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Kumar Abhi Good Governamce
Kumar Abhi Good Governamce
INDEPENDENCE OF
JUDICIARY AND RTI ACT
CONSTITUTIONAL LAW
6TH Semester
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ACKNOWLEDGEMENT
The present project on to INDEPENDENCE OF JUDICIARY AND RTI ACT has been able
to get its final shape with the support and help of people from various quarters. My sincere
thanks go to all the members without whom the study could not have come to its present state. I
am proud to acknowledge gratitude to the individuals during my study and without whom the
study may not be completed. I have taken this opportunity to thank those who genuinely helped
me.
With immense pleasure, I express my deepest sense of gratitude to Dr. K.K. Dwivedi , Faculty
for Constitutional law, Chanakya National Law University for helping me in my project. I am
also thankful to the whole Chanakya National Law University family that provided me all the
material I required for the project.
I have made every effort to acknowledge credits, but I apologies in advance for any omission
that may have inadvertently taken place. I would like to thank my parents and especially my
elder sister without the blessing and co-operation of which the completion of the project would
not have been possible.
Last but not least I would like to thank Almighty whose blessing helped me to complete the
project.
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RESEARCH METHDOLOGY
Though this is an immense project and pages can be written over the topic but because of
certain restrictions and limitations I was not able to deal with the topic in great detail. Two points
on which special emphasis has been given in this research are:
(i) To study the judicial interpretation related laws regarding the topic.
(ii) To find out the various provisions related the topic.
Method of Writing:
The method of writing followed in the course of this research paper is primarily
analytical.
Mode of Citation:
The researcher has followed a uniform mode of citation throughout the course of this
research paper.
Research Technique:
Sources of Data:
1. Articles
2. Books
3. Websites
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TABLE OF CONTENTS
1. INTRODUCTION
5. AUSTRALIA
8. CONLUSION.
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INTRODUCTION:-
Courts are expected to act as protectors of the law, who independently exercise
their judicial power without any functional or individual interference. Such
interference usually comes from executive and legislative officials, political
parties, the military, paramilitary and intelligence forces, criminal groups and the
judicial hierarchy itself.
This paper will focus on the rule of law principles underlying the right to a fair
trial, especially the role of an independent judiciary. Following a consideration of
the major international instruments in this area will be a brief examination of some
of the ways that these international standards have been implemented in a selection
of jurisdictions, including those of international criminal tribunals. Some of the
current threats to judicial independence will be highlighted, including attacks on
the judiciary by the media and the legislature even in well-established
democracies.1
1
http.www.scribdarticles.in/roleofjudiciary
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The United Nations has endorsed the essential importance of an independent
seems on its face to be an obviously essential ingredient to any just and fair
2
http//.www.lawnotes.in
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THE BASIS OF JUDICIAL INDEPENDENCE:-
Some type of criminal law has existed since humans first recognized that
their disputes could be better resolved by means other than physical battle.
by the state. Some of the earliest examples of written criminal law include
that made during the Xia Dynasty (2100-1600 BCE) and that of Hammurabi
The Universal Declaration of Human Rights enshrines the principles of: (1)
equality before the law, (2) the presumption of innocence, and (3) the right
can fairly be said that no justice system in the world fully complies in every
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particular with the ultimate implementation of the Basic Principles, but they
At the same time, laws must be public knowledge, clear in meaning, and must
apply to everyone equally, including the government. Unless the government
subordinates itself to the law, and to the sovereignty of the people through the
constitution, that government may rule by law, but its authority will not be
grounded in the rule of law. Rule by law still allows governments to use their
power arbitrarily to deny fundamental rights to citizens, or to cover up their own
corrupt practices. Once citizens lose confidence in the fairness of the legal and
political system, they may turn to other means to assert their basic rights, and
inevitably this result in violence and loss of human life.
3
http//. By. (n.d.): n. pag. Web.
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THE RIGHT TO A FAIR TRIAL:-
4
http//. Loftin, Scott M. "INDEPENDENCE OF THE JUDICIARY." American Bar Association Journal 21.8 (1935): 469-
73. Web.
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THE UNITED STATES:-
Some jurisdictions in the United States have taken the notion of judicial
independence and accountability much further than in other democracies. The U.S.
federal courts have had complete administrative autonomy since 193947 . The
Chief Justice of the U.S. Supreme Court appoints a Director of the Administrative
Office, after consultation with the Judicial Conference of the U.S. The
Administrative Office is responsible for the administration of all federal courts
except the U.S. Supreme Court, which is managed by the judges themselves. Most
state courts also manage their own budgets, including budget requests. While U.S.
judges at the federal level are all appointed and enjoy security of tenure, most State
judges and district attorneys are elected by a popular vote and face re-election on a
regular basis.
This approach has caused considerable disquiet amongst some defendant lawyers,
particularly in States where the district attorney has been elected mainly because of
his or her propensity to seek the death penalty for convicted persons, rather than a
propensity for impartiality or outstanding ability5. However, those in favour of
popularly elected judges and public attorneys would argue that this is far more
democratic and leads to greater accountability.
5
Basic Principles on the Independence of the Judiciary. New York: UN, 1990. Web.
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AUSTRALIA:-
The issue of judicial independence has often been in the media spotlight in
Australia, particularly in recent years. In June of this year, the New South Wales
Judicial Commission referred the matter of a certain State Supreme Court judge to
the State Parliament, because they considered him to be a "procrastinator" and not
fit for office. He had acquired a reputation for taking an extraordinarily long time
to deliver his reserved judgments, the worst example of which was said to be a
sentence that he handed down ten months after the hearing.
The Judge was asked to make a statement in person to the Parliament, at the Bar of
the Upper House, in which he explained that he had been suffering depression,
which had caused him to have severe doubts about his judgments, such that he
delayed writing them. Now that he was over the depression, he argued, he
shouldn't lose his job simply because of a past illness that was now cured. The
Upper House debated the issue at length, and the motion for his removal was
finally defeated 26:16 on a conscience vote. The judge's speech was broadcast on
television, which added yet another dimension of scrutiny to the whole process,
namely public scrutiny, and helped to fulfill the judge's aim of bringing attention to
the little understood plight of those who suffer depression, particularly judges. The
broadcast also increased public understanding of the relationship between the
judiciary and the legislature.
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THE RIGHT TO INFORMATION ACT:-
At the International level, Right to Information and its aspects find articulation as a
human right in most important basic human rights documents, namely, the
Universal Declaration of Human Rights, the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and Cultural
Rights. At regional levels, there are numerous other human rights documents,
which include this fundamental right for example, the European Convention for the
Protection of Human Rights and Fundamental Freedoms, the American
Convention on Human Rights, the African Charter on Human and People’s Rights,
etc. The Commonwealth has also formulated principles on freedom of information.
The Indian Parliament had enacted the “Freedom of Information Act, 2002” in
order to promote, transparency and accountability in administration. The National
Common Minimum Program of the Government envisaged that “Freedom of
Information Act” will be made more “progressive, participatory and meaningful”,
following which, decision was made to repeal the “Freedom of Information Act,
2002” and enact a new legislation in its place. Accordingly, “Right to Information
Bill, 2004” (RTI) was passed by both the Houses of Parliament on May, 2005
which received the assent of the President on 15th June, 2005. “The Right to
Information Act” was notified in the Gazette of India on 21st June, 2005. The “The
Right to Information Act” became fully operational from 12th October, 2005. This
new law empowers Indian citizens to seek any accessible information from a
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Public Authority and makes the Government and its functionaries more
accountable and responsible.6
During the period of the implementation of the RTI Act i.e. October 2005 onwards,
it has become evident that there are many anticipated and unanticipated
consequences of the Act. These have manifested themselves in various forms,
while some of the issues pertain to procedural aspects of the Government; others
pertain to capacity building, and so on. The most important aspect to be recognized
is that there are issues to be addressed at various ends for effective implementation
of the Act.
There have been many discussions and debates about the effectiveness and impact
of the Act. The Civil Society Organizations and Government agencies have been
engaging themselves in the debate over various aspects of the Act and its
effectiveness and interpretations. There is a broad consensus that the
implementation of the Act needs to be improved to achieve the objectives. At the
same time there is evidence to suggest that the information seekers too have to
learn how to use the Act more effectively. While there is significant information –
both anecdotal and quantitative – on the level of implementation of the Act, there
was limited systematic and comprehensive review available for action by the
appropriate Governments. This in turn necessitated a review of all the aspects
necessary to analyze the current situation and draw up a plan to bridge the gaps.
The assessment of the current situation through various market research tools has
resulted in identification of the current problem areas. These problems areas have
6
http//.www.lawnotes.in/rtiact
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been analyzed/ discussed in various workshops/meetings to define time-bound
actionable steps to make the Act an effective tool of good governance.7
SCOPE OF WORK:-
The scope of work as defined in the Terms of Reference (ToR) for the study and
further clarified through subsequent Consultative Monitoring Committee meetings
included:
7
http//.www.scribdarticles.in
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efficiently. Further, identify the interventions needed for successful
implementation of the Act with regard to the disadvantaged groups.8
• Design of a robust methodology to study the states on a sample basis for studying
in detail for a clear understanding on the implementation related experiences;
8
http//.www.lawnotes.in/rtiact
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• Based on the diagnosis and feedback from the stakeholder workshop, preparation
of the report with specific recommendations on the structural, institutional,
“procession”, infrastructural and technological and people-related changes
• Preparation of a detailed action/ capacity building plan at the Central and State
Government levels.
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CONCLUSION:-
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-vires of the Constitution or whenever
Government supersedes any person while making appointments of judges of the
High Courts or the Supreme Court.
The supporters of absolute independence of the judiciary argue that in the absence
of an independent judiciary, democracy cannot succeed. They point out that only
an independent judiciary can safeguard the rights of the people as enshrined in the
Constitution and thereby ensure the rule of law in the country.
On the other hand, the opponents of the theory of the independence of the judiciary
say that under our Constitution, it is not the judiciary but the Parliament which is
supreme and sovereign. They feel that it is for the Parliament to lay down the laws
and for the judiciary to interpret them. The judiciary cannot and should not usurp
the powers of the Parliament. If the Parliament passes any laws for the economic
and social upliftment of the people and establishment of a socialistic pattern of
society, the judiciary should not strike down such laws and stand in the way of
progress. Otherwise, the people might resort to revolution to bring about a change.
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BIBLIOGRAPHY:-
BOOKS USED:-
WEBSITES USED:-
1. SCRIBD ARTICLES
2. PRESERVE ARTICLES.IN
3. LAWNOTES.IN
4. LABREPORT/INDEPENDENCE OF JUDICIARY.
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