There is a widespread assumption that the judiciary, who are supposed to keep the people on the straight and narrow path, do not themselves have any scruples or value system.

Whether it is a politician who wants the charges against his supporters to be dropped, or the industrialist who wants a trade union leader to be fixed, or a landlord who wants his tenants to be hounded out, or employer who wants that dedicated officer be booked on false allegations an all of them approach the judiciary with confidence. He may understand the plea that his request is politically inexpedient, or that the other side is even more influential, or that the course of action is too risky but he would be flabbergasted if the judiciary raise an objection on the ground that it is unfair or unjust. The first reaction may be that judiciary is pulling his legs.

It is now taken for granted that the administration, including the judiciary, would be available to the party in power to favour its supporters, harass its opponents and do whatever was dictated by the interest of the ruling junta. The judiciary apparently, is more than willing and uses this partnership for its own aggrandisement. Rule of law implies, essentially, that no citizen can be deprived of his life and personal liberty except according to the procedure established by law. Democracy itself is threatened when the administration cease to respect the legal and constitutional rights of the citizens and persistently disregards the due process of law. After 1947, there were two areas of functioning, which required urgent and comprehensive restructuring. One was the education system and the other the legal system. Unlike the field of education, the constitution itself provided for a certain mechanism for review and renovation in respect of law and legal procedures. A standing Law Commission was set up. Over the years, it has been submitting reports. One has only to look at the fate of almost 200 reports submitted during this period to see that nobody is seriously interested in reforming the legal system.

Indeed, with the passage of time and growth of population, things have become much worse than before. There are no two opinions that the judiciary has served the country well even in difficult times. It has produced judges of outstanding integrity and ability. The people of India have confidence in the judiciary because it has functioned independently and impartially. Judicial Independence is the foundation on which the whole concept of justice is based. If judges are not independent and impartial, who will have faith in the administration of justice? The concept of independence of judiciary is primarily to appoint the best persons with integrity and a sound knowledge of the laws; persons who will not succumb to pressures of any kind from any quarters.

This kind of independence alone secures justice for all and creates confidence of the society in judges. But today the past scenario has been totally changed. There are instances where the judges have succumbed to pressure. In Maharastra, the first major instance of corruption in the judiciary was brought to light in April 1990 when Justice MP Kania of the Bombay High Court expressed his inability to continue his association in the hearing of a multi-crore property dispute case (Mehta vs. Mehta) because of “threats” he had been receiving. It later transpired that the threats came from Thelma Menezes, a travel agent believed to be close to Justice S.K.Desai, the . judge with whom Justice Kania was sharing a division bench.

“Justice Kania 92s revelations and his subsequent protest fast the first in the judicial history led to the transfer and eventual resignation of Justice Desai on June 8, 1990. The controversy did not end here innuendo and mud slinging continued over the earlier mysterious discovery of Rs. 1.5 Lakh in Justice Kania 92s personal toilet. Once the Chief Justice of Supreme Court Justice E.S.Venkataramiah had created a furore with the candid revelation that he had in his possession the names of 90 sitting Judges who were “Entertained” by members of the bar. Surprisingly, there is no provision for judicial control over misconduct of judges. So, let step be taken by judges themselves to formulate a code of conduct. Immediately, the Bar Council of India must painstakingly and creatively, with relevance to the prevalent pathology, draw up a professional code for the Bar and suggest one for the Bench Justice V.R. Krishna lyer, the former Chief Justice of India, recommends the urgency of the need for a disciplinary mechanism, therapeutic and corrective in this domain where the process must maintain confidentiality and retain the judges 92 confidence and the whole disciplinary outfit and operation must be functionally kept at an appropriately high level but assuring that no robe escapes from his wrong-doing.

The judicial accountability considering the variety of aberrations or rogue some of which the Judges are guilty of, requires careful and realistic handling because many of the improprieties go unnoticed behind the iron curtain of Contempt of Court. Judges, like other constitutional functionaries, must face the law if they depart from or deceive the law. Justice is no cloistered virtue and the path of criticism, even if exaggerated, must be permissible since freedom of expression is a guaranteed right applicable as much for the judges as against the judges. The procedure for impeachment is very cumbersome which is ultimately not in the hands of judiciary. So, we can say that the quality of justice depends upon independence enjoyed by the judiciary.

The principle that judicial independence is a privilege for the protection of the people and not the judges 92 own applies to India and all democracies based on the rule of law. Judicial principles should unite the judiciary, not its men. In the United States of America, judicial independence has developed into a set of institutions that ensure that judges decide according to law, rather than according to their own whims or the will of others, including other branches of the government.

The five components of judicial independence comprise the constitutional protection that judges in the United States have the independent administration of judiciary by the judiciary, judicial disciplinary authority over the misconduct of judges, the manner in which conflicts of interest are addressed and the assurance of effective judicial decisions.

India accepted the concept of security of tenure for judges in our constitution. The procedure for impeachment of judges is very cumbersome which is ultimately not in the hands of judiciary, The case of former Supreme Court judge, V. Ramaswamy regarded as a benchmark as far as corruption is concerned, Finally the impeachment was moved in the parliament and debate on its legality, which ensure all came 16 naught. Despite having said that he would resign in May1993, V. Ramaswamy retired quietly on Feb 2€ 1994, surviving the first threatened impeachment of a judge. Judge power is a critical factor of the highest importance in our constitutional order, For that very reason, the law must keep them away from lawless, immoral, unethical and unbecoming conduct, Some cowardly judges and opportunist brethren obligingly bend their judgments when political heavyweights and tycoons with clout happen to be parties, Some leading members of the Supreme Court bar wrote, not long ago, a complaint to a chief justice referring to holiday hearings and nocturnal proceeding where influential persons figured as parties, Even the Bhopal Gas litigation and later settlement judicial imprimatur have come in sharp criticism, bordering the needle of suspicion being pointed at five judges. Indian judiciary is presently in the search of justice their mean lot of vacancies are available for the government is not fulfilling them for reason best known concerned authority. Most of the judges are pro-government and they are not pronouncing the judgment against governmental organization with their vested interest despite the fact that the government is faulty. os are available tor the post of judges but government is not fruiting them for reason best known to the concerned authority. Most of the judges are pr6-government and they are not pronouncing the judgment against the governmental organisation with their vested interest despite the fact that the government is faulty. The reason behind such an act is they may be given the charge of some inquiry commission after retirement. Currently the Chief Justice of India has asked the government to fulfil the vacant post in the judiciary. It is relevant to mention here that there is no independent administration of appointment of judges inside the judiciary. The government has got the supremacy over the transfer of judges keeping in view the relevant provisions of law. When the then Chief Justice of Allahabad High Court Justice Saitsh Chandra had resigned due to his transfer as a Chief justice of Calcutta, this issue of transferring the judges became more sensitive.

The democracy of judicial justices, according to the Justice lyer, must be founded on the triple pillars of justice, justices and just icing. Inevitably, new thinking is necessary if Indian Justice is to fulfil its peoples 92 promise. The judges, despite their handicaps of monetary resources and legislative authority, have done a great job, inventive, innovative, intelligently adaptive, departing from the adversary process.

The court shall keep its promise in terms of Article 39-A, which mandates that the state (which includes Courts) shall secure that the operation of the legal system promotes justice.

In order to get things in right perspective, it should however be seen that the judges must made himself independent in all respect. Without saying anything more about this issue, one has to be less dramatic and more pragmatic. Three things in particular need to be noted. More than 95 per cent of the higher judiciary is functioning exactly as it used to function. Secondly, no questions are being raised in regard to whether the laws enforced are appropriate to our social structures and other conditions of life or whether they require any kind of review or amendment. Thirdly, despite half a century of independent functioning, there is hardly any significant body of thought or research, which would show the inadequacy of the Anglo-Saxon jurisprudence, which has held the field for almost a century and a half. Each of these issues need to be analyzed further with the modernization of fossilized procedures.

Some judges think that disciplinary power over their peers may be left to the chief justices. Unfortunately, there are many instances where complaints have come against chief justices and judges themselves, in private, admit the chiefs to be over-bearing or dubious. Justice V.R. Krishna lyer have mentioned that it is widely known that Chief Justice even of the Supreme Court have abetted or arranged hearing of bail petitions of VIPs on holidays and after nightfall. A senior most judge of the Supreme Court, who later became the chief justice, and another senior most judge of the Supreme Court, who also became the Chief Justice later, did hear criminal matters on an abnormal day or at an abnormal hour making a special exception for the accused tycoons. It is also reliably rumoured, perhaps, that a Chief Justice of Punjab and Haryana High Court was not consulted in the appointment of a Judge to his High Court, and likewise a judge of the Supreme Court was appointed even though the chief Justice of that time had not been consented to his appointment.

Other instances can be discovered, without much research, about deviances by Chief Justices themselves. The justice system is our only stable asset. Let us preserve it. What a few of the superior judges are doing is admirable and deserves to be applauded; but can we say that the rest of them have also changed their antenna? The fact of the matter is that they are functioning in their customary, lackluster ways. It is true that the judiciary has to depend on the executive for the implementation of its decisions but it does not mean that the executive or even those who are sitting in the legislature can ignore such decisions. Legal sanctions against judicial delinquency are a necessity.

Bibliography

1. V.R. Krishna lyer: Justice At Crossroads.
2. Praveen Swamy: Supreme Concern, Frontline, May3, 1996.
3. Gurmukh Singh, Sanghamitra Chakraborty and Sabina Sehgal: “The Dishonest Indian”, The Sunday Times of India, New Delhi December 17, 1995.

Sumer Kaul: “Law, Crime and Punishment”, The Hindustan Times, New Delhi dated September

30, 1996.

1. VM Tarkunde: “A Case for Timely Disposal”, The Hindustan Times, New Delhi dated August 2, 1998.
2. Amrik Singh: “judicial Activism”, The Hindustan Times, New Delhi dated October 19, 1996.