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Indian Judiciary: Tyrrany or Activism

January 20, 2011 :: Posted by - admin :: Category - Uncategorized

Indian Judiciary: Tyrrany or Activism

Indian Judiciary: Tyrrany or Activism

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Home Page > Law > Indian Judiciary: Tyrrany or Activism

Indian Judiciary: Tyrrany or Activism

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Posted: Dec 29, 2008 |Comments: 0
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INDIAN JUDICIARY: TYRRANY OR ACTIVISM

A democratic government bends in itself three organs in order to maintain transparency in between these organs. The rule making, rule interpreting and rule protector comes to be known as the legislature, executive and the judiciary respectively. Law making powers lies over the legislature, whereas the executive is there to execute these made laws as orders, procedures, bye-laws, ordinance etc. And the Judiciary comes to protect these laws for the welfare of the citizens, where even the judiciary receives independence in order to protect the rights of the citizens without the involvement of any of the organs. Such a formula of transparency is said, to be known as Doctrine of Separation of Powers, which came into existence by the famous thinker Montesque.

In India, the doctrine of separation of powers was not adopted in its absolute rigidity, but the ‘essence’ of that doctrine with the doctrine of constitutional limitation and trust implicit in the scheme was duly recognized in the Delhi Laws case, AIR 1951 SC 332. Separation of judiciary from the executive is mandated in article 50 of the Indian Constitution, with the independence of judiciary from the other organs of the government as a necessary corollary: Chandra Mohan v. State of U.P., AIR 1966 SC 1987. Later on, the doctrine of separation of powers was elevated to the status of a basic feature of the Indian Constitution in the landmark case of Indira Gandhi v. Raj Narain, AIR 1975 SC 2299, wherein it was observed, thus: “… the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances”.

As India became the 105th nation to achieve its independence, it adopted the multi-tier judicial system as was practiced by the Britishers. Since independent India had to undergo a political turmoil in the early 70’s, as a student of law I can draw a line of demarcation, the first of which can be marked as the post-independence period or the pre-emergency period, where the Indian Judicial system was more in tune with the parliament i.e. the legislature, when a seven judges bench held “the parliament is supreme, it can change any part of the constitution including the fundamental rights but cannot change its basic structure (Keshavanandan Bharti vs. State of Kerala) by overruling its 5-judges bench’s earlier decision of Gopalan’s case and was a period of parliamentary hold over the judicial system. Time changed soon after there were suppressions of Justice Hegde, Shelat, and Grover, which was later again repeated in the case of Justice H.R.Khanna, who was superceded as had given an opposite view towards the government in the famous case of A.D.M Shukla . Soon changes were expected and came a period of post-emergency period, were the judiciary no where remained under the dominion of the parliament and soon came several judgments against the governments wish and hence was marked as Judicial Activism.

The word judicial activism, judicial overreached, judicial credibility sounds to be quite synonymous to judicial review and judicial creativity. Until and unless the judiciary works with its full competency and honesty. The judges should not in any manner fail to police themselves. It was Hon’ble Speaker Mr. Somnath Chatterjee who had marked that the M.P.’s are working hard to destruct the democracy. But after the happening of several cases of corruption of the judges it’s hard to say the judiciary is working with its full credibility. A learned judge of today marks that when we had joined the judiciary there were less than 20% of corrupt judges and when the time comes towards his retirement after serving the nation for more than three decades he with tears in his marks that today we have more than 80% of corrupt judges in the system. It’s shameful for the nation when we see a sitting Supreme Court Judge involved in the Ghaziabad case, when we see a Chief Justice of a certain High Court as among one of the most corrupt judges in the system. It was the then Hon’ble President Mr. A.P.J.Abdul Kalam, who had refused to elevate such a judge but sooner or later he was there.

Time has come when there came three inquiries at a time, going over the corruption of judges in order to get their impeachments done by the parliament. Even the Judges Inquiry (Amendment) Bill has been introduced in the parliament and has been approved, which comes as per the Canadian Law. Where now even a novice could complain against a corrupt judge, where the Chief Justice of India will head such a council with some senior judges of the Supreme Court. The judiciary has realized its corrupt practices after six decades of India’s independence. It was Justice H.R.Khanna, who in his book “NEITHER ROSES NOR THORNES.” had marked over the corruption of two judges when he was in the Delhi High Court, and when he reported such matter to the Chief Justice of Delhi High Court of that time then he transferred such corrupt officers rather taking any action against them.

The authority of a judge comes for the public as he being only a mere public servant, his authority comes from public confidence based on their own conduct, their integrity, impartiality, learning and simplicity. No other vindication is required in a democracy and there is no need for them to display majesty and authority”. In the neo-liberal era, all organs of the state ooze ruling or elite class ideas and this is true for the judiciary as well. Unfortunately the filth of liberalization like corruption has affected our judiciary severely. This is a fact accepted by some of the prominent judges themselves. Hence it is time that measures should be taken for ensuring accountability and transparency in the judicial system. It is a fact that our judicial system still embraces the reminiscence of British aristocracy after completion of six decades of its complete independence.

The Indian Judiciary has become a den of corruption. The extortion of litigants has become a regular business of today’s judicial servants. The whole money extorted from the litigants is beings collected with the Reader of the court. From this booty, lunch is being served for the Judiciary; their monthly households are met. The remaining booty is being distributed among the staff of the judge. The litigants should be protected from this exploitation by the system. It should be the judges who should police themselves without any kind of discrimination on any basis.

The real question lies in, whether such a judicial system goes towards a reign of tyranny or just activism. As far as the system is working towards nation building and in national interest it cannot be called as a tyranny but as judicial creativity. Judicial activism can be called as quite synonymous to judicial credibility or creativity. Where judiciary is known as the paterfamilias of the organs of the government and the nation, it should work for the welfare of the nation and its citizens, in order to protect the rights of the citizens. And such a system should not be obsolete in nature; changes, reformations are must for a better today and tomorrow, with a balanced amount of checks over each other.

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SHEIKH WALI-UZ ZAMAN -
About the Author:

MR. SHEIKH WALI – UZ ZAMAN

LAW STUDENT, FACULTY OF LAW

ALIGARH MUSLIM UNIVERSITY

ALIGARH, UTTAR PRADESH

INDIA

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