“Justice is the end of government”, said The Federalist. “It ever has been and ever will be pursued until it is obtained, or until liberty is lost in the pursuit.” No wonder, therefore, if justice has been often characterised as the primary, or even the only ideal purpose of government.
The judicial function is indeed a delicate and difficult one. It involves the process of deciding what is just in a controversy between two or more contending parties. If the parties have no confidence in the impartiality of the judiciary, justice becomes an empty word.
Man’s long struggle has been to live under a government of laws, not of men. Equal justice under law has for long been his cherished ideal, a system under which the same law is applicable to all alike.
Man has in all ages been striving to escape the regime that dispenses justice according to the political or religious ideology of the litigant or the whim or caprice of those who run the government.
As a consequence of this struggle, there was established a principle of abiding value, that no judiciary can be impartial unless it is independent. In fact, the judicial process ceases to be judicial the moment those who seek to judge cease to be independent of every form of external influence.
As Lord Hewart has pointed out, the independence of the judiciary is essential because many of the significant victories for freedom and justice have been won in the law courts and the liberties of the citizen are closely bound up with the complete independence of the judges.
Obviously, the men who are to administer justice in the courts, the methods by which they are to be chosen, the way in which they are to perform their function, the terms upon which they shall hold power, these and their related problems become inseparably bound up with the ideal of judicial independence.
Judicial independence acts as a safeguard not merely against the manipulations of the law for political purposes at the behest of the government in power, but also against the corruption of judicial organs of the State by bribery and intimidation by powerful outside interests which threaten the impartial administration of justice from time to time.
The farmers of the Constitution were aware that democratic freedoms were meaningless in the absence of an independent machinery to safeguard them. No subordinate or agent of the government could be trusted to be just and impartial in judging the merits of a conflict in which there government itself was a party.
Similarly, a judiciary subordinates either to the Centre or the States could not be trusted as an impartial arbiter of conflicts and controversies between the Centre and the States.
These were the compelling reasons for the creation of an independent judiciary as an integral part of the Constitution and for the adoption of judicial independence as a basic principle of the Constitution.
In its bid to establish complete independence of the judiciary, the constitution has first erected a wall of separation between the executive and the judiciary. After effecting such separation, it has created conditions that are conducive to making the judiciary independent.
Thus, rigid qualifications are laid down for the appointment of Judges and provision has been made for compulsory involvement of the Chief Justice of India in the appointment of every Judge of the Supreme Court and the High Courts.
The Judges are appointed almost for life and their condition of service cannot be altered to their disadvantage, once they are appointed. They are given high salaries and their conduct is made a subject beyond the scope of discussion in the legislature.
They can be removed from office only for proved misbehaviour. For this purpose, both the Houses of Parliament will have to pass resolutions against a Judge supported by a two-third majority of those who sit and vote and at least an absolute majority of the total membership of the House.
The judiciary in India, even under the British rule, was noted for its integrity and independence. Under the Constitution, its position has been made doubly secure so that it can become in reality the most impartial arbiter of the conflicts and controversies which fall within its jurisdiction.
Anyone can approach it to secure the restoration of a fundamental right whenever it is violated. Even a casual analysis of the hundreds of decisions which the Supreme Court and the High Courts given so far will easily prove that the judiciary in India is working in a spirit of impartiality and in an atmosphere of independence.
Federalism is one of the most important aspects of modern constitutionalism. It is established all over the world perhaps, as the only form of political organisation suited to communities with a diversified pattern of objectives, interests and traditions, who seek to join together in the pursuit of common objectives and interests and the cultivation of common traditions.
The basic objective of federalism is thus unity in diversity, devolution in authority and decentralisation in administration. Its fundamental characteristic is the division of powers between two sets of governments a Central Government and Local or State Governments each independent of the other in its own sphere of activity.
The farmers of the Constitution turned to federalism as a solution of a number of problems they confronted in their attempt to frame a constitution for a new, united India. Particularly, they wanted to preserve both the “infinite variety and the innate unity” that animated the length and breadth of India.
The choice of federalism as a constitutional form and as the basis of a national government in India was not a sudden development upon the transfer of power on 15th August 1947.
It was there for many years and, in a limited form, it was already in operation in British India. For the solution of the constitutional problem of a multi-racial, multi-lingual and multi-communal country like India with a vast area and a huge population, federalism was only a natural choice.
Nevertheless, the framers were cautious to ensure that the unity they sought to establish through federalism was of an abiding nature, and in case of a future conflict between that unity and the diversity preserved under the Constitution, the former should prevail over the latter.
In other words, it was their intention to create an indestructible Union and the supremacy of the Union over the States in a number of matters vitally affecting the interests of the nation.