Analytical Approach in Indian Judiciary

The Judiciary in India has a duty or responsibility for upholding the goals of the constitution. Indian Judiciary is one of the most powerful institutions of the world. The Supreme Court decides cases touching all facets of Human Life and relationships. It is the defender of the constitution, guardian of human right and protector of peace, cordiality and balance between different organs of the Government. The court, as part of Federal system and as the defender of Democracy, has always remained responsive to the changes in the society and retained its relevance. It intervenes to protect Democracy and Human Rights of Individuals and upholds the Rule of Law. In expanding the ambit of Right to Life under Article 21  and Personal Liberty the court has evolved Compensatory Jurisprudence, implemented International Covenants. Conventions and Treaties and issued directions for environmental protection. It has given direction and also prescribed guidelines for the enforcement and achievement of Human Rights of various groups, such as Children, Woman, Disabled S.C, S.T., Bonded Labour, Minorities and Economically, Socially Backward Classes. The court is extending its function.

The power and Jurisdiction of our Higher Judiciary has won the admiration of other Judiciaries of the world. The Supreme Court of India has always has an edge over other Judicial Systems of the World, trying to turn any situation in their favour. More over there is a strong feeling among the Judges of the Higher Judiciary that once they are appointed as Judges, they cannot be removed ordinarily. Except under the procedure laid down under Article 124(4), by way of impeachment. They also know well and best assured that such a course of impeachment is not possible under the present political situation in India, since mustering 2/3rd majority in both the houses of Parliament in highly impossible. 

The Judges are taking advantage of the situation naturally. However, there were some attempts to frame some Rules regarding Code of Conduct for the Judges in the Judiciary. Some of the rules are described as follows;

(1) Judicial Officers Protection Act 18 of 1850.

(2) High Court Judges conditions of service of Judges Act, 1954, and Rules 1956.

(3) Judges Inquiries Act 51 of 1968.

(4) Judges conduct and Control Rules 1968.

(5) Judges Enquiry Bill, 2006.

(6) Judges Standards Bill of 2010.

(7) Judges Protection Act, 1958.

In Rupa Ashok Hurra Case, 2002 (4) SCC 388.

Now the legal or Judicial Opinion Centres round the point that the opinion furnished by the CJI (Chief Justice of India) regarding the appointment of Judges of Supreme Court and Judges of High Court is not binding and it is only a recommending nature, consultation does not mean consent or concurrence. Chief Justice of India consults other two senior Judges of the Supreme Court while furnishing his opinion to the president. The President has to adopt a wide range of consultation with other Judges of the Supreme Court and the concerned High Courts before selecting the suitability of the candidate, recommended for the appointment of Judges of Supreme Court and High Court. 

The Supreme Court innovated the conduct of curative petition, which has been read over in the world has Unique.

The Picture with regard to the appointment of Judges to the High Courts is causing concern because of the regional, communal and political influences. And the interference of the Executive has resulted in the best talent not being considered. No one can dispute that the merit should be the Sole Criterion for selection as Judges whether it is to High Courts or Supreme Courts’. But the provisions contained in the constitution for appointment of Judges are Article 124(2), 217(1) are un-impeachable. The President of India has to consult with such of the Judges of the Supreme Court and of High Court and of appointment of Judges to the Higher Judiciary. This process of consultation by the President provides some sort of balance between Executive and the Judiciary. 

The consultation of the president with the Governor of the State, the Chief Justice of the state and the Chief Justice of India. Supreme Court Advocates on Record Association Vs Union of India , 9 Judges Judgement. Subhash Sarma Vs Union of India, S.P.Gupta Vs Union of India . No one can dispute the importance of the opinion offered by the Chief Justice of India to the president are only recommendation of nature. The President exercises the power through the cabinet recommendation while excising his Executive powers. All Executive actions of the Government are taken in the name of the President. (Article 77 & 78 ) AIR 1974 SC 2192. Jurisprudence is the philosophy of law. It seeks to explain law.