JUDICIARY

Many times, courts are seen only as arbitrators in disputes between individuals or private parties, but it performs political functions also.

Need of Independent Judiciary

1. The principal role of the judiciary is to protect rule of law and ensure supremacy of law.

2. It safeguards rights of the individual, settles disputes in accordance with the law and ensures that democracy does not give way to individual or group dictatorship.

Independence of Judiciary

1. The other organs of the government like the executive and legislature must not restrain the functioning of the judiciary in such a way that it is unable to do justice. 

2. The other organs of the government should not interfere with the decision of the judiciary.

3. Judges must be able to perform their functions without fear or favour.

4. Independence of the judiciary does not imply arbitrariness or absence of accountability. Judiciary is a part of the democratic political structure. Therefore it is accountable to the constitution.

Importance of Independence of Judiciary

1. The legislature is not involved in the process of appointment of judges and the judiciary is not financially dependent on either the executive or legislature, because the salaries and allowances of the judges are not subjected to the approval of the legislature.

2. In order to be appointed as a judge, a person must have experience as a lawyer and/or must be well versed in law.

3.  The judges have a fixed tenure. They hold office till reaching the age of retirement. Only in exceptional cases, judges may be removed. But otherwise, they have security of tenure. 

4. The Constitution makers believed that a difficult procedure of removal would provide security of office to the members of judiciary. 

5. Parliament cannot discuss the conduct of the judges except when the proceeding to remove a judge is being carried out.  

6. The judiciary has the power to penalise those who are found guilty of contempt of court.

Appointment of Judges 

1. The senior-most judge of the Supreme Court was appointed as the Chief Justice of India. This convention was however broken twice (Once in the case of A N Ray and the other is in the case of M H Beg).

2. The Judges of the Supreme Court and the High Court are appointed by the President after ‘consulting’ the CJI. This, in effect, meant that the final decisions in matters of appointment rested with the Council of Ministers. 

3. The court felt that role of chief justice was purely consultative, after a lot of debates and discussions finally Supreme Court came up with a procedure it has suggested that the Chief Justice should recommend names of persons to be appointed in consultation with four senior-most judges of the Court. 

4. Thus, the Supreme Court has established the principle of collegiality in making recommendations for appointments. 

Removal of Judges 

1. A judge of the Supreme Court or High Court can be removed only on the ground of proven misbehaviour or incapacity.

2. A motion containing the charges against the judge must be approved by special majority in both Houses of the Parliament. 

3. While in making appointments, the executive plays a crucial role where as the legislature has the powers of removal.

4. So far only two cases of removal of judge of supreme court came up for consideration before parliament, however in both case the motion could not get the support.

Structure of Judiciary

1. The Constitution provides for a single integrated judicial system. This means that India does not have separate state courts. 

2. The structure of judiciary in India is pyramidal with the Supreme Courts at the top, while High Courts are below them and District and Subordinate Courts at the lower level. 

Jurisdiction of Supreme Court

1. It functions within the limitations imposed by the Constitution. The functions and responsibilities of Supreme Court are defined by the Constitution. The Supreme Court has some specific jurisdiction.

2. They are: Original Jurisdiction, Writ Jurisdiction, Appellate Jurisdiction and Advisory Jurisdiction.

(i). Original Jurisdiction

- It means cases that can be directly considered by the Supreme Court without going to the lower courts. 

- Cases involving federal relations go directly to the Supreme Court. The Original Jurisdiction of the Supreme Court establishes it as an umpire in all disputes regarding federal matters. 

- In any federal country, legal disputes are bound to arise between the Union and the States; and among the States themselves. The power to resolve such cases is entrusted to the Supreme Court of India.

- It is called original jurisdiction because the Supreme Court alone has the power to deal with such cases. 

(ii). Writ Jurisdiction 

- If fundamental right has been violated, can directly move to Supreme Court for remedy. The Supreme Court can give special orders in the form of writs. 

- The High Courts can also issue writs, but the persons whose rights are violated have the choice of either approaching the High Court or approaching the Supreme Court directly.

- Through such writs, the Court can give orders to the executive to act or not to act in a particular way.

- Article -144 says all the authorities, civil and judicial, in the territory of India shall act in aid of the supreme court.

(iii). Appellate Jurisdiction

- A person can appeal to the Supreme Court against the decisions of the High Court. However, High Court must certify that the case is fit for appeal, that is to say that it involves a serious matter of interpretation of law or Constitution. 

- In criminal cases, if the lower court has sentenced a person to death then an appeal can be made to the High Court or Supreme Court.

- The Supreme Court holds the powers to decide whether to admit appeals even when appeal is not allowed by the High Court. 

- Then the Supreme Court will reconsider the case and the legal issues involved in it. The Supreme Court will change the ruling and along with that, it gives new interpretation of the provision involved only if the Court finds that the law or the constitution has a different meaning. Similarly, High Courts too have but over the decisions given by courts below them.

- Article-137 says that the Supreme Court shall have the power to review any judgement pronounced or order made by it.

(iv). Advisory Jurisdiction

- The President of India can refer any matter that is of public importance or that which involves interpretation of the Constitution to the Supreme Court for advice. 

- However, the Supreme Court is not bound to give advice on such matters and the President is not bound to accept such advice. 

- Even though they are not binding, it allows the government to seek legal opinion on a matter of importance before taking action on it. This may prevent unnecessary litigation later and also by the advice of the Supreme Court, the government can make suitable changes in its action or legislation. 

- Decisions made by the Supreme Court are binding on all other courts within the territory of India. 

- ‘‘The Supreme Court itself is not bound by its decision and can at any time review it.’’ Besides, if there is a case of contempt of the Supreme Court, then the Supreme Court itself decides such a case. 

Judicial Activism

1. The chief instrument through which judicial activism has flourished in India is Public Interest Litigation (PIL) or Social Action Litigation (SAL). 

2. In normal course of law, an individual can approach the courts only if he/she has been personally aggrieved. 

3. This concept underwent a change around 1979. In 1979, the Court set the trend when it decided to hear a case where the case was filed not by the aggrieved persons but by others on their behalf. 

4. As this case involved a consideration of an issue of public interest, it and such other cases came to be known as public interest litigations. Around the same time the court took up similar cases like rights of prisoners, protection of the environment etc. 

5. Therefore this change in judiciary led to the term judicial activism and soon it played major role of the judiciary

6. Through the PIL, the court has expanded the idea of rights like clean water, decent living etc. The court felt that individuals as part of the society must have the right to seek justice wherever such rights are violated. 

7. Post 1980, the judiciary started considering the rights of those sections who cannot approach courts. Therefore the judiciary allowed social organisations and lawyers to file petitions on behalf of them.

Positives of Judicial Activism

- It has democratised the judicial system

- It has forced executive accountability.

- It has also made an attempt to make the electoral system much more free and fair.

Negatives of Judicial Activism

- It has overburdened the courts.

- Judicial activism has blurred the line of distinction between the executive and legislature on the one hand and the judiciary on the other. 

- Democratic government is based on each government respecting the powers and jurisdiction of others, where as judicial activism has made balance among the organs of government which is very delicate, this feel it may be creating strains on this democratic principle. 

Judiciary and Rights

1. The judiciary is entrusted with the task of protecting rights of individuals. The Constitution provides two ways in which the Supreme Court can remedy the violation of rights.

It can restore fundamental rights by issuing writs of Habeas Corpus; mandamus etc. (article 32). The High Courts also have the power to issue such writs (article 226). 

The Supreme Court can declare the concerned law as unconstitutional and therefore non-operational (Article 13).

2. Together these two provisions of the constitution establish the supreme Court as the protector of fundamental rights of the citizen on the one hand and interpreter of Constitution on the other.

3. The term judicial review is nowhere mentioned in the constitution. However, India has a written constitution and the Supreme Court can strike down a law that goes against the fundamental rights, implicitly gives the Supreme Court the power of judicial review. 

4. The review power of the Supreme Court includes power to review legislations on the ground that they violate fundamental rights or on the ground that they violate the federal distribution of powers. The review power extends to the laws passed by State legislatures also.

Judiciary and Parliament

1. The Indian Constitution is based on a delicate principle of limited separation of powers and checks and balances. This means that each organ of the government has a clear area of functioning. 

2. Thus, the Parliament is supreme in making laws and amending the Constitution, the executive is supreme in implementing them while the judiciary is supreme in settling disputes and deciding whether the laws that have been made are in accordance with the provisions of the Constitution.

3. Despite such clear cut division of power the conflict between the Parliament and judiciary, and executive and the judiciary has remained a recurrent theme in Indian politics.

4. The Parliament wanted to put some restrictions on the right to hold property so that land reforms could be implemented. The Court held that the Parliament cannot thus restrict fundamental rights. The Parliament then tried to amend the Constitution. But the Court said that even through an amendment, a fundamental right cannot be abridged.

5. The following issues were at the centre of the controversy between the Parliament and the judiciary.

a) What is the scope of right to private property?

b) What is the scope of the Parliament’s power to curtail, abridge or abrogate fundamental rights?

c) What is the scope of the Parliament’s power to amend the constitution?

d) Can the Parliament make laws that abridge fundamental rights while enforcing principles?

6. Thus conflict between the legislature and the judiciary has been raised.

7. In 1973, the Supreme Court gave a decision that has become very important in regulating the relations between the Parliament and the Judiciary since then. This case is famous as the Kesavananda Bharati case. In this case, the Court ruled that there is a basic structure of the Constitution and nobody—not even the Parliament (through amendment)—can violate the basic structure.

8. The Court stated two more things i.e, it said that right to property (the disputed issue) was not part of basic structure and therefore could be suitably abridged. And the other is the Court reserved to itself the right to decide whether various matters are part of the basic structure of the Constitution.

9. This case is perhaps the best example of how judiciary uses its power to interpret the Constitution. This ruling has changed the nature of conflicts and relationship between the legislature and the judiciary.

10. In the parliamentary system, the legislature has the power to govern itself and regulate the behaviour of its members. Thus, the legislature can punish a person who the legislature holds guilty of breaching privileges of the legislature. 

11. The constitution provides that the conduct of judges cannot be discussed in the parliament. 

Share

& Comment

Tweet