DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW

SESSION 2019-20

SUBJECT: INDIAN FEDERALISM

FINAL DRAFT

ON

INDEPENDENCE OF JUDICIARY AND THE RTI ACT

Submitted to: Submitted by:

Mrs. Ankita Yadav Digvijay Singh

Assistant Professor (Law) BA.LLB(Hons) 8th Sem

Enrollment No.- 160101064

 ACKNOWLEDGMENT

I would like to express my special thanks of gratitude to my teacher Mrs.

Ankita Yadav who gave me the golden opportunity to do this wonderful
project on the topic Independence of Judiciary and The RTI Act which
also helped me in doing a lot of Research and I came to know about so many
new things I am really thankful to them.
TABLE OF CONTENTS

1. INTRODUCTION

2. THE BASIS OF JUDICIAL INDEPENDENCE

3. THE RIGHT TO A FAIR TRIAL

4. THE UNITED STATES

5. AUSTRALIA

6. RIGHT TO INFORMATION ACT

7. SCOPE OF WORK UNDER RTI ACT

8. CONLUSION.
INTRODUCTION:-

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 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
1
http.www.scribdarticles.in/roleofjudiciary
2
http//.www.lawnotes.in
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:-

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 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

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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:-

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 Queen4, 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."
4
http//. Loftin, Scott M. "INDEPENDENCE OF THE JUDICIARY." American Bar Association Journal 21.8 (1935): 469-
73. Web.
THE UNITED STATES:-

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:-

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
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Basic Principles on the Independence of the Judiciary. New York: UN, 1990. Web.
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:-

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

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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:-

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
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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.(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;
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• 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.

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 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.