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Published : September 01, 2016 | Author : drpremnarh
Category : Judiciary | Total Views : 763 | Unrated

  
drpremnarh
drpremnath d/b july 6,1949 professor deptoflaw panjabuniversitychandigarh
 

Independence of Judiciary

‘’There can be no difference of opinion in the house that our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured. There are two different ways in which this matter is governed in other countries. In Great Britain they appointments are made by the crown, without any kind of limitation whatsoever, which means by the executive of the day. there that opposite system I United States where, for instance, offices of the Supreme Court as well as other offices of the State shall be made only with the concurrence of the senate in the United States. It seems to me, in the circumstances I which we live today, where the sense of responsibility has not grown to the same extent to which we find it in the united States, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day. Similarly it seems to me that to make object to the concurrence of the Legislature is also not a very suitable provision. Apart from its cumbrous, it also involves the possibility of the appointment being influenced by political pressure and political consideration. The draft Article, therefore, steers a middle course. It does not make the President the Supreme and the absolute authority in the matter of making appointments. It does not also impart the influence of the legislature. The provision in the Article is that there should be calculation of persons who are exhypothesis, well qualified to give proper advice in matters of this sort, and my Judgment is that this sort of provision may be regarded as sufficient for the moment.”

DR.B.R.Ambedkar
The people of a nation may lose confidence in the Executive (The King), or the Legislature but it will be an evil day if they lose their confidence in its judiciary. The judiciary is the guardian of human rights and civil liberties. The judiciary contributes vitally in the preservation of peace and order by settling disputes between the State and Citizens and among citizens which leads to a harmonious and integrated social existence. The quantum of its contribution, however, largely depends upon the willingness of the people to present their problems before it and to honour its decisions. Equity, Justice and good Conscience is an accepted principle of judicial functioning in almost every legal system.[1] The judicial institutions i.e., the Courts are not only Courts of law, they are also the Courts of justice.

The “Rule of law”, said, A.V. Dicey, in 1885 means, “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence or arbitrariness, of prerogative, or even wide discretionary authority on the part of the Government.[2] Another significance, which Dicey attributed to the concept of Rule of law, was; “equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law Courts”.[3] The principle implicit in the Rule of Law that the Executive must act under the law and not by its own decree or fiat, is still cardinal principle of the English system.

For a democratic government, Rule of Law is a basic requirement, and for the maintenance of Rule of Law, there must be an independent and impartial judiciary. In a State professing Rule of Law, the aim should be to provide for a system which secures to its citizens adequate procedure for the redress of their grievances against the State before forums which are able to administer justice in an impartial manner without any fear and favour.

The judiciary is the final interpreter and the guardian of the Constitution. In a Federal Constitution, the judiciary is constituted as ultimate authority to restrain any exercise of absolute, capricious and arbitrary power. The Legislative action of majority has to undergo the scrutiny of the legal elite, the judiciary. The human rights are secured and the tyranny of the majority is contained by Judicial Vigilance, that is to say, the legislative and executive action is counter balanced by judicial verdict. Democracy has no alternative but to the accept the Courts as the sentinel and the guardian of liberty and freedom.[4]

The essence of a Federal Constitution is the division of powers between the Centre and the State Governments. This division of power is made by the written Constitution which is the supreme law of the Land. Since language of the Constitution is not free form ambiguities and its meaning is likely to be interpreted differently by different authorities at different times, it is, therefore, natural that disputes might arise between the central and constituent units regarding their respective powers. So, an independent judiciary is required to decide dispute between the Centre and State or the States inter se.

The judiciary in addition to the function of maintaining the supremacy of the Constitution is also the guardian of the fundamental rights of the people. really, the judiciary safeguards the civil and minority rights and play the role of guardian of the social revolution.[5] Mere enumeration of a number of fundamental rights in a Constitution without any provision for their proper safeguards will not serve any useful purpose. Unless, there is remedy, there is no right, goes a famous maxim. For this purpose, an independent and impartial judiciary with power of judicial review has been established it plays another significant role of determining the limits of power of the Centre and States.[6]

In Britain, the independence of judiciary rest not on formal constitutional guarantees and prohibitions but on an admixture of statutory and common law rules, constitutional conventions and parliamentary practices, fortified by professional traditions and public opinion.[7]

In United States of America, the Supreme Court is the highest Court of judicial administration and the judicial independence depends upon the supremacy of the Supreme Court. The supremacy of judiciary developed as the Supreme Court assumed the power to perform constitutional obligation and protect the people and their rights from the State action.

Since the case of Marbury v. Madison,[8] it has come to be considered a duty of every judge in United States to treat as void any enactment which violates the Constitution. The Court cannot properly decline to exercise this power. This has led the establishment of the doctrine of judicial supremacy. The doctrine has been thus expressed by Willoughby, “the fundamental principle of American constitutional jurisprudence is that law’s and not men shall govern”.[9]

The USSR is a community country. In USSR justice is administered by the Supreme Court of the USSR, the Supreme Court of the Union Republics, the Courts of the other regional divisions and special Courts.[10] Judges are independent and subject only to the law.[11] There are provisions for a procurator General elected by the Supreme Soviet for a term of seven years.[12]

In order to have comparative position, the independence of the judiciary as it developed in different countries would be studied. England and United States of America are two major capitalist countries, the judicial system of which would be studied alongwith the constitutional provisions of the USSR – a communist country, relating to the independence of judiciary. All these being developed countries, a developing, neighbouring country along with India would be studied for a better comparison.

The ruling political gospel of the nineteenth century was laissez-faire which manifested itself in the theories of individualism, individual enterprises and self help.[13] But the laissez-faire doctrine resulted in human misery in the long run. The stronger exploited the weaker and put the common citizen into slums, unhealthy, dangerous conditions of work and wide spread poverty. So it became imperative that the State should take interest in ameliorating the conditions of the poor and that gave rise to the political dogma of collectivism. In course of time, the dogma of collectivism led to concept of social welfare State, i.e., a State which promotes socio-economic welfare of the people.[14] due to the effect of this doctrine, the democratic type of Government evolved; having three major wings of the State i.e., the Executive, the Legislature and the Judiciary to run its administration. These wings go hand in hand to ensure the development, growth and stabilization of the society and its members.

In ancient India, the King was regarded as the fountain head of justice. His foremost duty was to protect his subjects. He was respected as the Lord of Dharma. The King Court – was the highest Court in the kingdom. Next to the king’s Court was the Court of chief Justice (Pradvivaka). In villages, the village Local Councils or Kulani were established.

During the Muslim period, the judiciary was effected by religion. There were six types of Courts i.e., The King’s Court, Diwan-e-Mazalim, Diwan-e-Risalat, Sadre Jehan’s Court, Chief Justice Court and Diwan-e-Siyasat. The Court of Diwan-e-Subah was the final authority in Revenue cases. Many Chief Justices of this period were famous for their independence and impartiality in the administration of justice.[15]

During British period, Mayor’s Courts were established in Presidency Towns. In 1774, the Supreme Court was established in Calcutta presidency town which established its independence in the administration of justice within its jurisdiction. The High Courts founded under the Act 1861 were the highest Courts of appeal in their respective provinces. The Government of India Act, 1935 created Federal Court in India having original jurisdiction in disputes between provinces inter se or between provinces and federation. The Federal Court, however, was not the highest Court as appeals could lie in certain situations to the Privy Council in England. The jurisdiction of Privy Council was however, abolished by the Abolition of the Privy Council jurisdiction Act, 1949 and appeals pending before October 10, 1949 were transferred to the Federal Court.

So far judicial system is concern during the Hindu period king with the help of pundit of his darbar decide the disputes between the parties .During the Mughal period minor cases were decided by the Mullan and kazis and main cases were decided by the king. During the British period cases were decided with the help of Mullan and priests according the personal law of the parties[16] It is submitted with respect that the manner to decide and interpretation of law was the same during the whole period As during Hindu period if a high Verna person marries a women that was not crime but if a low Verna person marries the women of high Verna that was consider to be a crime. Meaning of justice was the same during Mughal and British period. There is a story which shows how the law was interpreted by the priests and Mullans . A bullack of the head men of the village who belong to high caste untied itself and enter in the house of Teli who belong to lower caste and start fighting with the bullock who was tied with a tree. he the bullock of the Teli defending itself by chance horn of the Teli’s Bullack thrust into the stomach of village Head’s bullock and Bullck of the village head died.Case was reached before the Mullan for decision. Mulan interpret the law thus:

Lal KITAB BATAVE YOON
TELI BALAD BHIDAYA KION,
KHALL KHILA KAR, KIYA MASTAN
BALAD KA BALAD , PACHAS RUPEYA JURMANA

This is how the law is interpreted.

Before 1947, India was a “Police State”. The foreign rulers were interested in strengthening their own domination. After independence India framed its own Constitution. The framers of the Constitution adopted democratic form of government and introduced the philosophy of welfare State in the Constitution. The Constitution adopted Federal System and provided for the distribution of powers between the Centre and the States. If there is any dispute between the Centre and States relating to distribution of powers or if there is any encroachment by one into the jurisdiction of the other, then the judiciary maintains the balance acting as an arbiter between them or as an interpreter of the constitutional provisions. Thus, the need for strong and independent judiciary was realized by the framers of the Constitution.

The judiciary was to be an arm of the social revolution upholding the equality and liberty that Indian longed for, during colonial days, but not had gained – not simply because the regime was colonial and perforce repressive, but largely because the British had feared that social change would endanger their rule. During British period, Indian had neither law nor Courts of their own and both the Courts and the law had been designed to meet the power of colonial power. The Constituent Assembly members, therefore, tried to ensure the independence of the Courts with full power of judicial review. The Assembly went to great length to ensure that the Courts must be independent, devoting more hours of debate to this subject than to any other provision. If the beacon of the Judiciary was to remain bright, the Court might be above reproach, free from coercion and from political influences.[17]

In order to strengthen the walls of the Fortress of Judiciary from the influence of politics with constitutional provisions, the attitude of Sapru Committee just have greatly influenced Assembly members. This Committee made its recommendation regarding the tenure, salary, allowances, retirement age, removal of judges, appointment and transfer etc., of the judges.[18]

Under our Constitution the hierarchy of the Courts is established. The Supreme Court, High Courts and other subordinate Courts in States from the uniform legal system in India. The Supreme Court is the highest Court. It has wider jurisdiction than the Federal Court. It has original jurisdiction in disputes between Union and State and States inter se. Under Article 32 it exercises original jurisdiction for the enforcement of fundamental rights. It is the highest Court for civil and criminal appeals. It has over riding power to grant special leave to appeal from any judgment, decree, determination, sentence or order in any matter passed or made by any Court or tribunal in India.

The framers of the Constitution enshrined various provision in our Constitution to secure the independence of the judiciary. Some of them are as under:
The judges are appointed by the President after consultation with judicial authority.[19] The security of tenure is guaranteed to every judge. A judge of Supreme Court or High Court can be removed only on the ground of proved mis behavior or incapacity. The President can remove a judge after an address presented to him by each house of Parliament.[20] The privileges, rights and allowances of the judges cannot be altered to their disadvantages after appointment.[21] The Supreme Court and High Courts are given authority to recruit their staff and frames rules. The salaries and allowances of the judges are not put to the vote of the Legislatures.[22] The administrative expenses including salary allowances and pensions of the Supreme Court and High Court judges are charged to the consolidated fund of India and the states respectively.[23] The judges of the Supreme Court are debarred from pleading after retirement before any Court or judicial authority in India.[24] The conduct of the judges of Supreme Court and High Courts in discharge of their duties shall not be discussed in legislature.[25]

The framers of the Constitution established independent and impartial judiciary in India. But the image of judiciary in its functional aspect is not fully independent. The establishment of independent judiciary remains more in the text book of our Constitution. The judges of the Supreme Court of India are appointed by the President of India. The Chief Justice of Supreme Court is appointed by the President with consultation of such of the judges of the Supreme Court and High Courts as he deems necessary for the purpose. But in appointing other judges, the President always consults the Chief Justice of India. he may consult such other judges of the Supreme Court and High Courts as he may deem necessary.[26] But practically the power of President to appoint judges is purely formal because in this matter he acts on the aid and advice of Council of Ministers.[27] So there is the apprehension that Ministers may bring politics in the appointment of judges. The practice upto 1973 was to appoint the seniormost judge of the Supreme Court as the Chief Justice of India. but on April 25, 1973, this 22 years practice was suddenly bidden good bye by the Government within few hours of the delivery of the judgment in the Fundamental Rights case.[28] Justice A.N. Ray was appointed as Chief Justice of India superceeding three of his senior colleagues, justices, Shetal, Hegde and Grover who later on resigned from the Supreme Court.

The transfer of judges of higher judiciary also affects the independence and functioning of the judiciary. The Constitution provides for the transfer of a judge from one High Court to another High Court.[29] But there is no effective safeguard against the abuse of this power by the Government. During emergency[30] a list of 56 judges, to be transferred without their consent, had been prepared, but in first instance 16 judges were transferred and the names of the other State judges on the list deliberately were looked in order to shake the never of the judges of the High Courts.[31] One of the judges so transferred was Mr. Justice S.H. Seth, of Gujarat High Court who with commendable courage, filed a writ petition against the Union of India and the Chief Justice of India (Justice A.N. Ray). This case is popularly known as Sankal Chand’s case. In this case, the Supreme Court by majority held that prior consent was not necessary to transfer a judge. However, Bhagwati (as was then) and Untawalia, JJ. Gave dissenting judgement stating that transfer without consent of the Judge impedes the independence of judiciary.[32]

In the Judges case,[33] where the constitutional validity of a circular issued by the Law Minister on March 18, 1981, seeking the consent of additional judges for appointment as permanent judges in other High Courts, and transfer of certain High Court judges was questioned on the plea that the circular was an indirect method of affecting transfers and constituted a threat to the independence of judiciary. Following the Sankal Chand’s case,[34] the Supreme Court by majority upheld the validity of the circular as well as the transfers. In the same case the Supreme Court also discussed the word ‘consultation’ of legal experts by the executive while appointing judges. The Court held that the ‘consultation’ does not mean ‘concurrence’ and the executive is not bound by it. The Government may completely ignore the advice of legal experts. It is submitted that by this ruling the Court itself endangered the independence of Judiciary.

The superior judiciary must be free from executive influence and pressure. The transfer of the judges on rumours and suspicion violate elementary principles of Natural justice. The alternative is to hold an enquiry into the conduct of a judge for transfer. But there is no provision in our Constitution for such an enquiry. The fear of transfer causes in many cases a good deal of harassment to the judge concerned. It affects the social, family life and education of the children of the judge. Therefore, a judge in order to be able to discharge his social, family and official duties has to understand the psychology, the sociology and the climate of State in which he functions. In many cases these transfers are made on disciplinary grounds and considered as punishment. There are certain examples which shows the influence of executive on the judiciary in the matters of appointments, transfers and promotions etc. As National Emergency ended, the Janta Government came into power and the weather was set fair for the judiciary.

The Janta Government repealed almost all the changes made in our Constitution by 42nd Amendment which has taken to the brink of a totalitarian form of Government. Statutory conventions for the appointment of judges and Chief Justices were, by and large, recognized and accepted. Mrs. Gandhi had superseded Mr. Justice Khanna the senior-most Judge for the office of Chief Justice of India because of his brave judgment in the A.D.M. Jabalpur v. Shukla (the Habeas Corpus) case, but the Janta Government appointed the senior most judge of Supreme Court to the office of Chief Justice of India.[35] As Mrs. Gandhi returned to power in 1980, the attack on the judiciary was removed, which resulted in litigation in judges case.[36] In this case the wound inflicted by the majority judgement on the judiciary was even deeper, because the judgment sub-ordinated the High Courts and Supreme Court to executive in the matter of appointments and transfers of judges.

The removal of Mr. Justice O.N. Vohra, Additional Judge of Delhi High Court, as he gave judgment against Mr. Sanjay Gandhi, son of Late Prime Minister Mrs. Indira Gandhi which was not liked by her in the case of Kisa Kursi Ka, brought our judiciary back to the stuarts period. (as on 14.11.1616 an enemy of Chief Justice Coke, supplied King James I with judgments determined the Coke from the office).[37] In another case, Mr. Justice R.N. Aggarwal was promoted to additional judge in Delhi HC, subsequently a vacancy occurred on the retirement of a performance judge. His name was recommended for the permanent post. But he was neither appointed a permanent High Court Judge nor re-appointed as an Additional Judge, but reverted back as a Session Judge. Because the part played by Justice R.N. Aggarwal and Justice Rangarajan in Kuldip Nayyar’s case and delivered a judgment which criticized the Government. So it may be added that Justice Rangarajan was transferred to the Assam High Court and Aggarwal was made Session Judge. In another case, Justice Lalit of Bombay High Court was refused to be re-appointed as Additional Judge of High Court of Bombay inspite of his recommendation to the office by the Chief Justice of Bombay High Court. The Government of Maharashtra and the Chief Justice of India. But his appointment was denied by the Late Prime Minister Mrs. Indira Gandhi.[38]

The salary and allowances of the Judges of Supreme Court and High Court are secured in our Constitution. But there is no time schedule for revision of their salary and allowances. It effects the economic condition of judges in the developing society. A permanent judge of Bombay High Court resigned his office in July, 1966, stating publically that having regard to the rising cost of living, it was no longer possible for a judge to maintain his position and status of the salary fixed sixteen years earlier, and that a judge could not honestly discharge his duties with a feeling all the time of being treated unfairly by the State.[39] Recently the Government revised the salary and other benefits of judges after 37 years.

The judicial independence seems to have suffered erosion due to the practice which has been developed by the Government of employing judges in various capacities after retirement. The talent of retired judges may be used for discharging judicial functions and improvement of judicial system in public good. It is shameful and undesirable, if the Supreme Court judge has to look forward to government employment after retirement. If a judge wishes to have Government job or any government appointment after his retirement, then a normal citizen and litigant may well get the impression that judge is not fully detached in a case where the government is a party. The Law Commission has expressed that this practice has a tendency to effect the independence of the judges and should be discontinued.[40]

The members of the judicial services should not act in such executive capacity which evolve any control of the executive over them or which make them legal advisors to the executive on the questions which are likely to be dealt with by them when they go back to their judicial work. Sometimes judicial officers are appointed to post like those of Legal Remembrances etc., under the Executive with the consent of the High Court. These appointments affect the judicial functioning in the country. The Supreme Court in Orissa v. Sudhansu Sekhar Mishara,[41] observed:
Except for very good reasons, we think the High Court should always be willing to spare for an agreed period the services of any of officers under its control for filling up such executive posts as may require the services of the judicial officer. The Government in its turn should appreciate the anxiety of the High Court that such judicial officers should not be allowed to acquire vested interest in the Secretariat.

It is alleged that things have not change even after about 68 years of independence of India. Only the method is change. Hons. Judges of higher judiciary are thinking more about their future than their present. Excepting a few Hons. judges there is a competition among the Hons. judges to please the government without thinking about the common man. Law is very simple but now it is confused in the technicalities. This made easy for the Hons. judges to interpret law according to their convenience. Judges serve longer period on commissions than their actual service on the bench as a Hons. judge of the apex court or the High Court.It is said that possessor seems to be the owner and the law protect the interest of deemed owner at first. Have the judiciary protect the interest of deemed owner in Babry Musjid demolition case. Babry Musjid was demolished before the eyes of the judiciary and in that place a Ram temple was erected.Have the Apex Court protect the right of the deemed owner. .What the Allahabad High Court did? .In its judgment the honourable Court divide the disputed place in two or three shares.Final Vedict of the Apex Cour is still awaited.But we also remember that justice delayed justice denied.

This proves the following observation of Justice Holm true:
“Judges commonly are elderly men ,and more likely to hate at sight any analysis to which they are accustomed, and which disturbed repose of mind, than to fall in love with novelties”.

Hons Libran Commission get seventeen extensions the period seems to be more than the actual service of the Hon'ble Judge. What this delay did The case lost its impotence and it give a tool in the hands of politicians to get the votes. Same is the position of the Gujarat riot case where thousands of innocent Muslims were killed oe shoots in false encounters. The saying that politicians are never punished proves to be true. In I.P.C. Bail is granted on the condition that accused will not influence the witness .How the court presume that the politicians in power will not pressurize the witnesses. And grant the bail. Employees cases relating to their services are decided after their retirement. In Badal’s disproportionate assets case 20 witnesses hostile when there are example where one witness hostile the court order for the prosecution of the hostile witness. have the court prosecute the hostiles witnesses?

Judgment of the Court proves true the following wording of Goldsmith true:
“Laws grind the poor, and
Rich men rule the Law”
We can also explain it as:
“ The law locks up both men and women
Who steals the goose from off the common
But lets the the greater felon loose”.


Who steals the common from the goose” .[42] That is why it is alleged there is a nexus of judges and politician in India and both are following the policy of give and take Home Judges react against the politicians/Government only where their own interest is affected as in the case of Judges appointment commission case. This is the story of Judiciary from independence till today.

Recently water dispute case between Punjab and Haryana was referred by the president to the Apex Court. When the hearing is going on what the Punjab did? . It passes a bill in the Punjab VidanSabha a bill denotifying the notification of land aqisition for Satluj Yamunas Link canal.Punjab did not stop here.It goes beyond this.Without waiting the completion of the procedure of becoming the bill in to law Punjab Akali leaders order their activists to fill the canal without applying their mind for the financial loss to the nation.Surpassing the all limit of bankrupty of wisdom Punjab Assembly unanimously passed a resolution that they will not obey the judgement of the Supreme Court on S.Y.L. . The reason for their act is coming Punjab Vidhan Sabha election in the next year.same is the in the case of centre keeping mum itself.a Cotroversy is goingon these days. That is who is a “deshdarohi” Both politicians and the persons opposing the wrong act of the politicians. both saying to each other that they are deshdarohi. Seeing the act of politician in relation to Punjab politicians unanimously crossing party lines pass a resolution that they will not obey the judgement of the Supreme Court. Thus trying to damage one of the pillar Democracy .People should decide whether the politicians are deshdarohi or the opponents of their wrong acts.

This proved true the following saying true:
“The difference between a politician and a statesman is: a politician thinks of the next election And a statesman thinksof the next generation.”

Inspite of the bringing notice of the Apex Court through the argument of Haryan the Hons. Court reject the Haryana argument for relief Later on wisdom prevail on the Apex Court and the Apex court grant the stay to maintain status quo. If The claim of Punjab on river water ,which Punjab is arguing, based on Riparian Right to use the water of a river.

Indian Easement Act Define the term Riparian Right as: Reparian Right “ means the right of the adjoining land owners of the land on both side of the river to use the water of the river from where the river passes” The riparian right start when the river start to flow on the land. So this riparian right lied from the time of joint Punjab. So both Punjab and Harayana have equal right in the rivers water ; Yamuna, Satlu, Bias and Ravi. The of dispute is not whether Punjab can spare water for Haryana or not . But question is of the legal right which the Haryana And Punjab have in the rivers water of the old Punjab which include both Punjab and Haryan.And not of this newly created Punjabi Suba only. Resently speaking on the Foundation day of the Allahabad High Court Hons. T. S. Thakur observed that The Bar is not co-operating in clearing the backlog of cases. This shows how the judiciary feel helpless in thier working.I Bar is dominating the Bench. Senior advocate of the bar thought their right to have the judgement in their favour. I also quote the experience of Hos. Justice V.R.Krishna Iyer When he was on the Bench in Smt Indra Gandhi V/s Raj Narayan case. He said , “

In all humility, I take the liberty to quote from tha address presented to me by L.M.Sighvi, Sri F.S.Nariman and Danel Latifi. On behalf of the members of the Bar,in Nov.1980. as I bid farewell to the Bar.
Hons’able Shri Justice Iyer,

“ Permit us to remind you that Bar is the judge of judges and no judge can avoid or escape the verdict of the Bar” [43].”Judges of the highee judiciary accept costly gift from the Bar and attend the levish parties of the politicians”[44] It is submitted with respect that when the Hons.Bench accept the costly gifts from the Bar on occasions and join the levish parties of politicians naturally the have to face the rath of the Bar and have to obliged the politicians.

I remember the following observation of Hons. Justice Khanna Hon. Judge of the Apex Court:
“ No paper reform of the judicial system would prove effective unless such reform is implemented and translated into reality. For this purpose, we need the active co-opration of the members of Bench and the Bench and the Bar. It would also, in great measure, depend upon the personality of the judges. You may have hundred and one reforms but unless you have officers of the right calibre to preside over the courts, the reform would prove illusory and thus fail to deliver the goods. It is , therefore, essential to take every care to ensure that the persons of the right caliber are selected to preside over the courts”[45] .

Things are not stoped here in a public Interest litigation appeal when it was argued that the repondant is not applied the order of the court The Court observed “We are not the Boss to enforce the Order” Perhaps Hons. Judges forget the Following observation of Nirod Mukherji:
“Afterall , there is only one thing worse than injustice, and that is justice without her sword in her hand”

Previously an amendment was made in the Civil Procedure Code whereby the adjournment of the case was fix to two hearing. On this the Bar went on strike and the Govt have to withdraw the amendment. It is alleged that cases are decided not infavour of the litigants but infavour of the advocates. In the wording of Hons. Justice Krishna Iyer “Our judicial system is 18th century old……. it put the horse before the cart ”The above remarks shows how the judiciary is independent .The judiciary have bellied the hopes of the and trust of the constitution maker. Judiciary have deceive the constitution maker. Indian judiciary is loosing the faith of the people as the people are geting nothing from the judiciary except the next date of hearing

* Professor,( Retired) Department of Laws, Punjab University, Chandigarh.

End notes
[1] Din Dayal Sharma, “Independence of Judiciary and Impartiality in India”, 1968(ii) SCJ 24.
[2] A.V. Dicey, Law of the Constitution, 197-198 (8th Edition).
[3] Id., at 198.
[4] Paras Diwan, Indian Constitution – A Document of people’s Faith and Aspiration, 333, 339 (1981).
[5] G. Austin, The Indian Constitution – Cornerstone of a Nation, 169.
[6] D.D. Basu, Commentary on the Constitution of India.
[7] S.D. de Smith, Constitutional and Administrative Law, 367 (1971).
[8] (1803) 1 Cr 137.
[9] Wlloughby, Constitutional Law of the United States, Vol. I, 1.
[10] Article 102 of USSR.
[11] Article 112 of USSR.
[12] Article 114 of USSR.
[13] A.V. Dicey, Law and Public Opinion in England during Nineteenth Century.
[14] Mac Iver, The Web of Government, 236 (1965).
[15] V.D. Kulshreshtha, Landmarks in Indian Legal and Constitutional History, 22, 24-25 (5th Edition, 1981).
[16] Kulsareshta.IndianCostitutional History.
[17] Supra note 5 at 164-165.
[18] Supra note 5 at 180.
[19] Articles 124(2), 127.
[20] Articles 124, 128.
[21] Articles 125, 221, 360.
[22] Articles 146, 229.
[23] Articles 146, 229.
[24] Articles 124(7), 220.
[25] Articles 121, 211.
[26] Articles 124(2).
[27] Article 74 of the Constitution of India.
[28] Keshvanand v. State of Kerala, AIR 1973 SC 461.
[29] Article 222.
[30] The Proclamation of Emergency on June 25, 1977 by Mrs. Gandhi, which is referred to throughout as “the Emergency”.
[31] H.M. Seervai, Constitutional Law of India, Vol. II, 2266 (3rd Edition, 1984).
[32] Union of India v. S.H. Sheth, (Sankal Chand’s case), (1978) 1 SCR 423.
[33] S.P. Gupta v. Union of India, AIR 1982 SC 149.
[34] Supra note 31.
[35] Supra note 30 at 2178.
[36] Supra note 32.
[37] Supra note 31 at 2291
[38] Id., at 2294-2295.
[39] 68 Bom LR (Journal) 80-81.
[40] Law Commission XIV Report, 46.
[41] AIR 1968 SC 647.
[42] Iyer Justice Krishna.Justice At the Croass Road
[43] Krishnaswamy . P. V.R.Krishna .Iyer.—A Living Legend.
[44] Iher.V.R. Krishna. Justice At The Cross Road Also see Iyer Law and Social Change
[45] 1974, 4 S.C.C.738




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