By Aayushi from Invertis Institute of Law, Invertis University, Bareilly
Independence of the Judiciary
The Constitution of India, unlike that of USA, does not follow the doctrine of Separation of Powers, but it has been reiterated in many cases that the independence of the judiciary is a basic part of the constitution. For the judiciary to be independent and impartial to serve the constitutional goals, the Judges need to act fairly, reasonably, free of any fear and favor. The judiciary stands between the citizen and the State as a rampart against misuse or abuse of power by the executive. Therefore, it is absolutely essential for the judiciary to be free from executive pressure or influence that has been provided in various provisions of the Constitution.
Independence is not limited only from executive pressure or influence, but also from any other pressure and prejudices. It has many dimensions, fearlessness of other power centres, economic or political. Impartiality, independence, fairness and reasonableness in decision-making are the hallmarks of the judiciary. If “impartiality” is the soul of the judiciary, “independence” is its lifeblood. Without independence, impartiality cannot thrive. It is the independence of judicial thought. It is the freedom from interference and pressures which provides the judicial atmosphere where a judge can work with absolute commitment to the cause of justice and constitutional values. Its existence depends, however, not only on philosophical, ethical or moral aspects but also upon several mundane things namely security in tenure, freedom from ordinary monetary worries, freedom from influences and pressures within (from others in the judiciary) and without (from the executive). Independence of the judiciary is a part of its basic structure. The constitutional ethos of an independent judiciary cannot be permitted to be diluted by acts of implied intervention or undue interference by the executive in the impartial administration of justice, directly or indirectly.
Diminishing respect of rule of law.
Rule of law which has been cherished as one of the basic tenets of the Constitution of India, is not merely a decorated term. Rather it is the very basis of any civilized society like ours. It has not only been enshrined in our Constitution in the form of ‘Equality before Law’ and ‘Equal Protection of law’, but also the judiciary has eloquently proclaimed it to be the basic structure of the Constitution. After attaining independence in 1947 India has never looked back and has been marching towards development and prosperity incessantly. Our dream of fulfilling the aspirations of the founding Faith of citizenry in rule of law has strengthened the foundations and democratic roots of our country. But today when India is reeling under turbulent times, the respect for Rule of Law seems to have started dwindling.
There is no controversy that the biggest problem facing the judiciary is the number of pending cases—over three crores. Before even trying to resolve this problem, the question to be asked is: How does one define a ‘pending case’? Is a case instituted yesterday (a traffic challan) as much a pending case as one instituted twenty years ago (gang rape and murder) both not yet decided? Every law defines the words used in the statute and the court adjudicates on the interpretation of those words. But, we have not yet decided on the definition of a ‘pending case’ and therefore all cases in the courts, including yesterday’s undecided challan, is a pending case.
Last decade has witnessed, along with progress made in various fields, unprecedented rise in violence against women, widening communal tensions, a massive increase in economic inequality and a sharp decline in employment opportunities leaving millions unemployed. Successive governments have largely failed in addressing these issues letting the sentiment of anger simmer within the young minds which has resulted in growing intolerance and frustration among them.
Signs of the strain are already felt in the criminal justice system with extra-judicial killings in Uttar Pradesh and Andhra Pradesh, lynching in several states and threats and killing of victims of rape. I believe that these are unmistakable signs that our criminal justice system has collapsed or is definitely near collapse. Elimination of the accused and not prevention of the crime seems to be the flavour of the year and a society governed by the rule of law should not accept it at all.
The Constitution of India provides justice for all. Members of the Judiciary are the administrators of justice. The judges strive to ensure free and impartial administration of justice in order to provide its citizens fairness in application of law. The duty of judges is considered to be very pious, therefore the constitution has provided for independence of judiciary so that they can remain impartial to serve the constitutional goals, act fairly, reasonably, free of any fear or favor. The problem starts when the other organs, i.e. the legislature and the executive start to interfere with them. The external interference not only erodes the piousness of the profession, but curtails individuals of their rights. In the recent past it has been seen that retired judges take public office within a very short span of time after their retirement. Amazingly, it was found that they were involved in many decisions important to the government in their tenure and more surprisingly they ruled in favor of the government. These early-retirement appointments are a real issue to worry about. The decision of the court of hearing a useless political petition urgently and refusing to consider an urgent petition, involving real problems of needy people is not understandable.