Role of Judiciary in a Democratic Set-up

No rational study of the administration of law and justice can be made without close study of history not only of the Rule of Law but also of the times. For this reason, I feel tempted to peep into the past. The dead past controls the living present, just as the living present is bound to influence the unborn future. The dispensation of justice has from time immemorial been an incident of the Royal prerogative. At the dawn of history, the King was the law giver and the supreme Judge. The King was the father of the country (pater patriae), he was the living law (lex vivens). the speaking law (lex loquens), and the law in action (lex agens). What is more, the King, was presumed to have all the law in the recesses of his heart. The King could do no wrong.  Earlier, in the thirteenth century, the Barons who succeeded in enforcing Magna Carta from the unwilling hands of King John contented themselves by maintaining that the King was not above-law though the law had no means to punish him or compel him to make redress for the wrong done by him.  In England, at the outset — and this is true of every monarchical system — the judicial function was a part of the Royal prerogative. The King used to occupy the seat of Justice himself and the Judges were no more than assessors or advisers. By reason of other pre-occupations and responsibility, the judicial duties were turned over to Royal clerics and in the early days they were the ecclesiastics who were the only literate men. Their function was not to act as Judges but merely to assist the King. This was the beginning of the Courts and the Judges were the creation of the King. The Courts’ proceedings ran in the King’s name, judgments were passed under the seal of the King and were executed by the King’s officers. The Judges were appointed by the King and were removable at his will or whim. The Judge’s office terminated at the death of the King. Though by passage of time, the Courts became separate organs of the State, the Judges were the King’s appointees and they depended for their office on continued enjoyment of the Royal favour, for a number of centuries.  In the thirteenth century, in the reign of King Henry III, the Judges began to be selected from the professional practitioners of law though the clerics used to be appointed as Judges.  In the fourteenth century, appointment was from the Serjeants who were the leaders of the Bar. Until the sixteenth century, the Judges remained outside the religious and political controversies which divided England. But as constitutional questions increased and were brought before the Courts as legal issue, the Judges became involved in political strifes of the seventeenth century. Thus the lawyers and the Courts were caught up in the vortex of the conflict which was between the King and the Parliament. The real struggle for independence between the judiciary and the Kings dates from the reign of King James I.  Perhaps the worst period of administration of Justice in England was the period of later Stuarts and of the politics ridden benches of Charles II and James II.  James I desired to rule England above Parliament and above the law. He thought that Parliaments were like God’s plagues. Sir Edward Coke (Chief Justice of Common Pleas) thought that this expression of view was un-English. Lord Chancellor Ellesmere and Archbishop Bancroft and later Francis Bacon, played up to the King and proclaimed that ‘‘the King is the law speaking and the Judges are but the delegates under the King”. Francis Bacon said “the twelve. Judges of the Realm are as the twelve lions under Solomon’s Throne. The Judges must be lions but yet under the Throne, being circumspect that they do not check or oppose any points of sovereignty.”  Francis Bacon was the rival and the antagonist of Sir Edward Coke. They were rivals not only over the office, first of the Attorney-General and then of the Chief Justice of Common Pleas. but also over the hand of Lady Hatton, whom Sir Edward Coke married. Coke did not agree with Lord Ellesmere or with Francis Bacon. Coke said, “the King is under God and under law” — Rex est sub deo et sub lege.  The autocratic Stuarts Kings proclaimed in the words of Emperor Justinian: Quod principi placuit legis habet vigorem — what pleases the King has the force of law. It is a fascinating chapter in the history of England how the absolute tendency of the Stuarts was resisted, checked and ultimately overcome. The main credit is to Sir Edward Coke, and a brief excursion into that period will be instructive and rewarding. New theories and philosophies were invoked with the aid of mystic Latin which sounded impressive though ill-understood. Maxims were coined for the occasion in order to give them appearance of authenticity. It began to be said : Rex non debet esse sub homina, sed sub deo et sub lege, quia lex facit regem, which means ‘‘the King ought to be under no man but under God and the law, because the law makes a King;” Rex nil potest jubere nisi per curiam legitima constituam, which means “the King can order nothing except through his regularly constituted Parliament”. It was said that ‘the King ought to govern only according to law, rex non debet judicare sed secundum legem; and lastly the maxim: Rex quod est injustum facere non potest “the King cannot do what is unjust”. This was one of the ruses adopted by Sir Edward Coke to deter the King from expanding his prerogative with a view to arrogate to himself the functions of legislation and also adjudication.  James was an absolutist, and went so far as in saying “The absolute prerogative of the Crown is no subject for the tongue of a lawyer, nor is liable to be disputed”. Coke had, for ten years, been the champion of the common law as against the royal prerogative till 1616, when his fall at the hands of James I came as a profound shock. His stand had always been that the King’s prerogative was subject to legal limitations and the Judges should see that the prerogatives did not exceed those limitations. Bacon and Lord Elles mere, on the other hand, contended to magnify the prerogative, and upholding of the Royal power was, according to them, special duty enjoined upon the Judges. While Parliament struggled against unconstitutional powers of the Crown in the matter of taxation, Coke endeavoured to restrain the Royal prerogative within bounds, and continued to assert the independence of the Judiciary. He preferred to sacrifice his office rather than to conform to Royal dictation. The dismissal of independent Judges was followed by the appointment of subservient successors. The Stuarts obtained subservient instruments to secure favourable decisions, but these decisions were deprived of moral weight. It is a notorious fact that Bacon, who rose to be the Lord High Chancellor, accepted presents from suitors in pending cases. He was proceeded against and in a most abject language admitted his guilt. All that can be said for Bacon is that he was, like others, addicted to the abuse of the times.  It was the practice of King James to send personal letters to the Judges directing the disposal of cases according to his wishes. Coke boldly intimated that by the oath of his office he was bound to disregard a private letter from the King in any suit between a party and party.  The King summoned Judges, ten councillors, and put them this question: “In a case where the King believes his prerogative is concerned, and requires the Judges to attend him for their advice, should they not stay proceedings till His Majesty consulted them?”  All Judges, except one, replied ‘‘Yes, yes, yes’’. The obstinate one was Coke who replied “When that case happens, I shall do that which shall be fit for a Judge to do.”  This led to the estrangement of relations, between the King and his Chief Justice.  Another incident is of interest. When Coke resisted this, the King asked the Judges, “My Lords, I have often heard the boast that your English law was founded upon reason. If that be so, why have I not reason as Well as you, the Judges?”  Coke said, “God has bestowed upon Your Majesty the great endowments of nature, but your Majesty is not learned in the laws of the Realm.  Law is an art which requires long study. Law is the measure to try the cases of Your Majesty’s subjects and it is by the law that Your Majesty is protected in safety and peace.”  The infuriated King exclaimed, “Then I am to be under the law — which is treason to affirm!’’  Coke firmly replied, “Thus wrote Bracton: The King ought not to be under any man but under God and tie law.”  These are a few examples how the supremacy of common law was being asserted by Coke against the pretensions and encroachments of the Executive.  As successor of James I. King Charles I was equally obdurate. It took Coke and his friends years before the Petition of Right was secured, whereby:  no man could be compelled to make any gift, loan, tax, or such like charge, without common consent by an Act of Parliament, no freeman could be imprisoned or detained without cause shown, soldiers and mariners could not be billeted upon private individuals against their will, and commissions for proceeding by martial law be not issued in future. Apart from Sir Edward Coke, the Judges like the Bishops in Stuart England were popularly regarded as the willing instruments of despotism. Towards the end of 1700, when James II was in exile and William III, England’s King, was ill and childly, the Act of Settlement was passed, which contained some important constitutional’ provisions, and, among others, the Judges’ commissions were to be made (quamdiu bene se gesserif — during good behaviour), and their salaries ascertained and established; but upon the address of both Houses of Parliament it may be lawful to remove them. This clause established the independence of the Judicial Bench. Before dealing with the judicial independence, what it implies, and how it is secured, certain aspects of administration of Justice, may be considered.  The idea of Legislative Justice is now almost obsolete. It had a relatively short history. The earlier legislatures in England and also in States of America retained certain judicial power and there was a practice of legislative reversing of judgments or of granting new trials. Legislatures attempted to probate wills rejected by the Courts. They sometimes suspended statutes of limitation for a particular litigation in a particular case or exempted a particular wrong-doer from liability for a particular wrong. Legislative divorce to individuals was known in England and in certain States of America. In the nineteenth century, Legislative Justice came to an end in England. The drawback of Legislative Justice was that it was prone to be capricious resting upon passions and prejudices of the Legislators. The Bills of Attainders, which were employed under the Tudors and Stuarts, were in the nature of Legislative lynchings whereby the victim could be deprived of his life by the fiat of the-Legislature. Legislative Justice has been highly susceptible to the influence of passion and prejudice, and its victims were political opponents. An Act of Attainder was “a Legislative declaration of the guilt of the party without trial, without a hearing and often without the examination of witnesses”.  I may now deal with some broad features of Judicial Justice. The blackest period in the ad ministration of Justice was in the Stuart times, particularly under the later Stuarts. The Judges were servile and venal. The Act of Settlement of 1701 had secured for them a place of honour and dignity and it was the first mile-stone towards judicial independence, impartiality and probity, and more than 250 years have elapsed and the Judiciary with infrequent lapses have continued to maintain those standards.  The first and foremost quality of a Judge is that he should be independent in the sense that his judgment should not be influenced by any extraneous considerations, personal or political. It is true that in the modern age there no longer are absolute monarchs, but their place has been taken by no less influential persons, the political leaders, the heads of the Governments and of the party in power. Sometimes, the influence brought to bear upon the Judiciary is insidious on patriotic reason, in the name of Welfare State, or the socially downtrodden, or that the Judges should lay down the law in accordance with a particular policy. I think it was these influences about which Justice Brandeis of the U. S. Supreme Court said, “Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding”. (Olmstead v. United States, (1927) 277 U. S. 438 at, p. 479).  The Judiciary is the weakest department of the Government in so far as it has no police force and no control over the purse strings of the Gov eminent. The strength of Judiciary perhaps lies in the command that it should have over the hearts and minds of men. Its great power lies in the respect and prestige that it has enjoyed for over two centuries. Respect and prestige do not grow suddenly. It is the produce of time, but can be lost quickly.  The Judiciary is the guardian and conscience of the people as well as of the laws of the land. It is much further removed from the political arena than the administrative agencies. its advantage is that it is detached from the political stresses and storms. It is manned by men who have the protection of Tenure, who enjoy certain Immunities and who are protected against the political powers of the day. The decisions of Judiciary reflect tradition and principles rather than political expediency. It may be said that the confidence of the citizens enjoyed by the Government is in inverse proportion to its interference with the Judiciary.  In the Anglo-American system, and it is equally true of our system, Judges are not public servants in the same sense as are the officials of the Executive. They often decide delicate and important issues between the citizens and the State, and between the individual and the Government. They are public employees and yet independent of the Government of which they are an integral part. The selection of experienced and conscientious men is a fundamental factor in the functioning of the Judiciary.  The three pillars upon which the successful functioning of Judiciary depends are: Impartiality, Independency and Immunity.  Justice is secured first by just laws, and secondly, their just administration. Judiciary cannot contribute to the first, but certainly to the second. Our Constitution has been modelled on securing this idea. Judicial independence is of dual concept. It not only means freedom from extraneous influences, but also means an independent mental approach of the individual Judge. A Judge must be able to think independently for himself and not be easily swayed by arguments of one side and close his mind to the other side of the case. He must be independently capable of evaluating the points, He should be independent in the sense that he should be self-reliant and not submissive.  Immunity from liability for Judicial acts, which in other words means freedom from fear and recrimination for the consequences of Judicial decision, is a contributory factor in achieving the goal of Judicial independence. It is for this reason that Constitutions provide that Judges are not liable for Judicial acts done within the scope of their jurisdiction. The other two important factors are Security and Tenure. Security has been achieved by making the Judges irremovable except as provided by Article 124(4) of our Constitution. A Judge of a High Court or of the Supreme Court can be removed by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of that House present and voting, and on the grounds of proved misbehaviour or incapacity. A Judge of a High Court is appointed by the President after consultation with the Chief Justice of India, the Governor of the State, and the Chief Justice of the High Court (vide Article 217). The tenure of High Court Judges in our country is till the attainment of the 60th year. Any comment upon this matter is not free from delicacy and embarrassment, but what happens in other countries is of interest. In countries like America and England, there is no retiring age for the Judge. The average age of the Judges of the Judicial Committee of the Privy Council ascertained a short time ago was 75 years. There is one criticism which needs close consideration of the authorities. It is said that the period between the appointment of a Judge arid his retirement is usually brief and does not give the Judge sufficient time for maturing and acquiring experience. “This audience will certainly be interested to know that the outstanding Judges of the U. S. A. had served for at least a quarter of a century each.  Story J.   32 years.  Marshall J.   34 years.  Pearson J.   39 years.  Gibson J.   40 years.  Holmes J.   50 years.  May I say a word about Elective Judiciary? Judiciary in England, and till recently in India, has been selective or appointive but not elective. There are historical reasons for favouring elective Judiciary in U. S. A. Most Constitutions of America provide for elective Judiciary. This was a reaction against the subservient Judiciary of the Stuart period. It was also a departure from the former objectionable practice of the King to sell Judicial offices. Preference for elective Judiciary in America was in the nature of a revolt from the British tradition. Elected Judges sit for specified periods. The qualities that go to make a good Judge are rarely to be discriminated by a vast and amorphous body like the Electorate. The necessity of seeking election and re-election is not conducive to that independence of mind without which no Judiciary can do its work properly. Elective system is bad in principle and unsatisfactory in consequence. Cooley, a great name among America’s famous Judges, when seeking re-election, was defeated by a soldier whose educational qualification was, that he had attended a partial course in an Agricultural College. The disgraceful features of the elective system are the flaming advertisements of candidates for Judicial office, sometimes with promises of what the candidate will do for his supporters, as a Judge and endorsed by lawyers appearing in that Court. I would not have dwelt at all with this aspect, with which, we in India, till recently were unconcerned, but the elective system to a small extent has been introduced recently in our country. The reference is to the election of the Panches under the Punjab Gram Panchayat Act. If the elected Panches were called upon to decide administrative or municipal function, one would have nothing to say. But power has been conferred upon them to adjudicate upon civil, revenue and criminal matters. Section 23 of the Act goes to the length of providing that a person disobeying an order of a Gram Panchayat under the previous two sections, shall be liable to a penalty and, in the case of a continuing breach, with a further daily penalty. This power of imposing daily fine has been considered unsafe to be bestowed upon the highest and the most experienced Tribunals in the land. How far the elective Judges are going to acquit themselves in the discharge of their judicial function, whether independently, impartially and efficiently, is a matter which raises disturbing thought.  There is one function which Judiciary can discharge most effectively, but ordinarily is not called upon to do so, to which a passing reference may be made. In a democracy, like ours with adult franchise, Legislature consists of men not all of whom are learned in law or conversant with the machinery of legislative enactments. Laws are being turned out in large volume and at great speed. Very often, there are serious lacunae and flaws which on the surface are not noticeable till closer scrutiny in a law Court when a particular provision is examined closely. The Judges, according to the prevailing practice, decide upon the validity or otherwise of the particular provision. It will be desirable if the views of Judges were invited on making necessary changes in the law with a view to suggest improvements. In modern times, there has never been a concerted effort to relate judicial functions organically with the vital process of improving the law. If the suggestion of legal improvement were to be a part of the Judicial function, the Legislature will have greater facility in effecting law reform and in avoiding grievous pitfalls.  I may now turn to a comparatively new entrant among the dispensers of justice. This is the Executive Justice through administrative Tribunals. As a result of the expanding activities of the State, the Executive Justice is entering the domain of Judicial Justice. Workmen’s Compensation Legislation has taken a great mass of tort litigation out of the domain of the Courts. Now-a-days, there is hardly any activity of the Government touching the Welfare State or its other multifarious activities of a specialised nature for which special administrative Tribunals are not appointed. There is an ever increasing tendency to rely more upon Boards, Commissions, Tribunals and Arbitrators than upon the law Courts for settlement of controversies. There is a distinct shift to the Executive hegemony in our polity, after Legislative and Judicial hegemony. Twentieth century seems to be the era of Executive predominance in Governmental activities. The main cause of this expansionist tendency of the Executive is the increasing economic development. The present century believes in a Welfare State just as the last century believed in laissez-faire State. Whenever a legal system fails or is found wanting, there is a tendency to fill the breach by infusion of current feelings of morality. Instead of simplifying the procedure of the law Courts, the complicated procedure of the law Courts becomes the target, and the delays of laws furnish reason for supplantation of judicial Tribunals by administrative Tribunals. Perhaps the onward march of Executive Justice may receive a setback if Judicial Justice could be obtained without unreasonable delay and expense.  To-day, Legislatures are pouring out an ever increasing volume of laws. The Legislative stream is in full spate and the Judicial organisation and the procedural machinery is inadequate to control the flood of fresh litigation let loose by legislation. If supremacy of law is to be preserved, and before summary administrative action becomes the daily routine or the fashion of the day, the Judicial administration of Justice has to be improved and. effectively rid of its shortcomings. Some adjustment between the two systems is imperative.  The advantages claimed for the Executive Justice are: directness, expedition, freedom from bonds of traditional and technical rules of evidence and procedure. Its disadvantages are, that laws are administered by laymen without conscientious attempt to work out a system of reasoned interpretation. The results are equally unsatisfactory when the laws are administered with pedantic narrowness of lawyers, or, where the zeal of administrative-officials leads to the application of power beyond the terms of the statute or the statutory rules; and very often, beyond the legitimate conception of policy, the characteristic trait of the administrative Tribunals is that they evince keener loyalty to policy than to the objective construction or interpretation of the Act of Legislature.  The unfettered common sense of a lay-official or a lay-Tribunal or Arbitrator, or his bias in favour of policy, can be as destructive of Justice as blind adherence to technical rules and strict logic of the statute. Some of the noticeable dangerous tendencies of Executive Justice may be recounted—  It is a characteristic tendency of present-day administrative agencies to use as ground of decision some idea of policy, not to be found in the statute or in any formulated rule. The results are reached on some extra-legal basis in one case, which is not observed in the next case. Decisions are justified on some policy which may not even be declared, or established. There is also a tendency to make determinations without basis and facts on record, which may be either logical or probative. Reliance is often placed on secret reports or on evidence not produced at the hearing, or, on private consultation with one side. Wherever the statute requires a hearing, it is complied with merely as a matter of form. Executive agencies are perhaps not intentionally unfair, but the zeal for carrying out the special functions assigned according to the dictates of the policy becomes irresistible, and the rights of individual and constitutional guarantees receive negligible consideration. There is also a general complaint that decisions are made without hearing or giving a proper hearing to a party adversely affected and the decisions are more often based on pre-formed opinions and prejudices. Another feature is that the adjudication is with the advice and assistance of those who investigated, prosecuted, or advised the prosecution. This is in derogation of the fundamental maxim of Justice that no one is to be a Judge in his own case, that is, no one is to be both an accuser and a Judge. On the other hand, the art of judging is different, and is acquired after considerable study and experience. A Judge is called upon to subordinate Policy to Principle, and Impulse to Reason. It is true that cumbersome legal system deters expeditious disposal, but the general regime of Justice without law can, at best, be only a temporary experience. The Judge is trained to adhere to the statute and is governed by legal reason and not by sectional interest or external pressure. In his work, he is being watched narrowly by a learned profession trained in the same tradition and with opportunity for a searching criticism of every decision.  Another feature of Judicial Justice is that every decision, and reasoning in its support, appears on a public record. High Court decisions are published in Reports and are available not only as precedents, but also for criticism and for overruling.  Judicial decisions are liable to review and reversal on appeal, and the Judges have never been accused of any esprit de corps between the Judges to uphold decisions of each other, right or wrong. Administrative review, on the other hand, is usually in the nature of rubber-stamping. Great Jurists and great Judges with respect to whose learning or fairness there can be no two opinions, have viewed with, alarm the doling out of Justice by administrative agency.  Lord Hewart, the Lord Chief Justice of England, in his book “flew Despotism” has deprecated the role of executive officials as dispensers of justice. He is of the view that the goal of this “New Despotism” is to subordinate and out-manoeuvre the Parliament, to bypass the Courts and to render the wilt or rather the caprice of the Executive, unfettered and supreme. It is a serious thing where a matter affecting the rights of individuals is placed beyond the possibility of review by Courts of law. According to him, the supremacy of law has been subordinated to mere arbitrariness. Unlike the Judges, the public official is not as independent. As a civil servant, he is liable to be dismissed at any time. Ordinarily, he acts in good faith, but he cannot help bringing his official and departmental mind which is not the same thing as a Judicial mind. As an official, he has to obey instructions given by his superiors. He is there to further the policy of his department. His position makes him subject to political and ministerial influence. Arbitrary power is prone to become despotic, and constitutional liberties remain safer in the hands of independent Judges guided by the Rule of Law.  While referring to the seamy side of Justice through administrative Tribunals, one should not lose sight of the shortcomings of the Judicial system, especially relating to delay and expense. It is perhaps a little too late in the day to stem the on-slaught of administrative agency or the Executive Justice, but a via-media should be found whereby the best out of both systems may be winnowed, and the shortcomings may be avoided. The following suggestions are worthy of examination.  The independence of the Executive Tribunals may be assured by giving a right of ay peal to superior law Courts on questions of law and jurisdiction. Lord Justice Bowen, as long ago as 1893, R. v. Justices of County of London, (1893) 2 QB 476, spoke about the essential necessity of a right of appeal from official decisions : “In a free country, the very essence of such a system must be that there should be an appeal to somebody who can say whether those officers are doing what is just. If no appeal were possible, I have no great hesitation in saying that this would not be a desirable country to live in, where every parochial officer might do as he liked in this matter . . . if there is to be no appeal at all possible, the system would be intolerable. Therefore, it is of the essence, the pivot of the system, that there should be a right of appeal”.  Lord Justice Farwell Said while delivering judgment in Dyson v. Attorney-General, (1911) 1 KB 410 at page 424 : “The Courts are the only defence of the liberty of the subject against departmental aggression”.  On this matter, Lord Hewart (pp. 145, 148), commented “It will not escape notice, nevertheless the departmental aggression is not only not democratic, but, on the contrary, has in a marked degree increased during the past quarter of century”.  Prof. Lawson (p. 146), said, “Our administrative Justice is too much of the ‘hole and corner variety. It is essential that the ordinary Court shall retain ultimate control in respect of legality”. Lord Denning thought (Freedom Under the Law, p. 87) that Tribunals are prone to register the will of the party in power and look at a case through the spectacles of the Government, He also suggested that independence of the Tribunals can be assured by giving a right of appeal to superior law Courts on questions of law and jurisdiction.  The second suggestion is ‘that the Tribunals should have the benefit of legal arguments and hearings where the parties are forbidden to employ lawyers to represent them should be deprecated.  Every Tribunal should be compelled to support its conclusion by a reasoned decision. This is an important factor. An arbitrary decision without, reasons may be based on personal feelings, prejudies, or whims. The decisions of the Tribunals will command confidence at the public if they are supported by reasons.  The present control of High Courts over Tribunals is not such as to enable them to correct many of their faults or injustices unless a right of appeal is provided. If these safeguards are not adopted, the rights of subjects will perish in the bogs and quicksands of departmental decisions, according to Lord Denning.  The increasing power of the Executive, a most significant feature of our age, seems to have come to stay. Granting that private rights must often be subordinated for public good, in a free country it is necessary to strike a just balance. Vast powers are being granted by Parliament to the Executive, but are adequate steps being provided against their abuse or misuse? While acting within the ambit of his jurisdiction, it is possible for an experienced official to misuse his powers. But all that the Courts can do is to see that the powers are not exceeded or abused. The control of Courts against misuse is hardly adequate. The Judges will act as a check to ensure that the powers are not used oppressively or unreasonably. There is an urgent need of settling the principles upon which the new powers of the Executive can be controlled. The best among them are fallible and liable to commit serious errors. The procedure for preventing the abuse is hardly sufficient.  Properly exercised, the new powers of the Executive lead to the welfare State; but abused, they lead to a Totalitarian State.  When comparing the contribution of Judiciary, the Executive and the Legislature to the upholding of democracy, I wish to stress one point, that Judges have no separate political philosophy or political prejudice. Theirs is the detached, impersonal, and objective approach in accordance with established canons of interpretation. It is wrong to assume that Judicial conservatism is a stumbling block in the way of social progress. The Judiciary, as an interpreter of the Legislative will, is not interested in impeding the progress of any social programme. Judicial interpretation of laws is neither tendentious nor purposive. Judiciary has no private social philosophy, and it is neither a trade union nor a political party. It works in the limelight of publicity and the thought processes are known, its decisions are backed by reason and are liable to review or reversal. Law Courts are the arena of conflict between Citizens inter se, or between the citizens and the State. They occupy a unique position of privilege as well as of great responsibility. As tradition and good sense prevent a Judge from defending himself or his views in the public, he is apt to be misunderstood and the judgment against him is passed by default. The Executives can temporize, the Legislatures may adopt a middle course, but not the Courts. For them there is no right, left or even middle course. The Judges might follow only one course and that is the course of Justice and Impartiality. Their motto ever since has been Fiat Justitia Ruat Coelum — Let Justice be done even if the heavens fall.  Independent Judiciary even when critical of the acts of the Executive and of the Legislature, strengthens the common man’s faith in democracy. While presenting the claim of Judiciary in lending strength to democracy, I am not overlooking the contribution of others, namely, the vigilant Press, the wide awake Public Opinion, watchful Legislature and wise and responsible Executive.

Author Name: Hon’ble Justice Tek Chand