The chapter introduces students to the Judiciary and Parliament, the structure of the Judiciary, Judiciary and Rights and Judicial Activism. It also highlights the need for the independence of the judiciary & also the Judicial institutions: supreme court, high court and their various jurisdiction.
Why Do We Need An Independent Judiciary?
The principal role of the judiciary is to protect rule of law and ensure the supremacy of law. It safeguards the rights of the individual, settles disputes by the law and ensures that democracy does not give way to individual or group dictatorship.
To be able to do all this, the judiciary must be independent of any political pressures.
Independence of Judiciary
Judiciary is independent of the other two organs of the state. i.e Legislature and Executive.
The independence of the judiciary does not imply arbitrariness or absence of accountability.
The other organs of the government should not interfere with the decision of the judiciary.
Judges must be able to perform their functions without fear or favour.
Judiciary is a part of the democratic political structure of the country.
It is therefore accountable to the Constitution, to the democratic traditions and the People of the country.
How can the independence of the judiciary be provided and protected?
The Indian Constitution has ensured the independence of the judiciary through several measures:
The legislature is not involved in the process of appointment of judges.
To be appointed as a judge, a person must have experience as a lawyer and/or must be well versed in the law.
The judges have a fixed tenure. They hold office till reaching the age of retirement.
In exceptional cases, judges may be removed.
Security of tenure ensures that judges could function without fear or favour.
The Constitution prescribes a very difficult procedure for the removal of judges. The Constitution makers believed that a difficult procedure of removal would provide security of office to the members of the judiciary.
The judiciary is not financially dependent on either the executive or legislature.
The Constitution provides that the salaries and allowances of the judges are not subjected to the approval of the legislature.
The actions and decisions of the judges are immune from personal criticisms.
Powers of the Judiciary
The judiciary has the power to penalise those who are found guilty of contempt of court. This authority of the court is seen as effective protection to the judges from unfair criticism.
Parliament cannot discuss the conduct of the judges except when the proceeding to remove a judge is being carried out. This gives the judiciary independence to adjudicate without fear of being criticised.
Supreme Court of India
The Supreme Court came into being on 28th January 1950. It is the apex court of justice in India; it consists of 1 Chief Justice and 30 other Judges. Its decisions are binding on all courts. It can transfer Judges of High Courts and Can move cases from any court to itself.
The Supreme Court can transfer cases from one High Court to another.
Articles 124 to 147 in Part V of the Constitution deal with the organisation, independence, jurisdiction, powers and procedures of the Supreme Court.
What is the Organisational Structure of the Supreme Court?
The Supreme Court consists of thirty-one judges at present (one chief justice and thirty other judges). The Supreme Court (Number of Judges) Bill of 2019 has added four judges to strength. It increased the judicial strength from 31 to 34, including the CJI. Originally, the strength of the Supreme Court was fixed at eight (one chief justice and seven other judges).
The Parliament is authorised to regulate them.
What is the procedure of appointment of judges?
The judges of the Supreme Court are appointed by the President.
The CJI is appointed by the President after consultation with such judges of the Supreme Court and high courts as he deems necessary.
The other judges are appointed by the President after consultation with the CJI and such other judges of the Supreme Court and the high courts as he deems necessary.
The consultation with the chief justice is obligatory in the case of the appointment of a judge other than the Chief justice.
Appointment of Chief Justice From 1950 to 1973: the practice has been to appoint the senior-most judge of the Supreme Court as the chief justice of India.
This established convention was violated in 1973 when A N Ray was appointed as the Chief Justice of India by superseding three senior judges.
In 1977, M U Beg was appointed as the chief justice of India by superseding the then senior-most judge.
This discretion of the government was curtailed by the Supreme Court in the Second Judges Case (1993), in which the Supreme Court ruled that the senior-most judge of the Supreme Court should alone be appointed to the office of the Chief Justice of India.
The Constitution Provides a high court for every state but even two or more states have a common court as provided by the parliament.
The high court hears appeals from lower courts.
May issue writs for restoring Fundamental Rights and can deal with cases within the jurisdiction of the State.
The high court exercises superintendence and control over courts below it.
At present, there are 24 courts in India. Meghalaya, Manipur and Tripura are the new High Courts.
The high court consists of a chief justice and several other judges appointed by the president of India.
The appointment, posting and promotion of the district judges are done by the orders of the Governor of the state with the consultation of the High Court.
This court deals with cases arising in the District. It Considers appeals on decisions given by lower courts. Decides cases involving serious criminal offences.
Consider cases of civil and criminal nature Jurisdiction of Supreme Court.
How can a Judge be removed from their Judicial Position?
A judge of the Supreme Court can be removed from his office by an order of the President.
The President can issue the removal order only after an address by Parliament has been presented to him in the same session for such removal.
The address must be supported by a special majority of each House of Parliament (ie, a majority of the total membership of that house and a majority of not less than two-thirds of the members of that House present and voting).
The grounds of removal are two proved misbehaviour or incapacity.
The Judges Enquiry Act (1968) regulates the procedure relating to the removal of a judge of the Supreme Court by the process of impeachment: No judge of the Supreme Court has been impeached so far.
Impeachment motions of Justice V Ramaswami (1991–1993) and Justice Dipak Misra (2017-18) were defeated in the Parliament.
What is the various jurisdiction of the Supreme Court?
The jurisdiction of the Supreme Court may be categorised as:
Original: Settles disputes between Union and States and amongst States.
Appellate: Tries appeals from lower courts in Civil, Criminal and Constitutional cases.
Advisory: Advises the President on matters of public importance and law
Writ: Can issue writs of Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo warranto to protect the Fundamental Rights of the individual.
Special Powers: Grant special leave to an appeal from any judgement or matter passed by any court in the territory of India.
Explain the Various Types of Jurisdiction in Detail
Original jurisdiction means cases that can be directly considered by the Supreme Court without going to the lower courts before that. The cases in which federal relations are involved directly goes 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 state and among the state 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. Neither the High Courts nor the lower courts can deal with such cases. In this capacity, the Supreme Court not just settles disputes but also interprets the powers of the Union and State government as laid down in the Constitution.
Any individual, whose fundamental right has been violated, can directly move the 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 act in a particular way.
The Supreme Court is the highest court of appeal. A person can appeal to the Supreme Court against the decision of the High court. However, the 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 addition, 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 power to decide whether to admit appeals even when the appeal is not allowed by the High Court. Appellate jurisdiction means that the Supreme Court will reconsider the case and the legal issues involved in it.
If the Court thinks that the law or the Constitution has a different meaning from what the lower courts understood, then the Supreme Court will change the ruling & also give a new interpretation of the provision involved.
The High Courts have an Appellate jurisdiction.
The Supreme Court of India possesses advisory jurisdiction also. This means that the President of India can refer any matter that is of public importance or that involves interpretation of the Constitution to the Supreme Court for advice.
The Supreme Court is not bound to advise on such matters and the President is not bound to accept such an advice
Article 137: The Supreme Court shall have the power to review any judgement pronounced or order made by it.
Article 144: All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.
Public Interest Litigation (PIL) or Social Action Litigation (SAL)
The chief instrument through which judicial activism has flourished in India is Public Interest Litigation (PIL) or Social Action Litigation (SAL). An individual can approach the courts only if he/she has been personally aggrieved.
A person whose rights have been violated, or who is involved in a dispute, could move to a court of law. This concept changed in 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.
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 Supreme Court also took up the case about the rights of prisoners.
This opened the gates for a large number of cases where public-spirited citizens and voluntary organisations sought judicial intervention for the protection of existing rights, betterment of living conditions of the poor, protection of the environment, and many other issues in the interest of the public.
Judicial activism is a judicial philosophy that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions.
How does PIL become the most important part of 'Judicial Activism?
PIL has become the most important vehicle of judicial activism. Through the PIL, the court has expanded the idea of rights. It was felt by the courts that individuals as parts of the society must have the right to seek justice wherever such rights were violated.
Through PIL and judicial activism of the post-1980 period, the judiciary has also shown readiness to take into consideration the rights of those sections that cannot easily approach the courts. For this purpose, the judiciary allowed public-spirited citizens, social organisations and lawyers to file petitions on behalf of the needy and the deprived.
What is the negative side of PIL?
In the first place, 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.
The court has been involved in resolving questions that belong to the executive.
Judiciary and Rights
The Constitution provides two ways in which the Supreme Court can remedy the violation of rights.
First, 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).
Secondly, the Supreme Court can declare the concerned law as unconstitutional and therefore non-operational (article 13).
What is Judicial Review?
The most important power of the Supreme Court is the power of judicial review. Judicial Review means the power of the Supreme Court (or High Courts) to examine the constitutionality of any law if the Court concludes that the law is inconsistent with the provisions of the Constitution, such a law is declared as unconstitutional and inapplicable.
The term judicial review is nowhere mentioned in the Constitution. The fact that India has a written constitution and the Supreme Court can strike down a law that goes against fundamental rights, implicitly gives the Supreme Court the power of judicial review.
The writ powers and the review power of the Court make the judiciary very powerful. The review power means that the judiciary can interpret the Constitution and the laws passed by the legislature.
Judiciary And Parliament
The following issues were at the centre of the controversy between the Parliament and the judiciary:
The scope of the right to private property.
The scope of the Parliament‘s power to curtail, abridge or abrogate fundamental rights.
The scope of the Parliament‘s power to amend the constitution.
The question about the law-making power of the Parliament makes laws that abridge fundamental rights while enforcing directive principles.