
country should have.
This
concern of the members of the constituent assembly was responded by Dr. B.R. Ambedkar in the following words:
“There
can be no difference of opinion in the House that our judiciary must be both
independent of the executive and must also be competent in itself. And the
question is how these two objects can be secured”.
The
question that arises at first instance in our minds is that what made the
framers of our Constitution to be so much concerned about providing the
separate entity to the judiciary and making itself competent. The answer to
this question lies in the very basic understanding that so as to secure the
stability and prosperity of the society, the framers at that time understood
that such a society could be created only by
guaranteeing the fundamental rights and the independence of the judiciary to
guard and enforce those fundamental rights. Also in a country like India,
the independence of the judiciary is of utmost importance in upholding the
pillars of the democratic system hence ensuring a free society. It is a
well-known fact that the independence of the judiciary is the basic requisite
for ensuring a free and fair society under the rule of law. Rule of law that is
responsible for good governance of the country can be secured through unbiased
judiciary. The doctrine of Separation of Powers which was brought into
existence to draw upon the boundaries for the functioning of all the three
organs of the state: Legislature, Executive and the Judiciary, provides for a
responsibility to the judiciary to act as a watchdog and to check whether the
executive and the legislature are functioning within their limits under the
Constitution and not interfering in each other’s functioning. This task given
to the judiciary to supervise the doctrine of separation of powers cannot be
carried on in true spirit if the judiciary is not independent in itself. An
independent judiciary supports the base of doctrine of separation of powers to
a large extent. It is theoretically very easy to talk about the independence of
the judiciary as for which the provisions are provided for in our Constitution,
but these provisions introduced by the framers of our Constitution can only
initiate towards the independence of the judiciary. The major task lies in
creating a favorable environment for the functioning of the judiciary in which
all the other state organs functions in cooperation so that the independence of
the judiciary can be achieved practically. The independence of the judiciary
has also to be guarded against the changing economic, political and social
scenario. Whenever there is a talk regarding the independence of the judiciary,
there is also a talk of the restrictions that must be imposed on the judiciary
as an institution and on the individual judges that forms a part of the
judiciary. In order to ensure smooth functioning of the system there must be a
right blend of the two.
JUDICIAL INDEPENDENCE—MEANING
The meaning of the independence of the
judiciary is still not clear after years of its existence. Our Constitution by
the way of the provisions just talks of the independence of the judiciary but
it is no where defined what actually is the Independence of the judiciary. The
primary talk on the independence of the judiciary is based on the doctrine of separation
of powers which holds its Existence from several years. The doctrine of separation
of powers talks of the independence of the judiciary as an institution from the
executive and the legislature.
The principle of independence of the
judiciary has been laid down in various human rights instruments, including the
Universal Declaration of Human Rights The other meaning of the judicial
independence can be found out by looking at the writings of the scholars who
have researched on the topic. Scholars have followed the “constituent
mechanism” (i.e. what constitutes the judiciary) to define the independence of
the judiciary. Scholars try to define judiciary by talking about the independence
of the judges which constitutes judiciary. Therefore the independence of the
judiciary is the independence of the exercise of the functions by the judges in
an unbiased manner i.e. free from any external factor. So the independence of
the judiciary can be understood as the independence of the institution of the
judiciary and also the independence of the judges which forms a part of the
judiciary.
Simply stated
independence of judiciary means that
·
The
other organs of the government like the executive and legislature must not
restrain the functioning of the judiciary in such a way that it is unable to do
justice.
·
The
other organs of the government should not interfere with the decision of the
judiciary.
· Judges must be
able to perform their functions without fear or favour. Independence of the
judiciary does not imply arbitrariness or absence of accountability. Judiciary
is a part of the democratic political structure of the country. It is therefore
accountable to the Constitution, to the democratic traditions and to the people
of the country.
Judicial
Independence and the Constitution-Making
The Superior
Courts like the other branches of the government belong to the Indian people;
they are the repository of the confidence of the Indian people.
"An
independent judiciary need not be a mysterious area of government or appear to
be an occult priesthood or remain a remote, austere marble temple
housing...seldom seen jurists who periodically issue pronouncements on the law
of the land ".
In the backdrop
of this, Sardar Vallabhbai Patel while explaining the manner of appointing the
superior judges a multo fortiori stated "the judiciary should be above
suspicion and should be above party influence ". So that none may have the
complaint to say that "higher
courts are right because they are superior, not superior because they are right
".The subject of the independence of the judiciary was close to the
minds of the members of the Constituent Assembly inasmuch as the issues of the
powers of the superior courts and the judicial review. They further believed
that the independence of the superior courts was essential in free India with a
federal Constitution and it should not be endangered. In answer to a question
concerning the independence of the superior courts, they expressed that the judiciary
must be above reproach, free from coercion external as well as internal, and
free from political influences "if the beacon of the judiciary was to
remain bright.
"The
framers of the Constitution made it known in an emphatic voice that separation of
judiciary from Executive, which is the life line of 'independent judiciary
[18], is a basic feature of the Constitution.
Dr. B.R.
Ambedkar in his speech in the Constituent Assembly on June 7, 1949 observed as
under: "I do not think there is any
dispute that there should be separation between the executive and the judiciary
and in fact all the articles relating to the High Court as well as the Supreme
Court have prominently kept that object in mind."
The need for
independence of the judiciary under any system of Constitutional Government can
best he explained in the words of JUSTICE FRANKFURTER in Cooper v. Aaron "The most prized liberties themselves presuppose an independent
judiciary through which these liberties may he, as they often have been, vindicated.
When in a real controversy such as is now here, an appeal is made to law, the
issue must be loll to the judgment of courts and not the personal judgment of
one of the parties. This principle is a postulate of our democracy”
In India, even
though appointed by the Government, Judges of the Supreme Court or of the High
Courts are not 'government servants' in the ordinary signification of that
expression because the following features distinguish these Judges from other
government servants:
i)
Government has no power to direct what work or the manner in which a Judge
shall discharge his judicial duties
ii) Their tenure
of service, salary and other conditions of service are guaranteed by the
Constitution
COMPONENTS
The components of the independence of
the judiciary as talked of here refers to some of the requisite terms and
conditions which are so necessary that if they are absent, the independence of
the judiciary also cannot exist. It is very difficult to lay down certain set
conditions as law is dynamic in itself and of the changing economic, political
and social scenario. Despite that, Indian Constitution has provided for components,
which can be said to be responsible for judicial independence
Constitutional provisions –
Many provisions are provided in our
Constitution to ensure the independence of the judiciary, which are discussed
below:
Security of Tenure:
The judges of the Supreme Court and
High Courts have been given the security of the tenure. Once appointed, they
continue to remain in office till they reach the age of retirement which is 65
years in the case of Judges of Supreme Court and 62 years in the case of judges
of the High Courts. They cannot be removed from the office except by an order
of the President and that too on the ground of proven misbehavior and
incapacity. A Resolution has also to be accepted to that effect by a majority
of total membership of each House of Parliament and also by a majority of no
less than two third of the members of the house present and voting. Procedure
is so Complicated that there has been no case of the removal of a Judge of
Supreme Court or High Court under this provision.
Salaries and Allowances:
The salaries and allowances of the
judges is also a factor which makes the judges independent as their salaries
and allowances are fixed and are not subject to a vote of the legislature. They
are charged on the Consolidated Fund of India in case of Supreme Court judges
and the Consolidated Fund of state in the case of High Court judges. Their emoluments
cannot be altered to their disadvantage except in the event of grave financial
emergency.
Powers and Jurisdiction of Supreme
Court: Parliament can only add to the
Powers and jurisdiction of the Supreme
Court but cannot curtail them. In the civil cases, Parliament may change the
pecuniary limit for the appeals to the Supreme Court. Parliament may enhance
the appellate jurisdiction of the Supreme Court. It may confer the
supplementary powers on the Supreme Court to enable it work more effectively. It
may confer power to issue directions, orders or writs for any purpose other
than those mentioned in Art. 32. Powers of the Supreme Court cannot be taken
away. Making judiciary Independent
No discussion on conduct of Judge in
State Legislature / Parliament:
Art. 211 provides that there shall be no discussion in the
legislature of the state
With respect to the conduct of any
judge of Supreme Court or of a High Court In the discharge of his duties. A
similar provision is made in Art. 121 which lays down that no discussion shall
take place in Parliament with respect to the Conduct of the judge of Supreme
Court or High Court in the discharge of his duties except upon a motion for
presenting an address to the President praying for the removal of the judge.
Power to punish for contempt: Both the Supreme Court and the High Court have the power to
punish any person for their contempt. Art. 129 provide that the Supreme Court
shall have the power to punish for contempt of itself. Likewise,Art. 215 lays
down that every High Court shall have the power to punish for contempt of
itself.
Separation of the Judiciary from the
Executive: Art. 50 contains one of the Directive
Principles of State Policy and lays down that the state shall take steps to
separate the judiciary from the executive in the public services of the state.
The object behind the Directive Principle is to secure the independence of the judiciary
from the executive. Art. 50 says that there shall be a separate judicial
service free from executive control. The independence of the judiciary as is
clear from the above discussion hold a prominent position as far as the
institution of judiciary is concerned. It is clear from the historical overview
that judicial independence has faced many obstacles in the past specifically in
relation to the appointment and the transfer of judges. Courts have always
tried to uphold the independence of judiciary and have always said that the independence
of the judiciary is a basic feature of the Constitution. Courts have said so because
the independence of judiciary is the pre-requisite for the smooth functioning
of the Constitution and for a realization of a democratic society based on the
rule of law.
Transfer of Judges
The question of transfer of a judge
from one High Court to another has raised Controversies from time to time. During
the emergency of 1975, sixteen High Court judges were transferred from one High
court to another. In the words of Bhagwati J., in S.P. Gupta v Union of
India13, “What was held by the courts was that the transfers of the High
Court Judges during the emergency were made not for the purpose of furthering
the cause of national integration but by way of punishment.” As the phraseology
of Art. 222(1) stands, neither the consent of the Judge is necessary to his transfer
nor is the opinion of the Chief Justice binding on the Government.
In
the case of S P Gupta v Union of India (Judges Transfer Case 1)
Unanimously agreed with the meaning of the word
'consultation' as determined in the Union of India vSankalchand Himatlal Sheth
it further held that the only ground on which the decision of the government
can be challenged is that it is based on mollified and irrelevant
considerations. In doing so, it substantially reduced its own power in
appointing the judges and gave control to the executive.
this matter was raised again in the
case of SC Advocates on Record Association v Union of India (Judges Transfer Case 2).
In this case, the SC overruled the decision given in S.P.Gupta v Union of
India17 and held that in the matter of appointment of judges of High Courts
and Supreme Court, the Chief Justice should have the primacy and the
appointment of the CJ should be based on seniority. It further held that the
Chief Justice must consult his two senior most judges and the recommendation
must be made only if there is a consensus among them.
In re Presidential Reference (Judges Transfer Case 3): A
controversy arose again when the CJ recommended the names for appointment
without consulting with other judges in 1999. The president sought advice from
the SC (re Presidential Reference) and a 9 member bench held that an
advice given by the CJ without proper consultation with other judges is not
binding on the govt. As of now, due to the decision in Judges Transfer Case 2,
the appointment of the judges in SC and High Courts are fairly free from
executive control. This is an important factor that ensure the independence of
the judiciary .The following are other provisions that work towards the same
goal :The decision of the Judges Case was could never have been intended
by the framers of the Constitution as they always set the task of keeping
judiciary free from executive and making it self-competent. The decision of the
Second Judges Case and the Third Judges Case is a praiseworthy
step by the court in this regard.
Collegium System: Meaning: It is a system under which appointments and transfers of
judges are decided by a forum of the Chief Justice of India and the four senior
most judges of the Supreme Court. It has no place in the Indian Constitution.
This system has its genesis in a series of three judgments, that is now clubbed
as “three Judges cases” on
appointment of judges as have been discussed in this lesson. The new bill is an
attempt to scrap this collegium system of appointment of judges, and proposes a
new mechanism under National Judicial Appointment Commission (NJAC) thereby
ensuring the independence of judiciary. The Collegium system is one where the
Chief Justice of India and a forum of four Senior- most Judges of the Supreme
Court recommend appointments and transfer of judges. However, it has no place
in the Indian Constitution.
The system was evolved through Supreme Court judgments in the – Three judges
cases (October 28, 1988).
ART 124 OF THE CONSTITUTION SAYS: “Every Judge of the Supreme Court shall be appointed by the
President by warrant under his hand and seal after consultation with such of
the judges of the Supreme Court and of the high court in the state as President
may deem necessary for the purpose and shall hold office until he attains the
age of 65 years.
Provided
that in the case of appointment of a judge other than the chief justice, the
Chief Justice of India shall always be consulted.
ARTICLE 217 SAYS: “Every
judge of high court shall be appointed by the President by warrant under his
hand and seal after consultation with the chief Justice of India, the Governor
of the state, and, in the case of appointment of a judge other than the Chief
Justice, the Chief Justice of the high court……”
This
is according to the Constitution; the executive is empowered to appoint judges
in consultation with the judiciary
Most Recent Developments
The Supreme
Court rejected the National Judicial Appointments Commission (NJAC) Act and the
99th Constitutional Amendment which sought to give politicians and civil
society a final say in the appointment of judges to the highest courts. Here is
what you need to know about the row:
What is the NJAC?
The National Judicial Appointments Commission (NJAC) is a
constitutional body proposed to replace the present Collegium system of
appointing judges.
What is the Collegium system?
The Collegium system is one where the Chief Justice of
India and a forum of four senior-most judges of the Supreme Court recommend
appointments and transfers of judges. However, it has no place in the Indian
Constitution.The system was evolved through Supreme Court judgments in the Three Judges
Cases (October 28, 1998).
Why is Collegium system being criticised?
The Central
government has criticised it saying it has created an
imperium in imperio (empire within an empire) within the Supreme Court. The
Supreme Court Bar Association has blamed it for creating a “give-and-take” culture, creating a rift between the haves and
have-nots. While politicians
and actors get instant relief from courts, the common man struggles for years
for justice.”
How and when was the NJAC established?
The NJAC was established by amending the Constitution
[Constitution (Ninety-Ninth Amendment) Act, 2014] passed by the Lok Sabha on
August 13, 2014 and by the Rajya Sabha on August 14 2014. Alongside, the
Parliament also passed the National Judicial Appointments Commission Act, 2014,
to regulate the NJAC’s functions. Both Bills were ratified by 16 of the State
legislatures and the President gave his assent on December 31, 2014. The NJAC
Act and the Constitutional Amendment Act came into force from April 13, 2015.
Who will be in the NJAC?
It will consist of six people — the Chief Justice of
India, the two most senior judges of the Supreme Court, the Law Minister, and
two ‘eminent persons’. These eminent persons are to be nominated for a
three-year term by a committee consisting of the Chief Justice, the Prime
Minister, and the Leader of the Opposition in the Lok Sabha, and are not
eligible for re-nomination.
If politicians are involved, what about judicial
independence?
The judiciary representatives in the NJAC -- the Chief
Justice and two senior-most judges can veto any name
proposed for appointment to a judicial post if they do
not approve of it. Once a proposal is vetoed, it cannot be revived. At the same
time, the judges require the support of other members of the commission to get
a name through.
Judicial Accountability
Judicial
independence and judicial accountability are complementary to each other with
great power comes great responsibility and accountability.
Judicial
Corruption: Former
Chief Justice of India J.S.P. Bharucha himself has stated and estimated that
about 20 percent of the judges could be corrupt. J. K.G. Balakrishnan doubted
whether such high percentage of corruption existed, but he admitted that there
is corruption and particularly the judges of the superior courts are corrupt
The CBI’s arrest of the ex-judge of Orissa High Court in connection with the
alleged role of an Allahabad High Court judge in granting permission to private
medical college to admit students despite a firm Supreme Court ban. On receipt
of complaints from UP Advocate General Raghvendra Singh and one Dr. Abhay
Krishna about the alleged impropriety of orders passed by a bench headed by J.
Shri Narayan Shukla, Chief Justice of India had sought responses of the High
Court judges concerned and the High Court Chief Justice Chief Justice of India
set up a three-judge inquiry committee to find out the facts, the panel comprises
Madras High Court’s Chief Justice Indira Banerjee, Sikkim High Court’s Chief
Justice S.K. Agnihotri and Madhya Pradesh High Courts’ Chief Justice P.K.
Jaiswal. This in house inquiry panel found substance in the allegations.
Politicisation
of Judiciary: It
is true that every judge pursues a definite political philosophy as an
individual as he is also belongs to the same society. Some judges even follow
the agenda of a particular political party. The first instance was when the
sitting Chief Justice of India K. Subba Rao become the oppositions,
presidential candidate against Dr. Jakir Hussain in May 1967.
Further retired
judges were offered membership
To the
Parliament, chairmanship of different commissions etc. In hope of getting such
post-retirement benefits they would be bound to tilt towards government.
Re-employment of
Retired Judges of Supreme Court in Various Executive Positions: This is a danger
to independence of judiciary, many a time they are appointed to pure and simple
executive posts like Governer of States like Fatima Beevi and P.
Sathasivam.
Delay in
commencement and conclusion of criminal trial: L.N. Mishra
murder case of 1975. Sessions Court awarded life imprisonment to four convicts
after 40 years, now the age of convicts is 73 years, 66 years, 75 years and 79
years, what is the justification of this conviction
In another case,
which has reached the apex court in 2009, a women had lodged a complaint
against her brothers for grabbing her shop. The Supreme Court said ‘sorry’ for
the 13 years delay in commencement of criminal trial due to two conflicting
orders passed by a High Court Judge in a single day in two different but
related cases, as one of the order restricted further probe in the case while
in the other, it allowed the investigation to go on. The women litigant in this
case Shyam Lata has passed away.
Politics in
appointment of judges and appointment of junior judges as Chief Justice of
India by to-passing the senior most judge: Generally, the senior most judge
of the Supreme Court was to be appointed as the Chief Justice of the said
court. Till 1973, this convention was followed. But this practice was
criticized on grounds of experience, merit and competence so these factors
should be taken care of and not the seniority. But this convention was broken
first time in 1973 when J. R.N. Ray was appointed the Chief Justice of India
superseding three senior colleagues namely J. K.S. Hagde, J. M. Shelat and J.
A.N. Grover. The reason was that J. A.N. Ray had sided with the government in
Kesavananda Bharti case. But reason given by the government that President has
followed his discretionary power. In 1976, the appointment of J. M.H. Beg as
Chief Justice of India bypassing J. H.R. Khanna who was senior to him because
J. Khanna alone dissented in A.D.M. Jabalpur case known as the habeas corpus
case thereby saving many people from the misrule during the Emergency. What he
said was that Article 21 is not something which is given to us by our
Constitution but it existed even before
that and so it cannot be taken away in the Emergency.
Appointment of
Additional/Ad-hoc Judges: Article 224(1) of the Constitution of India provides
for the appointment of the Additional Judges for a period not exceeding two
years to share the workloads. If there is a post of permanent judge then
additional judges need not be appointed. After two years the additional judges
are appointed as permanent judges, 1/3rd of the judges of the High Courts in
India are additional judges.
Pendency of
Cases: It
is a common saying that Indian courts move so slowly that the grandson ends up
fighting the court case that his grandfather files. Over 3.15 crore cases
pending across India (2015 figures) this suggests over 3 crore plaintiffs or
petitioners, defendants could number around 9 crore assuming each legal case
involves 3-5 defendants. That's 12 crore litigants. Assume each litigant has 3
family members, this makes 36 crore Indian citizens are directly or indirectly
involved in litigation at any point of time. It means today every fourth person
in our society is a litigant (directly or indirectly) and in another 20 years
on so this number could swell to every second person, so we are creating a
nation of litigants.
We have about
16,000 judges to deal with 66,000 pending cases in the apex court, 45 lack
cases in the 24 High Courts and 2.7 Crore cases across the district and
subordiante courts Large pendency of cases in Indian courts and
non-implementation of judicial reforms have been cited by the World Bank as one
of the key reasons for India's low rank on the Bank's Index of "Ease of Doing Business".
8. Collegium
system and its implementation: The collegium system came in to being
from a Supreme Court Judgment of 1993 and in 1998. Our judiciary is
independent. The procedure of appointment under this collegium system is a
secret. According to an assessment 80-90% of vacancies in High Courts and
Supreme Court are filled from the judge’s families.
Delay in
appointment of Judges: A definite timeframe, both for Judiciary to
recommend names for appointment as judges and the Executive to effect the
appointments, to "keep the hope and
aspirations of litigants for speedy justice alive".
A supreme court
bench of Justice A.K. Sikri and J. Ashok Bhusan said, "It is seen that
once the names are forwarded, they remain pending at the executive level for an
unduly long time, before they are sent with executive's inputs to the collegium
of the Supreme Court for approval. Even after clearance of the names by the
collegium, these remain pending at the level of the executives. Sometimes, it
takes more than one year to complete the process from the date of forwarding
the names till appointment".
In 1993, the
Supreme Court had "categorically
stated that the process of appointment must be initiated at least one month
before the date of anticipated vacancy".
The
confrontation between the Government and the Supreme Court collegium over finalization
of the Memorandum of Procedure (MoP) for appointment of Judges after setting
aside the NJAC. Supreme Court's time frame for appointment in lower judiciary
not being followed:
10. Recruitment of
Civil Judges: A
two tier process should take -153 days. A three-tier examination process should
take 273 days. On an average, over the last 10 years, one recruitment cycle for
Civil Judges (Jr.) takes 326-27 days (Three tier process). J&K takes 742
days, Uttarakhand - 454 days, Assam - 447 days, Delhi - 798 days, Kerala- 459
days, Himachal Pradesh - 178 days, Gujarat - 158 days, Karnataka - 270 days,
Odisha- 265 days, Andhra Pradesh - 256 days.
Recruitment of
District Judges: Supreme
Court says a two tier recruitment for District Judges should take 153 days and
the average to complete the cycle in actual 196. 28 days, for three tier
process it should take around 273 days and it take actually 335.9 days.
Under two-tier
process: Kerala-
456 days, Andhra Pradesh - 192 days, Odisha- 160 days, Himachal Pradesh- 155
days, Tripura -144 days, Tamil Nadu- 96 days.
Under three-tier
process: Uttar
Prasesh- 349 days, Punjab- 324 days, Mizoram- 317 days, Nagaland- 267 days,
Karnataka- 233 days.
Judicial
Discipline, Judicial properiety and Judicial Transparency:
a) A three judge
bench on February 8, 2018 which had held that compensation not availed within a
stipulated time of five year period would not be a ground for canullation of
land acquisition while a three -judge bench in 2014 had held that non payment
of compensation would be a ground to cancel the land acquisition. A three-judge
bench on Feb. 8, 2018 held that the 2014 judgment was per incuriam. On Feb. 13,
2018 a three judge bench headed by J. Madan B. Lokur referred to the Feb. 8
judgment and observed that if 'judicial discipline' and propriety were not
maintained, the institution will 'go forever'.
b)
Supreme Court had so many times
criticized media trial but press conference by four senior most judges of
Supreme Court is a serious matter. The best way to solve the problem was
either Chief Justice of India had announced his resignation, on moral grounds
as his four brother judges have lost confidence in him or contempt proceedings
must be initiated against there four judges as contempt punishment was awarded
to justice Karnan. Likewise if four judges wanted to come to the press should
resign first.
c)
A controversial collegium: the unfortunate transfer of Justice Jayant
Patel, just as he was on the verge of taking over as the Chief Justice of the
Karnataka High Court. The local bar association demanded 'reasons' for this
arbitrary transfer. As a famous U.S. Judge once noted, "The political
branches of Government claim legitimacy by election, Judges by reason".
d) A Delhi High
Court Judge publicly pronounced at a conference that judges need not give
'reasons' for issuing Intellectual Property (IP) injunctions, since they know
best and decide with "conviction"
e)
A former judge of the Rajasthan High Court had gone on record with his strong
"conviction" that peacocks propagate their progeny not through sex,
but through tears.
f) Legal
legibility: the quality of "judgment", i.e., how well the judge
writes and reason out its decision, legal clarity or legibility". Access
to law means nothing if it takes specialized legal genius to determine the
essence of a ruling For example the Ayodhya verdict ran into more than 1,000
pages, Justice Ruma Pal, a former judge of Supreme Court, once laminated: "Many judgments are infact mere
compendia or digest of decisions on a particular issue with very little
original reasoning in support of the conclusion"
Judiciary and
Economic Development: This year's "Economic Survey" which gives
detail of previous year performance. This year's "Economic Survey"
provided details of effects judiciary over economic development. The stay
pronounced by different courts on different projects hold the Rs. 52,000 crore
value projects. Approximately Rs. 7.5 lac crore amounts is hold up in the court
due to pendency of cases; which is 4.7 percent of GDP.
A close look into the present day Indian Judiciary
POSSIBLE SOLUTIONS:
·
Strengthening
the Alternate Dispute Resolution System:
The current system of arbitration, conciliation etc has many flaws in them. If
a strong system of ADRS with limited interference from the court is developed,
then the burden on the courts will definitely be decrease to a large extend.
·
Strong Lokpal
Bill: A strong system of Ombudsman (the equivalent of
Lokpal) has contributed a lot in making New Zealand one of the countries having
the lowest perceived levels of corruption (as per the Corruption perception
Index, 2012). Many experts believe a strong Lokpal bill can do what the system
of Ombudsman has done for New Zealand. This will free up a lot of cases pending
before the conventional courts.
·
Appointment
of sufficient staffs: No work can be carried out properly if there is a
shortage of man power. Appoint sufficient judges. PERIOD! Passing of the Indian
Judiciary Service Bill would be a good start in an effort to sort out this
problem.
·
Simplification
of procedures: Efforts should be takes to ensure the
complex procedures followed are simplified to the maximum extent possible. This
would not only help in saving time but also ensure speedy disposal of cases.
It is safe to conclude that a little
effort on part of our Government can do wonders in rectifying some of the
problems faced by our Judiciary today. The judiciary
is the watchdog, the upholder of justice. It is the ultimate symbol of
righteousness. If people lose faith in the judicial system, then what
follows will be nothing short of chaos and complete disorder.
Conclusion
In a democratic
polity wedded to rule of law and independent judiciary is sine qua non. In a democratic state governed
by a written constitution, the task of interpreting the constitution and being
the sole arbiter in constitutional disputes is assigned to the judiciary and it
is here that it is required to be totally free of any direct or convert
influence by the legislative or the executive. It is in the role that the
judiciary has to enjoy complete freedom. The principle of complete independence
of the judiciary from the executive is the foundation of many things in our
island life.The Judge has not only to do justice between man and man. He also and
this is one of the most important functions considered incomprehensible in some
large parts of the world-has to do justice between the citizens and the state.
Whenever there is a mention of the
independence of the judiciary, there is always a concern about the latent
dangers of the judicial independence and there arises the importance of
“Judicial Accountability”. The recent development in this regard is the recommendation
of the Law Commission for the inclusion of a whistleblower provision, aimed at
protecting those making complaints against judges, in a draft bill dealing with
the removal of judges of the Supreme Court and High Courts. Introduction of
such a bill by the Law Commission is a major step in the direction of making
changes to the rigid procedure in our Constitution for the removing of the judges
of the Supreme Court and the High Courts.
The final outcome of the above
discussion is that the importance of the independence of the judiciary was long
ago realized by the framers of the Constitution which has been accepted by the
courts by marking it as the basic feature of the Constitution.
It is well known law has to change so as to meet to the needs of the changing
society. Similarly judicial independence has to be seen with the changing dimension
of the society. Judicial Accountability and Judicial Independence have to work
hand in hand to ensure the real purpose of setting up of the institution of judiciary.
References
· Shiva Rao,
Framing of Indias constitution A study, Wadhwa & co.p.288, New Delhi, 1968
· MHRD
· Shodhganga
· The hindu
· International
law journal
·
INTERNATIONAL JOURNAL OF LEGAL DEVELOPMENTS AND
ALLIED ISSUES.
·
S.P.Gupta v. U.O.I. 1981 Suppl.87
· The Government
of Canada by R. Mac-Gregor Da'xson revised by Norman Ward. University of
Toronto Press.
·
1964
p. 345 cited by M.C. Setalvad “An Independent Judiciary and A Democratic State”p
2
·
Union of India v. Sankalchand Himatlal
Sheth, AIR 1977 SC 2328
·
CIJL Bulletin 8 (1981)
·
Stephen G. Breyer, Judicial Independence in
the United States, 40 ST. LOUIS U. L.J. 989, 989 (1996).
·
Supreme Court Advocates-on-Record Association v.
Union of India,
AIR 1 994 SC 268, L. Chandra Kumar v. Union of India, AIR 1 997 SC 1 1 25 Commentary to Canon 3B, ABA, Model Code of
Judicial Conduct (1990)
·
Administrative
Law, I P Massey, Eastern Book Company, edn. 6, 2005, p.34
·
Vide
Chief Justice U.S. Supreme Court Justice Warren E. Burger as quoted in Frank M.
Coffin, View from the Bench, 1987, p. 27
·
Frank
M. Coffio, op cit
·
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Granville Austin, The Indian Constitution: The Cornerstone of a Nation, 1966.
Pp. 164.65
·
S. P. Gupta v. President of India, AIR 1982 SC 149.
·
Cooper v. Aaron, (1958) 357 US 1
·
C
f. DENNING, The ROAD TO JUSTICE,1955, p. 11. Cited by Dr. D.D.Basu in Comnetary
on Constitution vol V pp
Collection by Miss Sonam Vishnoi,
Asstt Professor
GLOBAL COLLEGE OF LAW
Naaglok, Vill Kushaliya PO: Dasna, Distt Ghaziabad
