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 about the human activity are more like the rule of a game rather than the formulae of science. In life, the important factor is politics and the political system which is governed by the country’s constitution. It, too, has its 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 set up 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 the judiciary is one of the most important features of federalism polity, to interpret the constitution of India and to maintain its sanctity. In our country, there is an independent, integrated judicial system in which the Supreme Court is the apex court (the court of the first instance), then High courts in the middle of the hierarchy of triangular pyramid, and Subordinate courts at the bottom of the pyramid with a wide base. Supreme Court is the final interpreter of the constitution. Supreme Court of India has the original jurisdiction to settles the dispute between the union and the states. It can declare a law unconstitutional if it contravenes or abrogates any of the provisions contained in the constitution of India.
What is known as the Independence of Judiciary is a modern development from the days of summary trials of arbitrary rulers till today covetable woolsacks of Judges and the black gowns of an Advocate is a long journey.
Today, the judiciary is a name given to a collection of Judges in a state. And what is known as independence is primarily due to the security of tenure and the fixed emoluments enjoyed by the judges. Regarding the constitutional provision of India, Article 50 of the Indian constitution safeguards independence 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 set constitutional provisions that govern the appointment of judges to the High Court’s and the Supreme Court as well as their removal. In America the appointment of Judges in the Supreme Court is subject to the approval of the senate; the removal of the judges also is according to well-defined procedures all for the sake of protecting the tenure of the judges.
The aim of this independence of the judiciary, in the ultimate analysis, is to ensure the supremacy of the Law of the Land. Law, as generally agreed, is a product of collective wisdom. In other words, the ultimate objective of the independence of the Judiciary is to make the juristic sense of a people prevail over that of an individual or a group of individuals.
Even though elaborate precautions are taken to ensure the independence of the judiciary with the object of defeating the arbitrariness of man, in any form, there have been certain loopholes in guaranteeing the independence of the judiciary. To maintain the independence of the judiciary man of juristic eminence is chosen as judges certain checks are provided. In practice, it is seen that these checks could be got around. 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 do we come across a 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 trial in a country like India. What this example shows is the fact that the selection of judges depends upon the political maturity of a people. Only in exceptional countries, where the 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.
Although what is known as proper selection and guaranteeing the security of tenure is as good as established in democratic countries, certain shortcomings still hamper the purpose of the independence of the judiciary. One of them is the very nature of law. It is normal in any country that laws always lag behind the ever-changing social morality. The majority of people in India would not care if the property right is removed from the Constitution of India. But till the time law is in force right to property enjoys a considerable amount of sanctity. And when the judges give 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 the judiciary. After all, what is known as the social morality of the day should strike roots, and then alone the law of the land could be changed. The experience of India shows that some changes have been introduced 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 democratic countries, the higher judiciary is often by implication, endowed with a certain amount of discretion. It is known as reasonableness and due process in America and as equity or fair sense in Britain. 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 Nationalization 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 Britain, long back, that what was known as ‘equity varied with the length of the Chancellor’s foot’ this power, however, need not be misused. In India, judges have often taken cognizance of the spirit of Directive Principles of State Policy. If we take into account the crucial three judgments (judgments preceding the Golaknath case) on the property right, the majority of the judges favour 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 the Judiciary is a simple fact that the judge is also a human, he too can err. Some precautions have been 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 indefectible judiciary.
The next complaint 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 the judiciary without getting caught in some of those Parkinson’s laws. Also, we should simplify the procedure governing the 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 the judiciary. All told, what is known as independence of the Judiciary is a fairly well-established practice in modern democracies.
References
- www.legalserviceeindia.com
- http://blog.ipleaders.in
- http://mckinnerylaw.iu.edu
- http://ijlmh.com
- http://www.jstor.org
- http://papers.ssrn.com
This article is authored by Tannu Gupta, Student at Galgotias University
