But don’t lose sight of judicial independence, he tells govt
Chief Justice of India S.H. Kapadia, while making it clear that the judiciary was not afraid of laws to make judges accountable, cautioned the government not to tinker with its independence.
“I would request the government that accountability be balanced with judicial independence.” In enacting laws, the concept of judicial independence should not be lost sight of. For, “decisional independence and structural independence are more important when you are required to balance accountability and judicial independence,” he said speaking at the Independence Day celebrations organised by the Supreme Court Bar Association here on Wednesday.
Justice Kapadia was apparently referring to the Judicial Standards and Accountability Bill, which has already been passed by the Lok Sabha and is pending in the Rajya Sabha. A controversial clause states: “No judge shall make unwarranted comments against the conduct of any constitutional or statutory institution or officials at the time of hearing matters in open court.” The Bill allows citizens to complain against erring judges but has been facing criticism for this provision and the government is contemplating amending it.
Justice Kapadia said “The government may make laws, making the judges accountable. We are not afraid of that. The question is in that process constitutional tinkering should be done very carefully. We need to take opinions of eminent jurists who will give objective opinion, jurists coming from all sections; otherwise, I am afraid that with the state of drafting of laws in our country today, we will be taking a very big risk and we will be disturbing the constitutional balance, which we will be regretting for all time to come.”
Therefore, “be it a collegial system, be it accountability or whatever laws you bring, please take the opinion of eminent jurists, please consider the comparative juridical aspects all over the world. Everywhere we find some drawbacks. We need to make a detailed study before we tinker with the constitution and particularly with judicial independence. Please don’t suffocate justice and I am sure it will not be done,” Justice Kapadia said, turning to Law Minister Salman Khurshid, who was present.
It is indeed shocking to observe that that the Executive had the audacity to take
objection to 'unwarranted comments' by the judges againat any constitutiional or
statutory institution at the time of hearing matter in open court." The choice of
the words "unwarranted comments' against the judiciary smacks of propriety and
decency on the part of the Executive. Such remarks if at all made by the judiciary
only shows the agony of the common man, expressed through the observations of
the learned judges out of sympathy for his lot even after sixty-five years of
independence. If the executive are so sensitive to the remarks of the judiciary why
not they show the same sensitiveness in his relations with the common who has
placed his trust in him. Once these gentries are elected to the seat of power they
consider themselves answerable to none except themselves. In this context Justice
Kapadia's caution to the Government 'not to tinker with its independence' is timely
to be taken seriously
And now this UPA Govt trying to gag the judiciary ? Nothing surprising .
Unfortunately our Indian media has lost its spine . Else such actions of the Govt should have be stripped bare to expose malafide intentions if any .
judiciary must be accountable but it should not be controlled and
misused by the elected representatives who does not have any idea of
right and duty.Now a days parliamentary power is misused on a larger
extent which leads to defacing the dignity of judiciary.It should be
stopped and balanced by our honorable parliament.
While there should be no compromise on judicial independence, the tendency on the part of some judges to sermonize at large and make needless comments on everything under the sky and make the executive some sort of punching bag need to be avoided. Some judgements are elaborate academic exercise and essay writing going well beyond the issue raised and decision thereon like in the case of Allahabad HC judgement in Ayondhya issue. There need to be mechanism to remove public doubt on the integrity of judges. These could be achieved if the CJI and his colleagues could themselves come out with enforceable guidelines or draft bills to be adopted by Parliament so that the executive will not hoodwink Parliament to enact laws that will conflict with principle of judicial independence and striking down such law will bring judiciary and Parliament to a position of confrontation. The initiative need to come from CJI and only when there is no such initiative, should Parliament enact a law.
Accountability balanced with judicial independance is the essence of a free judiciary well reconized and supported by executive and guided by the will of the people-parliament.Sixty five years have passed since the system existed and peoples faith strengthened and never eroded.To err is human and judiciary is also no exception.The arrest of top judicial officers, impeachment of judges and legal enquiry into disproportionate assets of even Former Chief Justice of India stand testimony to the strong foundation of Indian Parliamentary system.Delay in delivery of justice,prolonged and manipulated litigation,lesser transparancy in recruitment of judicial officers,pre-conceived notions about judges, unaffordable cost of litigation and above all mounting numbers of civil and criminal cases all erode the credibility before common public."Justice is done only when public are convinced that justice alone is done" so says wise men.The Chief Justice of India has only re-iterated the will of people
To have good judges we need good lawyers. The kind of students who study law in Govt law colleges and generally popularity of law courses compares to engg or medicine does not inspire confidence about future of judiciary system.
Reforms are essential to improve the life of a common man vis a vis time especially in a populous democracy like India. All democratic establishments are expected to work with high efficiency of 9 to 10 on a scale of 10 to deliver goods. After all, our endeavour is to get rid of poverty, illiteracy & money mongering/exploitation and to live in a trash-free healthy environment. Jai Ho!
Even a tea shop owner or a lay man in any high court magistrate court
premises will know the current rate the Judges take bribe for getting a
bail. No wonder currently we have seen judges being arrested for getting
crores of rupees for giving bail to a big shot. Like the Political &
Govt services Judiciary also need to ethnically cleansed of corruption.
Justice Kapadia is absolutely right in saying that we must be very careful in tinkering with the consttutional balance among the three branches of the government. Indian constitution framers had the US style strong Supreme Court in mind when they give it the sole authority to interpret the constitution. Caution is even more necessary today as our public institutions are suffering from a credibility crisis. Clearly our society wants to reform the institutions so that they function in a way that is in line with the framers' original ideas, dreams and goals. Our democracy will evolve and be stronger because of growing public awareness and questioning.
Judicial arm must be accountable but it also must be independent. The clause which Justice Kapadia has questioned is indeed unclear. It looks unnecessary and could be dangerous if it were to limit the Supreme Court's independence. The courts can and must earn public's respect by being effective in their assigned role.
Making the judiciary accountable is good but the process of selection
of Judges should be done judiciously so that those in the Judiciary will
not be corrupt and will not receive any abusive words from the
public.Some of the judgements if evaluated properly would smell rotten
inside.
Judicial independence is the spirit of the foundation of the
Constitution. It is the guardian of the peoples rights and freedoms
and the ultimate balancing factor in the harmonious working of the
Constitution.It must be protected and maintained against all
attacks.The supposed supremacy of the Legislative body (Parliament) is
a total misconception under the Indian Constitution. In adopting the
British Parliamentary system only the form has been adopted not the
spirit of it. Today's politicians to protect and cover their misdeeds
and narrow and sectarian interests want to dis balance it. The
misconceived law must be opposed and nibbed in the bud.I wonder how
some of the members of the Legal Fraternity in the Parliament are
surrendering to this mischieve. They should be more responsible
In view of some sad experience with the judicial system in India,it is highly necessary to have some national judicial commission to mitigate some of the apprehensions of public.
A well-meaning advice to the Govt.
The ploy of independence of judiciary cannot be eternally invoked to resist long-over-due judicial reforms embracing such vital aspects as transparency in the process of selection and accountability. All these years the posts of Supreme court judges and High court Judges are deliberately kept outside the domain of open competition and reservations although those posts too have all the traits of a civil post as assured tenure, salary, DA, HRA, other lowly perquisites, and a hefty Pension which together make those posts come under the teeth of Articles 14,15 and 16 of the constitution the underpinning for selection to any non-elective post.
The other flaw in the process is the most uninspiring method of background check which in the case of high constitutional posts should be preeminently holistic taking up for scrutiny all the traits of a given individual especially qualities like empathy, integrity and competence.
A mechanism should be put in place to closely monitor their comport.
The controversial clause denies the common man's constitutional fundamental right
to the Judiciary.Law Minister Salman Khurshid will pilot it. Watch out!
Well said CJI.We will stand solidly behind you.
In an effort to be a pro democratic country,matter of fact,we are destroying the balance of our constitutional machinery be it judiciary or be it executives.We must remember it is,our constitution a patch work to find out the best mainly to maintain the balance factor.An institution should be there at apex level whom we can rely on for justice.Axing the wings of judiciary if destroys the balance of our constitution it will only be able attract more anarchy.
“No judge shall make unwarranted comments against the conduct of any constitutional or statutory institution or officials at the time of hearing matters in open court.” -This ammendment is aimed and targetted against Judicial independence. While someone be a Constitutional authority or whatever he/she is an alleged suspect,but yet to be proven or innocence is proven by the alleged.
A free and fair Judge may be for some fair and valid reasons make some comments in the manner in which wisdom may direct. Leave it to the wisdom of learned judges.
Please Email the Editor