LAW RESOURCE INDIA

Judicial independence

Posted in JUDICIAL REFORMS, JUDICIARY, SUPREME COURT by NNLRJ INDIA on February 15, 2010

BY SOLI SORABJEE IN THE INDIAN EXPRESS

Solemn discourses on judicial independence focus primarily on judges deciding cases without any external pressure or influence from the executive. There are however other obstacles to exercise of judicial independence, internal ones. Judges are human beings, not disembodied spirits living in a celestial mansion. As the great US Justice Benjamin Cardozo reminds us “the great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by”. We must realistically realise that the individual tone of the mind, the colour of past experience and its intensity, the socio-economic and political background of the judge are bound to play a role in the decision-making process. Chief Justice Patanjali Shastri frankly acknowledged that “it is inevitable that the so-called social philosophy and the scale of values of the judges should play an important part”.

Exercise of judicial independence lies in a conscientious effort to neutralise the effect of these personal factors in decision-making. A classic instance is the dissent of Justice Vivian Bose who in a case relating to preventive detention said, “It is perhaps ironical that I should struggle to uphold these freedoms in favour of a class of persons who, if rumour is to be accredited and if the list of their activities furnished to us is a true guide, would be the first to destroy them if they but had the power. But I cannot allow personal predilections to sway my judgment of the Constitution.”

Besides any discussion of judicial independence must deal with the aspect of judicial accountability. They are two sides of the same coin and both are pre-requisites to the rule of law.

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  1. sadachari singh tomar said, on December 19, 2010 at 20:57

    Posted on 19.12.10
    The question which arises is that who has the ability to comment on such issues? A judge, an advocate, a person who faced the court (sufferer) without corruption (without paying bribery to judges / judiciary staff). A person who would have got the post of Secretary to Government of India but due to exposing corruption and rule D B, again Rule D B and retaining his case as part heard years together and then releasing/ leaving case without decision and in between many similar cases like case of AIIMS director etc are judiciously decided, has full right to comment on these issues. These cases / related contempt are pending since about last 10 years. I understand as soon as I retire from service these will be concluded. Thus I may not be able to get real benefit for fighting these cases. Another case related to accident claim is moving around the lower courts since almost last 20 years. Though the penalty was imposed but recovery is pending. Thus ‘justice delayed is justice denied’ is true in my case. Thus I have a 30 years of experience of dealing with the court. My cases are so that there is no chance of adverse decision like terminating my service without any departmental inquiry, not paying my accident claim ordered by court etc.

    I am thankful to Late sri Surendra Mohan a thinker, Lohiaites and writer who had given his last speech against corruption in judiciary before a group on 16.12.10 evening (prior to few hours of his death) and my long discussion on this issue with him and his wife after that deliberation.

    I have read the comments of justice H. L. Gokhale, justice K.G. Balakrishnan and Justice Raghupati in recent news papers. Who is correct among them and upto what extent is known to them only.
    I have also read the news about the comments of Supreme court judges over Allahabad High Court judges but it is my utter surprise why no comments about Delhi High Court. I also hope that someday something similar to the Wiki Leaks will take birth. Thanks to RTIA-2005 which exposed that CBI in one case changed the inquiry officer at last moment who in turn changed the 3 years inquiry report in 1 month and in another case stated that 1500 pages documents submitted to CBI as proof of corruption were not available in its record and thus nobody was penalized in both the big scams.
    Regarding corruption in judiciary I am the one who knows better than many others. I had exposed corruption & scandals which were found correct by investigation of Madhya Pradesh legislative assembly inquiry committee, Lokayukta/ Chief Secretary Govt of MP, inquiry officer / an IAS officer (Chief Vigilance officer) Govt of India , based on which a Secretary to Government of India was removed from post / placed on compulsory wait. I have filed / fought about 35 cases (Sadachari Singh Tomar Vs UOI/ State of MP/ MPCST/CBI/CVC etc) i.e. 2 cases before Hon’ble Supreme court of India, 9 cases before Hon’ble High Courts, one case before Hon’ble SAT, 6 cases before Hon’ble CAT PB of India, 4 cases before Hon’ble District court, about 15 cases before Hon’ble Consumer court (District, state and National Commission) and thus have the opportunity of closely observing the Judges. I have also filed about 80 RTIA applications most of these were also placed before Center Information Commission (CIC) and information / certified copy documents received were placed before judges and I have received their comments. Based on my personal observation I conclude that many of judges are not extraordinary personalities but they are like a common man of society and they are behaving like that only.
    On the issue of placing affidavit before Hon’ble Supreme Court in line I had discussed with Shri Prashant Bhushan Ji but it could not be materialized. Now I am again thinking to proceed on the same lines. Why there are only 25 affidavits? These will now be 1000s / many more.
    Mr. Prashant Bhushan is fighting against corruption specially judiciary and if he cannot win I don’t hope there is anybody who can fight against corruption in judiciary.


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