NTRODUCTION

In the previous unit you have read about the concept of Dependency theories of law and justice and
for its realization justice depends on law, but justice is not the same as law.Justice and its
independence constantly cause nourished and impassioned debates. Admittedly, the subject is
sensitive since it touches at the same time law and the judiciary, politics and its users, society and its
citizens. Curiously, any approach on the independence of justice is invariably declined towards two
other subjects: the independence of the judicial power and that of the judges.In this unit we will
discuss about the independence of justice theories - means to end relationship of law and justice
and their relationship in the context of the Indian constitutional ordering

Independence theories of justice

Justice and its independence constantly cause nourished and impassioned debates. Admittedly, the
subject is sensitive since it touches at the same time law and the judiciary, politics and its users,
society and its citizens.Curiously, any approach on the independence of justice is invariably declined
towards two other subjects: the independence of the judicial power and that of the judges. I -
Independent Justice or Independence of the Judicial Power?

A) The Concept of Independent Justice and Independence of the Judicial Power.The concept of
independent justice and judicial power is comprehended in a confused way by a public which has
difficulties to dissociate them. However the distinction is of importance.To speak about justice is to
apprehend the system as a whole. Justice, in its traditional meaning, is a body of judges, but also of
auxiliaries and judicial officers. It is a whole material organisation and it is an overall system at the
service of the public! Justice can be multiform. Thus it can have a scientific connotation: civil, penal,
military or international. Justice is not only that of the judges and the lawyers

B) The Independence of the Judicial Power

The mutual intrusion of the two powers - executive and judicial - in their respective spheres of
influence is often stigmatised. The political State speaks about ―the power of the judges‖ while the
judges denounce ―the interventionism of the State‖. In fact, all depends on the applicable mode
and the concept which one adopts, which postulates for two options:

one which founds a true judicial power where the president of the Supreme Court is at the same
time the chief of the highest jurisdiction and the manager who governs the functioning of all the
legal body. He enjoys a great autonomy and occupies a hierarchical row in the State, equal to that of
the chief of the government.

-the access to the judge,

-the specific enforcement of judgements.

It is understood that under the only angle of the judicial power, the concept of independence of
justice appears very reducing.And as a matter of fact, the work of justice does not stop with the
intervention of the judge, nor even when the judgement is given, which makes the professor Duple,
of the University of Laval in Quebec, state that ―the concept of the Rule of Law rests on the
principle whereby the judge has as a function to judge, lawyer to represent the parties‖ and, would
we add, judicial officer to carry out court decisions.This last precision leads us to add the following
remark. Too many times it is considered that justice has fulfilled its role once the judgement is given.
The judges themselves do not mark but a minor interest in the fate of their decision and rare are
those who wonder about the capacity of the parties to even understand or to interpret their
judgements. More seriously, enforcement only causes a very minor interest.

B) The liberal judicial officer: and independent actor essential to an independent justice

The aim set by the Council of Europe is to support - it is a truism - the creation of an occupation of
judicial officer, if not uniform, at least harmonised on the basis of common standard. This concept of
the judicial officer is to be compared to the doctrines of the UIHJ which preaches the introduction of
a statute of the liberal and independent judicial officer. In this respect, let us recall that the whole of
the national chambers or orders of judicial officers of Africa of the OHADA zone, which represents 16
Member States, filed in under the aegis of the International Union a project of unified statute,
conceived according to the criteria of independence and freedom of exercise such as mentioned.

Means to end relationship of law and justice

The concept of natural law—higher moral law over and above the positive law embodying certain
values of universal validity like dharma (righteousness) artha (wealth), kama (desires) and moksha
(salvation) were expounded by ancient Indian philosophers and thinkers 5000 years ago with a view
to establish a harmonious social order by striking a balance between inner and outer, spiritual and
material aspects of life. The quest for equilibrium, harmony, knowledge and truth inspired the Indian
minds more than theircounterparts the Greeks and the Romans. The major goals of lifewere to be
attained, controlled and regulated according to the dictateand direction of dharma. The immortal
Veda Vyasa declared Artha and Kama flow from dharma and so why not follow dharma? In other
words that is first follow dharma and dharma will also give artha and Kama. Thus ethos of Indian way
of life was characterized by an all pervading law—dharma. It is this law of dharma—the Hindu‘s
natural law was neither a cult or creed nor a code in the Western sense but the right law of life and
true ideal of living and social ordering. It is this law of dharma which is neither static nor rigid nor
absolute but relative, dynamic and evolving—always changing according to the needs and
development of society. Thus, philosophical ideals and constructing scientific concepts and methods
which have deeply influenced the law and life of people. The spirit of intellectual inquiry which
possessed the Hindu mind led them to question experience, to question the environing world, to
question their gods and the tenets and of their traditional faith

Personal Liberty

In the pre-Constitution era Gandhiji had blazed the trial of higher lawagainst State by expounding
the doctrine of legitimacy of rightmeans to achieve right ends. He never hesitated to disobey unjust
laws, customs and traditions which were an affront to human liberty and dignity. The concept of
higher law in so far as human dignity, liberty and equality is concerned is clearly epitomised in
different Articles of the Constitution. Articles 19, 21 and 22 especially guarantee personal freedoms
and civil liberties which are the very soul of democracy and of a free society. However, curbs on civil
liberties and personal freedoms in free India are not uncommon. To curb communists or naxalities or
communalists civil liberties have been curtailed and abrogated from time to time

New Jurisprudence—New liberal setting

Prior to 1973 the Court with great difficulty had to acquiesce with theprevailing view which existed
since the adoption of the Constitutionthat Parliament is ‗Sovereign‘ which even can replace
theConstitution‘, or supremacy of the Executive vis-a-vis the Judiciary inthe context of a so-
called‗committed judiciary‘ during the days ofGolak Nath case controversy. However, it was in
Maneka togetherwith Kesavananda Bharati that the Supreme Court expounded anew jurisprudence
—some fundamental and higher principles of lawwhich may endure and adapted to varying social
and political

Judicial Process—blending new values

In the post-Emergency era under the dynamic leadership of judgeslike V.R. Krishna Iyer, Y.V.
Chandrachud, P.N. Bhagwati, D.A.Desai, O. Chinnappa Reddy and Kuldeep Singh like
theircounterparts Justices Holmes, Cardozo, Brandeis, Frankfurter inUSA, have made their mark
overwhelmingly upon great issues of human liberty, social justice and human rights,148 as enshrined
in the Constitution even by antagonising the Parliament and the Government of the day. These
judges through their scintillating judgments made a bold departure from the traditional judicial role
and sharply focused the debilitating effects of executive and legislative tyranny on individual
autonomy and freedoms as was evident in Gopalan and Shivkant Shtikla

Indian Concept
Much earlier to Greeks and Romans the early Rigvedic thinkerswere also deeply impressed by the
forces and powers of nature.They began to wonder at the natural forces like the sun, the
moon,therains, the storms, lightening, etc. They felt they were surroundedon all sides by the
mysteries of the universe and that they werenaturally dependent on these natural phenomena. They
began to putthemselves the original questions such as ‗where is the sun bynight?‘, ‗Where go the
stars by day‘?, ‗Why does the sun not falldown‘?, etc.‘ They thought that the forces of nature were
allrepresented by mysterious divine forces for each of these natural powers and forces of the
universe e.g. Mitra (agent of bright sky and day), Vanma (the agent of dark sky and evening), Surya
(agent of sun), etc. It is the God Vanma who was very important and extolled by Vedic sages. He is
considered in the Vedas as the apostle of justice, virtue and righteousness in the universe. He is the
chief guardian of Rita in Vedas. Rita is cosmic order, the ordered course of things in the universe as
revealed regular alteration of day and night, the pageantry of seasons and all other disciplines as
represented by laws of uniformity of nature and universal causation. Rita also means moral order in
the individuals in society

Dominant Trends—Indian way of life

In substance there are three predominant trends of Indian way oflife. First, the Indian social
tendency from time immemorial has beento subordinate the individual to the claims of society.
Second, theIndian religious and spiritual thought and traditions have alwaysbeen individualistic—the
individual‘s claim to inquiry, to discover andexercise his spiritual freedom and greatness and moral
splendour—the first great charter of the ideal of humanity promulgated by Vedicseers. Third, it is in
India that religion and J morality have alwaysbeen the sheet anchor of polity, economy and
administration. At notime in the history of India the ruler could be a dictator or despotunmindful of
traditions,; dharmashastras and majority public opinion(lokmat). Thus natural law and ethics have
always occupied thecentral place in 1 law and politics

Government—Judiciary Conflict—and Natural Law

In the pre-Golak Nath era in a number of cases it had become amplyclear that a situation was
developing, on account of SupremeCourt‘s nullifying the progressive legislation, which was irksome
both to Parliament and the Executive? There were a series of caseswhere the government lost and
these were also the decisions whichwhere linked to enforcement of fundamental rights. The
SupremeCourt in all such cases adopted ideal, moral or natural law approachin order to invalidate
the various legislative measures,152 under thecanopy of fundamental rights especially in post-Nehru
period. In theGolak Nath,153 the Court ruled that Parliament has no power toamend the
Constitution so as to take away or abridge thefundamental rights.