You are on page 1of 13


2 Editorial 7 Chat special

Why do I pay Road-Tax?? Tea- time chat

3 View Point 8 Report

The Religion LSS Bangalore

4 Public Eye 9 RTI Corner

Destigmatising AIDS Interview with SIC Tamilnadu

6 Report 10 Reality Check

LYSA workshop Judicial Independence

Why do I pay Road-Tax??

A small trip from one part of the city to another is a nightmare officials hate such roads. These roads are not very helpful in
for people of Kerala nowadays. Or so has it been, for the past large scale corruption.
few months. Traffic blocks were the main problem in the major
The Kerala State Road Transport Corporation is finding
cities like Trivandrum and Ernakulam, till recently. But now,
it difficult to operate its fleet of 3,650 buses because of these
the conditions have changed, or to use the right term,
horrible roads in most parts of the State. The Corporation
worsened. The condition of our public roads itself has never
suffered losses totaling Rs.21 crore from June to August end,
been worse. Full of well-like pits and gutters, these roads
just because of bad roads and fever. This has increased the
provide a memorable journey for every passenger. And thanks
Corporation’s monthly loss from Rs.16 crore to Rs.23 crore.
to the authorities, who take almost no care at al to this pathetic
The average mileage of each bus has fallen from 4.16 km pl
condition of the roads!
to 4 km pl. This has resulted in a monthly expenditure on fuel
Politicians, as usual, are completely impotent. They conduct alone going up from Rs.28 crore to Rs.30 crore.
meetings again and again, and then say that officials are not
Over the last few weeks, at least 30 people died just due
following their order! Shame on you, if you can’t control your
to bad condition of roads in Kerala. Whenever a decision is
subordinates, how are you planning to bring revolution? Why
made to cut a tree to widen a road, we see a huge army of
don’t you just suspend the officials and ask PSC to recruit new
“intellectuals” protesting against it. But when people die just
ones? There are lot malayalees out there without a job! And if
because roads are not repaired, no one bothers. The only sane
someone dies due to a pothole in the road, the official
institution in Kerala is the High Court and when they try to
responsible for the road must be charged with “murder”. This
enforce some law and order, politicians act like mad men.
may be the only solution to handle this problem!
But in ‘God’s own Country’, who is gonna care about what
There are many roads which are in good condition even the Court says? Dates can be extended endlessly for renovation
after the so called “non-stop” rains. The secret is that these of Public roads, and tomorrow never dies!!!
roads are built using modern techniques and are rubberized.
Unfortunately politicians, contractors and government Editor

MINDTEXT | VOL - 2 ISSUE - 9 | September 2007 l 2l

View Point
The point is how many of the 105 crores
have ever thought about this flow of prize
money to a single sector in the country.
Cricket is not the only game over this part
of the world, is it? Moreover, it’s not even
the national game of our country. Then why
in the seven seas is such an interest given
to cricket? We did have another ‘team blue’
win the Asia Cup two times. The game still
deals with striking a ball with willow, but
only that that the willow has a small hook
in the end. The game of hockey has been
left unnoticed for so long. The players’
talents are not respected enough. They did
strive as much hard as their counterparts
did in South Africa and they did come home
with the cup. “Ah, guys, your game is good,

The Religion
keep up the good work”, that’s it. Each
player did get a little over thirty thousand.
Wow, big bills coming your way Mr.
Hockey men! Is there any chance to
Nikhil Kuriakose
compare the eighty lakhs with thirty
A few weeks ago, Cochin played host to one of the most enchanting sport events thousand? Either respect all the games in
an equal way or respect no game at all. I
in the country, the India-Australia second one-day match. Well, is this whole issue
did read in the newspapers that the hockey
much of a blockbuster as it seems to be? I was there at the stadium when the so-
players have gone into a hunger strike,
called ‘team blue’ made their entry. Well, if I needed the word meaning of
demanding approval of their abilities and
‘pandemonium’ and ‘hysteria’, I would not have to look for a more perfect example.
an equal respect being shown to them. Why
Now, let us bring forth the million-dollar question, ‘Do they deserve it?’ or better
did it have to get to all this? What more of
else, ‘Do we deserve it?’
a way exists to represent humiliation for the
A thousand police personals were in and around the entire stadium, not to ministry?
mention, the national cadets and the scout clubs that were crowding the stands.
Also, why is that such a big interest
The entire traffic system of the city had to go on a temporary hold on the day. The
being given to the line of sports, when there
system was so tangled that the commuters had to walk miles to get on a bus. No
are a lot of other sectors which deserve an
vehicles were allowed in front of the stadium during the peak time. Even the ride I
equal attention? Many a sectors in the
was on, had to travel an additional 4 miles before entering the main stream of
economic sector, take a lot of pain to steer
traffic. Nearly half of the city was there, and an equivalent number of media troops
our nation to the forefront. Why can’t the
that were deployed to cover the event.
government understand them? Why does
And finally, the time arrived, the demi-gods of the sub-continent made their the government turn a blind eye to their
entry. A super chilled Volvo glided into the stands admist a pool of fans and well pains? Many a sectors in the government
wishers. I did not stay to watch the rest of the festivities. Well, I did not have a and private genre play a leading role in
valid ticket and the cops were very much interested in showing out ‘free-birds’ like determining the future of a nation. When
me. So, I had to deny my privilege of watching the game in person. But, certainly, we think about USA, what comes into our
I made sure that I did watch the game in television. And in the end, team India had mind is not the highly successful athletics
to fall, and our local kid got a bang his head. Well, that was the result. Let us go to team they are maintaining. What we respect
the part when I referred them to as ‘demigods’ is the high economy and their authority in
“In India, cricket is a religion, and the players are Gods”. I didn’t make it up. It the world. So, what matters about a country
was in the reels all through these years. The miracle did happen. Our team won the are their economic power and their
T20 world cup. Well, don’t be offended by the word miracle, that’s something, intelligentsia. And not how well they play a
which I felt personally. It was really a comeback. As they say, ‘From zero to hero’. sport! Therefore the point of nation’s pride
From the humiliating early exit from the World Cup, to the champions of the new and prestige is lamer than it seems to be.
game, T20. With this, the fans home found some way to transform the rotten eggs Well, my aim is to convey the idea that
into garlands. When the team arrived here, they were in for a memorable day. All the government should protect and support
through their trip to the hotel, the festivities mirrored the pomp and gaiety of the the neglected clans of a nation, who takes a
love, the fans had on their Gods. The possession was one for the memory lane, left lot of pains to steer our nation into
alone the fact that few of the top shots got unwell due to the drizzle. development. A little support and
With prestige comes great privilege. None of us have a clear-cut account of the recognition can go a long way. Let our mind
prize money, which was awarded to the team for their cup winning performance. and energy be not fooled into blindly
As a closest guess, one can approximate to greens to by eighty lakhs per God. This respecting some superheroes. A lot of work
does not include the usual match fees, which is nothing more than a few lakhs per has to be done to build our nation. Let us
each game. Also, not to mention, the countless offers met by the players, sponsorship devote our brain and energy to build a better
deals that is. Yuvi tops the chart with 8 new ‘brand ambassador’ deals. Come on tomorrow for India, Chak De!
‘Team India’, a few more cups and you guys are on the way to the richest in the The author is a second year student in
country. Beware Mr. Corporate!! engineering at RASET.
MINDTEXT | VOL - 2 ISSUE - 9 | September 2007 l 3l
Public Eye

MINDTEXT | VOL - 2 ISSUE - 9 | September 2007 l 4l

MINDTEXT | VOL - 2 ISSUE - 9 | September 2007 l 5l

LYSA workshop on
“Some Basic Principles of Liberalism”
Roji John & Antony Dawson D’silva
LYSA workshop on “Some Basic Principles of Liberalism” well served its
purpose as it influenced the thought process of the participants and provided them
an opportunity to interact with other liberal youth organizations in the South Asian
region.  Hats off to FNST and the moderators (Mana and Cris) who made the
workshop a treasured event for all the participants and their respective
An organization presentation, following the formal opening ceremony on the first day, was a great opportunity for us to learn
more about other organizations and their activities. The written comments and questions on each organization by every participant
was the highlight of this session given its self-reflective nature.
The concept of liberalism has been criticized by all other schools of thought and it makes extremely difficult to convince
others what it means to be a true liberal. To a larger extent, this dilemma faced by most of the participants has been successfully
addressed by the different sessions of the workshop and moderators really excelled with their expertise and sound understanding
of liberal principles and practices. Mana and Cris did an excellent job by including sessions that covered all the aspects of a
liberal society. Initial apprehensions of the participants gave way to hope and new horizons of knowledge as workshop progressed.
The workshop was successful in initiating a new thought process among the participants as it helped us to develop an alternative
paradigm on many issues affecting our societies. The sessions on Liberalism as the Moral Basis for a Free Society, Life in an
Illiberal Society, Rule of Law: Foundations of a Liberal Order etc. offered critical perspectives on many of our beliefs and made
us think differently. Dr. Rohan Edrisinha’s session on History and Principles of Liberalism was really enriching as well as
thought-provoking. It offered an insight into the different schools of thought in Liberalism.
Project presentations offered a glance to the nature of ongoing works of the participating organizations and also helped to
identify the areas in which different organizations could collaborate and learn from each other. The opportunity to network on
related areas and share resources was very much appreciated by all the organizations in the workshop. Taking cue from the
session on Planning for Change, which helped to identify the lacunas in their research project, a revised project presentation
session was held the day after. Liberalism in Bollywood was very interesting and showed how can we spread the message through
movies, documentaries etc.
The workshop was notable for the commitment and the complete involvement of the participants. Various group works
offered many new ideas that can be practiced in our organizations. The questions and comments made by the participants through
out the workshop reflected the spirit of critical enquiry within them.
The final session of the workshop that aimed to develop a strategy for LYSA did not succeed in its intention as it failed to
evoke any positive response from the Executive Committee. It lacked a solid plan and what actually could have planned and
developed for LYSA in the future did not come along due to the complacent attitude of the Committee. There needs to be a
serious recapitulation of how far LYSA has been able to deliver given the huge potential it otherwise has.
The sight seeing tour to Galle was really a memorable journey as it showed the natural beauty of Sri Lanka and exploring the
tranquillity of the Fort. The accommodation and food was amazing as the organizers did everything possible in their capacity to
make sure that all the guests were comfortable and enjoyed the stay. At the end one can easily say that workshop was a great
success in promoting liberal values and FNSt can take the honour for their unstinting support to this programme.
The authors are board members to CPPR and they attended LYSA Workshop
MINDTEXT | VOL - 2 ISSUE - 9 | September 2007 l 6l
Chat special
Tea- time chat
Kalpana & Lekha
The Student Social Workers from Rajagiri College of Social Sciences took
part in a tea-time chat held at DD Food Court, Ernakulam on the 20th of July
2007 at 4 pm.
The resource person for the occasion was renowned teacher-coordinator of
the Kerala chapter of Art of Living, Mr. Venkatmani. Vinu, Jithin, Hari, Caroline,
Thomas, Kalpana and Lekha participated in the discussion.
The Art of Living offers Post introductions, Mr. Venkatmani began with laying on the students ,the
a couple of courses that include: huge responsibility they have towards society. His words were, “You should
enter politics!” He strongly believed that the need of the hour was for the youth
YES Plus: Youth Empowerment Seminar
of India to become assertive and willing to stand up and save the country from
(for those above 18)
the winds of strife and corruption.
APEX: Achieving Personal Excellence
According to him, Art of Living has one aim in mind: to help people to live
(for corporates and management sectors )
life to the fullest. One should always have a smile on his/her face and this inner
Prison SMART: Stress Management joy should translate into the lives of all around him/her. Art of Living thus
And Rehabilitation Training teaches people how to live through miseries, how to be happy with oneself,
(for prison inmates) confident of oneself and be calm and peaceful.
He also stressed on the fact that Art of Living gives no one a magic potion
in order to be happy; it just shows the way. One has to practice what has been
told in order to be happy. Thus one decides for himself and learns to be happy
with life and, as a result, makes all around him happy too.
The SSW found the tea-time chat motivating since the focus of the resource
person’s discussion was on the need for knowledge in order to be happy.


Nice work. Good to see younger people I liked the This Part of
thinking about these issues. India...article...could i put that on my
Nitin blog indiavikalp?
could you also make the pages brighter,
It is indeed nice of you to have sent the if possible, considering they r by young
Mindtext newsletter. My compliments to people,
you and the youngsters who have put in
their wonderful thoughts but great writing, must say,

Dr. B. Yerram Raju, M.A., Ph.D., reg,

Regional Director, PRMIA-Hyderabad Manuwant Choudhari (indiavikalp)

MINDTEXT | VOL - 2 ISSUE - 9 | September 2007 l 7l

Madhu S.

The Liberty and Society Seminar in presumption that there was no need of life.
Bangalore brought together the Corporate Responsibility, at it would The remaining days witnessed a
thinking brains from Pune, Goa and only cut down the profits of a company Researching Reality experience under
Bangalore. The exciting sequence for whch would eventually lead to shutting Mr. Naveen Mandava, Research
the Seminar started around 9:30 am on down (Indeed a thought provoking Associate of CCS. The participants had
20 t h September. The participants one!). Mr.Ashok Kamath, a graduate to find out the situations of people
introduced themselves and highlighted from IIT,Mumbai and Managing relating to health, sanitation, water etc.
their expectations. The first session was Trustee of Akshara Foundation which in a village called Uthari (Utharahalli).
taken by Mr. Gautam Bastian, who is a public-private partnership that aims The outcome made us think practically,
through open a question to participants to have Every Child in School and if only we could really change the
on” Why is India poor?” The day also Learning Well. His topic on Education situations existing in the village.
witnessed topics on Public Policy and Policy: Choice and Competition was a
The Seminar ended on high note
Social Change by Raj Cherubal, Vice reality trip to most of them on the need
with people getting together having
President of Centre for Civil Society, to have a quality education in India.
different opinions leading to heated
and “What makes a Good Society: Your Mr.Arnab Mukherjee (IIM) delivered
discussions. The valuable insights of
Utopia”, :Beyond Perceptions & The insights on Designing Sound Public
the various faculties really ignited the
Philosophy of Liberty” by Gautam. But Policy. Another highlight of the
spark for change. The stereotypes
the star of the show was Dr. Seminar was the showing of
which existed on topics like
Christopher Lingle(Chris), Professor documentaries like “Greed”, “Sex,
Liberalism, Privatization and
of Economics at Universidad Fransisco Drugs and Consenting Adults” which
Globalization was shattered and
Marroquin in Gautemela. His were really thought provoking. Chris
redefined. The whole seminar made us
aggressiveness and enthusiasm showed us how exaggerated were the
realize the importance of a Free Society
attracted the participants who were Environment Activists who claim that
and the need to frame Public Policies
eager to learn more from him, as most the World is going to fall by 2020.
for achieving it. I think CPPR which
often he had little time to finish his Similarly he advocated for providing
already have moulded their vision in
food. Nalini.S and Amit were the freedom for Sex (Prostitution), Drugs
the right direction would bring about a
persons from CCS who organized the (there was no harm in possessing Ganja
change in the society by its activities.
events. as rarely have people died consuming
Moreover we need more people to get
On 21st, Friday, Chris made us it unlike alcohol) and also of right to
exposed to such public policy making.
think on the topic Business Ethics & die. The government should refrain
The author is an RTI Act Campaginer
Corporate Responsibility from a from the lives of a human; they should
with CPPR and attended LSS
different angle. He centred on the have a liberty to do whatever with their

MINDTEXT | VOL - 2 ISSUE - 9 | September 2007 l 8l

RTI Corner


J. Sakthivel

This short write-up is an articulation of Mr. accord Commissions with financial autonomy. This made the Commissions
Ramakrishnan’s reflections on the Act, its dependent on the Governments for their sources. Elsewhere, he said, with the
working, problems, and issues otherwise Human Rights Act, the Commissions hereunder had financial autonomy, with
occupying his mind in this regard. In doing so, an exclusive Chapter in the Act devoted for the purpose. The repercussions of
I am able to synthesize his views as emanating financial dependence were not a concern limited to the full-facilitated working
not just from a Chief Commissioner ’s of the Commissions, but also held the latent potential for governments to snap
perspective, but as those of an ex-bureaucrat, the much-needed fuel called money that was a sine qua non for the working of
a quasi-judicial authority, and ultimately as one the system, if there were to be political reasons for the same. When asked if he
part of this country’s citizenry, all cobbled up wanted an amendment to the Act, Mr. Ramakrishnan responded that there was
into what the man feels and wants to do about in fact no other way to assure financial independence to the Commissions.
On a lighter note, Mr. Ramakrishnan was reminiscing his days as an IAS
With a few prefatory enquiry of how officer when, as a government official, there was an endless list of statutes that
successful the RTI machinery was in TN, I he had to be familiar with and how certain statues like the Indian Stranded
allowed Mr. Ramakrishnan to take over. He Persons Act, 1872, had virtually fallen into disuse because of lack of public
began on a long discourse on the functioning awareness. He was however happy that there was increased education of the
of the Act in TN. He identified problems public about the RTI Act.
primarily with the bureaucratic setting in which
Mr. Ramakrishnan then went on to discuss the statistics of his office – an
the Act had to work, the issue of appointments
overwhelming 9,000 briefs in the last year – petitions, appeals, enquiries and a
of officers and the circuitous route that
myriad other ways by which people approached the Commission. Most often
Government Orders (GOs) had to take.
sitting as a bench with his two other Commissioners, he noted that most matters
In particular, the political scenario in which did not warrant a hearing to the department concerned as their dealing with the
the Act came into force at Tamil Nadu, when petitions were either prima facie wrong or there was no statutory reason to
an outgoing government could not issue GOs refuse the information required. In other cases, there was a factual dispute or a
making appointments during elections, posed question of application of the Act, including its interpretation, which could be
blockades in the effective and speedy settled most often with a single hearing. Yet other instances presented cases
implementation of the Act. His understaffed where people asked for bulk information, a few illustrations that he gave being
office had to carry on with the workload that a compilation of all construction permissions granted by the local authority for
an anxious public sent him daily. However, after a district, or the names of all the people officially supposed to have benefited
the elections, once the legal impediments had from the food for work program. In such cases, he said it would simply be
been removed, appointments were becoming impossible for the concerned department to give such information, for reasons
speedier and he was impressing himself upon of churning out volumes after volume, the prohibitive costs involved, time spent
the Chief Secretary, the importance of making on putting the files back to their rightful place, and the man power that would
things quicker. He also identified problems with have to be exclusively dedicated to do the photocopying.
the departments not having with them, the text
As regards the disposal rate, he noted that the online system that was being
of the Act and the Rules made there under and
established had some 45 different standard modules into which the reply to
the general lack of education of Public
petitioners and departments could be fit into, the computer dispatching things
Information Officers with the peculiarity of a
by the end of the day for them to go to the respective addresses by post. In a
system like this which is being introduced for
remarkable achievement, only 2000 odd cases were pending, he said, many of
the first time in the country.
them at the final stages of their disposal. He was expecting more and more
The next issue that he was quite clear and petitions in the coming years and that his office was actively thinking of how to
decided was on the issue of the Commissions’ further computerize the system.
finances. He pointed out that the Act did not The author completed M.Phil on RTI Act with Madras University
MINDTEXT | VOL - 2 ISSUE - 9 | September 2007 l 9l
Reality Check


It is one of the most debated topics during the past few decades in judicial conferences throughout the world. Why is judicial
independence so important? Independence of judiciary is not itself an important governance value. A judge may believe in the
doctrine due to status or protection of his profession. The common man will embrace this principle only when its reality leads to
ensuring fundamental rights. The very existence of a right depends upon the remedy for its enforcement; unless there is remedy,
there is no enforcement. Therefore, neither justice nor human rights guaranteed by the constitution become secure for the people
without a free and independent judiciary. “Judicial independence” is most important in the cases where courts are called upon to
resolve disputes between individuals and the state or between different branches of government.
Independence of judiciary stems from the notion of the separation of powers, whereby the executive, legislature and judiciary
form three separate branches of government. The constitution of India1 provides: the state shall take steps to separate the judiciary
from the executive in the public services of the state. Provisions in regard to the judiciary in India are contained in part V (the
union) under chapter IV titled, “the union judiciary” and part VI (the states) under chapter VI titled, “subordinate courts”
respectively. It is, however, important to emphasize that unlike, other federal systems, we do not have separate hierarchy of
federal and state courts. In India, the judiciary is integrated. For the entire republic of India, there is one unified judicial system
–one hierarchy of courts- with the Supreme Court as the highest court and also as the arbiter in matters of relation between the
union and the states and the states inter se. India practices constitutional governance by rule of law. Be it legislature, executive or
judiciary; all are creatures of constitution of India. In this democratic setup, the judiciary is an impartial empire that resolves
disputes within the boundaries laid down by a written constitution.
The provisions and features of the constitution under mentioned, would explain the extent of the independence of judiciary
under the constitution.
1. Special mode of appointment of judges: - The Constitution of India in art.124 (2) envisages a special mode of appointing the
chief justice and other judges of the Supreme Court. Similarly art.217 of the constitution deals with the procedure to appoint
the chief justice and other judges of the High Court.
2. Security of tenure: - The judges of the higher as well as the lower judiciary have a security of tenure. A judge of the Supreme
Court retires at the age of 65yrs; and that of High Court retires at the age of 62yrs. None of them can be removed by the
president or any other executive authority under the Indian constitution, except by way of “impeachment”.
3. Immunities in respect of salaries and allowances of judges: - under the provisions of art.125 and 218 of the constitution, the
supreme court and high court judges are entitled to be paid such salaries as determined by parliament. They cannot be varied
by the legislature except during emergency.
4. Administrative power of the Supreme Court and High Court: - The Supreme Court and High Court have been given the
authority to recruit their staff and frame rules regarding conditions of service (Art.146 and 229).
5. Salaries drawn from the consolidate fund: - the expenditure in respect of the salaries and other allowances of judges of higher
judiciary are drawn from the consolidated fund of India.
6. Bar as to discussion of conduct of judges: - No discussion shall take place in the legislature of a state or in the parliament with
respect to the conduct of any judge of the supreme court or of a high court in the discharge of his duties2.
7. Power to punish for the contempt: - Under art.129 of the constitution, the supreme court has been designated as a court of
record and the power to punish for contempt of itself. Similarly under art.215 the high court has the same power.

Article 50
Article 121 & 211
MINDTEXT | VOL - 2 ISSUE - 9 | September 2007 l 10 l
William Blackstone, says that3 “if the judiciary is joined with the legislature, the life liberty and property of the subject would
be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions and not by any fundamental
principles of law; where it joined with the executive, this union might soon be an overbalance for the legislature. The role of the
judiciary in ay society must be to protect human rights by way of due process and effective remedies. This role cannot be fulfilled
unless the judicial mechanism is functioning independently, with its decisions based solely on the basis of legal principles and
impartial reasoning. But “political considerations” often impose limitations on the substantive decisions of the courts. The goal
of an independent judiciary is often just that; a goal with a reality. So, judicial independence, at its basis means that judges are
free to rule against government, without fear or reprisal.
The movement towards judicial independence must begin from the appointment of judges. The method by which federal
judges in the US are selected, appointment by the president and confirmation by the senate, is an attempt to free federal judges
from the political pressures associated with elections. In Supreme Court Advocates On Record Association Vs. Union of India4,
the Supreme Court said that, constitutional safeguards attached to the office of the judge are not the last word, in regard to the
independence of judiciary. In addition to this there should be a basic and vital condition, necessary to secure the judicial
independence; and that is the methodology followed in the matter of selecting and appointing a proper and fit candidate to the
higher judiciary. The motivated selection of a candidate to the judiciary by the executive certainly undermines the public confidence
in the rule of law, and finally the concept of an independent judiciary will remain a myth rather than a reality.
The independence of judges after appointment to the bench should be protected to enforce that the rights of litigant are not
compromised by illegitimate or illegal considerations. Protection from reprisal can be attained through life tenure or some other
forms of protection that insulates arbitrary removal or transfer from the office. In US, the issue was confronted in the debate over
adoption of the constitution. Alexander Hamilton5 argued that the standard of judicial tenure “during good behavior” was the
most effective method against encroachment by the legislative branch, providing for speedy, upright, and impartial administration
of the laws. Hamilton was convinced that the more trust to be put in members of the judiciary, the more important it was to assure
them “tenure during good behavior”.
If the people are to have any realistic check on a powerful executive short of armed conflict, it must be by an independent
judiciary authorized and able to decide cases contrary to the position of the government when required by law. Thus the ability of
courts to perform their task of administering justice may well lie initially in the extent to which the concept of judicial review is
developed and accepted. Courts are often called upon to decide issues of exceptional importance involving the states or conflicts
between branches of government. In order to resolve these disputes effectively, it is necessary that courts establish a recognized
means of reviewing decisions of political sensitivity and significance. The ability of citizens to bring a lawsuit requesting review
of governmental decisions is essential to judicial review. As Hamilton intimated, the existence of judicial review does not entail
a conclusion that the judiciary is superior to either of the other branches.
The judiciary undoubtedly is the arbiter of the rule of law. Because it is the courts that are constitutionally entrusted to decide
disputes between opposing parties and thereby maintain the supremacy of law. The founding fathers of the constitution engrafted
articles 121 and 211, and thereby prohibited the parliament and state legislators to discuss on the floor of the house, the conduct
of any judge of the Supreme Court or high court in the discharge of his duties. The contempt law is a very powerful tool in the
hands of judiciary. Its singular purpose is to protect and preserve the majesty of law and the dignity and independence of
judiciary. In Dr. D.C Saxena Vs. Hon’ble Chief Justice of India6 the Supreme Court tried to strike a balance between the freedom
of speech and expression and the duty to maintain public confidence in the administration of justice. In this particular case, the
petitioner filed a writ petition against the Chief justice of India. By observing allegations made in the petition, the court punished
the petitioner for contempt. The Supreme Court stated that, “scurrilous abuse of a judge or attacks on the personal character of a
judge are acts of contempt7. It again made a point saying, “but, this is not to say that judicial decisions are not subjected to
criticism; they can be, but not the judges who took them”.
In certain cases Supreme Court made it clear that, the judiciary exercises a sovereign judicial power of the state. While
deciding, All India Judges Association Vs. Union of India8 the court declared that, the judicial service is not a service in the sense
of “employment”. The members of other service cannot, however, be placed in par with the members of the judiciary, either
constitutionally or functionally. Therefore a distinction can be made between them and other “service”, while determining the
service conditions.
The power of Supreme Court under art.32 for the enforcement of fundamental rights, to protect workingwomen from sexual
harassment, was came into light, in the case of Visaka Vs. State of Rajasthan9. In the absence of an enacted law, to provide for the
enforcement of a basic human right of “gender equality”, the Supreme Court laid down certain guidelines and norms for the strict
observance in all institutions to guarantee against sexual harassment at working places. It further emphasized that; this would be
treated as law under art.141 of the constitution, until legislation comes to existence.
Article 124(4) deals with the removal of a Supreme Court judge from his office. The procedure for the removal is prescribed
under Judges (Inquiry) Act, 1968; and in the rules made there under. In Sub-committee on Judicial Accountability Vs. Union of
In “Commentaries on the Laws of England”
The Federalist Papers No.78 7
R v. Grey (1900) 2 QB 76
(1993) 4 SCC 441
(1996) 5 SCC 216 8
(1993) 4 SCC 288

MINDTEXT | VOL - 2 ISSUE - 9 | September 2007 l 11 l

India10, the apex court discussed the provisions in the Judges (Inquiry) Act, 1968. The question in the case was that, whether the
motion against a judge would lapse as a result of the dissolution of the old house. Majority held that, the motion shall be kept
pending till the committee submits its report; and if the committee finds the judge guilty the motion shall be taken up for
consideration. In a similar case11, the apex court opined that, “the behavioral discipline of a judge is an integral component of
judicial independence”. As per the provisions of the act, the process of removal of a judge consists in two parts. The first part is
purely statutory, i.e., starting from the initiation, and investigation leading to the proof of misbehavior. While the second part
alone is parliamentary, i.e., only after the proof. It reflects the constitutional philosophy of both the judicial and political elements
of process of removal of a judge. The law is indeed a civilized piece of legislation reconciling the concept of accountability of
judges and the values of independence of judiciary.
So, we can undoubtedly say that, the removal of a judge is paved by a judicial verdict, after following a just and fair procedure.
It is, therefore, most efficacious and the best mode among world’s democracies to uphold the independence of judiciary. Lord
Bryce in his book12 stated that “impeachment is the heaviest piece of artillery in the congressional arsenal, but because it is so
heavy, it is unfit for ordinary use. It is like a hundred ton gun which needs complex machinery to bring it into position; an
enormous charge of power to fire it; and a large mark to aim at”.
The legislator’s control over the provision of financial recourses to the judiciary prevents the judiciary from being completely
independent from the rest of the government. Because the political branches of government usually make budgetary decisions; it
is essential that the budget not be used as a means to undermine the independence of judiciary. It has been suggested that political
branches’ financial influence over the judiciary could be reduced by making judicial budgets some “fixed percentage of the state
budget”; would provide at least a partial solution to the political branches’ ability to exert influence over judiciary. Next to the
extent that funds have been earmarked for the judiciary, the most efficient use of those funds is of utmost importance.
The problem of financial influence over judges has long been recognized, as evidenced by Hamilton’s argument13 that, “next
to permanency in office, nothing can contribute more to the independence of judges than a fixed provision for their support. In
the general course of human nature, a power over a man’s subsistence amounts to a power of his will”. In African countries,
judges are paid insufficient wages to feed their families. All are aware that these judges supplement their income through bribes.
“Justice for sale is the antithesis of judicial independence”. The Supreme Court confronted with a question that, if higher judiciary
is covered by Prevention of Corruption Act, in K.Veeraswami Vs. Union of India14. Here, the apex court said that, a single
dishonest judge not only dishonor himself and disgraces his office, but jeopardizes the integrity of the entire judicial system. A
judicial scandal has always been regarded as far more deplorable than a scandal involving either a member of legislature or an
executive. The slightest hint of irregularity in the court is a cause for great anxiety and alarm.
If a country’s citizens do not believe in that the judiciary is independent, they will not resort to it to dispute resolution. Instead
they will attempt to circumvent the legal process and resort to corruption, bribery and intimidation. If a government knows that,
the people want an independent judiciary, it is far more likely that the government support it. The first way to promote citizens’
desire for an independent judiciary is to create an atmosphere in which the public has confidence in the integrity of judges’
decisions. If the public is continually exposed to unjust judicial outcomes resulting from political, financial or other illegitimate
influences, they will not expect to be treated fairly, when bringing their complaints to the judicial system. The public must be
made aware of both the move toward and need for judicial independence. In order to raise public awareness of an independent
judiciary, occurrences of the judiciary fairly meting out justice to all who come before it should be publicized. The publicity
should extend to increasing awareness of the process of rooting out corrupt judges, in order to instill in the public confidence, not
only that the law applies to the political branches of the government, but also that the corruption within the judiciary itself is
being monitored and will not be tolerated.
Now, the delicate issue of monitoring and correction of judicial misconduct comes into picture. In many countries, this
responsibility falls to the executive. There is a threat that the government may use the judicial correction process to silence judges
with whose views it disagrees. To prevent this obvious threat, the better model is to locate the judicial correction machinery
within the judicial branch itself, as Justice Verma rightly pointed out in one of his dissenting judgments15. The judiciary
unquestionably prefers self-policing over promulgation of externally established norms of behavior. The desire for an independent
judiciary will be heightened if citizens expect timely justice when the judicial process is used to resolve conflicts. Backlog and
delay is a crucial impediment to the judicial independence through out the world. The delays often result in substantial injustice
to the litigants, reaching a point at which citizens’ lose their trust and confidence in the judiciary as a relevant decision making
body. Indeed, the increased expense of trials delayed by backlogs may pressure parties to accept unjust settlements. It is incumbent
upon the judiciary to take a leadership role in solving the problem. Judicial education can be used to train judges how to process
case more effectively and efficiently, and many innovations, both procedural and technical can be employed to decrease the time,
between the filing of a suit and its resolution. Improved case management techniques provide an effective method of achieving
a resolution in less time and in a lower cost. The improved efficiency that is realized through improved case management
techniques will lead to quicker resolution of litigation. This will result in a more favorable impression of judicial resolution.

(1991) 4 SCC 699 13
The Federalists Papers No.79
Krishna swami Vs. Union of India (1992) 4 SCC 605 14
K.Veeraswami Vs. Union of India (1991) 3 SCC 655.
In, “American Commonwealth”. 15
K.Veeraswami Vs. Union of India (1991) 3 SCC 655.

MINDTEXT | VOL - 2 ISSUE - 9 | September 2007 l 12 l

Most important prerequisite to the peoples’ demand for an independent judiciary is demonstrated integrity and moral leadership
by the members of the judiciary. J.Clifford Wallace16 once argued that, judicial independence could be preserved only if judges
exert the moral leadership and strength of character required ensuring judicial accountability. Arguing in favor of the independence
of judiciary, Hamilton stated that, the ranks of potential judges were necessarily small, as “there can be but few men in the society
who will have sufficient skills in the laws to qualify them for the stations of judges… the number must be still smaller of those
who unite the requisite integrity with the requisite knowledge”17. Thus the judiciary must not only be independent from the other
branches of government, but also from any other influences. Judges must be individuals of greatest integrity and worthy of the
peoples’ greatest confidence. They must be subject to no influence other than that of the force of the law. A judiciary beholden to
private interests is not truly independent; it is simply dependent on another, non-governmental entity. In this respect judicial
independence may be largely in the hands of judges themselves. Most importantly, it must appear independent to those who
would bring their disputes before it for resolution.
It has often been said that, “everyone talks about the weather, but no one does anything about it”. But some judicial leaders in
1991 began work on stating the principles that are the foundations of judicial independence. Finally, in 1997 it has been adopted
and signed by chief justices through out Asia-Pacific region18. These principles represent the minimum standards necessary to be
observed in order to maintain the independence and effective functioning of judiciary.
The maintenance of its independence is much more difficult for the judiciary than for the other branches. Over two hundred
years ago, when the adoption of US constitution was being debated, Alexander Hamilton made an important observation. He
referred to court as “the least dangerous” and demonstrated that with the following analysis. “The executive not only dispenses
the honors, but holds the sword of the community. The legislature not only commands the purse, but also prescribes the rule by
which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the
sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.
It may truly be said to have neither force nor will, but merely judgment…”
At bottom, a judiciary becomes independent when the people generally want the judiciary to protect their interests. They will
do so as integrity becomes the hallmark of the judiciary. So, it is the influence of the judiciary’s judgments that ensures independence.
If Hamilton is correct, how well a judiciary functions as an objective, non-corrupt, fair and rational decision making institution
will determine the extent of judicial independence.
1. Seervai, H.M, Constitutional law of India, Vol.3, 4th ed., (2005).
2. Jain, M.P, Indian Constitutional Law, 5th ed., (2006).
3. “An essay on independence of judiciary: independence from what and why”, J.Clifford Wallace,
4. “Judicial Independence Fiscal Autonomy and Accountability”, S.B. Sinha, Justice, Vol.3, Nyayadeep, June (2005).
Senior Judge, United States Court of Appeals for the Ninth Circuit.
Alexander Hamilton, “The Fedederalists Papers No. 78”.
Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region.

Photo Gallery

D.Dhanuraj attended round table conference on ‘Strategy Workshop for Spreading Liberilisam in India’ held in Hyderabad on September 6, 7 - 2007
MINDTEXT | VOL - 2 ISSUE - 9 | September 2007 l 13 l