INDEPENDENCE OF JUDICIARY
INDEPENDENCE OF JUDICIARY
The phenomenon of rules and regulations is universal. Everything in life ranging from love to war is governed by its own set of rules and regulations. The theory and the rules of war we call international law. Yet in affairs involving human beings, no rules can be formulated as precisely as a chemical formula. The margin of indefiniteness is more than considerable; and the rules pertaining to human activity are more like rule of game rather than the formulae of science. In life one important factor is politics and political system which is governed by country’s constitution. It , too, has it own set of rules and regulations and as it involves the human factor , it is also a game.
We all are aware of the fact that in every federal setup there are two tiers of governmental sets with well assigned powers and functions. In this type of federation, the union and the state governments act within a well-defined sphere and boundaries, co-ordinate and at the same time act independently. This type of federal polity, in other words, ensures a constitutional mechanism for bringing unity in diversity and for the achievement of common national objectives and goals. Out of these, independence of judiciary is one of the most important features of federalism polity, to interpret the constitution of India and to maintain it sanctity. In our country, there is independent, integrated judicial system in which Supreme Court is the apex court(the court of first instance), then High courts in the middle of the hierarchy of triangular pyramid, and subordinate courts at the bottom of pyramid with wide base. Supreme Court is the final interpreter of constitution. Supreme Court of India has the original jurisdiction to settle dispute between the union and the states. It can declare a law as unconstitutional, it contravene or abrogate any of the provisions contained in the constitution of India.
What is known as Independence of Judiciary is a modern development. From the days of summary trials of arbitrary rulers till todays covetable wool sacs of Judges and the black gowns of an Advocates is a long journey.
Today, judiciary is a name given to a collection of Judges in a state. And what is known as independence is primarily in reference to the security of tenure and the fixed emoluments enjoyed by the judges. With the reference of constitutional provision of India, Article 50 of Indian constitution clearly safeguards the Independence of Judiciary by separating them from other organs of the state which is from executive and legislative, which is important for maintaining the principle of Natural Justice for ensuring a rule of law. It is normal in all democratic countries to make the appointment or removal of judges beyond the reach of the arbitrariness of the executive. In a country like India, there are constitutional provisions governing the appointment of judges to the high courts and the Supreme Court as well as their removal. In America the appointments of Judges in the Supreme court is subject to the approval of the senate; removal of the judges too, is according to well-defined procedures-all for the sake of protecting the tenure of the judges.
The aim of this independence of judiciary, in the ultimate analysis, is to ensure the supremacy of the law of a land. Law, as generally agreed, is a product of collective wisdom. In other words,
the ultimate objective of the independence of Judiciary is to make the juristic sense of a people prevail over that of an individual or a group of individuals.
Despite the fact that elaborate precautions are taken to ensure the independence of judiciary with the object of defeating the arbitrariness of man, in any form, there have been certain loopholes in guaranteeing the independence of judiciary. In order that man of juristic eminence is chosen as judges certain checks are provided. Practice shows that these checks could be got round. It is often said that the Supreme Court of the U.S. declared the New Deal legislation of F.D.R. Roosevelt legal only after the bench happened to be filled with judges selected by him. Probably,
F.D.R Roosevelt cleverly chose his protégés to sit on the bench of the Supreme Court. Very rarely we come across the practice like that of Switzerland where judges are elected by the legislature. The Swiss legislator shows exemplary wisdom in selecting the men of juristic eminence to serve as Supreme Court Judges. We cannot even think of such a practice being given a trail in a country like India. What this example is shows is the fact that selection of judges depends upon the political maturity of a people. Only in exceptional countries, where political majority is of doubtful validity that precautions are needed to ensure proper selection.
After ensuring the proper selection of judges, the next problem is how to guarantee the security of tenure. Except in a country like Britain, where judges hold the office during the pleasure of the crown, it is normal to lay down specific rules in Black and white guaranteeing their tenure. Executive arbitrariness and legislative imprudence, however, are rarely heard of in democracies.
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Although what are known as proper selection and guaranteeing the security of tenure are as good as established in democratic countries, there are certain shortcomings which impaired the purport of the independence of judiciary. One of amongst them is very nature of law. It is normal in any country that laws always lag behind the ever-changing social morality. It goes without saying that the majority of people in India would not care if the Right to property is removed from the constitution of India. But the law being what is right to property enjoys considerable amount of sanctity. And when judge’s gives judgments based on certain sanctities, they could go against the will of people. Perhaps, this is what was in the mind of Justice Hidayatullah when he said, “the constitution framers committed a mistake in including the right to property in the constitution of India.” It is true, therefore to say that justice is believed by the people at the particular point of time might not be sound for all time to come. We cannot, however, with sincerity say that this
inevitably sabotages the independence of judiciary. After all what is known as the social morality of the day should strike roots, and then alone the law of land could be changed. In fact, the experience of India shows that some changes have been introduce at last to impose more heavy penalties on social crimes unlike what they were in the past. Law is not immutable; it does change.
Another limitation that crosses our mind is the propriety with which judges use their discretion. In most of the democratic countries, the higher judiciary is often by the implication, endowed with certain amount of discretion. It is known as ‘reasonableness’ and ‘due process’ in America and as ‘equity’ or ‘fair sense’ in the U.k. In India, there is no one term or word which has come to be accepted as descriptive of this power of judges. But something of this kind is present as known from the super-subtle tics in the judgment of the Supreme Court on the Bank Nationalizations Ordinance and the order of the President de-recognizing the privy purses. This implied power of the judges could be misused. It was said in England, long back, that what was known as conscience varied with a foot of chancellor this power, however, need not be misused. In India, judges have often take cognizance of the spirit of Directive Principles Of State Policy. If we take into the account the crucial three judgments (judgments preceding the Golaknath case) on the right to property , the majority of the judges favor the spirit of Directive Principles Of State Policy rather than the strict letter of the law as contained in the chapter of Fundamental rights.
The last limitation on the Independence of Judiciary is the simple fact that judges are also human, they too, can err. Some precaution is taken here to rectify some of the errors in the judgment in criminal matters. It is normal to provide the head of the state with the power to reprieve, respite, pardon and remission the criminals. Something is always better than nothing. It is too idealistic to expect an all-perfect judiciary.
The next complain is that the institutionalized judiciary tends to delay justice which is tantamount to denying justice. This is not a difficult problem to overcome. We have to increase
the number of judges in judiciary without getting caught in some of those Parkinson’s laws. Also we should simplify the procedure governing pursuit of legal matters. Both are possible remedies and, therefore this limitation cannot be regarded as a dangerous threat to the spirit of the
independence of judiciary. All told, what is known as independence o Judiciary is a fairly well established practice in modern democracies.
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