Our country India is a democratic country, means that the government has to be `by the people, for the people and of the people`. It guarantees to its citizens various rights through its Constitution. In order for the smooth working and ensuring rights to everyone the Supreme Court and the High Courts have been given special powers to safeguard these rights. A mere submitting of a letter addressed to a judge after violation of a fundamental right, either by the victim of another person is enough to move courts.
Violation of Fundamental Right may have been done even by state. Now a dilemma arises that should judiciary take sides with the state or with the victim? If the Judiciary is independent, then of course it would help the victim, if judiciary is under state control then justice would be forgotten and the state would not hesitate again to violate a fundamental right again.
During the last few years, the question of independence of judiciary has been hotly debated in India. This question has agitated the minds of jurists, politicians and the lay men. The supporters and the opponents have both given very effective and sound arguments.
Those who believe in the absolute independence of judiciary say that democracy cannot be possible in the absence of an independent judiciary. They say that rule of law can only be upheld by a supreme judiciary. And this rule of law is very essential for the successful working of democracy.
On the other hand its opponents want to uphold the supremacy of the Parliament. They want to limit the powers of the judiciary. They say that it should not stand in the path of economic and social reforms in the country for the establishment of a socialistic society.
The famous French philosopher Montesquieu had first of all given the idea of the independence of judiciary. He believed in the theory of separation of powers of the three Branches of the government- Legislature, Executive and Judiciary. Inspired by his theory the father of the American Constitution established an independent judiciary in their country. The American people have a great confidence in the independence of judiciary. They feel that their rights and liberties will be endangered if the judiciary is weakened in anyway.
In U.K. the judiciary has not specifically been made independent or supreme. It has also not been separated from the Legislature, as the House of the Lords is the highest court of appeal. Still the judges there have been acting in a highly independent and fearless manner in their decision. Inspite of the fact that English people do not have any written fundamental rights, still they enjoy no less liberty than the Americans. The credit for this goes to the independent and impartial judiciary there. In fact, in U.K. the Parliament is a supreme body. But there is no clash between the Parliament and the Judiciary as they mind their own business.
In communist states like Russia the judiciary is considered to be an instrument for the implementation of the laws. It is an arm of the executive. It has to implement the communist ideology. It is the guardian of the socialist ideology. Its duty is to give exemplary punishments to those who oppose the state ideology, who commit sabotage and are the enemies of the State.
Thus the judiciary in England and in Russia cannot declare a law passed by their respective legislatures as unconstitutional. On the other hand, in India and US, the supreme courts enjoy the powers of judicial review. They can declare a law passed by the legislature as unconstitutional and strike it down. In this way different practices regarding the powers of the judiciary are followed in different countries.
There is no doubt that a fearless and impartial judicial system is a must for any civilized nation. It is also the essential condition for a federal type of government as in India. If the judges of the higher courts are fearless, impartial and independent, only then it can be expected that they can protect the fundamental rights of the citizens. On the other hand, if the judges themselves are weak and fearful they cannot uphold the rights of the citizens.
In our country also the constitution has established a separate and independent judiciary. It has remained impartial and independent all these years. There is no doubt that the Indian Supreme Court has always shown its independence and impartiality since its inception. On many occasions it pronounced several historical judgments fearlessly, which sometimes even went against the government.
Our Supreme Court has very zealously been protecting the fundamental rights of the citizens. Thus it has been acting as a protector and guardian of the Indian Constitution as well as the rights of the citizens. But in the modern age the independence of the judiciary doesn’t mean that it should not keep in mind the social and economic deals and aspirations of the people, while delivering its judgments. Rather the judiciary should actively participate in the sacred task of building a welfare society in the country and the regeneration of the nation. Similarly the executive or the Parliament should not do anything to undermine the independence of judiciary.
Image source: ginacobb.typepad.com
Student, College of Legal Studies, University of Petroleum and Energy Studies, Dehradoon.
Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011