INDEPENDENCE OF JUDICIARY: COMPARITIVE ANALYSIS (Part-1)
In many countries with written constitution, there prevails the doctrine of Judicial Review. It means that constitution is the Supreme law of the land and any law in consistent with it is void the courts perform the side of expounding the provisions of the constitution and exercise power of declaring any law or administrative action which may be in consistent with the constitution as unconstitutional and hence void this judicial function stems from the feeling that a system based on a written constitution can hardly be effective in practice without an authoritative, independent and impartial arbiter of constitutional issues and also that it is necessary to restrain governmental organs from exercising powers which may not been sanctioned by the constitution.
Judicial Review has two prime functions:
- Legitimizing governmental action;
- To protect the Constitution against any under encroachments by the government by the government.
So, under the Indian Constitution, it is the Judiciary which is entrusted with the task of keeping organ of the state within the limits of the law and thereby making the rule of law meaning full and effective The Judiciary in India has to act as an impartial compare to reduce the disputes between the Governments and the private individuals as well as between the governments inter se. It has also to protect the fundamental rights of the Individuals guaranteed under part III of the constitution.
The courts in the country have already expanded the scope of the judicial review by bringing in its ambit social, economic and political Justice. Keeping in view this expanding horizon of judicial review, it is the paramount need of the time that the Judiciary must be independent from executive pressure or influence.
The Supreme Court identified Art. 142 of the Constitution as an unlimited source of power, a veritable Kamadhenu, on which it could draw for whatever the Judges felt, were the demands of the justice. In seeking the aid of the poor, the illiterate and the disadvantaged sections of the society, the post 1980 court emigrated upon a path of judicial activism unparalleled in the history of any modem democracy. It became a center of political power. Activist lawyers and Public Interest groups invoked their jurisdiction.
As a result, there was no area of political or social action into which the S.C. did not deliver its verdict. It did with its craftsmanship, it was able to achieve those goals which the government even was unable to achieve, and did in a year that which government would not have been able to do in a decade it dealt with illegal mining, pollution in the Ganges, guidelines for the adoption of Indian children abroad, forced prostitution of girls and devdasis and jogins, the extreme poverty and starvation in Kalahandi, the eliminate of injurious drugs and maintenance of approved standards in drugs, employment of children in match factories, sexual harassment of women in the work place and numerous other serious concerns in other areas of life in country.
The constitution provides for a judiciary, which is independent. Independence of judiciary is important for the purpose of fair justice. There should be no interference by the legislature or the executive, in the proceedings of the judiciary so that it may take a judgment that seems reasonably fair. In case of intervention, there may be an element of bias on the part of the judges in taking a fair decision. It is difficult to suggest any other way to make the Indian courts more self-reliant and keep them away from the influence of the other two organs.
Future years are likely to see further debates on how to balance judicial independence with accountability in India. What remains clear is that whatever changes may occur in future years,, whether they involve new procedure for appointing judges or new means for disciplining their behaviour, they are likely to be the subject of major constitutional debate and adjudication. Judges ultimately are products of society and we shall always get the judges that we deserve. Judicial independence ultimately would be directly proportional to the value attached by the citizens of the country and the judges to that signal virtue.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
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