ABSTRACT
It has been since from the independence of the country that the judicial organizations have been playing a very vital role in the development of the country and has also contributed towards the maintenance of the unity and integrity of the nation. In the recent times it could be very easily viewed that the judiciary has helped the nation in maintaining the public order to the maximum extent as was possible. It has been, however: noted that the judicial organizations of the country have been criticized on many grounds by the executive organ. The reason being the overlooking responsibility of the judiciary over the functions of the agencies of the state in order to ensure the consistency with the supreme law of the land. this problem is not only of India, but the major chunk of the nations have been found to be gripped by the same and the only problem. The most common and the recent example could be of the proclamation of the emergency in Pakistan and the heavy cricism of the same by the lawyers and the citizens of the country.
INTRODUCTION
The judiciary, in its most organized and abstract form: is regarded as the third pillar of any democratic nation. judiciary has the work of having an overlook over the various machineries, agencies,instrumentalities etc. of any nation.Judiciary,as understood: is the most functional and the most responsible agency of the state. The task of ensuring conformity with supreme law of the land, maintenance of the public order,resolvation of the disputes etc. are the most common works of the judicial organizations. It has to be mentioned here, in fact: that the judicial proclamations also govern the conduct of the citizens of the nations in either form or the other, either directly or indirectly. The judicial proclamations tend to have the momentum in order to ensure the conduct of the citizens as has been marked out or provided by the supreme law of the land. Judiciary as a machinery of administrator of the laws in force has faced a lot of problems in the recent times. Some of them have been resolved, which were within the ambit of the sates and others have been left out*:to the maximum extend as could be designated to the agencies. Judiciary as an instrumentality of the administration of the applied laws in the country has been found to possess a lot of force which could mark the limits of the conduct of the people, apart from the conscience: and hence ensure public order.
So, a lot of queries of the public have been answered in the later part of this article in an enumerated form. The list of the questions which have been duly framed out are as found evident by the comments of the public on the functioning of the judiciary. The look over the social implications of the answers has been kept in mind but the conformity with the laws of the land has also been highlighted herefrom.
I. WHO IS THE JUDGE TO JUDGE THE JUDGES?
This is the very basic question of the people concerning over the judicial accountability of the judges, which tend to involve the conduct of the judges on the bench. The answer could be provided in the terms of the humanitarian approach to the duty of the application of the laws and the administration of the justice in the country. The judges act on the legal basis while they are on the bench, and the desire of the people that the judges could act on the moral grounds could not be esteemed. Its not because the judges are not humans, but the reason is that they are also tied by the ropes of legal conduct and from which they could not escape. In the adversarial form of legal system, the basic work is the dispensation of justice and the task is a bit tough from the inquisitorial legal system. It is the human nature that the humans tend to avoid the things or the facets which could not provide any benefit to them in any form. In the case presented, if the moral ground will be applied then the dream of the application of laws could not be brought in action. It has been found that the people have been mislead by the meaning of equity in it's strict sense. The judges have been commanded to act in the legal manner and the dispensation of justice or the verdicts of the judges have to be based on the legal grounds and there is no possibility of the application of morality of the judges. When the verdict of the judge is not in the favour of a party, that particular party will naturally criticize the judge and the questions over the conduct are the easiest target to be aimed. The judges are made so, so that the laws could achieve the motive aimed and it is obvious that the critics are welcomed by the same. Rationality of the judge could not be the point of question because the same is never respected by the limits of the judicial organs and instrumentalities. The judges are the human bodies who decide the cases on the basis of the rationality adopted by the legislation:so,there is no matter of fact about the application of the rationality of the judges in any form whatsoever.The4 statement of the people that the judges are the puppets who are dancing when the ropes are pulled on is not correct because the judges themselves have the code of conduct which is enacted by the legislature and thus it seems the position as described. The judges could be judged in the best way by the legislations or the appeals in the higher organs of the judiciary. It could not be said that the repeal of the verdict of the judge tantamount that the judge was biased because the human mind has a lot of views and the rationality of the people are different from one another. The question that who is the judge to judge the judges is that the laws themselves are the best judges to ensure and rectify the competency of the judges to administer the laws. There could be no special organization besides the code of conduct, the judicial organization itself which is capable of judging the judges.
II.JUSTICE DELAYED IS JUSTICE DENIED
This is the question which has been accepted in the form of a proverb by the people which is the toughest comment to be digested by the judiciary because it talks of the efficiency of the judicial organization in he dispensation of justice. They tend to connote that the judiciary has no care of the sentiments of the people and it works according to its discretion and the umbrella of saying that the speedy trials are carried out is always in their hands. The basic question in the saying is that why the judicial organizations require such a huge time in the delivery of the judgments even when the tools (laws in paper) are in their hands? The answer could again be a question to be later asked by the people in any form but the reflections of the implied meanings of the questions have been satisfied by the answer provided infra.
The term of the trial is understood on the basis of the kind of legal system which is followed in the country and the strengths provided to the judiciary and its instrumentalities. If the adversarial system is followed in the country then the task is very tough because the marks of the justice through the laws in the hands could not be judged in the abstract senses of understanding. the search for the truth could be a very speedy process because the doctrine of causation is of great help there and also when the task is for the search of the truth then the responsibly of the judicial organizations is lowered down. To give justice is the primary work of the judiciary and it has to be argued that on the basis of what considerations the people say that the judiciary deny from the work assigned to it? It is a matter of extreme shame on the part of the people that they have no answer. The working of the judiciary is not as easy as is taken by the layman because the conformity with a lot of questions is desired besides the application of the laws. The judiciary as a body has never, in open words: accepted that it denies the work assigned to it by the state. The same could never be accepted also. The time is if felt to be long by the people then the people are humbly requested to take into account the questions of law involved in the case which took most of the time of the judiciary because the legal applications of the values of the legislations could not be overlooked in any manner whatsoever. Thus the dispensation of justice is a process and the same could not be equated with the meaning of task.
The involvement of the number of people and the number of the questions of law involved decide the time to be taken by the judiciary in the dispensation of justice.
III.INTERVENTION OF THE JUDICIARY
The third question is about the independence of the judiciary in the administration of justice. It has to be enlighted herefrom that this is the question of the other organs of the state but when it is discussed in the open environment (because of democracy) then it becomes the voice of the people. The question concerns the independence of the judiciary and the extent of its interference in the works of the other organs of the state. The question is about the territory of operation of the judiciary and its powers to administer the functions of the other organs of the state. It has been found that when the courts tend to question about the consistency of any act or omission of the state agencies then if the matter is inconsistent then the shade of intervention is the best and the accurate remedy available. This tends to complicate the process and hence the bullets of "justice delayed is justice denied" are fired over the judicial organisations.The other organs of the state are happy by doing the same but the judiciary is forced to enter into the world of complications. it has to be enacted by the state that in the course of the performance of the duty if any allegation has the question over the intervention of the judiciary in the works of the other organs then the same should have some speedier solution otherwise the bullets are there to hole down the organ. People tend to ask that when the judiciary is not competent to enact the laws then why it shows off its capabilities while in the process of the dispensation of justice?. The answer is equally easy as the question that the work of administration involves the application of the radical ness by the instrumentalities and the "dispensation of justice" in the legal terms means "resolution of the dispute in the best way possible with the help of the laws”. This is the answer to the voice which is the basic means of criticizing the efficacy of the judicial organisations.It has never been provided that the application of rationality could not be done but the limitation is that the rationality should not be inconsistent with any of the laws in motion are with any of the rights invested in the individuals. It is true to say that judiciary is independent, because it is free to perform it's duty without any external pressure.
The conclusion could be thus that the judiciary keeps the watch over the functions of all the instrumentalities and the agencies of the state in order to protect the supremacy of the laws of the land and to avoid the drift from the basic object of the democratic functioning of the country.
The question of intervention could only sustain when the "intelligible differentia" is established over each and every contention of the arguing party. Like the application of principle of "volenti non fit injuria" in the law of torts is justified by the comment that the consent has been given then no action can be brought thus. The same is here, once the state agrees to give the power to the judiciary to have the check over the functions of the other organs of the state then, the other organs can't claim the defense of intervention of the judiciary in their independent functioning: if noticed to be at some fault. The extent of the watch of the judiciary is nowhere provided in the laws and thus if the intervention is there then the judiciary has again has the defense of claiming the action of the department to inconsistent with the laws in action. The fact that the judiciary should operate in the fixed limits then the dream of the limited functioning of the judiciary could only be fulfilled when it is satisfied that the claims of the judiciary are arbitrary or the possessiveness of the judiciary for the laws of the country is crossing the limits of absorption. The ending mark could be that the watch of the judiciary could not be stopped merely by claiming that the intervention is done because it is the constitutional duty of the judiciary to protect the enforcement of the laws and to ensure that the supremacy of the laws is protected and also to care of the consistency of the laws in every function of the agencies of the government.
IV.LEGISLATIVE PROCESS OF THE JUDICIARY
It is not only the legislature alone which has the power to legislate over some aspects but the power is also vested in the judiciary to regulate the works of its own. IT is a confusing term for the people and they are confused too. The people have been found to be asking that when the legislature has the work of enacting the laws then why the judiciary also has the interest in making the laws? They are mislead by the terms used in the practice because they never take a look over the meaning of the same in all the aspects. They tend to connote that the judiciary is excising more powers than those which have been granted to it by the constitution of the land.
There main question is that if there would be two instrumentalities for making of the laws then who has the supremacy and on what counts?
The answer is also same that first of all get cleared with the statements of the judiciary and then impose allegations for claiming the actions of the judiciary to be "ultra vires".
It is submitted that the law making power of the judiciary is not accompanied by the aspect of "sanction" meaning thereby that the laws made by the judiciary are for the guidance of the judiciary itself and it has nothing to do with having the general enforcement of the same. If they are to be enforcement with sanction in the whole or any part of the country so that the escape from the obedience of the same tantamount to punishment, the same is required to be enacted by the competent legislature and the laws of the judiciary are not administered directly. The people impose questions as if they find that the laws made by the judiciary are of national importance or if the legislature has been ignored and judiciary wants to claim supremacy in the legislative processes. For them the best answer is that even the people are free to legislate for themselves certain laws on the individual basis with the help of their inner conscience so as to regulate their conduct: then could it be said that legislature is the only body which has the power to legislate. If the same question is brought before the judiciary then it will say that the laws made by it are meant for the guidance of itself to lower down the burden of the judicial function of resolvation of the disputes because similar problems have almost similar solutions.
Thus the legislative power of the judiciary could not be challenged on the ground that it exercises more power than is assigned because the legislation is done for the guidance of the judiciary itself and the laws made by the judiciary are not for the imposition of obligation on the people of the country. The contentions of the people are hereby overruled by the fact that the legislative power of the judiciary is different from the legislative power of the legislature and that the legislations thus made by the judiciary have no "sanction" and that they are enforced in the same sense as other legislations are.
CONCLUSIONS DRAWN
01. The questions of the public are valid as the terms have some misleading effects in themselves and that the questions of the public are not irrelevant to the aspects related to the judicial machinery of the country. The radical grounds adopted by the people shows that they have something to do with the performance of the duty by the judiciary and that they are cautious that there rights should not be infringed at any cost, whatsoever.
02. The issues over which the questions are asked are of national importance and they are to be duly answered in order to maintain the supremacy of the judiciary by itself. The judiciary of any nation is never expected to be at fault and it is a matter of happiness that whenever the functions of the judiciary are brought in question, the judiciary has been found to be correct.
03. Even after so many critics the judiciary has sustained its importance and has never escaped from its duty even though the people say that "justice delayed is justice denied”. The judiciary is very well aware of the duty which it is required to perform and the escape could never be caught in manifestation of the same. The journey to the attainment of justice is along way to travel along and the critics have always been considered to be the troubles in the process of dispensation of justice.
04.The judiciary has never interfered in the works of the others and it has been maintaining the supremacy of the law of the land and is doing the works in the manner best possible by it. regarding the intervention of the judiciary in the works of the other organs it has to be submitted that the judiciary can ask about any question only at the time when it is under the obligation of asking or when any of its rights are infringed. The judiciary has nothing to do with the works of the others but in matters where the works could be deemed to be inconsistent with the laws of the land the judiciary has the constitutional power to intervene. The judiciary performs its functions in order to ensure the supremacy of the democratic laws of the country and in the due regard it also maintains the cooperation of itself with the other organs of the state.
05. The judiciary also has the code of conduct for its people who often face the public for the enforcement of the laws. They maintain that the people thus involved in the process of administration of the laws should be impartial and independent from all other external pressures. The legislations if done do not stand to mean that the judiciary is also having the power to exercise the powers of the legislature but it only means that the laws of court are for the guidance of the judiciary itself so as to ensure better services to the people for whom it has been constituted.
The functions of the judiciary are not possible to have the result unless the people do not cooperate with it. thus the people have also the right of representation in the process of the dispensation of justice and it is desired from the judiciary that the public opinions should be entertained in order to protect the interests of the people as well. Being the third pillar of democracy the judiciary is required to take care of the fact that the justice is the thing which can only ensure the "trust" of the people in the judicial organs and instrumentalities. The application of the rationality is required to be done according to the need of the situation and the dispensation of justice should not look like judicial justice but look as if natural justice has been done. The humanitarian aspects should be given more importance and the legal values should be related to the same giving due consideration to the moral values. The incorporation of such suggestions could make the judiciary more friendly with the public and hence the objective dreamed by the constitution makers could be achieved.
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