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JAGRAN SCHOOL OF LAW
LLM (CONSTITUTIONAL LAW)
Programme (2013-14)
Semester II
RESEARCH DISSERTATION
SYNOPSIS
JUDICIAL ACCO...
The concept of judicial accountability in India is considered in two ways.
First aspect is the accountability in higher ju...
The apex judicial resolution attached to EX-CJI K.G Balakrishnan‟s letter
says: “Every judge should make a declaration of ...
The Indian Constitution states that the Supreme Court of India will comprise
of the Chief Justice of India and at the most...
The whole scheme of impeachment is frustrating and time-consuming and its
utility is non-existent. In addition, it is depe...
The problem with judicial reforms in India is that we lack clarity as to who is
ultimately responsible to the citizens. Bu...
ways to get relief by adopting unethical means. When we make the system very
transparent, then, there is a chance of reduc...
The present work of the research dissertation is related with the problem
Judicial Accountability & its Impact on Justice,...
Hypothesis is the tentative statement made while doing the research work or
it is also called as predictive statement made...
Doctrinal Research: The Data Collection in this research is basically
primary in nature based on detail analysis of variou...
Introduction
In India, the judiciary is separate and independent organ of the state.
The legislature and the executive do ...
lawlessness and uphold what is just, right and fair. This system if
personified as a human being tends to become corrupt a...
independence is to let the judges decide according to the rule of law and
not be influenced by any other agency of the gov...
e. Impeachment
This is the vicious circle of the impeachment of judges. The unfeasibility and
hopelessness of this law has...
“judicial activism”. His 1947 article in Fortune started the modern debate.
It brought into focus the dichotomy observed i...
high-sounding words, “judicial restraint” only means that the Judge shall stick
by the law and decide legal controversies ...
Need and Consequences
The judicial accountability and transparency is the need of the hour to
maintain the faith and trust...
Chapter-6-
Impact of judicial Accountability –
The functioning of judiciary or the legal system has a direct impact on the...
Conclusion with Suggestion for Improving Judiciary System
The judicial system serves the people in a democracy and is not ...
Bibliography
Books
S.N. NAME OF BOOK NAME OF AUTHOR PUBLICATION YEAR
01 CONSTITUTION OF
INDIA
PANDEY J.N. CENTRAL LAW
AGEN...
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  1. 1. JAGRAN SCHOOL OF LAW LLM (CONSTITUTIONAL LAW) Programme (2013-14) Semester II RESEARCH DISSERTATION SYNOPSIS JUDICIAL ACCOUNTABLITY AND ITS IMPACT ON JUSTICE – A STUDY SUBMITTED TO SUBMITTED BY DR. J.P YADAV SUCHINDER DEAN/PRINCIPAL ROLLNO. 17 JAGRAN SCHOOL OF LAW Uttarakhand Technical University Dehradun Introduction
  2. 2. The concept of judicial accountability in India is considered in two ways. First aspect is the accountability in higher judiciary in India for its judgments, i.e. having the judges responsible for their decisions. The second aspect is with respect to the institutional methods of appointing the Judges, removal of Judges and the inhibitions to the criticism of their work but the „law of contempt of court‟ the judiciary an essential wing of the State, is also accountable. Judicial accountability however is not on the same plane as the accountability of the executive or the legislature or any other public institution. Indian polity is under severe strain. Faith of the people in the quality, efficiency and integrity of governmental institutions stands seriously eroded. Legislature, executive and judiciary are said to be the three pillars of democracy. Some people even believe that judiciary is the protector of democracy. For the last many years judiciary has upheld the true values of justice in India. But now, it appears that this strong pillar is shaking. The fact that the powers of judges are very wide is in itself an indication that the powers may not be allowed to be absolute. Among the constitutional limitations on the judges, the most important one is the provision for „removal‟ of judges of the High Court‟s /Supreme Court by address of the Houses of Parliament to the President on the ground of „proved misbehaviour or incapacity‟. This is provided in Constitution of India, art. 124 (2) and (4) in respect of judges of the Supreme Court and in view of art. 217, that procedure is attracted to the „removal‟ of judges of the High Court also. The guiding principle should always be this: accountability there is and must be, but let it always be commensurate with judicial independence and impartiality. Ultimately, the appropriate balance between competing principles must be found in something that is best suited to our constitutional setup and is, in that sense, uniquely Indian.
  3. 3. The apex judicial resolution attached to EX-CJI K.G Balakrishnan‟s letter says: “Every judge should make a declaration of his/her or spouse/dependents‟ assets within a reasonable time of assuming office.” They are also to give information about new assets acquired, additional property purchased or further investments made if they are of “substantial nature”, assuring them that they would not be for public consumption and that they would remain confidential. The CJI has also promised to take measures against “black sheep in judicial robes”. Problems of Accountability The people hold a great stake in the administration of justice. Despite the value of judicial accountability in any free democratic republic, the judiciary in India is at best completely unaccountable to any institution in the country. Many factors have contributed to this dire situation and the problem of accountability is wide and complex. The Contempt of Courts Act The main purpose of the Contempt Power has been to enable the court to be able to enforce its orders and to punish for obstruction in administration in justice. But over the years this power has been considerably widened and freely used by the courts. Today, in countries like UK and U.S.A. the concept has been liberalized. But India still follows the old British-rule norms, which undoubtedly was not a free democracy. Appointment and Selection of Judges
  4. 4. The Indian Constitution states that the Supreme Court of India will comprise of the Chief Justice of India and at the most 7 other judges. This number has now been increased to 30. The Supreme Court judges are appointed by the President on the consultation of other judges of Supreme Court and High Court. Other than in case of the appointment of the Chief Justice of India himself, the President has to consult the Chief Justice of India when appointing the other judges. High Court judges are also appointed by the President on the recommendation of the Chief Justice of India and the Governor of the concerned state. The Chief Justice of the High Court is also consulted for appointing the judges, other than for the appointment of the Chief Justice himself. In the case of S.P. Gupta vs. Union of India, it was held that the President has the right to differ from the advice provided by the judges and it can only be challenged if it is based on mala-fide and irrelevant consideration. This decision was reversed in SC Advocates on Record Association vs. Union of India whereby it was held that in the matter of appointment of judges of high courts and Supreme Court, the Chief Justice should have the primacy and the appointment of the Chief Justice should be based on seniority. Impeachment The first time ever impeachment proceedings were initiated against a sitting judge of Supreme Court was in K. Veeraswamy vs. Union of India. The motion for impeachment in this instance failed and was defeated in the Lok Sabha. This was not so because any member of the house was against the motion, but only because they all abstained from voting. The controversy enraging today is how can the ministers who are the major litigants in the court be trusted to select or remove the judges?
  5. 5. The whole scheme of impeachment is frustrating and time-consuming and its utility is non-existent. In addition, it is depended upon a corruption ridden government and is highly susceptible to political pressure. Disciplinary Mechanism The Judges Inquiry Bill, 2006, recommended the constitution of a National Judicial Council with powers to investigate complaints against the judges and recommend suitable actions. It suggested that the complaint be allowed to be made by anyone against any judge of the Supreme Court or the High Court except for the Chief Justice of India. The members of the council would be the Chief Justice of India, two senior most Supreme Court Judges and two High Court Judges. In case of a complaint brought forward against a Supreme Court Judge it would comprise of the Chief Justice of India and four senior most judges of the Supreme Court. Statement of the Problem
  6. 6. The problem with judicial reforms in India is that we lack clarity as to who is ultimately responsible to the citizens. But, with experience, the collegium system has invited so much criticism and the executive do not bother to address the issue showing judicial independence and they will say that they can do nothing given the legal position in this regard. Likewise, the problem is where to start and whose responsibility it is to address the issue of delay in disposal of cases before various courts in this country. It is for sure that we can certainly curtail the delay in justice delivery and can ensure speedy justice to the citizens. For which what we need is commitment from Government and the concerned ministry. We have so many eminent judges with vast experience who also command great respect among the professionals and people. We need to utilize their services and get their guidance as to how to cure the system and make the speedy disposal of cases a reality. Judicial reforms will transform this country to a great extent and we can see lot of change in the things in the society if we are able to bring the judicial reforms. There will not be any illegality in the society or at least we can see substantial reduction in illegal activities in the society if there is an effective judicial system in place. This is the impact of effective judicial system in the Country. Alleged corruption in Judiciary and particularly lower judiciary is a matter of grave concern. We need to address the issue of corruption in Higher Judiciary first and we need to concentrate on the issue of judicial appointments. The judge‟s accountability is a serious issue as options are less to deal with the judge who is not accountable or who is corrupt. So, the responsibility of appointing efficient and clean judges is to be given to executive and they should not be allowed to take a defence that they are not concerned with the appointments and as such they can do nothing when it comes to corruption in judiciary. Our country is really facing a serious problem with the allegations of corruption in judiciary and the public are slowly losing their faith in judiciary or finding the
  7. 7. ways to get relief by adopting unethical means. When we make the system very transparent, then, there is a chance of reducing the corruption to a great extent and such the executive should concentrate as to how to make the entire judicial system in the country transparent. Objective of the Study
  8. 8. The present work of the research dissertation is related with the problem Judicial Accountability & its Impact on Justice, so to find out the impact of the result of the problem I‟ve started my dissertation work with following objectives. Discussed below: 1. What is the meaning of judicial accountability? 2. Whether the judiciary of India is free from the burden of accountability 3. How Judiciary Accountability can be determine and with what parameters? 4. How Judicial Accountability is enforced? Whether there is any Independent Institution, Authority, Tribunal, Commission, etc. is constituted and available to enforce Accountability against the Independence of Judiciary? 5. To study the Judicial Accountability under the Indian Constitution? 6. It is to be taken into consideration that the Judicial Accountability is different from the Accountability of the Judicial System. 7. The principles and standards are to be laid down for ascertainment of Judicial Accountability. 8. Whether the Constitution of India provides any safeguards regarding Accountability of Judiciary or not? Here after the consideration of the above points we‟ll discuses one by one- Hypothesis of Judicial Accountability Project
  9. 9. Hypothesis is the tentative statement made while doing the research work or it is also called as predictive statement made by the researcher. 1. The present study is limited to understand the nature of Indian Judiciary and its accountability. 2. The present study is limited to constitutional frame work of Judiciary relating to appointments, powers, functions, Independent Nature and Accountability. 3. The independent Indian Judiciary is protecting fundamental rights, Federal Character, supremacy of the constitution. 4. The concept of Judicial Activism and Judicial overreach and Judicial Restraint 5. The Indian Judiciary with its Independent nature projects the constitution supremacy through its active role. Research Methodology
  10. 10. Doctrinal Research: The Data Collection in this research is basically primary in nature based on detail analysis of various documents and studies in various books, articles & websites. This includes materials from books, magazines, articles, websites ant juristic writings, where facts are critically analyzed & conclusions are drawn from them. Legal principle can be framed these conclusion. Further the current reportings of television and views of the Senior Advocates have also been taken assistance in discussing the problem of Judicial Accountability. Tentative Chapterization:
  11. 11. Introduction In India, the judiciary is separate and independent organ of the state. The legislature and the executive do not interfere in the functioning of the judiciary. The functioning of the judiciary is independent but it doesn‟t mean that it is not accountable to anyone. In a democracy the power lies with the people. The judiciary must concern with this fact while functioning. The high courts have the power of control over the subordinate courts under article 227 of the constitution. The CJ of High courts/ India have no power to control or make accountable other judges of the Court. Chapter-1- Meaning and definition of the judicial accountability The word „Accountable‟, as defined in the Oxford Dictionary, means „responsible for your own decisions or actions and expected to explain them when you are asked. Clearly, the concept of „judicial accountability „refers to making the judges answerable for their decisions in the court of law. What exactly is Indian judiciary? Is it accountable to anyone? These are certain questions which require immediate and remedial answers. Peeved at judiciary donning the role of Executive in several cases, Somnath Chatterjee warned of „serious implications‟ if this trend continued, asserting no one should behave as a „super organ‟ of the State. Chatterjee said „nowadays‟ there have been „umpteen‟ cases where judiciary had "intervened in the matters entirely within the domain of the executive, including policy decisions despite the Constitution according pre-eminent position to the Legislature. The judiciary, the principal system present in all the societies created, mainly to fight injustice,
  12. 12. lawlessness and uphold what is just, right and fair. This system if personified as a human being tends to become corrupt and decay or like any normal human being is born with some imperfections. Chapter-2- Concept of Independent of Judiciary under the Indian Constitution In the context of Separation of Power, judicial review is crucial and important. We have three wings of the state- Judiciary, Legislature and Executive (not necessarily in that order) with their function clearly chalked out in our constitution. Article 13 of the constitution mandates that the ‘State shall make no law, which violates, abridges or takes away rights conferred under Part III’. This implies that both the Legislature and the Judiciary in the spirit of the words can make a Law. But under the theory of checks and balances, the judiciary is also vested with the power to keep a check on the laws made by the legislature. a) First with regard to separation of powers b) Second Judicial Legislation Chapter-3- Problems regard to making judiciary accountable a. Judicial Accountability and Judicial Independence- Judicial accountability helps safeguard the independence and integrity of the judges. Sometimes judicial accountability can be misconstrued as it is context- based. It is very difficult to define judicial accountability and it has to be appreciated from the view of its objectives. The function of
  13. 13. independence is to let the judges decide according to the rule of law and not be influenced by any other agency of the government or any private interests or the interests of any individual. b. Problems of Accountability The people hold a great stake in the administration of justice. Despite the value of judicial accountability in any free democratic republic, the judiciary in India is at best completely unaccountable to any institution in the country. Many factors have contributed to this dire situation and the problem of accountability is wide and complex. c. Contempt of the Court The main purpose of the Contempt Power has been to enable the court to be able to enforce its orders and to punish for obstruction in administration in justice. But over the years this power has been considerably widened and freely used by the courts. Today, in countries like UK and U.S.A. the concept has been liberalized. d. Appointment and Selection of Judges The Indian Constitution states that the Supreme Court of India will comprise of the Chief Justice of India and at the most 7 other judges. This number has now been increased to 30. The Supreme Court judges are appointed by the President on the consultation of other judges of Supreme Court and High Court. Other than in case of the appointment of the Chief Justice of India himself, the President has to consult the Chief Justice of India when appointing the other judges. High Court judges are also appointed by the President on the recommendation of the Chief Justice of India and the Governor of the concerned state.
  14. 14. e. Impeachment This is the vicious circle of the impeachment of judges. The unfeasibility and hopelessness of this law has been seen time and again when impeachment procedure has been tried to be initiated against corrupt judges. f. Disciplinary Mechanism We need a workable mechanism for disciplining erring judges and it should constitute both corrective and punitive measures. Different types of misconduct should be dealt with differently. g. Ethics of Judges The basic code of ethics is the principle that no man can be judge in his own cause; it means that a judge should not adjudicate those cases in which he has any kind of interest. A judge should follow the motto of “Fiat justitia, ruat caelum” that is “let justice be done though the heavens fall”. A judge should guard against intimidation of powerful outside interests, which often threatened the impartial administration of justice and keep him free from application of crude pressure, which may result in manipulation of the law for political purposes at the behest of the government in power or anybody else. Chapter-4- The concept of Judicial Activism The term “judicial activism” came into currency sometime in the twentieth century to describe the act of judicial legislation i.e. Judges making positive law. Although, the underlying debate on judicial activism has been around since the days of Blackstone and Bentham, the credit belongs to a non-lawyer Arthur Schlesinger Jr., for popularising the term
  15. 15. “judicial activism”. His 1947 article in Fortune started the modern debate. It brought into focus the dichotomy observed in the judicial process: unelected Judges versus democratically elected legislatures; result-oriented judging versus principled decision-making; observance versus side- stepping of precedents; law versus politics and so on. On the basis of their judicial philosophies, Schlesinger characterised some Judges of the US Supreme Court as “judicial activists”, some as “champions of self-restraint” and others as comprising the middle group. Scholars of law, practitioners as well as the general public have debated, often fractiously, the correctness or otherwise of this kind of judicial activity, some advocating John Austin’s deference to restraint and others Justice Benjamin Cardozo’s views which tended towards activism. Activism versus restraint In India, although the activism versus restraint debate existed even in the pre-Constitution period, it did not vigorously take-off till the 1970s when the Supreme Court of India itself became very activist. However, the underlying philosophical issue of the relationship between means and ends has been long debated in Indian philosophy. In recent times, it was Mahatma Gandhi who advocated that the means used for achieving a particular result must also be as acceptable as the result itself. As we shall see, the saga of judicial decision-making by the highest court in India indicates that judicial activism or the mere pursuit of ends without regard to the means has become the dominant approach in judicial thinking. Judicial restraint - There can be no difficulty in accepting judicial restraint or legal centrism as a judicial philosophy in itself. But this philosophy is very different from judicial activism that I have spoken against. Despite the
  16. 16. high-sounding words, “judicial restraint” only means that the Judge shall stick by the law and decide legal controversies strictly in accordance with established principles of law without foraging the constitutionally forbidden territories reserved for another branch of the government. In my view, that precisely is the role a Judge is called upon to play by reason of the oath that he undertakes. A Judge is not free to render justice as he thinks, but is required to render “justice accords to law”. Chapter-5- Judicial Accountability Bill – 1. Whether to undermine the independence of Judiciary The meaning of the independence of the judiciary is still not clear after years of its existence. Our constitution by the way of the provisions just talks of the independence of the judiciary but it is no where defined what actually is the independence of the judiciary.The primary talk on the independence of the judiciary is based on the doctrine of separation of powers which holds its existence from several years. The doctrine of separation of powers talks of the independence of the judiciary as an institution from the executive and the legislature. 2. “ How , why, what and when of the bill” The judiciary is not untouched by corruption”. As guardians of the constitution, our judges have admirably protected democratic traditions in our country; but the question remains, who will guard the guards? The Judicial Standards and Accountability Bill will set judicial standards and make judges accountable for their lapses.
  17. 17. Need and Consequences The judicial accountability and transparency is the need of the hour to maintain the faith and trust in judiciary and their juries. We should endeavour to make them a reality in our home territories without hindering to the independence of the judiciary. “Without transparency, there can be no accountability; Secrecy is only the preserve of dictatorship.” Chapter-5- Judicial Accountability in Other Nations of the World South Africa: South Africa is currently in the process of adopting new laws on judicial ethics and discipline, financial disclosure, judicial codes of conduct and training for judges. Australia: The federal judiciary enjoys constitutional protection in terms of appointment and removal of judges by virtue of section 72 of the Federal Court of Australia Act Removal can only occur through proved misbehavior or incapacity. Canada: In Canada the independence of the federally appointed judiciary is guaranteed by the Canadian Constitution (namely sections 96 to 100 of the Constitution Act, 1867) which provides for the appointment, security of tenure and financial security of superior court judges. Canada: In Canada the independence of the federally appointed judiciary is guaranteed by the Canadian Constitution (namely sections 96 to 100 of the Constitution Act, 1867) which provides for the appointment, security of tenure and financial security of superior court judges.
  18. 18. Chapter-6- Impact of judicial Accountability – The functioning of judiciary or the legal system has a direct impact on the society and the rights of the people. If a criminal could manage a magistrate or court dealing with his case, then, who will protect the society from evil forces? We cannot expect the government to be very clean and responsive given the complications in the Indian political system. As such, the Judiciary or the legal system has a big role to play in protecting the rights of the people, ensuring orderliness in the system and even making a judgment on the executive actions when those are not in conformity with the public interest. There are critics on the allegations of corruption and lack of transparency in the Judiciary
  19. 19. Conclusion with Suggestion for Improving Judiciary System The judicial system serves the people in a democracy and is not above the Law. And law and morality should not be considered independent of each other. Integrity, impartiality, high morality, honesty, freedom from bias and influence, and a keen sense of social responsibility are a few important qualities must in a Judge. “Power corrupts and absolute power corrupts absolutely.” No more can the judges hide behind the cloak of judicial independence and secrecy which is an allergy to democracy. It is aptly said that independence of judiciary is not the property of the judiciary, but a commodity to be held by the judiciary in the trust of the public.
  20. 20. Bibliography Books S.N. NAME OF BOOK NAME OF AUTHOR PUBLICATION YEAR 01 CONSTITUTION OF INDIA PANDEY J.N. CENTRAL LAW AGENCY ALLAHABAD 2008 02 V.N. SHUKLA‟ S CONSTITUTION OF INDIA M.P.SINGH EASTERN BOOK COMPANY 2006 03 OUR CONSTITUTION KASHYAP S.C. ------- 2006 04 INTRODUCTION TO CONSTITUTION BASU D.D. WADHWA PUB. NAGPUR 2004 05 CONSTITTUION OF INDIA BAXI P.M. UNIVERSAL LAW AGENCY DELHI 2009 06 INDIAN CONSTITUTIONAL LAW JAIN M.P. LEXIS NEXIS PUB. 2005 07 ADMINISTRATIVE LAW DR. J.J. UPADHYA CENTRAL LAW AGENCY ALLAHABAD 2010 Research Article 1. Judiciary in Constitution Independence and Accountability * Rajnish Kumar Srivastava ** Dr. R.B . Srivastava 2. Judicial Corruption, Accountability and Democracy * Ronak Karanpuria 3. Judicial Accountability in India * Kumar Rajendran Legislation Accountability Bill 2010 The Judges (Inquiry) Bill, 2005 Judges (Inquiry) Act, 1968 Websites 1. legalserviceindia.com 2. mylaw.net 3. indiankanoon.com 4. lawyersclub.com 5. loksabha.ac.in

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