10ns Problems and Solut e = v be v > i”) ‘3 - Q - s s * < ce - s € =INDIAN JUDICIAL SYSTEM - PROBLEMS AND SOLUTIONS Study Material for B.A. LL.B. (5 Years) Integrated Course 10% Semester This module is written by Bhavna Batra Former Lecturer MEWAR INSTITUTE (Affiliated to C.C.S. University, Meerut) Sector-4-C, Vasundhara, Delhi-Gzb. Link Road, Ghaziabad-201 012 Phone : (0120) 2698218, 19, 20 Telefax : (0120) 2698046 ‘Study material based on the syllabus of B.A., LL.B. (5 Years) integrated Course prescribed by C.C.S. University, Meerut for internal circulation/discussion during the classes of Ml, Ghaziabad. Scanned with CamScannerCONTENTS UNIT-1 * Administration of Justice, its Meaning and Kinds 1 + Lawand Justice 10 * Judiciary and Constitutional Obligation 16 * Independence of Judiciary 22 * Appointment Of Judges 35 43 * Frequently Asked Questions UNIT-II * Judicial Structure - Hierarchy of Courts (Criminal Courts, Civil Courts) 49 Legal Professionals’ Responsibilities, Obligation and Their Role 54 . Public Interest Lawyering 68 UNIT-IIl © — Access to Judicial System 7 * Public Participation in Judicial Process 83 = Poverty and Judicial System 89 + Legal Aid Mechanism and its Effectiveness 93 UNIT-IV + Delayin Justice 105 «Speedy Justice (Criminal Courts and Civil Courts) 114 * Judicial Accountability 124 UNIT-V_* —_Altemate Dispute Resolution System 145 * Formal: a) Nyaya Panchayat 149 b) Tribunals 158 c) Lok Adalat 168 d) Arbitration 178 ‘+ Informal : Panchayati Raj System 183 Suggested Readings 193 Question Bank 194 199 Previous Years Question Bank Scanned with CamScannerUNIT -1 ADMINISTRATION OF JUSTICE, ITS MEANING AND KINDS The administration of justice one of the essential functions of the state. The law and order is maintained through the administration of justice and the citizens are made to realise the importance of state. At present what we have as administration of justice has passed through many stages. Historical Development In the primitive society when a wrong was done against an individual, he had to resort to self help and it was based on private vengeance. He was helped by his relatives and kinsmen in this act. Later on, when individuals organised themselves in the form of a society, certain rights were recognized by the society as belonging to every individual, If a wrong was done against an individual, it was abhorred by the society and it made efforts to provide remedy to the individual wronged. The right, wrong and punishment were decided by the physical strength of the parties. The party who proved to be stronger was considered to be right. Duels, in modem times (though no longer recognized by law) are reminiscent of the same practice. In some ancient societies the natural elements (fire, water, wind etc) were considered as gods. ‘And such were approached for justice. For example, if a person against whom there was any allegation, could walk through the fire and came out unhurt he was considered to be innocent. Gradually the society evolved and the state came into being. For the protection of the citizens and for its own protection, it became necessary for the state to maintain law and order. This is the beginning of the administration of justice in the modern sense of the term. The state defines the rights & duties of its citizens. It protects the rights and enforce the duties. If any Violation of the rights of one individual is made by another, the latter is to redress it or he is punished. The state appoints persons to adjudicate the rights and Duties and to secure their protection and enforcement. In this way, Courts came into being. Gradually a well organised judicial order develops in the society. In modern times, the judicial order is a very important organ of the government and it is called judiciary. It administers, justice which is considered to be an essential function of the state. New Concept of Administration of Justice Now the traditional conception of administration of justice has undergone a radical change. It includes a positive content. Social Justice is becoming an integral part of administration of justice. The Supreme Court has observed. “The concept of social justice is the yardstick to the justice administration system or the legal justice and as Roscoe Pound pointed out the greatest virtue of law is in its adaptability and flexibility and thus it would be obligation for the law courts also to supply the law depending upon the situation since the law is made for the society and whatever is beneficial for the society, the endeavour of the law court ‘would be to administer justice having due regard in that direction.” Scanned with CamScannerDefinition of Administration of Justice The function of the judiciary is to protect and enforce the rights of individuals and to punish the wrongdoer. This function is called administration of justice. Justice denotes justice according to law or in other words enforcement of rights as they are defined by law. Thus to adjudicate the rights and duti of the individuals on the basis of the rules laid down by the state is administration of justice. According to Salmond, “The administration of justice implies the maintenance of right within a political ince and violent self-help. community by civilized substitute for the primitive practice of private vengeat social sanction, habit, convenience etc, which help in ‘There are a number of other factors such as the the state, the law, and the obedience of law. Thus administration of justice implies three things; securing obedience to law by means of the physical force of state. Advantages of Administration of Justice : Administration of justice means justice according to law and it has the following advantages— 4. Itbrings uniformity in the administration of justice. 2. __Asthe law is known to the citizens, it enables them to regulate their conduct in accordance with it. 3. __Asthe rules are fixed, it helps judges in applying the law uniformly. In administering justice there are little chances of discrimination. 4. Asjustice is done according to the fixed principles of law, it ensures impartiality and equality. 5. The ules of law represent the collective wisdom of the community. 6. Administration of justice brings uniformity and consistency in the law. Disadvantages of Administration of Justice : Administration of justice has following disadvantages- 4. ttmakes law rigid. The same rules are applied to all the cases of similar nature and it sometimes causes hardship and injustice. 2. Sometimes law tends to be conservative and it does not keep pace with the changed conditions. 3. Due to this law, becomes formal and importance is given to form than to substance. 4 Law becomes complex. Kinds of Administration of Justice : Administration of Justice may be divided in two parts— i) Civil ii) Criminal The wrongs which are subject matter of civil proceedings are called Civil Wrongs. The wrongs which are subject matter of criminal proceedings are called Criminal Wrongs. The above two parts of administration of justice differ from each other on following points— 1) Civil justice is administered by civil courts and criminal justice is administered by criminal ourts. 2) The form and procedure for the administration of these two classes are different. Scanned with CamScanner3) The result of proceedings is also different. A successful civil proceedings results in a judgment for damages, or recovery of debts or any other like relief. A successful criminal proceeding results in the punishment of the wrongdoer. Civil Justice : The rights enforced by civil proceedings are of two kinds i) Primary Rights ii) Sanctioning or Remedial Rights— a) Primary Rights: Primary rights are those rights which exist as such and they do not have their source in some wrong. b) Sanctioning or Remedial Rights: Sanctioning or remedial rights are those rights, which come into being after the violation of (primary) rights. The administration of civil justice is of two kinds. The division is based on the nature of rights, which are to be enforced by civil proceedings i Specific Environment : The first aim of law is to enforce the primary rights. Where the primary rights themselves can be enforced, there is no question of any sanctioning right for that purpose. The enforcement of primary right is specific enforcement. 2. Sanctional Environment : However, there are cases where the primary right, as such, cannot be enforced. In such cases sanctioning rights are enforced. Salmond calls the enforcement of the sanctioning rights as ‘sanctional enforcement’. Sanctioning rights are enforced in two kinds of cases~ The first kind of cases of sanctional enforcement is of those where it is not possible to enforce the primary right. a) b) The second kind of the case where the sanctional enforcement is applied is of those in which though the law can enforce the primary right, it does not enforce it as a matter of policy and awards damages only. The right of the plaintiff is either— 1) to receive money from the defendant which amounts to penalty on the part of defendant; or ii) to receive damages or pecuniary compensation. Its of the following nature Restitution. If the defendant is ordered to retum or to restore any benefit, which he has taken from the plaintiff, itis restitution. Penal redress. If the law compels the defendant to pay to the plaintiff the loss suffered by him by the wrongful act of the defendant without any consideration whether the defendant gained any thing out of it or not, it is a penal redress. a) Administration of Criminal Justice The purpose of criminal justice is to pt ‘administration of criminal justice is purpose very ancient times, a number of theories have unish the wrongdoer. The first question that arises about the ‘of punishment, or what is the end of criminal justice. From been given concerning the purpose of the punishment. Scanned with CamScannerThese theories may be divided broadly into two classes. THEORIES OF PUNISHMENT ‘Theories of punishment are of two kinds. One class of the theories says that the end of the criminal justice is to protect and add to the welfare of the state and the society. The other class of the theories says that the purpose of the punishment is retribution. The offender must be made to suffer for wrong he has done. The former class of theories makes a sociology approach and they are allied with the collectivist theory of state. The theories of the latter class are based on ethical or moral grounds and they make an individualistic approach to the problem. They take the individual only as an individual ang not as a unit in a group. ‘There are five theories of Punishment — ae Preventive Theory of Punishment : This theory says that the punishment is for the purpose of disabling or preventing the offender from committing the offence again. In olden days the offender was prevented from committing theft by chapping of his hand. The death punishment is the most effective mode of preventing the offences. This purpose is served also by the execution of the offender. Therefore, then is an alternative punishment in these cases. In modern times, certain other preventive measures are adopted in various new kinds of offences. Some such measures are: forfeiture of office, suspension or cancellation of license for dealing in goods or riving ete. Apart from applying punishment as a measure for preventing the offender there are other measures in criminal proceedings to prevent offences. These measures are purely preventive and are applied against the persons who threaten to commit offences, or are, otherwise dangerous to the society. Such preventive measures are: preventive detention, security for keeping the peace or security for good behavior, etc. But these preventive measures must be distinguished from punishment, which is punitive. Deterrent Theory : According to some jurists, the deterrent punishment is the important purpose of the criminal justice. Salmond says, “Punishment is before all things deterrent and the chief end of law of crime is to make the evil-doer an example and a warning to all that are like minded with him.” This theory says that by punishment the wrongdoer is made an example It creates awe not only in the mind of the offender alone, but in the minds of others also and deters them from committing crimes. In this way it checks crimes. In olden times, the severe punishments and the execution of the sentence before the public were meant to serve this end Reformative Theory : This theory is of recent origin. It makes a study of the psychology of the criminal and takes punishment as a means to a social end. It says that the offences are ‘committed under the influence of motive upon the character. Therefore, they can be checked either by a change of motive or by a change of character. The defective mental condition of the Criminal is also a reason for the commission of crime. In other words, crime is the result of a disease. This theory puts more emphasis upon the personality of the offender and considers him to be patient who should be given a proper treatment. It takes punishment not as end in itself, but as a means to an end. It approaches criminology from a sociological and utilitarian point of view. In short, according to this theory the purpose of punishment should be to reform the criminal and to make him a good citizen. “Crime is a pathological aberration, the criminal can ordinarily be redeemed. The state has to rehabilitate rather than avenge. The sub culture that leads to anti-social behavior has to be countered not by undue cruelty but by re-culturization. Therefore the focus of interest in penology is the individual and the goal is savaging him fo" Scanned with CamScanner _disociety. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modem community has a primary stake in the rehabilitation of the offender as a means of social defence. Therefore, a therapeutic rather than an “in terrorem” outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. In modern times, there is growing recognition of this theory. It has been stated by the Supreme Court that the penological purpose of sentence is, importantly, reformatory. It is so actual application in certain classes of cases. Juvenile Offenders and Reformative Theory : Reformative theories have been growingly adopted in case of juvenile offenders. In india the oldest legislation of the subject is Reformatory School Act, 1890. Reformatory Schools were considered as schools for industrial Training of Youthful Offenders where youthful offenders were lodged, clothed, fed as well as taught with a view to their rehabilitation, The Act aimed at preventing the depraved and delinquent children from becoming firm criminals in coming years. According to Section 4 (a) ‘Youthful offender’ means any boy who has been convicted of any offence under the age of fifteen years. Thus the section abolishes alll criminal proceedings for offences other than homicide against children. It places the entire responsibility of dealing with delinquent children on the local authority. Section 5 gives power to State Government to establish and maintain Reformatory Schools. According to Section 6, the Reformatory Schoo! must provide (a) Sufficient means of separating the inmates at night; (b) Proper sanitary arrangements, water supply, food, clothing and bedding for the youthful offenders detained therein; (c) the means of giving such youthful offenders industrial training. Retributive Theory : The origin of this theory lies in the primitive notion of vengeance against the wrongdoer. When the society progressed, crimes were considered as a wrong against the whole of the society and not only against a particular individual. Now, the state was substituted at the place of individual, and as such the state initiated the proceedings against the criminal and was a party in such proceedings. Now, the punishment gratifies the instinct of revenge not only of a single society because if a criminal wrong is committed against an individual the extension of social sympathy in his favor makes it a wrong against the whole of the society. ‘Therefore, the society is interested in the punishment of the wrongdoer, and thus the punishment satisfies a social instinct. Retributive theory considers punishment as an end in itself. If an evil has been done, it can be undone or negatived only by doing an evil (that is punishment) against the wrongdoer. “An eye for an eye and a tooth for a tooth” is the purpose of punishment according to his theory. Ia person does a wrong intentionally it must be avenged. This theory proceeds on ethical grounds, and therefore, it concentrates upon the moral culpability of the wrongdoer. Most of the ancient lawgivers and jurists considered retribution as the chief purpose of the criminal justice. Some modern philosophers also have supported the view. Kant said, “Punishment cannot rightly be inflicted for the sake of any benefit to be derived from it, either by the criminal himselt or by society, and that the sole and sufficient reason and justification of i ies in the fact thatthe suit nas been done by him who suffers it." Its submitted that, in modem times, it cannot be said that the punishment is based only on vengeance. It is, more or less, considered to be a 5 Scanned with CamScannermeasures to maintain order and peace in the society. Though retribution (as the purpose of punishment) has still an important place in the popular thought, there is a growing tendency to regard punishment as a means to an end and not an end in itself. 5. Expiatory Theory : This theory is linked with the retributive theory and is sometimes, considered to be a part of it. It says that by undergoing punishment the crime is expiated. This has been the view of ancient Hindu lawgivers. Manu says “Men who are guilty of crimes, when condemned by the kind become pure and go to heaven in the same way as good and virtuous men go.” There are a number of puranic stories in which persons underwent voluntary or self-imposed punishment if any wrong was done by them so that wrong might be expiated. Hegel has also supported this theory. He says that the punishment makes the criminal to expiate for the wrong done. This theory is based on morals and as a purpose of punishment it has little value. Criticism Against the Theories of Punishment Criticism Against Preventive Theory : The preventive theory says that the punishment is for the purpose of preventing the offender from committing the offence again. It is submitted that it is not very logical and convincing and it will not work very successfully in checking crimes. if a person has ‘committed a crime under some extraordinary psychological stress, or under some special circumstances, there is little possibilty of his repeating it again. To punish such man so that he might not commit the crime again is meaningless. On the contrary, the punishment hardens his nature and he might do the crime again. The keeping of first or juvenile offenders with the habitual can have adverse effect upon them. Therefore, the punishment does not serve the purpose of preventing offences as the theory says and rather it develops a tendency in the offender to commit the crime again Capital Punishment : There has been a world wide growing humanistic approach to the criminal and punishment. Efforts have been made and are being made to make punishment liberal and reform the prisons. For quite sometime there has been a move to abolish death sentence. There has been a growing public opinion in favor of it. Though it has not been abolished so far the law has growingly become liberal in this respect. In 1962 a resolution was moved in the Lok Sabha for the abolition of capital punishment. The Government assured the House to refer the matter to the Indian Law Commission and consequently it was referred to the latter. The law Commission thoroughly examined the matter from various angles and took extensive evidence. It recommended that the issue of abolition or retention has to be decided on a balancing of the various arguments for and against retention. In arriving at any conclusion on the subject the need for protecting society in general and individual human beings must be borne in mind. Criminal Procedure Code 1973 made a further progress in the direction of liberalization. Section 354 (3) provides that when the conviction is for an offence punishable with death or in alternative with imprisonment for a term of years, the judgment shall state the reason for the sentence awarded and in case of sentence of death the special reasons for such sentence. It will be seen that the shift in the legislative emphasis is that for murder, life imprisonment should be the rule, capital punishment the exception to be resorted to only for reasons. Interpreting this provision, justice Krishna lyer in E ‘Anamma V. State of Andhra Pradesh said: “The disturbed conscience of the state on the vexed question of legal threat to life by way of death sentence has set to express itself legislatively. The screen of tendency being towards cautious, parti abolition and a retreat from total retention.” Scanned with CamScannerThus in case where there are extenuating circumstances the accused is punished with life imprisonment. In absence of extenuating circumstances the death punishment is given. In fact, death sentence is awarded only in those cases where there are aggravating circumstances. Recently, constitutionality of death penalty for murder provided under Section 302 of the Indian Penal Code, and the sentencing procedure embodied in Section 354 (3) of the code of Criminal Procedure, 1973 was challenged in the Supreme Court, on the ground that they are violative of Articles 14, 19 and 21 of the Constitution. The majority of the Constitution Bench to whom the matter was referred held that provision of death penalty as alternative punishment for murder and also the sentencing procedure in section 354 (3) do not violate Articles 14, 19 and 21 of the Constitution. The majority view of Bhagwati J., the reasons for which have been given after more than 2 years, is that death penalty under Section 302 of the IPC read with the sentencing procedure under Section 354 (3) of the Criminal Procedure Code, 1973 was constitutional and not violative of Articles 14 and 21 of the Constitution. The Supreme Court evolved the Doctrine of the rarest of the rare cases and now capital punishment is only awarded in the case which comes under the category of the rarest of the rare cases. In the cath sentence is an exception. Deterrent Theory Criticized : Deterrent theory contains some truth. To deter the criminal as well as others is the purpose of punishment and has been the view of the jurists since very early times. But the punishment cannot have its deterring effect in all the cases. In many cases, offences are committed under the heat of passion or extreme excitement or provocation. In these conditions, the offender loses his mental balance and commits the offences without directing his mind to the consequence. In such cases the punishment hardly works as a deterrent. Secondly when the offender is once punished, the punishment to some extent loses its rigour for him and it is a matter of common experience that an offender who has once undergone imprisonment is no longer afraid of it to the same degree as he was before the punishment. Thus, the punishment has little deterrent effect upon the offender who has been offered it. Views of Reformative Theory : The usefulness of the reformative theory is a debatable point. As discussed earlier, this theory says that the purpose of punishment or criminal justice should be to readjust the prisoner to the demands of the sociely. Much attention should be given to the criminal than to the crime. The punishment should educate and make the criminal disciplined. This theory considers the offender as a patient and admits punishment to cure him so that he might become a good citizen. It has developed in recent times. It is a result of growing sociological outlook ‘and the recent researches in psychology. Now this theory commands a worldwide support. It has been ctiticized on a number of grounds. It is said that there are dangers in the practical application of the theory. As a matter of experience, there are persons who are incurably bad. To them crime is a habit, part of their nature and they are beyond the reach of any reformative influence. In such cases reformative theory is of litle use. Secondly, if the offenders are kept in prison very comfortably, the prisons might tum into dwelling houses, at least, for the poor and destitute and they would resort to some kind of offences to go to the prison house. Thus, this theory wil fail in checking commission of offences. Thirdly, this theory does not take into consideration numerous other cause of committing crimes. There are cases where crimes are committed casually. Reformative Theory Envisages a Particular Kind of Society : It is submitted that many of the arguments given against the reformative theory are based on false assumptions and present only a one-sided picture of it. Reformative theory envisages a society, which is developed and civilized to Scanned with CamScanner@ particular stage. The theory, undoubtedly, would not be applicable in all the pcwetee ~~ = ety where the majority of the people suffer from want and distress, where the people are divided be! pa classes on highly rich and the other extremely poor, the reformative punishment would es net only fruitless but dangerous also. If a man is to suffer want, worry and starvation everyday, he wo naturally prefer to go to prison where he would be in a position to keep his body and soul together. Thus the theory can be applied more successfully in a developed and civilized society than in a poor al backward one. In India, though we cannot claim that we have removed all the social and economic disabilities and inequalities, in the light of the developments already made and likely to be made in future, we can safely say that the prospects of the application of the theory are very bright. Retributive Theory Criticized : Retributive theory is based on the idea of revenge against the wrongdoer. According to this theory the ground of the punishment is the moral blameworthiness of the offender. In modern times, the theory has not the same narrowness as it had in the beginning. This theory has got an important place in the popular thought. The main defect of the theory is that it ignores @ very important purpose of the punishment as well as of law. It does not regard punishment as measure of social security and welfare but considers it as an end in itself. In the present age which is of utilitarianism and socialism such a view cannot be admitted. The criminologists believe that this change from ethical to sociological base is a final change. It is ‘submitted that this does not appear to be a sound view. The inhuman acts in the two World Wars and @ general moral degeneration have tilted the balance in favor of looking to the moral blameworthiness again and to make it the basis of punishment. Possibility of the Revival of Retributive Punishment : Pointing out this development Keeton writes: “In developed societies at any rate, the pendulum will again swing from sociological to the ethical approach to crime. Such a change indeed would be a necessary consequence of a reassertion of individualism. If that swing occurred then it would probably bring in its train a revival of the punitive theory of criminal justice, having as its object the purging of the offence through the infliction of Punishment, in the widest sense of the word, upon the offender.” Expiatory Theory Criticized : Expiatory theory of punishment is closely related to the retributive theory. The distinction between the two is that in retribution the person against whom the wrong has been committed receives a satisfaction but in expiation the punishment is given to the offender for his outraging the majesty of law. Conclusion Punishment Serves Many Purposes it serves many purposes. It is retributive, deterrent, and preventive at the same time. In some cases, the purpose of the punishment is reformative also, which one purpose it serves mainly is a point upon which there is no Pp agreement among the jurists. Salmond says “It is needful then, in view of modem theories and tend lencies, to insist on the primary ; In criminal justice. The reformative element must not be overlooked but neither must it be allowed to assume undue prominence”, According to Keeton, there is a possibility Of the revival of the ethical basis of the criminal justice. Most of the views about the purpose of punishment have b the theories of punishment. Really speaking these theories st Scanned with CamScannerdominate it, expiatory theory seems to have come into being. The preventive and the deterrent theories came when the social organization had grown stronger and the state had become powertul. In this way, through the various stages of development, the purpose of punishment went on expanding. In Modern times, the researches in various fields of knowledge, new inventions and discoveries, etc., have made a complete change in the outlook towards the concept of the society, the individual and the state, Now, the states are becoming welfare states. Utilitarianism and socialism have become the motto of the present age. It is in this background that the reformative theory has come into existence. Scanned with CamScannerLAW & JUSTICE JUSTICE (MEANING AND KINDS) Concept of Justice : Justice concems the proper ordering of things and persons within a society. As & concept it has been subject to philosophical, legal, and theological reflection and debate throughout history. According to most theories of justice, it is overwhelmingly important: John Ra's, for instance, claims that “Justice is the first virtue of social institutions, as truth is of systems of thought.” Justice can be thought of as distinct from and more fundamental than benevolence, charity, mercy, generosity or compassion. Kinds of Justice 1. Justice as Harmony : In his dialogue Republic, Plato uses Socrates to argue for justice which Covers both the just person and the just City State. Justice is a proper, harmonious relationship between the warring parts of the person or city. Hence Plato's definition of justice is that justice is the having and doing of what is one’s own. A just man is a man in just the right place, doing his best and giving the precise equivalent of what he has received. This applies both at the individual level and at the universal level. A person's soul has three parts — spirt, resourcefulness. and mindfulness. Similarly, a city has three parts — Socrates uses the parable of the chariot to illustrate his point: a chariot works as a whole because the two horses’ power is directed by the charioteer. Lovers of wisdom — philosophers, in one sense of the term — should rule because only they understand what is good. If one is ill, one goes to a doctor rather than a quack, because the doctor is expert in the subject of health. Similarly, one should trust one's city to an expert in the subject of the good, not to a mere politician who tries to gain power by giving people what they want, rather than what's good for them. Socrates uses the parable of the ship to illustrate this point: the unjust city is like a ship in open ocean, crewed by a powerful but drunken captain (the common people), a group of untrustworthy advisors who try to manipulate the captain into giving them power over the ship's course (the politicians), and a navigator (the philosopher) who is the only one who knows how to get the ship to port. For Socrates, the only way the ship will reach its destination — the good — is if the navigator takes charge. Justice as Divine Command : Justice as a divine law is commanding , and indeed the whole of morality, is the authoritative command. Killing is wrong and therefore must be punished and if not punished what should be done?. There is a famous paradox called the Euthyphro dilemma which essentially asks: is something right because God commands it, or does God command it because it's right? If the former, then justice is arbitrary; if the latter, then morality exists on a higher order than God, who becomes little more than a passer-on of moral knowledge. Some Divine command advocates respond by pointing out that the dilemma is false: goodness is the very nature of God and is necessarily expressed in His commands. Justice as Natural Law : John Locke of the natural law believes that justice would become a natural law, it involves the system of punishments which are prone from choices. In this, it is similar to the laws of physics: in the same way as the Third of Newton's laws of Motion requires that for every action there must be an equal and opposite reaction, justice requires according individuals or groups what they actually deserve, merit, or are entitled to. Justice, on this ‘account, isa universal and absolute concept: laws, principles, religions, etc., are merely attempts to codify that concept, sometimes with results that entirely contradict the true nature of justice. 10 Scanned with CamScanner4, Justice as Human Creation : Justice may be understood as a human creation, rather than a discovery of harmony, divine command, or natural law. This claim can be understood in @ number of ways, with the fundamental division being between those who argue that justice is the creation of some humans, and those who argue that it is the creation of ail humans. 5, Justice as Authoritative Command : According to thinkers including Thomas Hobbes, justice is created by public, enforceable, authoritative rules, and injustice is whatever those rules forbid, regardless of their relation to morality. Justice is created, not merely described or approximated, by the command of an absolute sovereign power. This position has some similarities with divine ‘command theory, with the difference that the state replaces God. 6. Justice as Mutual Agreement : According to thinkers in the social contract tradition, justice is derived from the mutual agreement of everyone concemed; or, in many versions, from what they would agree to under hypothetical conditions including equality and absence of bias. 7. Justice as a Subordinate Value : According to utilitarian thinkers including John Stuart Mil, justice is not as fundamental as we often think. Rather, it is derived from the more basic standard of rightness, consequentialism: what is right is what has the best consequences (usually measured by the total or average welfare caused). So, the proper principles of justice are those which tend to have the best consequences. Law as a Tool to Achieve Justice a society. For harmonious running & functioning of society and for Man is a social being and he lives in certain rules are needed, which must be obeyed. These rules are security and well being of individuals, called Law. In Primitive societies Rules were of 2 types () customs mameinnies Later on when society developed, laws became codified and resulted in Sanctions. stom and those made by state are called statutes .For their The recognized rules are called cu ide and determine the disputes a judicial system was established interpretation, enforcement and to deci by the state. Judicial systems function according to Law. justice in all civilized countries. Law and Society are linked, they can't remain static, therefore law is a social science. Functions and Purpose of Law Law is not an end in itself. It is a means In modem times there is well organised Administration of & an instrument to secure justice in society. se of law is to secure justice. exists to bind together the community; ‘Almost all theories regarding law accept that purpo: “Administration of justice is the firmest pillar of Goverment’. Law it is Sovereign and can't be violated for prevention of wrong and injustice, there must be effective and For maintenance of legal rights and f d efficient administration of justice according to predeclared principles of law. lu Scanned with CamScannerSal sone nd Observed “Men being what they are, each keen to see his own interest and passionate to follow it, society teh Can exist only under the shelter of the state and law and justice of the state is a manent & necessary conditions of peace, order & civilization... For understanding that the Purpose of law to secure justice, it is necessary to get acquainted to the Meaning of ju: ‘Justice is a constant and perpetual will to render to everyone that to which he is entitled’. Justice Operates at three different levels, 1) Distributive Justice : Ensures fair division of social burdens among & benefits members of Society. Article 14 ‘Equality before law’ “State shall not deny to any person equality before the law or the equal protection of laws within the territory of India.” Art 88, ensures the state to secure a social order for the promotion of welfare of people. 2) Corrective Justice {tis a rectificatory function of law By correcting the injustice one person has inflicted on another, corrective justice asserts a connection between remedy & wrong Idea involved in corrective justice is that injustice done by one person to another is corrected, This removes the feeling of injustice. This is called Administration of justice and the function is Performed by courts. 3) Social Justice — It is a very important purpose of law Social justice implies securing minimum life necessaries to every individual in society. In Balbir Kaur v. Steel Authority of India ((2000) 6 Sec 493), Ithas been stated that ‘the concept of social justice is the yardstick to the justice administration system or the legal justice.” Indian Constitution aims to secure Social Justice mentioned in Preamble, Part Ill & IV. Voluminous legislations has been enacted to implement it. The SC observed, “After independence the concept of social justice has become a part of our legal system (Raman Services Pvt. Ltd. v. Subhash Kapoor and others (2001) 1 SC 118). This concept gives meaning and significance to the democratic ways of life and making the dynamic. The concept of Social Justice would remain in oblivion unless social justice is dispensed. Dispensation of social justice & achieving the goals set forth in the constitution are not possible without the active, concerted and dynamic efforts made by judicial incision. In addition to secure justice, law serves some other purposes also. ie 1) Uniformity 2) Impartiality 3) Rules of law 12 Scanned with CamScanner4) Stability and Security of social order Law State/National Law International Law Public law Private Law : Constitutional law Administrative law Criminal law Lawofperson Law of property Law of obligations Conflicts of Laws Contract Quasi contract Tort The entire ambit of law is governed by Justice only. Hence, law and justice are linked and interrelated. Analysis of Terms Law and Justice Usage in Government makes thin Distinction ‘Are ‘Law and Justice’ two words with one meaning- two bodies and one soul? Or, are these two words with two meanings- two bodies with two souls? Or they are only one word with only one meaning? ‘Answers to these questions may vary from person to person, time to time and context to context. In India, law and justice are usually understood to be two words with one meaning, one coin with two sides. Indian constitution is what the judges say itis. In the Constitution, ‘law’ is used litle less than 550 times (538 to be exact) in more than one form and context — mainly “law” (450 times), and laws (50 times); justice’ is used rarely, hardly eight times, including one in the preamble “Justice, social, economic and political’. Justice, social, economic and political’. “Justice’ has been used six times, and ‘Civil and ‘Criminal Justice’ two times. Even in the provisions pertaining to Union Judiciary and State judiciary, use of ‘aw if preferred against ‘justice’. The Union Ministry of Law, Justice, and Company Affairs (Department of Legal Affairs, Legislative Department and Department of Justice) has been assigned the role of assisting the process of orderly 13 Scanned with CamScannerin the constitution. For this purpose, it has change directed towards realiz ‘ation of the objectives set out oe Legislative Department, and 3) Department Various department, namely; 1) Department of legal Affairs, 2) of justice, The Department of Legal Affairs advises the Government on legal issues, examines legislative proposals, Conducts Goverment litigation work, regulates the legal profession, organises legal aid to the poor, ete, The Legislative Department mainly deals with the work of drafting Government Bills and subordinate legislation sponsored by the various Central Ministers. The duties of the Department of justice include administration of justice and processing of appointment of judges to the Supreme Court and High Courts. Thus, the Union Government does draw a line of distinction between ‘law’ and justice’, but itis very thin and dim. It is motivated by convenience only. Initially, the Department of legal affairs and justice were administrated by Ministry of Law and justice. Subsequently, another Department—Company Affairs - was added under the Ministry of Law, justice. Accordingly, its name was changed as Ministry of Law, Justice and Company affairs. Justice Department was transferred to Home Ministry without making any change in the name of Ministry of Law and Justice of Law, Justice and Company Affairs by making Home Secretary as ex-officio Secretary, Department of Justice. Since 1996, the Company affairs Department has been transferred to Ministry of finance. Thus, there are three Departments of Legal Affairs, Justice and Company Affairs under three different Ministries of Law and Justice; Home Affairs; and Finance and Company Affairs. It seems placement of words too seems to make no difference for the Union Government.” Distinct Parameters of Law and Justice Broadly speaking, there are only two types of law—man-made law and nature-tailored-embroidered law. The former is known as law and the latter justice. There is sea-sky difference between the two. Law is earth and justice is sky; law is private secret and justice is open secret; law is truth contained is books and justice is truth scattered in open. Law is concemed with man-made legislations, rules, sub-rules, books, reports, judicial and executive decisions; and justice is related to the rule of nature; law is road or footpath and justice is goal; law may be dependent on nature but the nature us not dependent on law; law is slave chained by so many visible and invisible considerations but the nature is absolutely independent and impartial; law in man’s bicycle, bullock cart, bus, motor car or rail, but justice is nature's aeroplane, helicopter or rocket. The parameter of law is distinct from justice. Our society has leamt to remain within the parameter of law. Ina way, the daily adherence to law is being done since time immemorial but to fellow justice has always remained a casualty. Aman remains in the parameters of law but sees injustice and tolerates injustice. He does not become impatient even on death of justice which demands a will power. Only justice should be done and injustice should be manifest. Till we are not determined to this tenet, there is no justice, no balance and no religion in the society. Only law is there, only organization is there to bind us. Understanding True Relationship of the Two Terms In any democracy a question should be echoed within each citizen, but this questi sea from the polity of that society as well. The question to be asked can be ectieet plainly as to ae the difference between law and justice. The justification of a government res| jing justice to individual as well as to the whole society. sts on bestowing justice In our polity, those who perceive that law and justice are interlinked and those it and means should co-exist have become rare. The people. Will smell the ee that tt 14 Scanned with CamScannerliberation thoughts when one speaks of law and justice. Now-a-days the burden of law is increasing but the justice is decreasing proportionately. 't nineteenth century's maxim ‘justice delayed is justice denied’ is extended today, it will become clear that the governments and politicians are against it. According to late Sachidanand Vatsayan ‘Agyeya’, today, the government and judicial concern is devoid of law and justice. Law has emerged with establishment. Law and justice were the twins of 19° Century's thought on liberalism and law and order is 20 th Century's ruling concern. Today's lawyer forgets in interpreting the niceties of law that the binding thought all legislations was that the individual and society will get justice from it. It is, therefore, not sufficient decide anything on the ground that order will be maintained or work will be eased. Concerns of individual society may not be based on justice. Our people should be taught to always remember that the purpose of winning freedom was creation of a fair society on the bed-rock of social justice. As such, we have to change our rotten social system. And this change, the polity will not initiate on its own. For this, people's will power has to be ignited, failing which the justice will be a pipe-dream, as has candidly been forecast and forewamed long ago by late Sachidanand Vatsayan ‘Agyeya’, great Revolutionary, and great Hindi poet. Conclusion Time's signal is up. Post independence Indian Judiciary's Journey, which commenced on January 26, 1950, middle of the 20" Century, is on. The train is whistling to deport for the next century and millennium, and the passengers, abroad and awaiting, are whispering about it and its future. After a few ‘seconds’ and small ‘stations’, it would be reaching the 21% Century, where hopefully whole of it would be thoroughly examined and set right by laymen and lawmen, particularly law makers, judges and lawyers to ensure that not only it appears better, sounds better, and is assumed better on paper but actually it delivers better, appeals better and attracts better in practice and finally, to earn more ‘commendation for itself and to ensure more certainty, clarity, confidence, convenience and comforts at lesser ‘costs’ in respect of money, time and energy for its customers in the form of not only litigants, but also our lawyers, their ‘lordships’ and other lawmen. 15 Scanned with CamScannerJUDICIARY AND CONSTITUTIONAL OBLIGATION ‘True administration of justice is the finest pillar of good governance +— George Washington Introduction : In india, tree enjoys a special place and Indian Constitution is a living tree; it is growing, It is the best humanist and political document India has. It is the product of a few best legal brains, eminent statesmen, true patriots and experienced politicians of India. It was planted on January 26, 1950 in the Indian Constitution Assembly by “We, the people of India”. It is an ever-evolving organic document. It cannot be read in a narrow, pedantic or syllogistic way. It must receive a broad interpretation. Since it is a growing document, its provisions can never remain static. The court's endeavour should be to interpret its phraseology broadly so that it may be able to meet the requirements of an everchanging society. It may be permissible to give an enlarged or expanded meaning to the phraseology used by the Constitution-makers to mould the provisions to serve the needs of the society. It may even be permissible in certain extreme situation to stretch the meaning and, if necessary, to break it or in guise of interpretation to replace the provisions or re-write them. Features And Structure of Indian Judicial System Judiciary as One of the tree Instrumentalities The judiciary is one of the three basic organs of the state—the other two being the Legislature and the Executive. It has a vital role in the functioning of the State, more so, in a democracy based on Rule of law. Since time immemorial, Law and Judiciary have played a vital role in Indian polity. The Constitution accords a place of pride to the judiciary by conferring the power of judicial review of legislative and administrative action and entrusting it with the task of enforcement of the fundamental rights guaranteed under the Constitution. In a democratic polity, the supreme power of the State is shared among its three principal organs as Constitutional functionaries. Each of the functionaries is independent and supreme within its allotted sphere and none is superior to the other. Justice has to be administered through the courts and such administration would relate to social, economic and political aspects of justice as stipulated in the Preamble of the Constitution and the Judiciary, therefore, becomes the most prominent and outstanding wing of the constitutional system for fultilling the mandate of the constitution. The judiciary has to take up a positive and creative function in securing socio-economic justice to the people. The constitutional task assigned to the judiciary is in no way less than that of the other two functionaries— legislature and executive. Indeed, it is the role of the judiciary to carry out the constitutional message, and it is its responsibility to keep a vigilant watch over the functioning of democracy in accordance with the dictates, directives and imperative commands of the constitutional functionaries beyond the ken of the constitution. In that sense, the judiciary has to act a sentinel on the qui vive. Single Integrated System of Courts The Constitution has generally provided for a single integrated system of courts to administer both Union and State Laws. At the apex of the entire judicial system exists Supreme court of India with a High court of each state or group of States, and under High Courts, there is a hierarchy of subordinates courts. There is generally separation of judiciary from executive. Panchayat courts also function in some states under various names like Nyaya Panchayat Adalat, Gram Kachheri, etc., to decide civil and criminal disputes of petty and local nature. Different state laws provide for different kinds of jurisdiction courts. 16 Scanned with CamScannerEach state is divided into judicial districts presided over by a District and Sessions Judge. He is the Principal civil court of original jurisdiction. He can try all offences, including those punishable with death. He is the highest authority in a district. Below him, there are courts of civil jurisdiction, known in different states as minsifs, sub-judges, civil judges, and the like. Similarly, criminal judiciary comprises Chief Judicial Magistrate and Judicial Magistrates of first and second class. Judicial Independence Judicial independence is the foundation. On it the whole concept of justice is based. Unless the judges are independent and impartial, people will have no faith in the administration of justice. In the context of Indian judiciary, the independence means and is confined to post-appointment, i.e., in-service independence only. It does not include pre-appointment of post-retirement independence. Thus, judicial independence implies only partial independence, not full independence; practical’ independence not ideal independence; created, crippled or legal independence, not complete or natural independence; make-believe or assured independence, nor real independence, in true sense. Structure of Courts The Constitution provides that the Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India (CJ!) may with the approval of the President form time to time, appoint. Since the commencement of the Constitution, the Supreme Court sits in Delhi only. As regards High Courts seats, the Constitution is silent. But, mostly they sit in the capitals of their states, with a bench (s) at other place (s). In some of the States, where the High courts have benches, bench-wise position is as under: Uttar Pradesh—Allahabad (Bench at Lucknow); Maharashtra, Goa, Dadra and Nagar Haveli and Daman and Diu—Bombay (Benches at Nagpur, Panaji and ‘Aurangabad);West Bengal—Calcutta (Circuit Bench at Port Blair); Assam, Manipur, Meghalaya, Nagaland, tripura, Mizoram and Arunachal Pradesh - Guwahati (Benches at Kohima, Aizawl, Imphal, shillong and Agartala); Madhya Pradesh — Jabalpur (Benches at Gwalior and Indore); Bihar - Patna (Bench at Ranchi); and Rajasthan — Jodhpur (Bench at Jaipur). Every District in every State has a District and Sessions court headed by District and Sessions judge. Courts of Record ‘The Supreme Court and High Courts are Courts of Record. They have all power of a court of record, including the power to punish for contempt of the Supreme Court and respective High cour, as the case may be. Composition and Strength of Courts: ‘The Supreme Court and every High Court consist of a Chief Justice and such other judges as the President may from time to time deem it necessary to appoint. Similarly, in the subordinate judiciary, every District court in every State consists of District and Sessions Judge and such other Additional District and Sessions Judges, and subordinate judges as the Governor of the concerned State may from time to time deem it necessary to appoint. Since 1986, the Supreme Court consists of 25 judges, besides Chief Justice of India. Initially, in 1950, the court consisted of seven judges; the number was raised to 10 in 1956, 13 in 1960 and 17 in 1981. Excepting three Advocates, only judges of High courts have been appointed as judge of the Supreme Court. 1 is vacant or when the Chief Justice is, by reason of absence or otherwise, unable to ponent Ee of his office, the duties of the office are performed by such one of the other judges 17 Scanned with CamScannerOf the court as the President may appoint for the purpose (Article 126). Also, theve Me MONON for appointment of retired judges, and attendance of retired judges at sittings oF the Supreme, Cog (Articles 127 and 128). Personnel System of Higher Courts Appointment of Judges The Constitution does not lay down qualifications for procedure for appointment of CMI or Chief Justice of High Court, but it does lay down qualifications for appointment of 2 judge of the Supreme Court and High Court, as follows: Supreme Court—Citizen of India and experience of a) Five years as a judge of High court or of two or more such courts in succession; orb) ten years as an advocate of High Court or of two more such courts in succession; or c) in the opinion of the President . a distinguished jurist High Court Citizen of India and experience of holding judicial office in territory of India for atleast ten years, practicing law as an advocate of High Court; Higher Judicial Service—India citizenship and ‘seven years ‘standing at Bar; and subordinate Judiciary — Indian citizenship and three years Standing at Bar. ‘An advocate of High Court has been defined under the Advocates Act, 1969 as a person enrolled with the Bar Council of India as an Advocate of High court itself or in courts subordinate to it or both, irrespective of type, place or standing of practice, standard. Appointment as judge of Supreme Cour or High Court is made by the President on the recommendations of the Cul and advice of the Union Cabinet. Appointment as member of subordinate judiciary is made by the head of the respective State public service Commission. In the case of appointment of a judge other than the Chief Justice, the CJlis always consulted. Oath Every person appointed to be a judge of the Supreme Court shall, before he enters upon his office, makes and subscribes before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule of the Constitution. Tenure of judges ~ An Analysis On average, every fourth judge of the Supreme Court has adorned the Chair of CJI. His tenure has been less than two years. Justice Y.V.Chandrachud's innings as Chief Justice has been the Longest s° far—trom February 22, 1978 to July 11, 1985, while Justice K.N. Singh's tenure has been the shortest _November 25, 1991 to December 12, 1991 — which included quite a few holidays as well. Justice J.C. ‘Shah's tenure as Chief Justice was little more than a month — December 17, 1970 to January 21, 1971. Jurisdiction of Courts Jurisdiction of the Supreme Court and High Courts are described in the Constitution, and those of Subordinate judiciary in the Code of Civil Procedure and Code of Criminal Procedure in general and specific status in particular, Indian Supreme Court has widest possible jurisdiction of not less than ‘seven kinds, each having seasky scope. These may broadly be classified thus: (1) Original jurisdiction; (2) Exclusive Jurisdiction: (8) Appellate Jurisdiction: a) Civil, (b) Criminal, and (c) Certificate jurisdiction: (4) Special Leave jurisdiction; (5) Writ jurisdiction; (6) Transfer of case jurisdiction; (7) Review jurisdiction, and (8) Advisory jurisdiction. Besides, the Supreme Court has created or carved for itself and High Courts one more jurisdiction in the name of public interest or public welfare. It may be utilized by: (1) Publie spirited person, and (2) Supreme Court or High Court at its own, ie, suo moto. Public 18 Scanned with CamScannerperson may be any member of the public or professional. The pattem of jurisdiction of every High Court is almost similar to that of the Supreme Court, except in one respect — it is confined to the concerned State. Transfer of Judges The President may transfer a judge from one High Court to any other High Court has power to transfer any member of subordinate judiciary within the State. Resignation/Retirement/Removal A judge of the Supreme Court (as also Cul) may resign his office. He may do so by writing under his hand addressed to the President. So is the case with a judge of High Court, including Chief Justice, and any member of subordinary judiciary in any State. Two ages have been fixed in the Constitution for retirement of judges of the Supreme Court and High Courts as 65 years and 63 years (till 1963, it was 62 and 60 years) respectively. A judge of the Supreme Court or High court cannot be removed from his office except by: 1) an order of the President passed, 2) after an address by each House of Parliament, 3) supported by a majority of the total membership of that House, and 4) by a majority of not less than two-thirds of the members of that House present, and 5) voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity. Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a judge. Since establishment of the Supreme Court and High Courts, not even a single judge has been ‘impeached’. Only one unsuccessful attempt has made in the case of a judge of the Supreme Court. A judge of the Supreme court or High Court may be removed from his office by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or capacity. Parliament by law regulates the procedure for presentation of an address and for investigation and proof of the misbehaviour or incapacity of a judge. Post Retirement/Resignation Status of Judg No person, who has held office as a judge of the Supreme Court, shall plead or act in a court or before any authority within the territory of India. Similarly, no person, who has held office as a permanent judge of a High Court, shall plead or act in any Court of before any authority in India except the Supreme Court and the other High Courts. Thus, the restriction is applicable to judges, who have retired, resigned or even removed, Different persons after holding office as a judges of the Supreme Court or High Court have engaged themselves in different occupations in conformity with the restrictions imposed on them. For example, quite a few or retired CJls resorted to independent chamber practice as law consultant, advisor or arbitrator, Only Justice M.Hidayatulla preferred for the country's Vice-Presidentship. Justice R.N. Mishra was appointed Chairman of Scouts, the Chair which was held earlier by M. Hidayatulla, Justice K.N. Singh was appointed Chairman of Law Commission. Earlier, after retirement, Justice S.R. Das had decided to serve ‘Shanti Niketan’ where he had been educated long before he was sent abroad for 19 Scanned with CamScannerreceiving Barrister's other educational in: Bench from the Bai been observed in t Degree. Justice M.C Mahajan actively associated himself with the Arya Samaj and stitutions. Justice S.M. Sikri, who was appointed straight to the Supreme Court's , Successfully resettled himself in Chamber practice. Recently, a new trend hag peer the occupation adopted by retired judges of the Supreme Court. Justice R.N. Mishra, ‘aS accepted Rajya Sabha's membership as a nominee of the Congress Party. Justicg \V.Ramaswamy, former judge of the Supreme Court, has unsuccessfully contested the 13" Lok Sabha election as a candidate of AIADMK party. Conclusion Summarising Judiciary and Constitutional Obligation Constitution is the aspirations of the people. It is the experience of the past, the present desires of the nation, and last, but not the least, a hope for the future. A constitution is a document for all times to come What is a constitution? A constitution is a set of laws and rules setting up the machinery of the government of a state and which defines and determines the relations between the different institutions and areas of government, the executive, the legislature and the judiciary, the federal, the provincial and the local governments. In fact, a constitution is the source, the jurisprudential foundation head, from which other laws must flow, ‘succinctly and harmoniously. The first well-known instance of a written constitution was that of the United States of America, which set up an original pattern, and which for its “brevity, restraint and simplicity” is universally hailed as a remarkable document. The makers of many other constitutions followed many of its provisions though not its brevity. The constitution of Pakistan is one such document. It is said that the constitution of Pakistan, which is one of the lengthiest of its kind, represents the political, religious, economic and social ideals and aspirations of the vast majority of the people of the time when the constitution was framed. ‘A constitution is the aspirations of the people. It is the experience of the past, the present desires of the nation, and last, but not the least, a hope for the future. A constitution is a document for all times to come. The constitution of Pakistan is based on the principle of trichotomy of power. It is a social contract that binds people, society and the state to act within the framework of the constitution. In countries that have written constitutions, such as the US, Canada, Australia and India, judicial decisions play a vital role in the interpretation of constitutional law. Particularly the US judiciary has shown the way. In the US, the Federal Supreme Court is the ultimate arbiter in cases relating to the interpretation of the constitution. Justice Holmes has said: “[T]he provisions of the constitution are not mathematical formulas having their essence in the form: they are organic living institutions transplanted from English soil. Their significance is vital, not formal; itis to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.” ‘Awritten constitution is enabled by the judiciary, which upholds the basic structure of the written draft ‘The basic tenets of the constitution are upheld by three organs of the government, each one acting independently of the other for the common good. The great Roman orator Cicero said, “The chiet laws public good.” This maxim summarises the entire reason for the entrusting of certain powers to each aang of the three separate wings of governance. For the purpose of the proper ‘implementation oh? ote of law’, the interpretation the judiciary has to be in alignment with the basic structure of the constitution. 20 Scanned with CamScannerJudicial creativity must fil he gap between the existing law and the law as it ought to be. The constitution as the grundnorm should be interpreted according to current societal standards. Complete justice or true justice must encompass morality and ethics. The interpretation of laws has to be purposive. This means the interpretation must serve the objective of law enactments, keeping in view the supreme law, the grundnorm, the constitution. The basic and integral scheme of the separation of powers requires conferment of the power of judicial review on the judiciary. That is an acknowledged basic aspect of (world) constitutions and constitutionality. Judicial review, as originally conceived, is generally understood to emanate from the judgment of Chief Justice Marshall of the American Supreme Court in Marbury v Madison in the year 1803. It was strongly resented by the other wings. Nevertheless, it had been forgotten that two centuries before Chief Justice Marshall, it was Lord Coke who had said the same thing in Dr Bonham's case. Now itis an acknowledged basic feature of the constitution. It is expected that the judiciary would keep everyone within the bounds indicated by the constitution. But the bounds are equally applicable to the judiciary itself and the constitution has entrusted the judiciary with the additional task of not merely keeping everyone else within bounds, but also remaining within bounds. The judiciary is empowered to perform certain functions and discharges only a delegated function. A delegate can never claim to be supervisor over the principal. Also, for achieving the purpose of ensuring socio-economic justice by enabling constitutional mechanisms, proper access to the courts is important. The requirement is speedy justice, an area in which the constitutions of the world have some serious thinking to do. The powers constitutionally delegated to the judiciary are not provisions meant for personal aggrandisement. They are meant to serve the constitutional purpose and to uphold the majesty of the Jaw. True respect, lasting admiration and justification for being placed at the highest level has to be eamed from the people. It is not to be extorted from them by instiling the fear of the contempt of power. Lord Denning said in the year 1968: “Respect for a judge must rest on surer foundations than mere exercise of the contempt of power. The contempt of power is there to keep in check the recalcitrant, to punish the incorrigible and the adamant only for the purpose of upholding the majesty of the law and not for the judge's personal majesty.” While studying comparative constitutional law, no one doubts that the independence of the judiciary is a must. The full import of the expression independence of the judiciary is often not realised. There are many facets to it. Independence of the judiciary does not mean merely independence from outside influences, but also from those within. “Be you ever so high, the law is above you,” said Thomas Fuller. The judiciary has to remember that this is not meant only for others. It applies equally to the judiciary. Failure to implement it on oneself would result in the erosion of credibility and the independence of the Judiciary. The only cure is the one envisaged by constitutions the world over, accountability to the same law and the same standards set for others. Constitutions would have to perfect in-house procedures for the higher judiciary. ‘Unaccountability is not the order of any constitution, It is an antithesis of basic democracy and fundamental democratic Principles and, therefore, for the preservation of the independence of the judiciary, its necessary to ensure judicial accountability at all levels. 21 Scanned with CamScannerINDEPENDENCE OF JUDICIARY Independence of the Supreme Court : The concept of independence of ead oe a 3 Grow in England. Before 1701, the judges held their office during the pest td Sola thes ie other servant of the Crown they could be dismissed by the King at wil. The judg i prerogaiive, Tha toa to the executive. This subservience naturally led the judges to favour the royal y Ship Morey coat ‘ypical example of such an attitude is to be found in the Hampden’s case (the SI see ae case) in which seven out of twelve Judges gave an award in favour of the Crown's orate 2 a a money without parliamentary approval. One of the judges even propounded the view that Rex is Lex. In 1616, Coke was dismissed from the office ofthe Chief Justice ofthe King's Bench. The judicial independence was Secured by the Act of Settlement, 1701, which declared the judicial tenure to be during goog Pehaviour, and that upon the address of both the houses of Parliament it would be lawful to remove a Judge. This position regarding ‘security of judicial tenure is now secured by statutes. An independent judiciary is the sine qua non of a vibrant democratic ‘system. Only an impartial and independent judiciary can stand as a bulwark for the protection of the rights of the individual and mete out even handed justice without fear or favour. The Judiciary is the protector of the Constitution and, as Such, it may have to strike down executive, administrative and legislative acts of the union and the States. For rule of law to prevail, judicial independence is of prime necessity. Being the highest Court in the land, it is very necessary that the Supreme Court is allowed to work in an atmosphere of Independence of action and judgment and is insulated from all kinds of pressures, political or otherwise. The members of the Constituent Assembly were very much concemed with the question of independence of the judiciary and accordingly made several provisions to ensure this end. The Supreme Court has self laid emphasis on the independence of the judiciary from time to time. The Court has observed recently in Thalwal’ that the constitutional scheme aims at Securing an independent judiciary which is the bulwark of democracy. The concept of separation of powers between the legislature, the executive and the judiciary and independence of judiciary, a fundamental concept, have now been elevated to the level of the basic structure of the Constitution and are the very heart of constitutional scheme. The court has rendered several decisions with a view to strengthen not only its own independence but that of the entire judicial system including the subordinate judiciary. an address for removal of a judge. The power thus vested in Parliament cannot be misused owing fo Soveral safegueras nisbehaviour and incapacity against the judge concemed have to » viz., charges of misbeha\ be enquired and prov eae is required in the two houses for the motion to be carried; the exeeutn: deers So eee ‘ament may provide Supreme Court in civil matters trom the judgement, decree or final o that an appeal may lie to the rder of a single Judge of a High 22 Scanned with CamScannerCourt. The Parliament can enhance the appellate criminal jurisdiction of the Supreme Court by enabling it to entertain and hear appeal from any judgment, final order or sentence in a criminal proceeding in a High Court over and above those cases in which the court can already hear appeals under Article-134. Parliament can provide that the Supreme Court shall not have jurisdiction and powers of the Federal Court beyond what it already has under Articles-133 and 134, Parliament can regulate the Supreme Court's power to review its own decisions and orders. Parliament can confer further jurisdiction (quantitatively or qualitatively) on the Supreme Court regarding any matter in the Union or Concurrent List. Parliament can provide that the Supreme Court shalll have jurisdiction and powers with respect to any matter as the Government of India and the Government of a State may by special agreement seek to confer on it. Parliament can confer on the Supreme Court power to issue directions, orders or writs, for any purpose other than those mentioned in Article-32. Parliament can confer supplementary powers on the Supreme Court so as to enable it to exercise its jurisdiction more effectively. Its clear from these provisions that what Parfiament can do is to expand the jurisdiction and powers of the Supreme Court in several respects over and above what the Constitution confers. The effect of all these provisions, therefore, is that whereas the Constitution guarantees to the Supreme Court jurisdiction of various kinds, the matter has not been stereotyped into a rigid pattern for ever but is capable of expansion in the light of experience and the prevailing circumstances. The rule-making power of the Supreme Court is subject to any law made by Parliament. Parliament may regulate and prescribe the conditions of service of officers and servants of the Supreme Court; may prescribe the manner in which a decree or order passed by the Supreme Court shall have jurisdiction and powers with respect to any matter as the Government of India and the Government of a State may by special agreement seek to confer on it. Parliament can confer on the Supreme Court power to issue directions, orders or writs, for any purpose other than those mentioned in Article-32. Parliament can confer supplementary powers on the Supreme Court so as to enable it to exercise its jurisdiction more effectively. itis clear from these provisions that what Parliament can do is to expand the jurisdiction and power of the Supreme Court in several respects over and above what the Constitution confers. The effect of all these provisions, therefore, is that whereas the Constitution guarantees to the Supreme Court jurisdiction of various kinds, the matter has not been stereotyped into a rigid pattem for ever but is capable of expansion in the light of experience and the prevailing circumstances. The rule making power of the Supreme Court is subject to any law made by Parliament. Pariament may regulate and prescribe the conditions of service of officers and servants of the Supreme Cour; may prescribe the manner in which a decree or order passed by the Supreme Court may be enforced; may also pass a law to regulate the Court's power to make an order for securing the attendance of a person, discovery and production of documents or investigation or punishment of contempt of itsell These are, however, procedural matters and do not affect the Supreme Court in any substantive manner. To enable Parliament to make laws pertaining to the above mentioned matters, Entry-77, List-1, Scheduled Vil, confers on Parliament power to make law with respect to the constitution, organisation, jurisdiction and powers of the Supreme Court, including contempt of the court and the fees taken therein and also 5 to the person entitled to practice before it, ‘The Constitution insulates the court from political criticism, and, thus, ensures its independence from poltical pressures and influence, by laying down that neither in Pariameent nor in a State Legislature the 23 Scanned with CamScannerConduct of a Supreme Court Judge in the discharge of his dutias, can be discussed. In the Keshav Singh case, the Supreme Court has taken opportunity to underline the significance of this provision. It Protects a judge of the Court from any contempt proceedings which may be taken against him in any House of Parliament or State Legislature for anything that the judge may do in the discharge of his duties. The provision amounts to an absolute constitutional prohibition against any discussion in a House, with respect to a Supreme Court Judge. Reading Ariicles-121 and 211 together, itis clear that the conduct of a Supreme Court Judge cannot be discussed in a House except when a motion to remove him is before Parliament. Further, the Supreme Court's expenses are charged upon the Consolidated Fund of India, which means that this item is non votable in Parliament although a discussion on it is not ruled out. It is thus not possible for Parliament, howsoever annoyed it may be with the Court, to starve it of funds, And the possibility of Parliament getting annoyed with the court is not just a fib of imagination, That such occasions may arise is evidenced by the reaction to the Supreme Court's decision in the Golaknath case® or the Kesavanand Bharati case and earlier in the property cases, which led to the First and the Third Amendments of the Constitution. The extreme controversy between @ State Legislature and the High Court concerned which occurred in the Keshav Singh case has already been referred to. Therefore, making supply of money to the Supreme Court independent of parliamentary vote is a great step in ensuring the Supreme Cour'’s independence from political pressures. ‘As regards the relationship between the Union Executive and the Supreme Court, the effective power to appoint Supreme Court Judges has over the years passed from the Executive to the Judiciary itself which has greatly strengthened judicial independence. The Executive has no power to remove a Judge without an address from the House of Parliament, and cannot control the Court's jurisdiction in any manner. However, the rules made by the Supreme Court conceming its staff members are to be approved by the Executive because of the financial implications involved therein. Here, again, the court has made consultation between the Executive and the Chief Justice compulsory. Recruitment of the staff of the court is outside the purview of the executive except that it can by rules provide for consultation with the Union Public Service Commission. Salaries and allowances of the officers and servants of the Supreme Court are to be approved by the executive, the reason being that ultimately they are to be met out of the public exchequer which affects the tax-payer and, therefore, some governmental control over the expenses of the court is necessary. From the above, it would appear that the constitutional position of the Supreme Court is very strong relatively to the other two organs of government. A reasonable security of tenure has been provided to the judges which is an important condition to enable them to act in an atmosphere of independence. The court has been reasonably immunized from the stresses and strains of contemporary politics in the country. ‘There is however a danger of the judicial independence being eroded somewhat by the prevailing practice of the government re-employing retired judges of the Supreme Cour in various capacities. The Eniy ban imposed by the Constitution on a judge of the Supreme Court i that he should not plead or act in any court or before any authority after retirement. Constituent Assembly, an attempt to put a restriction on re-employment of a retired judge of the ne by the goverment did not succeed. Dr. B.R. Ambedkar stated that the unary decided citizens and rarely between citizen and the government and consequently, the chances Int Supreme Court issues between 24 Scanned with CamScannerof the government influencin cases employment of Income-tax investiga separate and distin judiciary. 1g the conduct of a member of the judiciary were very remote; in many judicial talent in a specialized forum might be very necessary, as for example, the tion commission; and that relations between executive and judiciary were so ‘ot that the executive had hardly any chance of influencing the judgment of the Its obvious that Dr. B.R. Ambedkar unduly minimised the importance of litigation in which goverment 'S @ party. Today a large chunk of the work of the Supreme Court consists of deciding cases in which the government figures as a party. Also, the retired judges are not always appointed, as Dr. B.R. Ambedkar envisaged, the quasi judicial posts only. Many a time they are appointed to pure and simple executive posts, for example, as Governors of states. The Law Commission has also criticised the prevailing practice of reemploying the retired judges. It is Clearly undesirable that Supreme Court Judges should look forward to other government employment after their retirement. The government is a party in a large number of cases in the highest Court and the average citizen may well get the impression, that a judge who might look forward to being employed by the government after his retirement, does not bring to bear on his work that detachment of outlook Which is expected of a judge in cases in which government is a party. We are clearly of the view that the practice has a tendency to affect the independence of the judges and should be discontinued. The solution of the problem appears to lie in increasing the age of retirement of a Supreme Court Judge from 65 to 70 years, to make liberal pension provisions for the retired Judges, to put a legal ban ona judge of the Supreme Court accepting an employment under any government after retirement, and to use his judicial talent in an honorary, and not in a salaried, capacity, |n Nixon M. Joseph v. Union of India,’ a very pertinent and significant question was raised before the Kerala High Court through a public interest petition i.e. should the retired judges of the Supreme Court and the High Courts take any job, or contest election for the legislature. There is no specific bar in the Constitution against this. Nevertheless, K. Narayana Kurup J. has expressed a firm opinion against this practice. To maintain the dignity and independence of the judiciary as well as public confidence in the judiciary, it is necessary that a Judge should now allow his judicial position to be compromised at any cost. Justice must not only be done but seen to be done. Kurup, J., has made the following pithy remarks~ “The general public reposing absolute faith in the judiciary, see in it, justifiably an institution, that can rein in, if not eliminate, the rapacity, nepotism and corruption, especially at high places which have come to be associated with governance. The judiciary should continue to merit the exalted position it occupies in the minds and hearts of the people as the saviour of democracy. It cannot be said that the one necessary condition for this is its independence. Independence in the sense free from the executive, meaning the bureaucracy and politicians’ interference and influence of every type. And fundamental to freedom from such influence and pressures on the judiciary is to eschew active politics and acceptance of positions by judges after retirement.” it judges be precluded from taking up jobs, or While the learned Judge was definitely of the opinion that judges : moving into active politics after retirement, he refrained from giving a definitive ruling in the case. As the matter is of national significance, the Judge dismissed the petition in limine and left the matter to the Union Government for consideration and necessary action. i ef Justice raised controversy when a junior judge was In the past, at times, appointment of the Chief rc appointed ‘as the Chief Justice by passing the senior most Judge. This was regarded as an attempt to 25 Scanned with CamScannerinterfere with judicial independence. While a rule ‘of automatic promotion of ree Most Judge jp the office of the Chief Justice might not always be satisfactory: PY pees a ecatise his judicay views are not palatable to the government is to strike at the roots of judicial independence. tis hopeg that such controversies will not arise in future because of the introduction of new procedure to appoin, the Chief Justice. The Supreme Court of India enjoys larger po\ Britain or the Supreme Court in the USA. The wers than any other Apex Court, @.g., House of Lords in, Court enjoys very extensive jurisdiction. It plays a vary significant role in the administration of law and justice in the country. Its the final arbiter and interpreter of the Constitution, Judicial review is the basic structure of the Constitution and this places a speciay responsibility on the Supreme Court in the area of constitutional interpretation. It is the final court of appeal in matters of private law as well as public law, and has a supervisory role vis-a-vis the tribunals and enjoys advisory jurisdiction. ‘The Supreme Court is at the apex of the national judicial system. It constitutes a constitutional balance wheel acting as countervailing power to the executive and the legislature. The Court has played an ‘extremely creative role in keeping the responsible and the parliamentary system of government in proper working order, in maintaining the federal balance, in protecting the fundamental rights of the people. The Court has endeavoured to promote a welfare state in India. But the Court is faced with a serious problem, viz., load of work. Because of the spate of legislative and executive activity, increase in population and explosion of economic activity, there has been an explosion iin litigation in India. Creation of tribunals, like the Central Administrative Tribunal, has further added to the load of work on the Supreme Court as appeals from these tribunals lie directly to the Supreme Court. There seems to be no possibility that the work load on the court will decrease in future. On the other hand, it is possible that the load of work on the court may increase. It, therefore, appears to be necessary to think of ways and means to expedite disposal of cases by the Supreme Court. One obvious step to meet the situation is to further increase the number of judges and to select persons of calibre, aptitude and industry for the purpose. At times, filing of judicial vacancies takes a long time. The Government should devise ways and means to cut-short this period. The Court may also think of establishing specialised Benches according to the major heads of litigation coming befot® it. If the same judges deal with the same subject matter over and over again, there can be quick disposal of cases and also a uniformity in decisions making law more certain and thus reducing the number of appeals to the Supreme Court in the long run. Another method may be to establish all India tribunals, or a Central Appellate Tribunal, to hear appea® from all the various tribunals in the country, leaving only an exceptional ay Se questions of law from such a Tribunal. et ppeal to the Supreme The Supreme Court itself has suggested setting up of a National Court of by i eal to entertain special leave from the decisions of the High Courts and tribunals in i cola in on revenue and labour cases so that the Supreme Court may concem itself only with entertaining ca8®° involving questions of constitutional law and public law. e “The important thing is that in a democratic country, to solve the problem of arrears of cases pending it the courts, the solution is not to deny justice to the people but to e i jatious ways so as to keep pace with the growth of litigation in the coun a ae eae 26 rs ad scanned th CamszaoetIndependence of the High Courts : In a democracy governed by law, independence of the judiciary is very essential. Judiciary constantly stands as the sentinel on the qui vive to protect the Fundamental Rights of the people. The judiciary keeps the scales of justice even between the citizens and the state, or between the Centre and the States, or between the States inter se. Independence of the judiciary is an essential attribute of Rule of Law. Because of these paramount considerations, judicial review, independence of the judiciary, and Rule of Law have been declared as the basic features of the Constitution which cannot be deleted even by a constitutional amendment. As in the case of the Supreme Court, so in the case of the High Courts, there exist provisions in the Constitution to preserve and safeguard their impartiality integrity and independence. In the appointment of the High Court Judges, the Chief Justice of India plays a crucial role; they are appointed for a fixed tenure, and the process to remove them from office before the age of retirement is very dilatory and elaborate. The expenses of a High Court are charged on the State Consolidated Fund Article-202(3)(d). The conduct of a High Court Judge in discharge of his duties cannot be discussed in the State Legislature or Parliament except when a motion for his removal is under consideration. The salaries of the judges of the High Court are determined by Parliament by law. The allowances, leave and pension of a judge of the High Court are determined by Parliament by law, but these cannot be varied to his disadvantage after his appointment. itis laid down in Article-220 that after retirement, a permanent judge of the High Court shail not plead or act in a court or before any authority in India, except the Supreme Court and a High Court other than the High Court in which he has held his office. The jurisdiction of a High Court in so far as it is specified in the Constitution, as for example, Article-226 cannot be curtailed by the Legislature. In other respects, however, the matter of jurisdiction has been left to Parliament and the State Legislatures. However, as pointed out earlier, if a State law derogates the constitutional position of the High Court, then, the bill has to be reserved by the Govemor for Presidential assent. But the Constitution and organisation of the High Courts fall under the legislative sphere of Parliament and, thus, the High Courts have been largely insulted from local influences. The State Executive does not have much say vis-a-vis the High Court. It is consulted at the time of appointment of the judges. It also approves the rules made, and the table of the fees prescribed, by the High Cour, it also approves the rules made by the Chief Justice of the High Court specifying the salaries etc. of officers and servants of the High Court. As already stated earlier, Article-224(1) provides for the appointment of additional judges in the High Courts. Such judges are appointed for a period of two years and may be made permanent judges thereafter. The institution of additional judges somewhat detracts from the independence of the judiciary. The reason is that an additional judge may not be able to act independently as he may be obsessed with the fear of losing his job after two years. The provision in the Constitution permitting appointment of additional judges on a temporary tenure is however open to objection, more so as there is no limit on the number of such judges who can be appointed at one time. The criticism is however diluted to some extent by the fact that the power in this respect lies with the union and not with the state executive and the power is exercisable on the advice of the Chief Justice of India. Lastly, the dangers inherent in the re-employment of retired judges have already been pointed out and these operate as much in the case of High Courts as in the case of the Supreme Court. Great emphasis has been laid on the independence of the High Courts by several judges of the ‘Supreme Cour in $.P. Gupta v. Union of India. t has been said that judicial independence is one of the 27 Scanned with CamScannerfe role in so far as Cental values inherent in the Constitution; that the judiciary plays oa of power by than . government organs within legal limits and protects the citizen ou Cece nd so it is essential that the judiciary be free from government pressure In the Supreme Court Advocates on Record v. Union of India case”, Se aaa coe has laig great emphasis on the independence of the Judiciary in & Ceo ama eee lence OF the judiciary has been characterised as a part of the basic structure of the Con , to Secure the rule of law, essential for the preservation of the democratic society. In Kumar Padam Prasad v. Union of India® the Supreme Court has observed that the independence of judiciary 's part of the basic struciiaaam of the Constitution. Emphasizing upon the independence of the judiciary in a democracy, the Supreme Court has observeg in Shirish Patil? — “in a democracy governed by rule of law, under a written constitution, judiciary is the sentinel on the qui vive to protect the fundamental rights and posed to keep even scales of justice between the citizens and the state or the states inter so. Rule of law and judicial review are basic features of the Constitution, As its integral constitutional structure, independence of the judiciary is an essential attribute of rule of law. Judiciary must, therefore, be free from pressure or influence from any quarter. The Constitution has secured to them, the independence.” It has been judicially ruled that the judges of the Supreme Court and the High Courts are not government servants in the ordinary sense of the term. A judge of any of these Court does not hold a post in the service under the State. He is not under the Government of India as to hold so will militate against the concept of independence of the judiciary which is a basic feature of the Constitution. A judge holds a constitutional office. In Union of India v. Sankalchand Himmatial Sheth®, the Supreme Court describing the position of a judge of the High Court has observed that the judges of the High Court owe their appointment to the Constitution and hold a position of privilege under it. They are not government servants in the ordinary significance of that expression. In fact the judge of the High Court has no employer. He occupies a high constitutional office which is coordinate with the executive and the legislature. The independence of the judiciary is a fighting faith of our Constitution. The same is true of the judges of the Supreme Court. The Supreme Court has ruled in Union of India v. Pratibha Bonnerjee®, that Articles-50, 214, 217, 219 and 231 of the Constitution show that a judge of the High Court belongs to the third organ of the State which is independent of the other two organs, the Executive and the Legislature. Therefore, a person belonging to the judicial wing cannot be subordinate to the other two wings of the State. A judge of the High Court occupies a unique position under the Constitution. He will not be able to discharge his duty without fear or favour, affection or ill will, unless he is fully independent of the Executive. Hence the relation between the Government and a judge of the High Court is not that of master and servant; the judge does not hold his office under the Government; he cannot be regarded as a government servant; he holds a constitutional office and is able to function independently and impartially because not being a government servant he does not take orders {rom any one. At times, sitting judges of the High Court are appointed to head tribunals or ic gh ‘ commissions. To prest the independence of judges of the High Court, the Supreme Court has now laid down aia forthe appointment of these Judges to tribunals, committees or commissions, High Courts have also been insulated largely from petition pressures and local nfl sittional provisions like (1) Appointment of the judges by the President, (2) Proael ee their ne is very 28 Scanned with CamScanner