1. To
consider the judges as the ultimate arbiters of all constitutional questions is
a very dangerous doctrine indeed, and one which would place us under the
despotism of an oligarchy. Our judges are as honest as other men and not more
so. They have with others the same passions for party, for power, and the
privilege of their corps. Their maxim is boni judicis est ampliare
jurisdictionem [good justice is broadly (my) jurisdiction], and their power the
more dangerous as they are in office and not responsible, as the other
functionaries are, to the elective control. The Constitution has erected no
such single tribunal, knowing that to whatever hands confided, with the
corruptions of time and party, its members would become despots. It has more
wisely made all the departments co-equal and co-sovereign within themselves.
2. Governmental
powers are divided between separate branches. They are the legislative branch
to lay down the laws, the executive branch for administration as per those laws
and the judicial branch to decide disputes as per those laws. It is functional
independence. A Judge can sentence a person to death u/s 302 of IPC but he
cannot frame or amend it which is function of legislature. He cannot himself
hang a convict which is a function of executive. He cannot fix his own salary
which is done by legislature, he cannot sign cheque from public account which
is done by executive. Each branch holds an amount of authority and acts as
check and balance over the other.
3. Vide letter No 1489 Dt 01.09.2014 the High
Court declined to give any document or refer to any statutory source for
“independence of Judiciary” a concept used by some Judges to claim immunity from law. There is no such
immunity. Rather law is to the contrary. A Judge can be Prosecuted for
violation of law or his oath. In this respect he is no different than any
member of executive/ legislature or a common man. His oath of office
states;-
“..perform the duties of my office without
fear, favor, affection or ill will and that I will uphold the Constitution and
the Laws”.
4. Oath of office would not be required if its violation does not entail any penalty. Every serving or retired High Court or Supreme Court Judge is liable for civil, disciplinary and criminal action by the Central / State Government, Supreme Court of India, High Court or any other authority under any law under Sec. 3(2) of Judges Protection Act;-
“(2) Nothing in
sub-section (1) shall debar or affect in any manner the power of the Central
Government or the State Government or the Supreme Court of India or any High
Court or any other authority under any law for the time being in force to take
such action (whether by way of civil, criminal or departmental proceedings or
otherwise) against any person who is or was a Judge.”
5. Same
provision is contained u/s 16 of Contempt of Courts Act
(1) Subject to the provisions of any law for
the time being in force, a judge, magistrate or other persons acting judicially
shall also be liable for contempt of his own court or of any other court in the
same manner as any other individual is liable and the provisions of this Act,
so far as may be, apply accordingly.
6. Section
19 of IPC defines ‘judge’ as ;-
“Judge".--The word "Judge"
denotes not only every person who is officially designated as a Judge, but .... “
7. Judges
cannot amend section 19 of IPC. Judges have no legal authority to take
themselves out of purview of law by misuse of ‘interpretation’ since that by
itself would be violation of law;
Nemo iudex in causa sua. No one can a Judge
in their own cause.
Conclusion;-
Nemo Est Supra Legis. Nobody is above the law.
KD Aggarwal
No comments:
Post a Comment