The concept of judicial independence a fundamental important in United Kingdom legal system. The concept is enshrined in Act of Settlement !701. Not only does the judicial independence form an element in the concept of the separation of power and rule of law, but also it ensure two other powers apart from Judiciary fully comply with the constitution and the law. To begin with, the concept also emphasizes the safeguards for judicial independence. It is crucial the judge is independent and impartial.
It is the power exerted by the courts of a country to examine the actions of the legislatures, executive and administrative arms of government and to ensure that such actions conform to the provisions of the nation’s Constitution. Judicial review has two important functions, like, of legitimizing government action and the protection of constitution against any undue encroachment by the gov¬ernment. The power of Judicial Review is incorporated in Articles 226 and 227 of the Constitution insofar as the High Courts are concerned. In regard to the Supreme Court Articles 32 and 136 of the Constitution, the judiciary in India has come to control by judicial review every aspect of governmental and public
Accordingly, in Fuller's view the predecessor law of conceding immunity would be invalid and there is no need for the enactment of a law retrospectively. With respect to the civil liability, Fuller has a few reservations as to such laws. What must be contemplated is the objective of the retrospective law. For example, the imposing of tax gains in which the object is to raise revenue and not control past conduct, thus issue of retroactivity cannot be used as ground to invalidate such
He says that justice involves the idea of equality. He goes on to argue that the use of justice can’t be described in terms of the idea that justice and generality, as a legal ideal, might share. Laws should be very clear and it should be specified as to which norms have the status of law. Hart discusses this and takes the stand that they should not be the end-all of legal morality. Thus, as far as primary rules are concerned, Hart argues that there is a need for certainty, so that these rules can be applied by general public without any official guidance.
The federal Supreme Court in this case ruled with a majority of 7:4 that the council was constitutional and was not a barrier to judicial independence . They further argued that judicial independence cannot serve as an excuse for irresponsibility therefore the National Judicial Council can be seen as a democratic pre-requisite in terms of ensuring that a judge’s misbehavior or omission will no longer go unpunished. Professor Dalmo de Abreu Dallari maintains that such a council can transform a judiciary into truly democratic power. 4. METHODS OF JUDGE APPOINTMENT 4.1 Trial Court
Therefore, no such law could be enacted. Thus the only possibility of enactment of such law under the constitution is under Article 368 only i.e. by way of a constitutional amendment. However, after the pronouncement of the Supreme Court judgement in Kesavananda Bharti's case, the scope of such amendment has further receded. The doctrine of ‘basic structure’ laid down by the Apex Court in this case, although does not specifically prohibit the amendment of fundamental rights under Article 368 of the constitution, but it puts a specific condition on this power of the constitution.
Some believe that the separation of powers is essential for the rule of law and others that a pure separation would be inefficient. E.G Henderson[ Foundations of English Administrative Law: Certiorari and Mandamus in the Seventeenth Century ( Cambridge, MA:Harvard University Press, 1962), p. 5] wrote that the separation of this threefold division is a necessary condition for the rule of law in modern society and therefore for democratic government itself. Berent[ An Introduction to Constitutional Law ( Oxford: Oxford Uniiversity Press, 1998), p. 129], shared Hamilton's view and stressed upon the fact that although the judiciary is weak and do not enjoy wide legislative powers, there is no liberty if it is not separated from the other two branches. Barber[ Prelude to the separation of powers (2001) 60(1) Cambridge Law Journal 59,59-64] on the other hand, stated that partial separation would be more efficient due to checks and balances within the constitution. No institution has absolute power.
These laws are made by government officials. Laws must be obeyed by all. Laws set out standards, procedures and principles that must be followed. Law is the binding rules of conduct meant to enforce justice and prescribe duty or obligation, and derived largely from custom or formal enactment by a ruler or legislature. These laws carry with them the power and authority of the enactor, and associated penalties for failure or refusal to obey.
Baron Montesquieu stated the importance of judicial independence by stating ‘there is no liberty if the power of judging is not separated from the legislative and executive' This quote states the importance of the Separation of Powers Doctrine. Until the 2005 Constitutional reform Act commanded changes to be made to the Lord Chancellors Office, the Lord Chancellor was a cabinet minister, member of the House of Lords and head of the judiciary. This meant that all three arms of the state (executive, legislature and judiciary) that should traditionally and in accordance to the Separation of Powers Doctrine be kept separate in order to keep the other arms in check and balance with each other, were tangled together. In 2005, the Constitutional reform act came into play which significantly modified the role of the chancellor meaning that he was no longer the head of the judiciary and also created the supreme court. The main purpose for the creation of the supreme court was to detangled the arms of state.
The greater, therefore, is the need of ceaseless enforcement of the rule of law, so that the executive may not, in a belief in its monopoly of wisdom in its zeal for administrative efficiency, overstep the bounds of its power and spread its tentacles into the domains where the citizens should be free to enjoy the liberty guaranteed to him by the constitution.” In short there should not be any abuse of power on the side of the