The scope of the study of this subject relating to Independence of Judiciary and Judicial Accountability is in respect of Indian Judicial System. Behind this background a study is carried out on Indian Judiciary. The Indian Judicial System is reflected in the constitution of India. The Indian Judiciary comprises the constitution of Higher Judiciary and Lower Judiciary. In the constitution of the provisions are cloudy framed regarding the constitution of the Higher Judiciary? Article 124[1] specifies the method of establishment and constitution of the Supreme Court of India. The appointment of Judges of the Supreme Court their qualifications, conditions of service and removal from service are also dealt under Article 124 to 129. The powers and Jurisdiction of the Supreme Court are dealt under Article 129 to 147.
Similarly, the constitution of High Courts of the states and the appointment of Judges of the High Courts, their qualifications for appointment, conditions of service and procedure for removal are similarly dealt under Article 213 to 231 of the Constitution. The Supreme Court and the High Courts of the States in India comprises the Higher Judiciary. The law is very clear in this regard.
The Lower Judiciary, is also called as Subordinate Courts in India, is for administration of Justice is to cover the administration of Justice in the districts of the States. Articles 233 to 237 of the Constitution deal with the constitution of the Subordinate Courts, appointment of Judicial Officers and their salaries, Service Conditions, Procedure of Removal are dealt under the specific provisions of the constitution. The study includes the constitution and appointment of Higher and Lower Judiciary, originally powers and Jurisdiction and other conditions are dealt in Indian Constitution.
A comparative study of the Constitution of Higher Judiciary, their Judges, the Subordinate Judiciary, their Judges of India with reference to other countries like U.S.A, Britain, Australia, Canada etc.
Indian Judiciary particularly Higher Judiciary consisting of the constitutional courts namely the Supreme Court of India and High Courts has been exercising a variety of powers and functions. The Independent Indian Judiciary is protecting Fundamental Rights, Federal Character, and Supremacy of the Constitution. It has played a creative and constructive role revolving doctrines like Basic Structure, Public Interest Litigation, in its activist role.
The Indian Judiciary gives top priority for upholding basic features of the constitution. However, due to misbehaviour and non-functions of some Judges, the Indian Judiciary is at present subjected to be criticized for deterioration of modern values, corruption, misuse of powers and other unhealthy practices. All these developments lead to the image of Judiciary being sullied to a certain extent. The present study is limited to understand the nature of Indian Judiciary and its Accountability.
Challenges of the Indian Judiciary on the 21st Century with respect to Socio-Economic and Political Scenario prevailing in India.
(1) Indian Judiciary is one of the most independent Constitutional Institution in the democratic World. The Constitution of India has assigned a very vital role to the Judiciary and has conferred a pre-eminent position among the other wings of the State, namely, the legislature and the Executive. The higher Judiciary is the custodian of the Constitution and Democracy. The Writ of the Higher Judiciary runs against any person or Government or any Authority, for the protection of the rights of the citizens and for the enforcement of Fundamental Rights. The Law declared by the Supreme Court is enforceable throughout the territory of India and all other Institutions have to act in aid of the orders.
(2) Independence of Judiciary is most essential for successful functioning of democracy, especially in view of proliferation of political parties and their vagaries. The mushrooming of political parties in recent times has made the proper function of various institutions such as Legislature, Executive and other bodies difficult. We have seen that even very minor parties having a nominal representation in the Legislature or Parliament can dethrone a Government at their will. National and general public interest will not be the primary concern of a political party based on case, religion, or community, propagating and campaigning their narrow political objectives. Major political parties leading coalition governments are at the mercy of such minor parties and become helpless and may be forced to take decisions not congenial to the country at large and often resulting in violation of law and the Constitution. In such a scenario, it is absolutely imperative that we need a robust and independent judiciary, un-swayed by the vagaries of political parties. Commitment to law and Constitution alone is the hallmark of the judiciary.
(3) Persons of high moral and ethical character, rectitude, impartially and independence needs to be appointed to Judiciary, especially to the Higher Judiciary. Values must be initiated even at the student level and in the Law colleges. Persons from legal profession, known for their integrity and non-partisan attitude to politics should be appointed as judges. Only person who can discharge their legal and constitutional function without fear or favour or ill will towards any person and society or the Supreme Court rendered in re: Presidential Reference and S.R. Gupta Vs Union of India[2] have done yeoman service in the 1st and 2nd Judges cases. Whereby, selection of judges to Higher Judiciary is the sole prerogative of the collegiums of judges of the Supreme Court or High Courts as the case may be, for selection for appointment to the Supreme Court or High Courts. The said decisions of the Supreme Court might have been in slight deviation from the letter of the Constitution, but they have taken away the appointment of the judges from the clutches of politics. Had the Supreme Court not acted in the manner in which it did, the higher judiciary would have been packed with persons with political affiliations, and the independence of Judiciary would have been eroded. Insulting judiciary from political turmoil was essential and is imperative. We have to appreciate the acceptance of the said judgements by the Executive by not nullifying them by legislative means.
[1] Article 124 – Establishment and Constitution of Supreme Court
[2] AIR 1982 SC 149
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