Self help by force is unacceptable in modern civilised society. Parties who are unable to solve their dispute amicably may bring it before the court for an impartial settlement. Protection of life of property of the citizen by administration of justice is the exclusive function of the modern state which is evolved by evolutionary process or by social contract theory.
Out of three structures of the state, the judiciary occupies the pride place. It is the watchdog of the rights and liberties of the citizens. The scheme of dispute resolution mechanism promotes good government. Under the shadow of the law, judicial decisions shape societal ideas and mores to create laws, as well as to resolve specific disputes. The courts serve to develop new law and enforce existing laws.
The individual inclinations of judges and the collective traditions significantly influence the role of courts in society. The role of courts in different societies depends also on the system factors prevailing in each society. A person should not be the prosecutor as well as judge at the same time because such a person cannot maintain impartiality in judgment. Combination of judicial and legislative functions can result in the abuse of authority. Separation of judiciary from the executive and legislature has been regarded as an indispensable requisite of an independent judiciary.
Combination of judicial and executive functions is highly prejudicial to the cause of justice. In order to maintain the independence of judiciary, the judge is accorded a high social status. Adequate emoluments are paid. Judges are appointed on merit on certain definite qualifications. They should have thorough knowledge of law. They enjoy security of service by introducing difficult method of removing the judges. The mode of appointment of the judges is given to Judiciary. This system is envisaged by the constitution.
The legislature is diligent and expeditious in adopting the law to changing economic and social conditions. The role of the judiciary will be limited. The legislature is slow to introduce law reforms to ensure that the law adapts to changing times and changing social and moral norms due to political outlook and a lack of interest in legislative reform in areas where they have no political will. They may prefer to avoid the issue for fear of political backlash. Courts may have to deal with such problems involving political and social issues as the political institutions have failed to resolve those problems. The recent decades have witnessed the constant trend of the expansion of the judicial role in society due to different reasons.
The traditional function that of “a self-contained episode” with the impact of the judgment limited to the parties before the court is changed. The intervention of the court becomes just due to the increase of consumer issues, environmental pollution and violation of civil rights. However, the first duty of the court is to administer justice and to enforce the law. It has to act in order to assure that no government agency can violate the law. The role is necessary as that of protector of the downtrodden, and a countervailing force to governmental and industrial powers. There is need of bolder response by the courts in regard to political detention. In situations where the legislature leaves questions undecided, courts must fill the gaps with independent standards. In crisis times, the role of the court is to create new rules. They must be creative in crises because they cannot appeal to the majority to legitimize their decisions. In order to fulfill such role some qualities like wisdom, disdain of money and love for humanity which a judge must have.
There is also a torrent of litigation raising issues of public concern, known as extended impact cases, or structural litigation. One cannot deny the necessity of independence of judiciary. The independence of judiciary is in danger due to partial adjudication of politically charged cases. There are interrelations between the judiciary and the legislature. When a problem remains unresolved by legislative enactment, the courts have to fill the vacuum. In June 1983, The First World Conference on the Independence of Justice was held in Montreal, under the leadership of the Chief Justice at that time, Jules Deschenes. The IRA Code of Minimum Standards had a significant impact on the text of the
Declaration in several main areas:
IRA Project was to develop international minimum standards of judicial independence. The rule of law is lit at the society. It must be governed by law and not by men. Yet, it is men and women who have to operate the law in judicial offices. Substantive human rights are worthless without an effective mechanism for their enforcement. The enforcement of rights is assured by an independent and impartial tribunal. The establishment of clearly stated standards on the meaning of independence will enhance the promotion of human rights around the world.
The judiciary and the courts in any society are in a continuous process of change. At one time the courts were viewed as an institution for dispute resolution entrusted with the task of “declaring” the law. The judiciary performs the functional of lawmaking which is a branch of the Legislature of the government. The role of the courts in society has changed in a number of respects. Challenges facing the judiciary have become more demanding. Judicial duties have become more burdensome. The judicial role in society has expanded. The very nature of the judicial function entails independence of the judiciary. Justice which is the soul of the state must be administered without fear or favour. Integrity impartiality and wisdom are some of the high qualities which should characterize the judicial mind obviously; therefore, the vital need is to properly organize the judiciary. The judiciary of India plays a role in the case of dispute resolution, Judicial Review, upholding the laws and the fundamental rights of citizens. The independence of judiciary calls for ‘separation of powers’. This basically means that both the legislature and the executive branches of the government cannot interfere with the functions and decisions of the judiciary. So, there is necessity of understanding of law and Constitution.
A man who understands the law and Constitution cannot say that acceptance of a post-retirement positions by a judge acceptance of nomination as member of Rajya Sabha by a former CJI is not clear quid pro quo and would not shake the confidence of the common man on the independence of judiciary, which is one of the basic structures of the Constitution of India.
© C.R Nanda Academy is an initiative by Adv. Chittaranjan Nanda to spread legal awareness among Indian Citizens.