Posted by Dr. Gopal Unnikrishna Kurup
The Executive versus Judiciary
Independence of the judiciary means that the judiciary as an organ of the government should be free from influence and control of the other two organs i.e. the executive and the legislature of government. The doctrine of Separation of Powers provides for a responsibility to the judiciary to act as a watchdog.
Our constitution just talks of the independence of the judiciary but it is no where defined what actually is the independence of the judiciary. Art. 50ays down that the state shall take steps to separate the judiciary from the executive in the public services of the state, but how exactly is unstated.
The independence of the judiciary, raises concern about the latent dangers of the judicial independence and there arises the importance of “Judicial Accountability”. Law Commission had recommended for the inclusion of a whistleblower provision, aimed at protecting those making complaints against judges, also dealing with the removal of judges of the Supreme Court and High Courts. Judicial Accountability and Judicial Independence have to work hand in hand to ensure the real purpose of setting up of the institution of judiciary.
Accountability of judiciary also evokes the question of supremacy. Only one that is supreme to the other can enforce accountability. Who is supreme, out of the commonly mentioned: the Constitution, the Parliament, or the Judiciary? The answer is none. The real power is that of the people who are therefor the supreme.The Constitution is a creature of the people. In fact the preamble of the Constitution starts with the words; " We the people of India" have resolved to have this Constitution. .".
People are, in a democracy represented by the elected members of the Parliament and not by the selected members of the judiciary. It is because of this overriding factor that Arun Jaitley characterized the recent judgement overturning the National Judicial Appointments Commission as unconstitutional, as " tyranny of the unelected"
The Constitution of India, makes a distinction between statutory law and constitutional law and prescribes a special procedure for amending the latter as incorporated in Article 368. The Supreme Court held ( in Keshavananda Bharati v. the State of Kerala ) that Article 368 does not enable Parliament to alter the ‘basic structure’ or framework of the Constitution. The term basic structure is a vague and general term and the Judges themselves did not offer a common agreed meaning.
Some included Fundamental Rights and federation in the concept of basic structure while others saw no limit to the amending power of Parliament. The Constitution (Forty-second Amendment) Act, 1976, provided that Parliament had full power to amend the Constitution and no amendment made under Article 368 could be questioned in any Court on any ground. However the latest position is that the validity of the Forty-second Amendment was questioned and in May 1980, and the Supreme Court struck it down. There are many who see this as judicial activism
Together with the independence of the judiciary, there must also be accountability and restrictions In order to ensure smooth functioning of the system there must be a right blend of the two. There has to be a more explicit definition of what is basic structure of Constitution, in the light of which the latter judgement needs to be reviewed.
The Executive versus Judiciary
Independence of the judiciary means that the judiciary as an organ of the government should be free from influence and control of the other two organs i.e. the executive and the legislature of government. The doctrine of Separation of Powers provides for a responsibility to the judiciary to act as a watchdog.
Our constitution just talks of the independence of the judiciary but it is no where defined what actually is the independence of the judiciary. Art. 50ays down that the state shall take steps to separate the judiciary from the executive in the public services of the state, but how exactly is unstated.
The independence of the judiciary, raises concern about the latent dangers of the judicial independence and there arises the importance of “Judicial Accountability”. Law Commission had recommended for the inclusion of a whistleblower provision, aimed at protecting those making complaints against judges, also dealing with the removal of judges of the Supreme Court and High Courts. Judicial Accountability and Judicial Independence have to work hand in hand to ensure the real purpose of setting up of the institution of judiciary.
Accountability of judiciary also evokes the question of supremacy. Only one that is supreme to the other can enforce accountability. Who is supreme, out of the commonly mentioned: the Constitution, the Parliament, or the Judiciary? The answer is none. The real power is that of the people who are therefor the supreme.The Constitution is a creature of the people. In fact the preamble of the Constitution starts with the words; " We the people of India" have resolved to have this Constitution. .".
People are, in a democracy represented by the elected members of the Parliament and not by the selected members of the judiciary. It is because of this overriding factor that Arun Jaitley characterized the recent judgement overturning the National Judicial Appointments Commission as unconstitutional, as " tyranny of the unelected"
The Constitution of India, makes a distinction between statutory law and constitutional law and prescribes a special procedure for amending the latter as incorporated in Article 368. The Supreme Court held ( in Keshavananda Bharati v. the State of Kerala ) that Article 368 does not enable Parliament to alter the ‘basic structure’ or framework of the Constitution. The term basic structure is a vague and general term and the Judges themselves did not offer a common agreed meaning.
Some included Fundamental Rights and federation in the concept of basic structure while others saw no limit to the amending power of Parliament. The Constitution (Forty-second Amendment) Act, 1976, provided that Parliament had full power to amend the Constitution and no amendment made under Article 368 could be questioned in any Court on any ground. However the latest position is that the validity of the Forty-second Amendment was questioned and in May 1980, and the Supreme Court struck it down. There are many who see this as judicial activism
Together with the independence of the judiciary, there must also be accountability and restrictions In order to ensure smooth functioning of the system there must be a right blend of the two. There has to be a more explicit definition of what is basic structure of Constitution, in the light of which the latter judgement needs to be reviewed.
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