JUDICIARY

WHY DO WE NEED AN INDEPENDENT JUDICIARY?

 The independent Judiciary allows the court to play a central role in securing that there is no misuse of powers of the
Legislature and executive.
 It also protects the fundamental rights of the citizens because anyone can approach the court if they believe that their rights
have been violated.
 The principal role of the judiciary is to protect rule of law and ensure supremacy of law. 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?
 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 functions without 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 Constitution, to the democratic traditions and to the people of
the country.
How Can The Independence Of Judiciary Be Provided & Protected?
1. The legislature is not involved in the process of appointment of judges.
2. The judges have a fixed tenure. They hold office till reaching the age of retirement. Only in exceptional cases, judges may be
removed.
3. The Constitution prescribes a very difficult procedure for removal of judges.
4. 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.
5. The judiciary has the power to penalize those who are found guilty of contempt of court.
6. Parliament cannot discuss the conduct of the judges except when the proceeding to remove a judge is being carried out.
Appointment Of Judges
#The appointment of judges has never been free from political controversy. Council of Ministers, Governors and Chief Ministers
and Chief Justice of India — all influence the process of judicial appointment.
 Chief Justice of India (CJI) – Senior most judge of the Supreme Court.
 Broken twice – 1973 & 1975.
 The other Judges of the Supreme Court and the High Court are appointed by the President after ‘consulting’ the CJI.
 The Chief Justice should recommend names of persons to be appointed in consultation with four senior-most judges of the
Court. Thus, the Supreme Court has established the principle of collegiality in making recommendations for appointments.
Removal Of Judges
 The removal of judges of the Supreme Court and the High Courts is also extremely difficult.
 A judge of the Supreme Court or High Court can be removed only on the ground of misbehaviour or incapacity.
 A motion containing the charges against the judge must be approved by special majority in both Houses of the Parliament.
 Special majority requires a majority of 2/3rd members present and voting supported by more than 50% of the total
strength of the house.
 # It should also be noted that while in making appointments, the executive plays a crucial role; the legislature has the
powers of removal. This has ensured both balance of power and independence of the judiciary.
STRUCTURE OF THE JUDICIARY
 The Constitution of India provides for a single integrated judicial system.
 The structure of the judiciary in India 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.
Jurisdiction Of Supreme Court
1. Original Jurisdiction :-
o Original jurisdiction means cases that can be directly considered by the Supreme Court without going to the lower courts
before that.
o It is called original jurisdiction because the Supreme Court alone has the power to deal with such cases.
o In this capacity, the Supreme Court not just settles disputes but also interprets the powers of Union and State government
as laid down in the Constitution.
o Here Supreme Court Settles disputes between Union and States and amongst States.
2. Writ Jurisdiction :-
o 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.
3. Appellate Jurisdiction :-
 o A person can appeal to the Supreme Court against the decisions of the High Court. Means that the Supreme Court will
reconsider the case and the legal issues involved in it.
o The Supreme Court holds the powers to decide whether to admit appeals even when the High Court do not allow appeal.
o The High Courts too, have appellate jurisdiction over the decisions given by courts below them.
4. Advisory Jurisdiction :-
o This means that the President of India can refer any matter that is of public importance or that which involves
interpretation of Constitution to 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 an advice. Benefits of Advisory Jurisdiction are :-
Ϙ It allows the government to seek legal opinion on a matter of importance before taking action on it.
Ϙ In the light of the advice of the Supreme Court, the government can make suitable changes in its action or
legislations.
JUDICIAL ACTIVISM
 The chief instrument through which judicial activism has flourished in India is Public Interest Litigation (PIL) or Social
Action Litigation (SAL).
 What is PIL?
 In normal course of law, an individual can approach the courts only if he/she has been personally aggrieved.
 Here PIL means that a litigation has been filed in a court of law, for the protection of “Public Interest”, such as Pollution,
Terrorism, Road safety, Constructional hazards etc. Any matter where the interest of public at large is affected can be
redressed by filing a Public Interest Litigation in a court of law.
Impact Of Judicial Activism
Positive Impact :-
 It has democratized the judicial system by giving not just to individuals but also groups access to the courts.
 It has forced executive accountability.
 It has also made an attempt to make the electoral system much more free and fair.
Negative Impact :-
 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 which belong to the executive.
JUDICIARY & 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).
 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.
Judicial Review
 Judicial Review 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 as
unconstitutional and inapplicable.
 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.
 In particular, the review power means that the judiciary can interpret the Constitution and the laws passed by the legislature.
JUDICIARY & PARLIAMENT
 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.
 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.
 Despite such clear-cut division of power, the conflict between the Parliament and judiciary remained. E.g., Right to Property
& Keshavananda Bharati case.