APPROACH AND STRUCTURE
- Introduce with a brief comparison of judicial system in the two countries.
- Discuss the points of convergence.
- Explain the points of divergence.
- Conclude with the argument that there is growing convergence in recent times.
INTRODUCTION: India and UK are liberal democratic states where the judiciary enjoys a very important and powerful position. The written Indian Constitution, the supreme law of the land, defines the judicial powers but in the UK the judicial system is the result of slow and gradual evolution under an unwritten Constitution. This has resulted in convergence as well as divergence in the two judicial systems visible in areas like judicial review, independence, accountability and separation from the executive etc.
CONVERGENCE
Writ jurisdiction:
- Indian Constitution has adopted writs jurisdiction of SC and HCs from British system of Prerogative writs. A prerogative writ is a writ (official order) directing the behavior of another arm of government, such as an agency, official, or other court. It was originally available only to the Crown under English law, and reflected the discretionary prerogative and extraordinary power of the monarch.
- In U.K. The prerogative writs other than habeas corpus are discretionary remedies, and have been known as prerogative orders in England and Wales since 1938. The writs of quo warranto and procedendo are now obsolete, and the orders of certiorari, mandamus and prohibition are under the new Civil Procedure Rules 1998 known as “quashing orders”, “mandatory orders” and “prohibiting orders” respectively.
- In India, Both SC (Article 32) and HCs (Article 226) enjoy writ jurisdiction and HCs have wider jurisdiction than SC.
Independence of Judiciary
India
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- Independence of the judiciary is one of the basic features of the constitution.
- The Constitution has made provisions to safeguard and ensure the independent and impartial functioning of the Judiciary like mode of appointment, security of tenure,difficult impeachment process and separation from the executive.
UK
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- In the absence of the written Constitution and parliamentary sovereignty till recently, judicial independence in UK relied mainly on conventions, traditional knowledge and on the Lord Chancellor (fusion of executive, legislature and judiciary) acted as the head of the Judiciary.
Convergence: In 2003 the government abolished the position of Lord Chancellor. In this process the Lord Chief Justice head of the judiciary as the President of the courts of England and Wales. The Constitutional Reform Act, 2005 (UK) casts a statutory duty on the executive to uphold the continued independence of judiciary.In 2009 the judicial function of parliament ended as the independent UK Supreme Court was established.
Separation of Judiciary from the Executive
India
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- The Constitution is based on separation of powers and further directs the State to take appropriate steps to separate the judiciary from the executive in the matters of public services of the State.
UK
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- The English legal system used to follow the principle of Fusion of Powers instead of the Separation of Powers. In the office of the Lord Chancellor, the three arms of the Government were fused:
Recent convergence: The passage of Constitutional Reform Act of 2005 immensely helped the judiciary to become separate from the other two branches.
DIVERGENCE
Judicial review: In India, judicial review can be of legislative, executive as well as judicial action by higher judiciary. But in U.K., secondary legislations (rules and regulations) are subject to judicial review and primary legislations enacted by the Parliament are outside the purview of judicial review (except the cases encroaching upon the jurisdiction of European Union law).
Judicial Accountability: India has only hard accountability tools such as impeachment and removal. Indian judiciary lacks softer tools to tackle circumstances that do not warrant impeachment but do require some kind of disciplinary action. On the other hand, the United Kingdom by way of robust mechanism in place for disciplining the judicial officers ensures that the independence of an individual judge is not improperly infringed, either by the Executive or internally by other senior members of the judiciary. The responsibility for ensuring judicial disciplineis a joint responsibility of the judiciary and the executive.
Judicial Appointments: Judicial Primacy is the mainstay in the judicial appointments in India and the Supreme Court struck down the NJAC for violating it. On the other hand, in UK, since April 2006, judicial appointments have been the responsibility of an independent Judicial Appointments Commission. There are judges on the Judicial Appointments Commission, but they are not in the majority, do not act in a representative capacity, and the Commission is chaired by a layperson.
Contempt powers: Contempt powers of judiciary started during Colonial rule has been continued in India, whereas England abolished the offence of “scandalising the court” in 2013.
CONCLUSION
India is a synthesis of the American principle of judicial supremacy and the British principle of parliamentary supremacy. This has led to divergences between the two judicial systems. But judicial evolution has resulted in convergence also.
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