The Judiciary | ISC Class 12 Political Science Notes

This note covers the meaning of the judiciary, the conditions necessary for an independent judiciary, a comparative study of the composition (strength and tenure) and powers of the Supreme Courts of India and the USA, and the meaning and guiding principles of judicial review.

What is meant by the judiciary?

The judiciary is the organ of government that settles disputes between individuals, between individuals and groups, and between individuals or groups and the government, in accordance with the law.

It is not merely an arbitrator in private disputes; it also performs important political functions.

The Supreme Court of India is one of the very powerful courts in the world, and from 1950 it has played a central role in interpreting and protecting the Constitution.

Definition: Judiciary. The judiciary is the branch of government whose principal role is to protect the rule of law, ensure the supremacy of law, safeguard the rights of individuals, settle disputes according to law and prevent democracy from giving way to individual or group dictatorship.

This idea rests on the principle of rule of law, which implies that all individuals, rich and poor, men or women, forward or backward castes, are subjected to the same law.

For the judiciary to perform this role effectively, it must function without being controlled or pressured by the other two organs of government, the executive and the legislature.

Why does a democracy need an independent judiciary?

In any society, disputes are bound to arise, and all such disputes must be settled by an independent body.

If the judiciary could be pressured by the government of the day, the rich or the powerful, it would not be able to protect the rights of ordinary citizens or keep the government within the limits set by the Constitution.

Independence of judiciary means three things together: the executive and legislature must not restrain the functioning of the judiciary so that it is unable to do justice; the other organs must not interfere with judicial decisions; and judges must be able to perform their functions without fear or favour.

It is important to note that independence of the judiciary does not mean arbitrariness or an absence of accountability. The judiciary is part of the democratic political structure of the country, and it is therefore accountable to the Constitution, to democratic traditions and to the people.

What are the conditions for the independence of the judiciary?

The Constitution ensures judicial independence through several measures, all of which keep the judiciary free of political control while still holding it accountable to the Constitution.

Keeping appointments away from party politics

The legislature is not directly involved in the appointment of judges, so that party politics does not play a role in appointments.

To be appointed a judge, a person must have experience as a lawyer or be well versed in law; political opinions or political loyalty are not supposed to be the criteria for appointment.

Security of tenure

Judges have a fixed tenure and hold office until the age of retirement. Only in exceptional cases, through a very difficult procedure, may a judge be removed. This security of tenure allows judges to function without fear or favour.

Financial independence

The judiciary is not financially dependent on the executive or the legislature. The salaries and allowances of judges are not subject to the approval of the legislature, so judges cannot be pressured through their pay.

Protection from criticism and conduct of Parliament

The actions and decisions of judges are immune from personal criticism, and the courts have the power to penalise contempt of court, which protects judges from unfair attack. Parliament cannot discuss the conduct of judges except when a proceeding to remove a judge is actually under way.

These conditions apply, with local variation, to the judges of both the Indian Supreme Court and the United States Supreme Court, as the comparison below shows.

How are judges removed from the Supreme Court and High Courts in India?

Because removal is meant to be rare and difficult, the Constitution lays down a strict, multi-step procedure that only Parliament, not the executive alone, can set in motion.

1. A judge of the Supreme Court or a High Court can be proceeded against only on the ground of proven misbehaviour or incapacity.
2. A motion containing the charges against the judge is moved in Parliament.
3. The motion must be approved by a special majority in both Houses of Parliament.
4. Only if this special majority is obtained in both Houses can the judge actually be removed.

No Supreme Court judge has ever been removed, and only one removal motion has been put to the vote. In 1991, the first-ever motion to remove a Supreme Court justice was signed by 108 members of Parliament against Justice V. Ramaswami, who, during his tenure as Chief Justice of the Punjab and Haryana High Court, was accused of misappropriating funds.

In 1992, an inquiry commission of Supreme Court judges found him "guilty of wilful and gross misuses of office . . . and moral turpitude by using public funds for private purposes and reckless disregard of statutory rules".

Despite this finding, the removal motion got the required two-thirds majority of members present and voting, but the Congress party abstained, so the motion did not get the support of one-half of the total strength of the House, and the judge was not removed.

How are judges of the Indian Supreme Court appointed?

Appointment, unlike removal, involves the executive and the judiciary working together, and this balance has itself changed over time through Supreme Court rulings.

Note: Under Article 124, judges of the Supreme Court are appointed by the President of India after consultation with the Chief Justice of India and such other judges as the President thinks necessary; under Article 217, judges of the High Courts are appointed by the President after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of that High Court.

1. A convention developed by which the senior-most judge of the Supreme Court was appointed Chief Justice of India; this convention was broken twice, in 1973 when A. N. Ray was appointed superseding three senior judges, and again in 1977 when Justice M. H. Beg was appointed superseding Justice H. R. Khanna.
2. Other judges of the Supreme Court and High Courts are appointed by the President after "consulting" the Chief Justice of India.
3. Between 1982 and 1998, the Supreme Court decided that the Chief Justice's opinion on appointments must be followed by the President, and should be formed in consultation with the four senior-most judges of the Court.
4. This established the principle of collegiality, so that the decision of the group of senior judges carries the greater weight in matters of judicial appointment.

Thus, while the executive plays a crucial role in appointments, the legislature holds the power of removal, giving the system both balance of power and independence.

What is the composition of the Indian and American Supreme Courts?

Composition here means only the strength (the number of judges) and the tenure of those judges, as set by each country's constitutional arrangements.

The Supreme Court of India

The number of judges of the Supreme Court is fixed by Parliament and has been increased several times since the Constitution came into force; its present strength is 34 judges, comprising the Chief Justice of India and 33 other judges, fixed under the Supreme Court (Number of Judges) Amendment Act, 2019.

Judges are appointed by the President, hold office till the age of 65, and have security of tenure, being removable only through the difficult procedure described above.

The Supreme Court of the United States of America

The US Supreme Court consists of nine justices, one Chief Justice and eight Associate Justices. Justices are nominated by the President and appointed with the advice and consent of the Senate.

They hold office for life, "during good behaviour", with no fixed retirement age, and can be removed only through impeachment by Congress for "high crimes and misdemeanors".

What powers does the Supreme Court of India exercise?

The Supreme Court of India functions within the limits set by the Constitution but has wide jurisdiction, falling into three categories.

Original jurisdiction

Original jurisdiction means cases that the Supreme Court can hear directly, without the case first going through any lower court.

This power establishes the Supreme Court as the umpire in disputes between the Union and the States, and among the States themselves; neither the High Courts nor the lower courts can deal with such federal disputes.

In exercising this jurisdiction, the Supreme Court also interprets the respective powers of the Union and the State governments as laid down in the Constitution.

Closely linked to this is the power, under Article 32, to issue writs such as habeas corpus and mandamus to restore a citizen's fundamental rights; High Courts share this writ power under Article 226.

Appellate jurisdiction

The Supreme Court is the highest court of appeal in civil, criminal and constitutional cases.

A person may appeal against a High Court decision, generally once the High Court certifies that the case involves a serious matter of interpretation of law or the Constitution; in criminal cases where the lower court has sentenced a person to death, appeal lies to the High Court or Supreme Court.

The Supreme Court can also grant special leave to appeal against any judgement passed by any court in the territory of India, even where the High Court has not allowed an appeal.

Advisory jurisdiction

Under this power, the President of India may refer to the Supreme Court any matter of public importance, or one involving interpretation of the Constitution, for its advice.

The Supreme Court is not bound to give advice, and the President is not bound to accept it.

The usefulness of this power is twofold: it lets the government obtain legal opinion before acting, which may avoid later litigation, and it lets the government amend its proposed action or legislation in light of the Court's advice.

Note: Article 137 gives the Supreme Court the power to review any judgment or order made by it, and Article 144 requires all civil and judicial authorities in India to act in aid of the Supreme Court; together these establish the Court's decisions as binding and enforceable throughout the country, while the Court itself can review its own rulings.

What powers does the Supreme Court of the United States exercise?

For the comparison required here, the American Supreme Court's jurisdiction is limited to two categories, unlike the three of the Indian Supreme Court.

Original jurisdiction

Original jurisdiction is narrow: it covers cases affecting ambassadors, other public ministers and consuls, and cases in which a state is a party. Such cases go directly to the Supreme Court without passing through lower federal courts.

Appellate jurisdiction

The great bulk of the Court's work is appellate. Most cases reach it as appeals from lower federal courts or from the highest state courts on matters of federal or constitutional law, chiefly through a discretionary procedure called a writ of certiorari, by which the Court chooses which appeals it will hear.

The United States Supreme Court has no advisory jurisdiction; it does not give opinions on hypothetical questions referred to it by the President or Congress, and decides only actual disputes brought before it.

How do the Indian and American Supreme Courts compare?

Although both courts are the highest constitutional courts of their respective federations, their composition and the scope of their jurisdiction differ in important ways.

The original and appellate jurisdiction of the Indian Supreme Court can therefore be considered wider than that of the American Court, because the Indian Court's original jurisdiction extends to all federal disputes and its appellate jurisdiction covers a much broader set of case categories, while the American Court's original jurisdiction is confined to a narrow category of parties.

What is judicial review, and what are its guiding principles?

Having compared the structure of the two courts, we can now turn to the power that makes both of them guardians of their constitutions.

Definition: Judicial review. Judicial review is the power of the Supreme Court, or the High Courts, to examine the constitutionality of any law, and if the Court finds that the law is inconsistent with the provisions of the Constitution, to declare that law unconstitutional and inapplicable.

In India, the term "judicial review" is nowhere mentioned in the text of the Constitution.

However, because India has a written constitution and the Supreme Court can strike down a law that goes against fundamental rights, this power is implicit in the constitutional scheme.

The Court can use its review power both where a law violates fundamental rights (under Article 13) and where a law is inconsistent with the federal distribution of powers between the Union and the States, and this power extends to laws passed by State legislatures as well.

In the United States, the doctrine of judicial review developed in a similar way, through interpretation rather than an explicit constitutional text, when the Supreme Court first asserted its authority to declare an Act of Congress unconstitutional in the case of Marbury v. Madison (1803).

Judicial review and Parliament's amending power

The scope of judicial review in India is closely tied to the extent of Parliament's power, under Article 368, to amend the Constitution.

In Golaknath v. State of Punjab (1967), the Supreme Court held that Parliament's power to amend the Constitution under Article 368 could not be used to take away or abridge fundamental rights.

In the Kesavananda Bharati case (1973), the Court went further and ruled that no law, not even a constitutional amendment made under Article 368, could alter or destroy the basic structure of the Constitution, though the right to property itself was held not to be part of that basic structure.

In Minerva Mills v. Union of India (1980), the Court reaffirmed and applied the basic structure doctrine, striking down provisions that had sought to place constitutional amendments beyond the scope of judicial review altogether, and holding that limited amending power is itself part of the basic structure.

Principles (maxims) of judicial review

Over time, Indian courts have developed working principles, often described as maxims, to guide how judicial review is applied:

• Doctrine of basic structure: no law, not even a constitutional amendment, can alter or destroy the basic structure of the Constitution, as held in the Kesavananda Bharati case (1973) and reaffirmed in Minerva Mills v. Union of India (1980).
• Presumption of constitutionality: a law is presumed valid unless it is clearly shown to be inconsistent with the Constitution.
• Doctrine of severability: if only part of a law is unconstitutional, only that part is struck down, provided the remainder can stand independently.
• Doctrine of pith and substance: the Court looks at the true nature and object of a law to decide which legislative list it falls under, rather than its incidental effects.
• Harmonious construction: where two constitutional provisions appear to conflict, the Court interprets them so that both are given effect as far as possible.

A further point of difference underlies the whole exercise of judicial review in the two countries.

The Indian Constitution permits restrictions on personal liberty through "procedure established by law", meaning any properly enacted law, whereas the American doctrine rests on "due process of law", under which the courts examine not merely whether a law was properly enacted but also whether it is fair and reasonable in substance.

Going beyond the syllabus

The Kesavananda Bharati case of 1973 remains the clearest illustration of how judicial review and the independence of the judiciary reinforce each other.

The Court ruled that the right to property was not part of the basic structure and could be abridged, but reserved to itself the right to decide which matters are part of the basic structure, a power that has continued to shape the relationship between Parliament and the judiciary ever since.

As Alladi Krishnaswami Ayyar observed in the Constituent Assembly, "the doctrine of independence is not to be raised to the level of a dogma so as to enable the judiciary to function as a kind of super-legislature or super-executive.

The judiciary is there to interpret the Constitution or adjudicate upon the rights."

Glossary

• Judiciary — the organ of government that settles disputes and protects rights according to law.
• Rule of law — the principle that all persons, regardless of status, are subject to the same law.
• Independence of judiciary — freedom of the courts from control or pressure by the executive and legislature, combined with accountability to the Constitution.
• Security of tenure — protection of a judge's office from easy removal, so that judges can decide without fear or favour.
• Original jurisdiction — the power of a court to hear a case directly, without it first passing through a lower court.
• Appellate jurisdiction — the power of a court to hear appeals against the decisions of lower courts.
• Advisory jurisdiction — the power of the Supreme Court to give non-binding opinion on matters referred to it by the President.
• Writ jurisdiction — the power of the Supreme Court and High Courts to issue orders such as habeas corpus and mandamus to protect fundamental rights.
• Judicial review — the power of a court to examine whether a law is consistent with the Constitution, and to declare it unconstitutional if not.
• Basic structure doctrine — the principle that certain core features of the Constitution cannot be altered even by amendment.
• Collegium — the Chief Justice of India together with the four senior-most judges of the Supreme Court, who recommend judicial appointments.
• Contempt of court — conduct that disrespects or obstructs the authority of a court, which the court may itself penalise.
• Impeachment — a formal process of charging and removing a holder of public office, used in the USA to remove federal judges.
• Due process of law — the American constitutional principle that a law restricting liberty must be fair and reasonable, not merely properly enacted.
• Writ of certiorari — the discretionary order by which the US Supreme Court agrees to hear an appeal from a lower court.

Common errors and misconceptions

• Misconception: independence of the judiciary means judges answer to no one. Correct: the judiciary is accountable to the Constitution, to democratic traditions and to the people; independence only means freedom from control by the executive and legislature.
• Misconception: the Indian Supreme Court's original jurisdiction covers any kind of case brought directly to it. Correct: original jurisdiction is specifically about disputes between the Union and States, or among States.
• Misconception: the President of India must accept the Supreme Court's advice given under its advisory jurisdiction. Correct: the Court is not bound to give advice, and the President is not bound to accept it if given.
• Misconception: the US Supreme Court has advisory jurisdiction like the Indian Supreme Court. Correct: for this comparison, the US Supreme Court exercises only original and appellate jurisdiction; it does not give advisory opinions.
• Misconception: judicial review is explicitly written into the text of the Indian Constitution. Correct: the term is nowhere mentioned in the Constitution; the power is implicit because India has a written constitution and the Court can strike down laws inconsistent with it.
• Misconception: judges of the Supreme Court can be removed by a simple parliamentary vote. Correct: removal requires proven misbehaviour or incapacity and a special majority in both Houses of Parliament.
• Misconception: American Supreme Court justices serve for a fixed term like Indian judges. Correct: they hold office for life, "during good behaviour", with no fixed retirement age.

Exam-style questions with model answers

Q1. State two conditions that ensure the independence of the judiciary in India. [2 marks]

1. Judges have security of tenure and can be removed only through a very difficult procedure, which allows them to decide cases without fear of losing office.
2. The salaries and allowances of judges are not subject to the approval of the legislature, which protects them from financial pressure.

Q2. State the strength and tenure of the Supreme Court of the United States. [2 marks]

1. The US Supreme Court consists of nine justices, one Chief Justice and eight Associate Justices.
2. Justices hold office for life, "during good behaviour", with no fixed age of retirement, and can be removed only by impeachment.

Q3. Explain the procedure for the removal of a judge of the Supreme Court of India. [4 marks]

1. A judge can be proceeded against only on the ground of proven misbehaviour or incapacity, not for the content of a decision.
2. A motion containing the charges against the judge must be moved in Parliament.
3. The motion must be approved by a special majority in both Houses of Parliament before it can proceed.
4. Only one motion to remove a Supreme Court judge has ever been put to the vote, against Justice V. Ramaswami (1991 to 1993); it got two-thirds of members present and voting but not the support of one-half of the total strength of the House, so the judge was not removed.

Q4. Distinguish between the original, appellate and advisory jurisdiction of the Supreme Court of India. [4 marks]

1. Original jurisdiction allows the Supreme Court to hear certain cases, chiefly disputes between the Union and States or among States, directly, without the case passing through a lower court first.
2. Appellate jurisdiction allows the Court to hear appeals against decisions of High Courts in civil, criminal and constitutional cases, including by special leave.
3. Advisory jurisdiction allows the President to refer a matter of public importance or constitutional interpretation to the Court for its opinion.
4. Unlike the other two, advisory opinions are not binding on either the Court or the President.

Q5. Explain why the removal of a judge in India is deliberately made more difficult than the appointment of a judge. [4 marks]

1. While the executive, through the President in consultation with the collegium, plays the leading role in appointment, the legislature alone holds the power of removal.
2. Removal requires proof of misbehaviour or incapacity, not disagreement with a judge's rulings.
3. A motion to remove needs a special majority in both Houses of Parliament, which is harder to achieve than ordinary legislative business.
4. This arrangement gives both balance of power between the organs of government and security of tenure to judges, so that they can decide cases without fear of removal for unpopular rulings.

Q6. Compare the jurisdiction of the Indian and American Supreme Courts, and explain why the Indian Court's jurisdiction is considered broader. [8 marks]

1. The Indian Supreme Court exercises three kinds of jurisdiction, original, appellate and advisory, while the American Supreme Court, for this comparison, exercises only original and appellate jurisdiction.
2. The Indian Court's original jurisdiction covers all disputes between the Union and the States and among the States themselves, a broad category of federal disputes.
3. The American Court's original jurisdiction is narrow, limited to cases affecting ambassadors, public ministers and consuls, and cases where a state is a party.
4. The Indian Court's appellate jurisdiction extends over civil, criminal and constitutional cases, and the Court can also grant special leave to appeal against any judgement of any court in India.
5. The American Court's appellate work, while large in volume, is exercised mainly through its discretion to grant or refuse a writ of certiorari, so it chooses which appeals to hear.
6. Only the Indian Court has advisory jurisdiction, under which the President may refer questions of public importance to it, even though such advice is not binding.
7. Because the Indian Court's original jurisdiction covers a wider set of disputes and it additionally has advisory jurisdiction that the American Court lacks, several jurists hold that the overall scope of the Indian Supreme Court's jurisdiction is wider than that of the American Supreme Court.

Q7. Explain the meaning and guiding principles of judicial review. [8 marks]

1. Judicial review is the power of the Supreme Court, or the High Courts, to examine whether a law is consistent with the provisions of the Constitution.
2. If the Court finds a law inconsistent with the Constitution, it declares that law unconstitutional and inapplicable.
3. In India, this term is nowhere mentioned in the Constitution; the power is implicit because India has a written constitution and the Court can strike down laws that violate fundamental rights or the federal distribution of powers.
4. In the United States, the power similarly developed through interpretation, being first asserted by the Supreme Court in Marbury v. Madison (1803).
5. One guiding principle is the doctrine of basic structure, which holds that core features of the Constitution cannot be altered even by amendment, as established in the Kesavananda Bharati case (1973).
6. Another is the presumption of constitutionality, under which a law is treated as valid unless clearly shown otherwise.
7. A further principle is the doctrine of severability, by which only the unconstitutional part of a law is struck down if the rest can stand on its own.
8. A final point of difference is that India's review rests on "procedure established by law", while the American doctrine rests on "due process of law", under which courts also test whether a law is fair in substance, not merely properly enacted.

Key takeaways

• The judiciary protects the rule of law, settles disputes and safeguards rights, which requires it to be independent of the executive and the legislature.
• Independence of the judiciary is secured through appointment away from party politics, security of tenure, financial independence and protection from criticism, but does not mean the judiciary is unaccountable.
• Removal of a judge in India requires proven misbehaviour or incapacity and a special majority in both Houses of Parliament, as shown by the unsuccessful 1991 motion against Justice V. Ramaswami.
• The Indian Supreme Court presently has 34 judges, who hold office till age 65; the US Supreme Court has 9 justices, who hold office for life.
• The Indian Supreme Court exercises original, appellate and advisory jurisdiction, while the American Supreme Court exercises only original and appellate jurisdiction.
• India's original jurisdiction covers Union-State and inter-State disputes; America's original jurisdiction is limited to cases involving ambassadors, public ministers, consuls, and states as parties.
• Judicial review is the power to declare a law unconstitutional if it conflicts with the Constitution, a power not explicitly written into either country's constitutional text.
• Guiding principles of judicial review in India include the basic structure doctrine, presumption of constitutionality, severability, pith and substance, and harmonious construction.

Test yourself

Why is independence of the judiciary necessary in a democracy?

It allows courts to protect the rule of law, settle disputes fairly and safeguard the rights of citizens without pressure from the executive or legislature.

What role does the collegium play in judicial appointments in India?

The Chief Justice of India, in consultation with the four senior-most judges of the Supreme Court, recommends names for appointment, carrying greater weight than other opinions.

What is the present strength of the Supreme Court of India?

34 judges, comprising the Chief Justice of India and 33 other judges.

How does the tenure of American Supreme Court justices differ from that of Indian Supreme Court judges?

American justices hold office for life, "during good behaviour", with no fixed retirement age, while Indian judges hold office till age 65.

What is advisory jurisdiction, and which of the two Courts has it?

Advisory jurisdiction lets the President refer matters of public importance to the Court for non-binding opinion; only the Indian Supreme Court has this power.

Why is judicial review called an implicit power in both India and the USA?

Neither constitution's text explicitly grants it; it follows from having a written constitution that courts can enforce against inconsistent laws.

What did the Kesavananda Bharati case establish?

It established that there is a basic structure of the Constitution which even a constitutional amendment by Parliament cannot violate.