(Story written by Journalist Anjani Kumar)
Judiciary is the backbone of any country’s governing system which has a democratically elected government. When our constitution was formed, the lawmakers provided this one of the most significant arms of the government with enormous powers to dictate on most controversial and significant cases involving issues as well as people. However, it has been seen in recent years that our High Courts as well as Supreme Court have not acted as a supporting team in front of an executive body. Judiciary which was considered to be free from any stench or not influenced by pelf and power is becoming a heaven for the people in power and who have money who tend to win favors from the judges despite doing heinous crimes and who have been found an accused for being involved in siphoning government exchequer. In a country where abysmal number of cases are still pending in its lower courts and high courts where many families have lost their money on cases for getting justices for years where fervent appeals from the public and requests to resurrect the entire legal system have failed to awake the government from its deep slumber. Therefore, the time has come to overhaul the entire system. However, irony remains that when the Constitution was made, our lawmakers didn’t realise that one day this one of the important organs of the government will prove to be rot and for the mass poor class and it would eventually become a system which will far away from the reach of common people.
At the time of writing the Constitution, the lawmakers kept care of this thing that judiciary and judicial proceedings were not caught in a web of controversies given the fact that dispensation of justice in our courts takes much time. However, bureaucratic hold as well as the dilly-dallying approach in handling even matters of less importance has brought the entire system to a stand-still. In a constitution where the lawmakers had dreamt of a free and unbiased judiciary, the executive body of the government has time and again influenced the course as well as the pace of judgment thus playing truant with the very ethos of the constitution. In order to provide more freedom to all these three , the constitution has divided the system into the executive, the legislature as well as in the judiciary and separated their functions and advised them to act as separate entities. The executive is vested with the power to make policy decisions and implement laws while the legislature has been empowered to issue enactments while the judiciary has been made responsible for adjudicating disputes. Thus, as per rule, either no law should be either passed or no amendment should be made to the Constitution which deviates from the doctrine. As a rule, Judiciary exercises judicial review over executive and legislative action while the legislature reviews the functioning of the executive. However, there have been some cases where the courts have issued laws and policy related orders through their judgements.
Our Constitution which has foot-prints of England and America, almost the entire constitution is built upon a strong edifice of an independent judiciary. Independence of the judiciary depends on the totality of a favorable environment created and backed by all state organs, including the judiciary and the public opinion. However, independence of the judiciary needs to be constantly guarded against the unexpected events and changing social, political, and economic conditions; however, our judicial system is too fragile to be left unguarded. Our Constitution aims at the prosperity and stability of the society. It is believed that such a society could be created if the fundamental rights were guaranteed and judiciary was made independent to guard and enforce those rights. Therefore, the constitution makers of India’s Constitution dealt with these two aspects with maximum and equal idealism.
In India, judiciary’s tussle with the executive has been long and protracted. Whether it is on the power to amend the Constitution or the judicial appointments. There has always been a tussle between the two.
When in June 1975, the Allahabad High Court gave a verdict convicting then then Prime Minister Indira Gandhi for electoral malpractices and debarred her from holding any elected post, it falls in this category. The verdict delivered by Justice Jagmohan Lal Sinha is widely believed to be leading to imposition of Emergency in India on June 25, 1975 when her government decided to put five laws into a safe and secure net, away from the apex court’s prying eye.
The Representation of the People Act, 1951: This law provides for the conduct of elections for both houses of Parliament and the state legislatures. Indira Gandhi’s election was challenged due to violation of this law and after certain amendments to twist the law which promptly found its way into the Ninth Schedule.
Maintenance of Internal Security Act, 1971 (MISA): This law was brought in to put down civil and political disturbances in the country and to counter national threat. However, it was heavily criticized for being used by the ruling party to prove its wrong acts right.
Under MISA, law enforcement agencies were given special powers to arrest without warrants and preventive detention was allowed. It led to several opposition leaders being jailed under this law. The Act was amended many times during the Emergency. To ensure that it went unchallenged in courts, MISA was duly inserted in the Ninth schedule.
Monopolies and Restrictive Trade Practices Act, 1969: The anti-trust law, a grim reminder of the licence-permit era of India, was quickly dumped in the Ninth Schedule. The law was replaced by The Competition Act, 2001.
The Coal Mines (Nationalization) Act, 1973: The Emergency period saw the launch of a host of nationalization schemes. From general insurance, banking, textile indust0ries to coal mines, the government policy on nationalization was challenged in courts. From the government’s point of view, nationalization was done in the socialistic spirit of the Constitution. To avoid legal issues, the law was inserted in the Ninth Schedule.
Indira Gandhi won the 1971 Lok Sabha election from Rae Bareli Lok Sabha seat in Uttar Pradesh convincingly defeating socialist leader Raj Narain, who later challenged her election alleging electoral malpractices and violation of the Representation of the People Act, 1951. It was alleged that her election agent Yashpal Kapoor was a government servant and that she used government officials for personal election related work.
While convicting Indira Gandhi of electoral malpractices, Justice Sinha disqualified her from Parliament and imposed a six-year ban on her holding any elected post. June 12, 1975 verdict of the Allahabad High Court under which the then Prime Minister Indira Gandhi was found accused of electoral malpractices and which debarred her from holding any elected post falls in this category.
The independence of the judiciary is not a new concept but its meaning is still imprecise. The starting and the central point of the concept is apparently the doctrine of the separation of powers. Therefore, primarily it means the independence of the judiciary from the executive and the legislature. But that amounts to only the independence of the judiciary as an institution from the other two institutions of the state without regard to the independence of judges in the exercise of their functions as judges. In that case it does not achieve much. The independence of the judiciary does not mean just the creation of an autonomous institution free from the control and influence of the executive and the legislature.
The underlying purpose of the independence of the judiciary is that judges must be able to decide a dispute before them according to law, uninfluenced by any other factor.
For that reason the independence of the judiciary is the independence of each and every judge. But whether such independence will be ensured to the judge only as a member of an institution or irrespective of it is one of the important considerations in determining and understanding the meaning of the independence of the judiciary.
