Constitutional Law

CHANAKYA NATIONAL LAW UNIVERSITY

INDEPENDENCE OF JUDICIARY AND RTI ACT CONSTITUTIONAL LAW

Submitted to: Submitted by: Dr. K.K. DWIVEDI Arunabh Sharma (Faculty, Constitutional Law ) Roll no. 725 6TH Semester 1 | Page

ACKNOWLEDGEMENT

The present project on to INDEPENDENCE OF JUDICIARY AND RTI ACT has been able to get its final shape with the support and help of people from various quarters. My sincere thanks go to all the members without whom the study could not have come to its present state. I am proud to acknowledge gratitude to the individuals during my study and without whom the study may not be completed. I have taken this opportunity to thank those who genuinely helped me.

With immense pleasure, I express my deepest sense of gratitude to Dr. K.K. Dwivedi , Faculty for Constitutional law, Chanakya National Law University for helping me in my project. I am also thankful to the whole Chanakya National Law University family that provided me all the material I required for the project.

I have made every effort to acknowledge credits, but I apologies in advance for any omission that may have inadvertently taken place. I would like to thank my parents and especially my elder sister without the blessing and co-operation of which the completion of the project would not have been possible.

Last but not least I would like to thank Almighty whose blessing helped me to complete the project.

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RESEARCH METHDOLOGY Aims and Objectives: The aim of the project is to present a detailed study of the INDEPENDENCE OF JUDICIARY AND RTI ACT through decisions and suggestions and different writings and articles. Scope and Limitations: Though this is an immense project and pages can be written over the topic but because of certain restrictions and limitations I was not able to deal with the topic in great detail. Two points on which special emphasis has been given in this research are: i

To study the judicial interpretation related laws regarding the topic.

ii

To find out the various provisions related the topic.

Method of Writing: The method of writing followed in the course of this research paper is primarily analytical. Mode of Citation: The researcher has followed a uniform mode of citation throughout the course of this research paper. Research Technique: The research methodology used is basically from books on CPC. Sources of Data: 1

Articles

2

Books

3

Websites

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TABLE OF CONTENTS

1. 2. 3. 4. 5. 6. 7. 8.

INTRODUCTION THE BASIS OF JUDICIAL INDEPENDENCE THE RIGHT TO A FAIR TRIAL THE UNITED STATES AUSTRALIA RIGHT TO INFORMATION ACT SCOPE OF WORK UNDER RTI ACT CONLUSION.

INTRODUCTION:-

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The independence of the judiciary is an integral part of democracy, intending to shield the judicial process from external influences and to provide full legal protection to all individuals going to court for whatever reason.

Courts are expected to act as protectors of the law, who independently exercise their judicial power without any functional or individual interference. Such interference usually comes from executive and legislative officials, political parties, the military, paramilitary and intelligence forces, criminal groups and the judicial hierarchy itself.

This paper will focus on the rule of law principles underlying the right to a fair trial, especially the role of an independent judiciary. Following a consideration of the major international instruments in this area will be a brief examination of some of the ways that these international standards have been implemented in a selection of jurisdictions, including those of international criminal tribunals. Some of the current threats to judicial independence will be highlighted, including attacks on the judiciary by the media and the legislature even in well-established democracies.1

The United Nations has endorsed the essential importance of an independent Judiciary by its adoption of the Basic Principles on the Independence of the 1 http.www.vbook.pubarticles.in/roleofjudiciary 5 | Page

Judiciary at its Seventh Congress in 1985. As a consequence of the adoption of the Basic Principles by the UN General Assembly, each member state is expected to guarantee the independence of its judiciary in its constitution or the laws of the country. Although judicial independence seems on its face to be an obviously essential ingredient to any just and fair legal system, a precise definition of the scope of the principle may be difficult in a world of diverse cultures and legal systems.

Simply stated, judicial independence is the ability of a judge to decide a matter free from pressures or inducements. Additionally, the institution of the judiciary as a whole must also be independent by being separate from government and other concentrations of power2. The principal role of an independent judiciary is to uphold the rule of law and to ensure the supremacy of the law. If the judiciary is to exercise a truly impartial and independent adjudicative function, it must have special powers to allow it to “keep its distance” from other governmental institutions, political organizations, and other non-governmental influences, and to be free of repercussions from such outside influences.

THE BASIS OF JUDICIAL INDEPENDENCE:2 http//.www.lawnotes.in 6 | Page

The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

Some type of criminal law has existed since humans first recognized that their disputes could be better resolved by means other than physical battle. Dispute resolution gradually transformed from judgments by a family or clan elder, or chief, to resolution by professional judges usually designated by the state. Some of the earliest examples of written criminal law include that made during the Xia Dynasty (2100-1600 BCE) and that of Hammurabi (1792-1750 BCE) of Babylon, which themselves were undoubtedly preceded by written criminal codes and relatively sophisticated justice systems. The Universal Declaration of Human Rights enshrines the principles of: (1) equality before the law, (2) the presumption of innocence, and (3) the right to a fair and public hearing by a competent, independent and impartial tribunal established by law. The recitals of the Basic Principles on the Independence of the Judiciary9 observe there is frequently a gap between the vision underlining these principles and their actual implementation. It can fairly be said that no justice system in the world fully complies in every particular with the ultimate implementation of the Basic Principles, but they

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obviously exist in some countries to a greater extent than others.3

There is increasing acknowledgement that an independent judiciary is the key to upholding the rule of law in a free society. This independence may take a variety of forms across different jurisdictions and systems of law. But the same principle always applies, namely the protection of human rights is dependent on the guarantee that judges will be free and will reasonably be perceived to be free to make impartial decisions based on the facts and the law in each case, and to exercise their role as protectors of the constitution, without any pressure or interference from other sources, especially government. This basic premise is crucial to the maintenance of the rule of law.

At the same time, laws must be public knowledge, clear in meaning, and must apply to everyone equally, including the government. Unless the government subordinates itself to the law, and to the sovereignty of the people through the constitution, that government may rule by law, but its authority will not be grounded in the rule of law. Rule by law still allows governments to use their power arbitrarily to deny fundamental rights to citizens, or to cover up their own corrupt practices. Once citizens lose confidence in the fairness of the legal and political system, they may turn to other means to assert their basic rights, and inevitably this result in violence and loss of human life.

THE RIGHT TO A FAIR TRIAL:3 http//. By. (n.d.): n. pag. Web. 8 | Page

In keeping with international standards, the Canadian Charter provides extensive protection for accused and detained persons. Section 15 provides for equality before the law. Sections 7-11 follow closely the relevant provisions of the ICCPR pertaining to the life, liberty and security of the person; unreasonable search and seizure; arbitrary detention and imprisonment; safeguards pertaining to arrests and criminal and penal proceeding. The interpretation of section 7 has involved a consideration of a wide range of issues, such as a prisoner’s right to counsel at disciplinary hearings , and an accused person’s right to pretrial disclosure, the limits of which right have yet to be determined conclusively. In Stinchcombe’s case, the Supreme Court of Canada initially imposed a broad duty of disclosure on Crown prosecutors, to enable the accused to prepare properly for trial. The Court relied on the principles set down by Mr. Justice Rand in Boucher v. The Queen 4, regarding the public duty role of the prosecutor, which doesn't involve "winning" or "losing" cases. As one commentator has expressed it : "It followed that the fruits of the investigation which are in the possession of counsel for the Crown are not its property for use in securing a conviction but the property of the public to be used to ensure that justice is done." .

THE UNITED STATES:4 http//. Loftin, Scott M. "INDEPENDENCE OF THE JUDICIARY." American Bar Association Journal 21.8 (1935): 469-73. Web. 9 | Page

Some jurisdictions in the United States have taken the notion of judicial independence and accountability much further than in other democracies. The U.S. federal courts have had complete administrative autonomy since 193947 . The Chief Justice of the U.S. Supreme Court appoints a Director of the Administrative Office, after consultation with the Judicial Conference of the U.S. The Administrative Office is responsible for the administration of all federal courts except the U.S. Supreme Court, which is managed by the judges themselves. Most state courts also manage their own budgets, including budget requests. While U.S. judges at the federal level are all appointed and enjoy security of tenure, most State judges and district attorneys are elected by a popular vote and face re-election on a regular basis. This approach has caused considerable disquiet amongst some defendant lawyers, particularly in States where the district attorney has been elected mainly because of his or her propensity to seek the death penalty for convicted persons, rather than a propensity for impartiality or outstanding ability5. However, those in favour of popularly elected judges and public attorneys would argue that this is far more democratic and leads to greater accountability.

AUSTRALIA:5 Basic Principles on the Independence of the Judiciary. New York: UN, 1990. Web. 10 | P a g e

The issue of judicial independence has often been in the media spotlight in Australia, particularly in recent years. In June of this year, the New South Wales Judicial Commission referred the matter of a certain State Supreme Court judge to the State Parliament, because they considered him to be a "procrastinator" and not fit for office. He had acquired a reputation for taking an extraordinarily long time to deliver his reserved judgments, the worst example of which was said to be a sentence that he handed down ten months after the hearing. The Judge was asked to make a statement in person to the Parliament, at the Bar of the Upper House, in which he explained that he had been suffering depression, which had caused him to have severe doubts about his judgments, such that he delayed writing them. Now that he was over the depression, he argued, he shouldn't lose his job simply because of a past illness that was now cured. The Upper House debated the issue at length, and the motion for his removal was finally defeated 26:16 on a conscience vote. The judge's speech was broadcast on television, which added yet another dimension of scrutiny to the whole process, namely public scrutiny, and helped to fulfill the judge's aim of bringing attention to the little understood plight of those who suffer depression, particularly judges. The broadcast also increased public understanding of the relationship between the judiciary and the legislature.

THE RIGHT TO INFORMATION ACT:11 | P a g e

At the International level, Right to Information and its aspects find articulation as a human right in most important basic human rights documents, namely, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. At regional levels, there are numerous other human rights documents, which include this fundamental right for example, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the American Convention on Human Rights, the African Charter on Human and People’s Rights, etc. The Commonwealth has also formulated principles on freedom of information. The Indian Parliament had enacted the “Freedom of Information Act, 2002” in order to promote, transparency and accountability in administration. The National Common Minimum Program of the Government envisaged that “Freedom of Information Act” will be made more “progressive, participatory and meaningful”, following which, decision was made to repeal the “Freedom of Information Act, 2002” and enact a new legislation in its place. Accordingly, “Right to Information Bill, 2004” (RTI) was passed by both the Houses of Parliament on May, 2005 which received the assent of the President on 15th June, 2005. “The Right to Information Act” was notified in the Gazette of India on 21st June, 2005. The “The Right to Information Act” became fully operational from 12th October, 2005. This new law empowers Indian citizens to seek any accessible information from a Public Authority and makes the Government and its functionaries more accountable and responsible.6

6 http//.www.lawnotes.in/rtiact 12 | P a g e

During the period of the implementation of the RTI Act i.e. October 2005 onwards, it has become evident that there are many anticipated and unanticipated consequences of the Act. These have manifested themselves in various forms, while some of the issues pertain to procedural aspects of the Government; others pertain to capacity building, and so on. The most important aspect to be recognized is that there are issues to be addressed at various ends for effective implementation of the Act. There have been many discussions and debates about the effectiveness and impact of the Act. The Civil Society Organizations and Government agencies have been engaging themselves in the debate over various aspects of the Act and its effectiveness and interpretations. There is a broad consensus that the implementation of the Act needs to be improved to achieve the objectives. At the same time there is evidence to suggest that the information seekers too have to learn how to use the Act more effectively. While there is significant information – both anecdotal and quantitative – on the level of implementation of the Act, there was limited systematic and comprehensive review available for action by the appropriate Governments. This in turn necessitated a review of all the aspects necessary to analyze the current situation and draw up a plan to bridge the gaps. The assessment of the current situation through various market research tools has resulted in identification of the current problem areas. These problems areas have been analyzed/ discussed in various workshops/meetings to define time-bound actionable steps to make the Act an effective tool of good governance.7

SCOPE OF WORK:7 http//.www.vbook.pubarticles.in 13 | P a g e

The scope of work as defined in the Terms of Reference (ToR) for the study and further clarified through subsequent Consultative Monitoring Committee meetings included: • Review of the experience of the Central and State Governments in implementing the RTI Act based on systematic data collection and analysis. The experiences of the states to cover aspects related to constraints – institutional, infrastructural, and informational – faced by the information providers in responding to requests • Review of the experiences of various categories of users in their information seeking efforts. The experiences included constraints relating to accessing the information provider, the costs of obtaining information and responsiveness of the information provider. In addition, it was necessary to ascertain the problems faced in identifying and seeking relevant information by the ordinary citizen. It was also necessary to focus on the problems faced by the disadvantaged groups in particular. • Diagnosis of the situation, based on the review and suggestion of actions to be initiated in every aspect of the information providing entity. In the same manner suggest the nature of interventions to be made, if necessary, to ensure that ordinary citizen is equipped with adequate awareness to utilize the RTI Act effectively and efficiently. Further, identify the interventions needed for successful implementation of the Act with regard to the disadvantaged groups.8

• Prepare an action plan for implementation of the recommended changes. Specifically, identification and provision of blueprint for capacity building efforts to be initiated at different levels of the Government – like RTI division of Dept. 8 http//.www.lawnotes.in/rtiact 14 | P a g e

(Government of India), Central Information Commission and State Information Commissions, to facilitate the institutionalization process of the Act.

The scope of work entailed the following specific tasks: • Analysis and categorization of information sought under RTI Act • Design of a robust methodology to study the states on a sample basis for studying in detail for a clear understanding on the implementation related experiences; • Preparation of a State-wise ‘State of RTI Act implementation matrix” for the selected states indicating the compliance with the key expectations of the Act; • Study of select experiences, in detail, so as to identify successful initiatives and failures in the delivery system. • Analysis of the data on experiences of the providers and seekers of information for identification of generic problems • Sharing the findings/analysis with the various stakeholders in a structured manner • Based on the diagnosis and feedback from the stakeholder workshop, preparation of the report with specific recommendations on the structural, institutional, “procession”, infrastructural and technological and people-related changes • Preparation of a detailed action/ capacity building plan at the Central and State Government levels.

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CONCLUSION:-

In India, the question of independence of the judiciary has been a subject of heated national debate over the last many years. It has exercised the minds of legislators, jurists, politicians and the laymen. Both the supporters and the opponents have cogent arguments in support of their views. This question assumes great importance whenever the Supreme Court holds a particular Act or particular Clause of an Act passed by Parliament ultra-vires of the Constitution or whenever

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Government supersedes any person while making appointments of judges of the High Courts or the Supreme Court. The supporters of absolute independence of the judiciary argue that in the absence of an independent judiciary, democracy cannot succeed. They point out that only an independent judiciary can safeguard the rights of the people as enshrined in the Constitution and thereby ensure the rule of law in the country. On the other hand, the opponents of the theory of the independence of the judiciary say that under our Constitution, it is not the judiciary but the Parliament which is supreme and sovereign. They feel that it is for the Parliament to lay down the laws and for the judiciary to interpret them. The judiciary cannot and should not usurp the powers of the Parliament. If the Parliament passes any laws for the economic and social upliftment of the people and establishment of a socialistic pattern of society, the judiciary should not strike down such laws and stand in the way of progress. Otherwise, the people might resort to revolution to bring about a change.

BIBLIOGRAPHY:BOOKS USED:1. ROLE OF JUDICIARY – N.M.THOMAS , S.R.MYNENI 2. BASIC PRINCIPLES OF JUDICIARY – Dr. M.P.JAIN

WEBSITES USED:1. VBOOK.PUB ARTICLES 17 | P a g e

2. PRESERVE ARTICLES.IN 3. LAWNOTES.IN 4. LABREPORT/INDEPENDENCE OF JUDICIARY.

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