Statement of the Problem in Independence Of Judiciary

The study of the Independence of Indian Judiciary and its Accountability is on the basis of analysis with reference to Indian Constitution. The permanent questions to be dealt with in this study are – whether Indian Judiciary is Independent? Whether the Independence of Judiciary is covered by the Constitutional Provisions? What is the meaning of Independence of Judiciary and to what extent? How the Independence of Judiciary in India is working? Whether it is successfully working or facing any problems or crisis? If so what is the remedy to be suggested?

Before the advent of democracy sovereign powers encompassing Legislative, Executive and Judicial functions, were exercised by a single authority. With the advent of democracy which implies governance with the consent of the governed, the need for written Constitution was felt. Belief in limited Government is raison-d-etre of a written Constitution. The distinction between Legislature, Executive and Judicial functions is so well known that it needs no elaborate clarification. To state very briefly- : Legislature enacts laws which are enforced by the Executive while the judiciary interprets and implements the laws.

            Public interest is undermined if in one body, like the Legislative, Executive and Judicial functions are confided. If the authority that passes the laws is vested with the power to interpret and enforce the same, the result would be tyranny. It was felt by the famous French writer Montesquieu that there should be separation of powers “stricto sensu” in order to ensure a responsible Government. The makers of the American Constitution were greatly influenced by the theory of separation of powers advocated by Montesquieu. The American Constitution, which has been working very successfully for more than 200 years, incorporates the theory of separation of powers. Law making is the function of the Congress. Article 1 containing 10 Sections, deals with the composition of the Congress consisting of Senate and House of Representatives and the legislative powers confided in the Congress are enumerated in Sections 8 and 9 and the limitations are specified in section 9. Article 2 deals with the office of president of United States – his tenure and the powers vested in him. Judicial power is vested in the Supreme Court and is dealt in Article 3. Article 5 contains the procedure for the amendment of the Constitution. In addition to the original 7 Articles, there have been 26 Amendments to the American Constitution of which the first 10 Articles are referred to as Bill of Rights.