Everything You Need to Know About the Indian Judiciary- NCERT Notes UPSC
Apr 28, 2022
Many times, courts are seen only as arbitrators in disputes between individuals or private parties. But the judiciary performs some political functions also. Judiciary is an important organ of the government. The Supreme Court of India is one of the most powerful courts in the world. Right from 1950, the judiciary has played an important role in interpreting and protecting the Constitution.
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Need for an Independent Judiciary
To protect rule of law and ensure the supremacy of law.
To safeguard the rights of the individual, settle disputes in accordance with the law and ensure that democracy does not give way to individual or group dictatorship.
Independence of Judiciary
It means that:
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.
The other organs of the government should not interfere with the decision of the judiciary.
Judges must be able to perform their functionswithout fear or favour.
Independence of the judiciary does not imply arbitrariness or absence of accountability. Judiciary is a part of the democratic political structure of the country. It is therefore accountable to:
The democratic traditions.
The people of the country.
Protection of the Independence of Judiciary
The Indian Constitution has ensured the independence of the judiciary through several measures:
No involvement of the legislature 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.
Political opinions of the person or his/ her political loyalty should not be the criteria for appointments to the judiciary.
Security of tenure:
The judges have a fixed tenure and hold office till reaching the age of retirement.
Only in exceptional cases, judges may be removed.
It ensures that judges could function without fear or favour.
The Constitution prescribes a very difficult procedure for the removal of judges.
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.
Protection against unfair criticism: The judiciary has the power to penalise those who are found guilty of contempt of court.
Power to adjudicate without fear of being criticized: Parliament cannot discuss the conduct of the judges except when the proceeding to remove a judge is being carried out.
Here's a useful video on Judicial Independence by M.Puri Sir, our faculty for Polity, IR, and Governance, that will help you understand the topic in a better way:
Appointment of Judges
Appointment of the Chief Justice of India (CJI):
Over the years, a convention had developed whereby the senior-most judge of the Supreme Court was appointed as the Chief Justice of India.
This convention was however broken twice:
In 1973A. N. Ray was appointed as CJI superseding three senior Judges.
In 1975 Justice M.H. Beg was appointed superseding Justice H.R. Khanna.
Other Judges of the Supreme Court and the High Court:
Appointed by the President after ‘consulting’ the CJI: It meant that the final decisions in matters of appointment rested with the Council of Ministers.
Status of the consultation with the Chief Justice in appointments:
It came up before the Supreme Court again and again between 1982 and 1998.
Initially, the court felt that the role of the Chief Justice was purely consultative.
Then it took the view that the opinion of the Chief Justice must be followed by the President.
Finally, the Supreme Court has come up with a novel procedure:
It has been suggested that the Chief Justice should recommend names of persons to be appointed in consultation with four senior-most judges of the Court.
The Supreme Court has established the principle of collegiality in making recommendations for appointments.
At the moment, therefore, in matters of appointment, the decision of the group of senior judges of the Supreme Court carries greater weight.
Removal of Judges
Grounds of removal: Proven misbehaviour or Incapacity.
A motion containing the charges against the judge must be approved by a special majority in both Houses of Parliament.
Balance of power: The Executive plays a crucial role in making appointments whereas the legislature has the powers of removal.
Structure of Judiciary
The Constitution of India provides for:
Single integrated judicial system: India does not have separate State courts like some other federal countries of the world.
It is pyramidal with the Supreme Court at the top, High Courts below them and district and subordinate courts at the lowest level.
The lower courts function under the direct superintendence of the higher courts.
Structure of Judiciary
Jurisdiction of Supreme Court
The Supreme Court of India functions within the limitations imposed by the Constitution.
The functions and responsibilities of the Supreme Court are defined by the Constitution.
The Supreme Court has specific jurisdiction or scope of powers.
Jurisdiction of Supreme Court
It means cases that can be directly considered by the Supreme Court without going to the lower courts before that.
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 butalso interprets the powers of the Union and State government as laid down in the Constitution.
It establishes Supreme Court 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.
Any individual, whose fundamental right has been violated, can directly move the Supreme Court for a 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 writs, the Court can give orders to the executive to act or not act in a particular way.
Supreme Court is the highest court of appeal:
A person can appeal to the Supreme Court against the decisions of the High Court.
High Court must certify that the case is fit for appeal and 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 power to decide whether to admit appeals even when an appeal is not allowed by the High Court.
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 and along with that also give a new interpretation of the provision involved.
The High Courts too, have appellate jurisdiction over the decisions given by courts below them.
Advisory jurisdiction: The President of India can refer any matter that is of public importance or that involves interpretation of the Constitution to Supreme Court for advice.
The Supreme Court is not bound to give advice on such matters and the President is not bound to accept such advice.
Utility of the advisory powers of the Supreme Court:
Prevent unnecessary litigation: It allows the government to seek legal opinion on a matter of importance before acting on it. The government can make suitable changes in its action or legislation as per advice.
Unified nature of Judiciary: Decisions made by the Supreme Court are binding on all other courts within the territory of India. Orders passed by it are enforceable throughout the country.
The Supreme Court itself is not bound by its decision and can at any time review it.
In case of contempt of the Supreme Court, the Supreme Court itself decides such a case.
Judicial activism has flourished in India through PIL or Social Action Litigation SAL.
Public Interest Litigation (PIL) or Social Action Litigation (SAL):
In the normal course of law:
An individual can approach the courts only if he/she has been personally aggrieved i.e., a person whose rights have been violated, or who is involved in a dispute.
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.
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. It led to many more such cases involving public interests.
Judicial activism became a popular description of the judiciary: As the Judiciary began considering many cases merely based on newspaper reports and postal complaints received by the court.
Expanded the idea of rights: Courts felt that individuals as parts of the society must have the right to seek justice wherever rights like clean air, decent living, etc. were violated.
Takes into consideration of rights of the underprivileged: The judiciary allowed public-spirited citizens, social organisations and lawyers to file petitions on behalf of the deprived.
Impact of Judicial activism on the political system
Democratized the Judicial system: It gives access courts to not just to individuals but also to groups.
It has forced executive accountability.
Attempted to make the electoral system free and fair: The court asked candidates contesting elections to file affidavits indicating their assets and income so that the people could elect their representatives based on accurate knowledge.
The negative side to a large number of PILs and the idea of a proactive judiciary:
It has overburdened the courts.
Disturbed the balance of power among organs of government:
The court has been involved in resolving questions which belong to the executive such as reducing air or sound pollution or investigating cases of corruption etc.
May create strains on democratic principle: As the democratic government is based on each organ of government respecting the powers and jurisdiction of the others.
Judiciary and Rights
The Constitution provides two ways in which the Supreme Court can remedy the violation of rights.
Protection of Fundamental rights: It canrestore fundamental rights by issuing writs (Article 32). The High Courts also have the power to issue such writs (Article 226).
Judicial Review: The Supreme Court can declare the concerned law as unconstitutional and therefore non-operational (Article 13).
It means the power of the Supreme Court (or High Courts) to examine the constitutionality of any law if the Court arrives at the conclusion that the law is inconsistent with the provisions of the Constitution, such a law is declared unconstitutional and inapplicable.
The term judicial review is nowhere mentioned in the Constitution.
However, 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.
In the case of federal relations too, the Supreme Court can use the review powers if a law is inconsistent with the distribution of powers laid down by the Constitution.
Together, the writ powers and the review power of the Courts make the judiciary very powerful.
Judiciary and Parliament
The Indian Constitution is based on a delicate principle of limited separation of powers and checks and balances.
Parliament: It is supreme in making laws and amending the Constitution.
Executive: It is supreme in implementing them.
Judiciary: It is supreme in settling disputes and deciding cases.
The court has been active in seeking to prevent subversion of the Constitution through political practice and brought powers of the President and Governor under the purview of the courts.
Supreme Court actively involved itself in the administration of justice by giving directions to executive agencies such as it gave directions to CBI to initiate investigations against politicians and bureaucrats in the hawala case, the Narasimha Rao case, etc.
The Tussle between the Parliament and the Judiciary
Major Issues: Over right to property and the Parliament’s power to amend the Constitution.
Immediately after the implementation of the Constitution:
The Parliament wanted to put some restrictions on the right to hold the property for implementing land reforms.
The Court held that the Parliament cannot thus restrict fundamental rights.
The Parliament then tried to amend the Constitution.
The Court said that a fundamental right cannot be abridged even through an amendment.
Issues at the centre of the controversy:
Scope of Right to private property.
Scope of the Parliament’s power to curtail, abridge or abrogate fundamental rights.
Scope of the Parliament’s power to amend the constitution.
The power of Parliament to make laws that abridge fundamental rights while enforcing directive principles.
During the Period Between 1967 and 1973
Apart from land reform laws, laws enforcing preventive detention, laws governing reservations in jobs, regulations acquiring private property for public purposes etc. were some instances of the conflict between the legislature and the judiciary.
Keshavananda Bharati Case (1973)
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.
TheCourt did two more things:
The court said that the Right to Property (the disputed issue) was not part of the basic structure.
The Court reserved to itself the right to decide whether various matters are part of the basic structure of the Constitution.
The Right to property was taken away from the list of fundamental rights in 1979and this also helped in changing the nature of the relationship between these two organs of government.
Issues remaining as a bone of contention between the two
These are about the scope of judiciary intervention in and regulating the functioning of the legislatures.
In the parliamentary system, the legislature has the power to govern itself and regulate the behaviour of its members.
The legislature can punish a person who it holds guilty of breaching privileges of the legislature.
About the protection of court available to a person breaching parliamentary privileges.
About the protection from court available to a member of the legislature against whom the legislature has taken disciplinary action.
The Constitution provides that the conduct of judges cannot be discussed in Parliament.
Legal Services Authorities
The constitution of South Africa has incorporated public interest litigation in its bill of rights.
The legal service day is celebrated on 9th November.
Unsuccessful Attempt to Remove a Judge:
In 1991 the first-ever motion to remove a Supreme Court Justice - Justice V. Ramaswami, was signed by 108 MPs. He was accused of misappropriating funds during his tenure as the Chief Justice of the Punjab and Haryana High Court.
A high-profile inquiry commission consisting of Judges of the Supreme Court found him guilty of willful and gross misuse of office.
Survived the parliamentary motionrecommending removal: The motion got the required two-thirds majority among the members who were present and voting, but the Congress party abstained from voting and the motion could not get the support of one half of the total strength of the House.
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