CHAPTER-- 22
Independence of Judiciary
"The Judiciary was to be an of the social revolution uploding the equality that indian had longed for "
Supreme Court ___ The Guardian of the the constitution-----the essence of a federal constitution is the division of power between the center and State Government • the division is made by a written constitution which is the Supreme law of land •
Since language of the constitution is not free from ambiguities and its meaning is likely to be interpreted differently authorities at diffrerent times;
The function can only be entrusted to a judicial body
The Supreme court under our Considration is such an arbitrator • It is also the Guardian of the supremacy of of the constitution the supreme court is also the guardian of fundamental rights of the people truly the supreme court has been called upon to safeguard Civil and monetary write and play the role of Guardian of the social Revolution it is the great Tribunal which has to draw the line between individual liberty and social control it is also the highest and final interpreter of the general of the country it is the highest court of appealing Civil and criminal matters
Composition of the court___ the Supreme Court of India consist of chief justice and until Parliament may by law describe a large number not more than 7 other judge thus Parliament Mein increase this number by law originally the total number of judge was 7 but in 1977 this was increased 17 including the chief justice in 1986 these number has been increased to 25 excluding the chief justice in 2009 the number has been increased to 30 excluding the chief justice does the total number of judge in Supreme Court at present is 31 including the chief justice the number of Constitution does not provide for the justice who will constitute bench for hearing case
Appointment of judge ___position before 99th amendment of constitution---- the provision of the appointment of judges of the supreme court before 99 amendment of the constitution which received the ascent of the president on 31st December 2014 for as follows
The judges of the supreme court were appointed by the president the chief justice of the Supreme Court was appointed by the president with consultation of such object judges of the supreme court and the High Court has been deemed necessary for the purpose but in a appointy other judge other P other judge purpose but in appointing other judge the President who the always consult the Chief Justice of India he might consult swachh other judge of the supreme court and high court as might deemed necessary article 124 to clause how were be noted that the power of the President to appoint Judge was purely formal because in this matter he act on the advice of the Council of ministry and due to an apprehension that executive may bring a politics in the appointment of the Indian Constitution deer for did not bring leave the appointment of judge on the discretion after executive executive under the article was required to consult person who are x hypothesis well qualified to give proper advice in matter of appointment of judges•
(1) Absolute Discretion of the president---- the first reason given by the government was that under article 124 of the constitution the president has absolute discreation to a point anyone won he find suitable for the post of the Chief Justice of India we all agree that there is a such a power vastad in the president but during the period of over 22 year the president head never exercise to follow the practice of appointing the senior most judge as the Chief Justice of India converted into a convention•
(2) Recommendation of the law commission--- it was crude that the government followed the Recommendation of the law commission in appointing the chief justice and super sending the three senior judge here also the government case filled the first report of the law commission for published in 1956 but it were not implemented for the about 17 year secondly the report of Law Commission its self and destroy the government case head the government followed the Recommendation of the commission of the three senior judge would not have been superseded the report of the commission itself for the performance of Duty chief justice for the judge of ability and experience but also a competent administrator capable of handling Complex matters that may arise from time to time you judge of man man and personality and ever ball a person of study Independent and touring personality who could on the occasion arising be a watch dog of the independence of the judiciary
(2) Philosophy of Judge--- philosophy of the ruling party it is a true that deciding case the social philosophy of judge play an important part but the question arises as to what kind of social philosophy is judge his two subscribe to every dently the philosophy of the constitution the Preamble in the constitution in bodies the social philosophy now it is a clear that the Supreme Court judge bound to adhire to the social philosophy of constitution and not to the philosophy of the ruling party the constitution is the supreme law of the land it is meant for the generation a party which form the government remains in power only for 5 year then again in various States different parties may be in power party of the Constitution in the circums it is the duty of the constitution and not the philosophy of the ruling, party of the constitution to which he owes his allegiance•
Supremacy of Executive----judge transfer case first
Though according to the language used in article 124 the presidents is required to consult legal export but per period to the decision of the Supreme Court on SC Advocate on record Association it has always been interrupted that the president was not bound to act in accordance with such a consult the meaning of the word consultant comes for the consideration of the supreme court in Sankalchand sheth's case
Appointment of the Chief Justice of India----
The majority held that the appointment to the office of the Chief Justice of India should be made on the basis of seniority that is the senior most judge considered suitable to held office to be appointed as the Chief Justice of India•
The important guidelines laid by the court were the following -----
(1) : individual initiation of the high court constitutional functionary in the matter of judge appointed reduced to minimum, It gave up primacy to the Chief Justice of India but
put a rider that he must consult his two colleagues :
(2): constitutional functionary must act collectively in judicial appointment•
(3): Chief Justice of India was given the final say in transfer of chief justice and judge of high courts,
(4): transfer of chief justice and judge of the High Court could not be challenge in court
(5): appointment of Chief Justice of India by seniority
(6): no that could be appointed by the union government without consulting the Chief Justice of India
(7): fixation of the strength in High Court justice cable
Sole opinion of Chief Justice of India without following consolidation process: not binding on government appointment and transfer of judge case 3rd
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