November 14, 2018

Indian Judicial System, Justice and the society

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We all know that Judiciary is the mechanism for the resolution of disputes.  In India; there is a common law system where Judiciary can make laws when required, even though it possess the doctrine of separation law. We can say that customs, precedents and legislation, all codify the law of the land.  Judiciary in India enjoys judicial independence i.e.  Courts should not be subject to improper influence from the other branches of government, or from private or partisan interests. Judicial Independence is vital and important to the idea of separation of powers. Indian judiciary also posses the power of Judicial review and Judicial activism.

The interpretational and observer role of the Judiciary over the Legislature is called Judicial Review (JR).  The Judiciary can prevent it by declaring the act or action ultra-virus, if the Legislature transgresses the powers given to it by the constitution. While Judicial Activism (JA) is the concept how actively and quickly the judiciary performs the act of JR. the readiness that the courts have achieved in exercising its power to uphold the values of the constitution have been generally come to the extent that JR has gradually acquired the form of Judicial Activism (JA) in India. (Referred from http://www.iasplanner.com/).

Therefore; by going through all these we can say that India possesses strong judicial system then the question arises why there is delayed in justice? What exactly the reason for blockage of pending cases? Some people say there is lack of accountability and transparency in Indian Judicial system and no direct interaction with the society. There are also many reasons which show the weaknesses and defects of the system i.e. corruption in judiciary, hardships of the under trials or many more. It has also been said that Independence of Judiciary is also one of the reason for corruption under Indian Judicial system.

We should first understand that why Independence of Judiciary is more important? It is vitally important in a democracy that individual judges and the judiciary as a whole are impartial and independent of all external pressures and of each other so that those who appear before them and the wider public can have confidence that their cases will be decided fairly and in accordance with the law. Judges have the ultimate responsibility for decisions regarding freedoms, rights and duties of natural and legal persons within their jurisdiction. The independence of each individual judge safeguards every person’s right to have their case decided solely on the basis of the law, the evidence and facts, without any improper influence. A well-functioning, efficient and independent judiciary is an essential requirement for a fair, consistent and neutral administration of justice. Consequently, judicial independence is an indispensable element of the right to due process, the rule of law and democracy. (Referred from http://www.legislationline.org/).

But this independence sometimes results in misuse of the powers and privileges by the Judges. Thus, the concept of Judicial Accountability is nowadays is in question. All over the world various conferences and discussions are going on as to whether judiciary can be held accountable for actions. But again the question arises does this judicial accountability infringe and interferes the independence of Judiciary?  To some extent yes it will but it is required. But what amount of interference is required that matters a lot. Probability is that excess interference may also leads in affecting the smooth functioning of judiciary. So it’s quite hard to determine the amount of interference.

But still even if there is transparency does it gives guarantee that there will be efficient disposal of cases? How far the society interaction will really help in the speedy disposal? Yes, I can say that transparency and accountability may help in reducing the corruption in judiciary. Even to some extent it is required that the judiciary of any country   should be an integral part of the society and its interactions with the society must be made regular and relevant. But sometimes the excess involvement of common people could hamper the smooth function of judiciary because different people have their different views which may become tough for the judges to take decision. Therefore; limit in many things is also required.

There is always a saying that power tends to corrupt.  But it is not the power that corrupts but fear. Fear of losing power corrupts. It’s not easy to determine how healthy our Indian Judicial system is?  Corruption cases such as the 2G scam, the CWG scam, the cash-for-vote scam, Adarsh Society Scam, etc have not only focused the spotlight on the conduct of politicians and public dignitaries but also on the shortcomings in the Indian judiciary’s functioning. The Supreme Court has also compounded the matter by removing judges even from the ambit of criminal investigation. Thus one cannot even register an FIR against a judge taking bribes without the prior permission of the Chief Justice of India. Thus, the judiciary has become highly self protective and taken the form of a closed and opaque box. (Reffered from https://socialissuesindia.wordpress.com).

When we talk about ethics; normally it’s for politicians, students, professors, or etc. But I would say that for a judge too, ethics, not only constitutional morality but even ethical morality, should be the base. Judge should not adjudicate those cases in which he has any kind of interest and must follow the principle of equity in treating the parties to the dispute. Ethics is knowing the difference between what you have a right to do and what is right to do.

 

 

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About Priyanka Sinha 13 Articles
Advocate and Cyber Law Consultancy also Pursuing Intellectual Property Law from NLSIU, Bangalore.
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