Ever since, 1979, judiciary started playing a more assertive role in the national arena, perhaps not even envisaged by the architects’ of the Constitution. It has become an active participant in providing social justice by issuing strictures and corrective actions in respect of policies of government, public bodies and authorities. It all began in 1979, when the Supreme Court ruled that the under trails at a Bihar jail had already served more period of pre-trail detention as they would have served if
convicted. Similar, rulings thereafter were passed in respect of various human rights violations taking place, e.g. stone quarry bonded labourers in Agra, plight of jail inmates, etc. However, in recent times, rather than only enforcing the rights for the disadvantaged or poor sections of the society, the rulings of the apex courts has started correcting the actions or omissions of the executive or public officials or departments of government or public bodies. Some examples of these are: Supreme Court
ordered control over automobile emissions, air and noise and traffic pollution, gave orders for parking charges, wearing of helmets in cities, cleanliness in housing colonies, disposal of garbage, control of traffic in New Delhi, made compulsory the wearing of seat belts, ordered action plans to control and prevent the monkey menace in cities and towns, ordered measures to prevent accidents at unmanned railway level crossings, prevent ragging of college fresher’s, for control of loudspeakers, banning of fire crackers, etc. The court has issued such orders based on its authority to protect and enforce the
Fundamental Rights of the citizens of the country under Article 32 of the Constitution. However, in light of recent events, it has been an awakening time to get a fast track check on the system of appointment of Judges, without hampering the independence of the judiciary.2
It is a well known fact that the independence of the judiciary is the basic requisite for ensuring a free and fair society under the rule of law. The framers of the Indian Constitution too were in doubt with the matter concerning the independence of the Judiciary. All through the era of British rule, the judiciary progressed to a great extent, so the big question that remained after independence was one relating to ‘the extent of the independence of the Judiciary.’ However, this concern too came to an end
when Dr. B.R. Ambedkar responded saying “There can be no difference of opinion in the House that our judiciary must be independent of the executive and must also be competent in itself.”
Under the scheme of the Constitution, the final interpreter of the law is the court, not the legislature or the executive. Judicial independence is, therefore, central to democracy because it is the judiciary which helps the realisation of the Rule of Law and protection of human rights. But the concept of independence is a complex one which subsumes in it concepts like impartiality, accountability, efficiency and respect for other institutions of governance. In this regard, one has to distinguish individual
independence from institutional independence, adjudicative independence from administrative independence, as well as actual independence from perceived independence. These relationships have to be factored in while appointing judges to the higher judiciary. Admittedly, a judge’s personal independence is incomplete unless it is accompanied by the institutional independence of the judicial branch. The idea of a separation of powers is related to the latter aspect of independence.3
