Executive

UNIT 9 JUDICIARY
Structure
9.0 Objectives
9.1 Introduction
9.2 Evolution of Judiciary in India
9.3 The Supreme Court
9.3.1 Composition and Appointments
9.3 2 Tenure
9.3.3 Salaries
9.3.4 Immunities
9.4 Jurisdiction of the Supreme Court
9.4.1 Original Jurisdiction
9.4.2 Appellant Jurisdiction
9.4.3 Advisory Jurisdiction
9.4.4 Review Jurisdiction
9.5 The High Court
9.5.1 Composition of the High Court
9.5.2 Jurisdiction
9.6 Subordinate Courts
9.7 Judicial Review
9.8 Judicial Reforms
9.9 Let Us Sum Up
9.10 References
9.11 Answers to Check Your Progress Exercises

9.0 OBJECTIVES
After going through this unit, you will be able to:
Trace the evolution of the judicial system in India;
Describe the composition of the courts in India;
Explain the functions and jurisdiction of the Supreme Court, the High Court,
and the Subordinate Courts; and
Explain the concept of judicial review and its importance in safeguarding
fundamental rights.

9.1 INTRODUCTION
In a political system based on constitutional government, the functions of rule
making, rule enforcement and rule interpretation are separated into the three
institutions - the legislature, the executive and the judiciary. A judiciary that is
independent of and acting as a check on the arbitrary exercise of legislative and
executive power is an essential feature of a constitutional government. The

* Prof. Vijaysekhar Reddy, Faculty of Political Science, IGNOU, SOSS, New Delhi. This Unit is adopted
from Course BPSE-212, Unit 12 85
Organs of the Government judiciary is also the final arbiter of what that Constitution itself means. In a
federal system, the judiciary also serves as a tribunal for the final determination
of disputes between the union and its constituent units. Given the tremendous
importance of the role and functions of the Supreme Court and the High Courts,
various measures have been adopted to ensure the independence of the judiciary.

9.2 EVOLUTION OF JUDICIARY IN INDIA

The evolution of the contemporary judiciary in India can be traced to the colonial
period. It was with the Regulating Act of 1773 that the first Supreme Court came
into existence in India. Located at Calcutta (Kolkata), the Supreme Court consisted
of Chief Justice and three judges (subsequently it was reduced to two judges)
appointed by the Crown, and it was made a King’s court rather than a Company’s
court. The court held jurisdiction over “his majesty’s subjects” wherever the
Supreme Courts were established. Supreme Courts were established in Madras
(Chennai) first and in Bombay (Mumbai) later. Judicial system during this period
consisted of two systems, the Supreme Courts in the Presidencies and the Sadr
courts in the provinces. While the former followed the English law and procedure,
the latter followed regulation laws and personal laws. Subsequently, these two
systems were merged under the High Courts Act of 1861. This Act replaced the
Supreme Courts and the native courts (Sadar Dewani Adalat and Sadr Nizamat
Adalat) in the presidency towns of Calcutta, Bombay and Madras with High
Courts. The highest court of appeal, however, was the judicial committee of the
Privy Council.
At this stage of development of the Indian legal system, we see the beginning of
a new era in the emergence of a unified court system. The Federal Court of India
was established in Delhi by the Act of 1935. It was to act as an intermediate
appellant between the High Courts and the Privy Council regarding matters
involving the interpretation of the Indian constitution. In addition to this appellate
jurisdiction, the Federal Court had advisory as well as original jurisdiction in
certain other matters. This court continued to function until 26 January 1950, the
day independent India’s constitution was implemented. As you have read in unit
1, this is also known as the date its “commencement”.

9.3 THE SUPREME COURT

The entire judicature has been divided into three tiers. At the top there is a Supreme
Court; below it is the High Court; and, the lowest rank is occupied by Session’s
Court.
The Supreme Court is the highest court of law. The Constitution says that the
law declared by the Supreme Court shall be binding on all small courts within
the territory of India. Below the Supreme Court, the High Courts are located in
the states. Under each High Court, there are District Sessions Courts, Subordinate
Courts and Courts of Minor Jurisdiction that is called Small Cause Courts.
Given the importance of the judiciary in a federal system resting on limited
government, the Supreme Court was designed to make it the final authority in
the interpretation of the Constitution. While framing the judicial provisions, the
Constituent Assembly gave a great deal of attention to such issues as the
independence of the courts, the power of the Supreme Court, and the issue of
judicial review.
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9.3.1 Composition and Appointments Judiciary

The Supreme Court consists of the Chief Justice of India and not more than
twenty-six other Judges. When the Supreme Court was inaugurated, it had only
eight judges. Its strength has risen to twenty-six judges. The President of India,
who is the appointing authority, makes these appointments on the advice of the
Prime Minister and the Council of Ministers.

The Constitution stipulates in Article 124 (2) that the President shall appoint
judges of the Supreme Court after consulting other persons besides taking the
advice of his ministers. In the case of the Chief Justice of India, the President
shall consult such judges of the Supreme Court and the High Courts as he may
deem necessary. In spite of this clear constitutional provision, the appointment
of the Chief Justice of India has become a matter of political controversy. Here,
it may be worth recalling the issues that were raised in 1973 when the Government
of India appointed Justice SS Ray as the Chief Justice of India superseding four
other judges, against the recommendations of the outgoing Chief Justice, SM
Sikri. Avoiding political interferences in the appointment of Judges of the Supreme
Court, some important qualifications have been set for the post such as: a person
should be a citizen of India; a Judge of the High Court for at least five years; or
should have been an advocate of High Court for at least ten years; or a
distinguished jurist in the opinion of the President of India.

The Collegium System of appointment of judges is unique in nature. It is also

popularly referred to as judges-selecting judges. This system was created by two
judgements of the Supreme Court in 1990s. In this, a body of senior apex court
judges are responsible for appointment and transfer of judges of the Supreme
court and High Court.

9.3.2 Tenure
Once appointed, a judge holds office until he attains 65 years of age. A judge of
the Supreme Court may resign his office or may be removed in case of
misbehaviour or incapacity. According to the procedure laid out in the
Constitution, each house of the Parliament will have to pass a resolution supported
by two-third of the members present and voting. The device to remove a judge is
known as impeachment. The motion of impeachment against a judge was tabled
in Parliament for the first in 1991. It involved Supreme Court Justice V.
Ramaswami. When an audit report revealed several irregularities committed by
the judge during his tenure as the Chief Justice of the Punjab and Haryana High
Court, a three-man judicial committee was set up with a serving and a retired
Supreme Court judge and the Chief Justice of the Bombay High Court. The
Committee concluded that there had indeed been a wilful and gross misuse of
official position and intentional and habitual extravagance at the cost of the public
interest which amounted to ‘misbehaviour’. Justice V. Ramaswami was the first
judge of the Supreme Court against who impeachment proceedings were initiated.
Justice Ramaswami, however, maintained that there were procedural irregularities
in the notice of the motion, the constitution of the committee and its functioning.
The impeachment motion which was moved in May 1993 failed with 196 out of
401 voting for it and the remaining 205 abstaining. However, the Judge eventually
resigned.

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Organs of the Government 9.3.3 Salaries
A very important element that determines the independence of the judges is the
remuneration received by them. The salaries and allowances of the judges are
fixed high to secure their independence, efficiency and impartiality. Besides the
salary, every judge is entitled to a rent-free official accommodation. The
Constitution also provided that the salaries of the judges cannot be changed to
their disadvantage, except in times of a Financial Emergency. The administrative
expenses of the Supreme Court, the salaries, allowances, etc., of the judges, are
charged on the Consolidated Fund of India.

9.3.4 Immunities
To shield judges from political controversies, the Constitution grants them
immunity from criticisms against decisions and actions made in their official
capacity. The Court is empowered to initiate contempt proceedings against those
who impute motives to the judges in the discharge of their official duties. Even
the Parliament cannot discuss the conduct of the judge except when a resolution
for his removal is before it.
Check Your Progress Excersise 1
Note: 1) Use the space below for your answers
2) Check your answers with the model answers given at the end of this
unit.
1) What are the qualifications required for appointment as a judge of the
Supreme Court?
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2) What is the procedure for removing a judge of the Supreme Court.?

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9.4 JURISDICTION OF THE SUPREME COURT

Article 141 declares that the law laid down by the Supreme Court shall be binding
on all courts within the territory of India. The different categories into which the
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jurisdiction of the Supreme Court is divided are as follows: 1) Original Judiciary
Jurisdiction, 2) Appellate Jurisdiction, 3) Advisory Jurisdiction, 4) and Review
Jurisdiction.

9.4.1 Original Jurisdiction

The Supreme Court has original jurisdiction initially as a federal court. In a
federal system like India, both the Union and the State governments derive their
powers from and are limited by the same constitution. Differences of interpretation
of the Union-States distribution of powers or conflicts between States governments
require authoritative resolution by a judicial organ independent of both levels of
government. Under Article 131, the Supreme Court is given exclusive jurisdiction
in a dispute between the Union and a State or between one State and another, or
between a group of States and others. When we say that the Supreme Court has
an exclusive jurisdiction, we mean that no other court in India has the power to
entertain such disputes. Similarly, the original jurisdiction of the Supreme Court
will mean that the parties to the dispute should be units of the federation. Unlike
the Supreme Courts in Australia and the United States, the Indian Supreme Court
does not have original jurisdiction to decide disputes between residents of different
states or those between a State and the resident of another State.

The Supreme Court also has an extensive original jurisdiction as the protector of
Fundamental Rights. As you have read in the unit 4 Article 32 of the Constitution
gives citizens the right to move the Supreme Court directly for the enforcement
of any of the fundamental rights enumerated in Part III of the Constitution. As
the guardian of Fundamental Rights, the Supreme Court has the power to issue
writs such as Habeas Corpus, Quo Warranto, Prohibition, Certiorari, and
Mandamus. Habeas Corpus is a writ issued by the court to bring before the court
a person from illegal custody. The court can decide the legality of detention and
release the person if the detention is found to be illegal. By using the writ of
Mandamus, the court may order the public officials to perform their legal duties.
Prohibition is a writ to prevent a court or tribunal from doing something in excess
of its authority. By the writ of Certiorari, the court may strike off an order passed
by any official of the government, local body or a statutory body. Quo warranto
is a writ issued to a person who authorised occupies a public office to step down
from that office. In addition to issuing these writs, the Supreme Court is
empowered to issue appropriate directions and orders to the executive.

9.4.2 Appellate Jurisdiction

The Supreme Court is the highest court of appeal from all courts in the territory
of India. It has comprehensive appellant jurisdiction in cases involving
constitutional issues; civil and criminal cases involving specified threshold values
of the property or a death sentence; and wide-ranging powers of special appeals.

Article 132 of the Constitution provides for an appeal to the Supreme Court
from any judgement or final order of a court in civil, criminal or other proceedings
of a High Court; if it involves a substantial question of law as to the interpretation
of the Constitution. The appeal again depends upon whether the High Court
certifies, and if does not, the Supreme Court may grant special leave to appeal.

Article 133 of the Constitution provides that an appeal in civil cases lies to the
Supreme Court from any judgement, order or civil proceedings of a High Court.
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Organs of the Government This appeal may be made, if the case involves a substantial question of law of
general importance or if in the opinion of the High Court the said question needs
to be decided by the Supreme Court.

Article 134 provides the Supreme Court with appellate jurisdiction in criminal
matters from any judgement, final order, or sentence of a High Court. This
jurisdiction can be invoked only in three different categories of cases: a) if the
High Court on appeal reverses an order of acquittal of an accused person and
sentenced to death; b) if the High Court has withdrawn for trial before any case
from any Court subordinate to its authority and has in such a trial convicted the
accused person and sentenced him to death; c) if the High Court certifies that the
case is fit for appeal to the Supreme Court.

Finally, the Supreme Court has the special appellate jurisdiction. It has the power
to grant, in its discretion, special leave appeal from any judgment, decree sentence
or order in any case or matter passed or made by any court or tribunal.

9.4.3 Advisory Jurisdiction

The Supreme Court is vested with the power to render advisory opinions on any
question of fact or law that may be referred to it by the President. The advisory
role of the Supreme Court is different from ordinary adjudication in three senses:
first, there is no litigation between two parties; second, the advisory opinion of
the Court is not binding on the government; and finally, it is not executable as a
judgement of the court. The practice of seeking an advisory opinion of the
Supreme Court helps the executive to arrive at a sound decision on important
issues. At the same time, it gives a soft option to the Indian government on some
politically difficult issues.

9.4.4 Review Jurisdiction

The Supreme Court has the power to review any judgement pronounced or order
made by it. It means that the Supreme Court may review its judgement order.

The Supreme Court in India is far more powerful than its counterpart in the
United States of America. The American Supreme Court deals primarily with
cases which arise out of the federal relationship or those relating to the
constitutional validity of laws and treaties. Apart from interpreting the
Constitution, the Indian Supreme Court functions as the court of appeal in the
country in matters of civil and criminal cases. It can entertain appeals without
any limitation upon its discretion from the decisions not only of any court but
also of any tribunal within the territory of India. The advisory jurisdiction of the
Indian Supreme Court also is something absent from the purview of the American
Supreme Court.

Despite these powers, the Indian Supreme Court is a creature of the Constitution
and depends on the continuation of these powers on the Union legislature which
can impose limitations on them by amending the Constitution. Moreover, all
these powers can also be suspended or superseded whenever there is a declaration
of emergency in the country.

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 Judiciary
9.5 THE HIGH COURT
The Constitution provides for a High Court at the apex of the State judiciary.
Chapter V of Part VI, from Articles 214 to 231 of the Constitution of India contains
provisions regarding the organisation and functions of the High Court. By the
provision of Article 125 which says “there shall be a High Court for each state”,
and these courts have a constitutional status. The parliament has the power to
establish a common High Court for two or more states. For instance, Punjab and
Haryana have a common High Court. Similarly, there is one High Court for
Assam, Nagaland, Mizoram and Arunachal Pradesh.

In the case of Union Territories, the Parliament may by law extend the jurisdiction
of a High Court to, or exclude the jurisdiction of a High Court from any Union
Territory, or create a High Court for a Union Territory. Thus, Delhi, Madras even
when it was a Union Territory, had a separate High Court while, the High Court
has been having jurisdiction over Pondicherry, the Kerala High Court over
Lakshadweep, the Bombay High Court over Dadra and Nagar Haveli, the Calcutta
High Court over Andaman and Nicobar Islands, the Punjab Haryana High Court
over Chandigarh.

9.5.1 Composition of the High Court

Unlike the Supreme Court, there is no minimum number of judges for the High
Court. The President, from time to time will fix the number of judges in each
High Court. The Chief Justice of the High Court is appointed by the President of
India in consultating with the Chief Justice of India and the Governor of the
State, which in actual term means the real executive of the State. In appointing
the judges, the President is required to consult the Chief Justice of the High
Court. The Constitution also provides for the appointment of additional judges
to cope with the work. However, these appointments are temporary not exceeding
two years period. There is also a provision for direct appointment of Judges of
Supreme Court and High Court through the Collegium System, in which Senior
Judges of Apex Court select or recommend the names for appointment of Judges.

A judge of a High Court normally holds office until he attains the age of 62
years. He can vacate the seat by resigning, by being appointed a judge of the
Supreme Court or by being transferred to any other High Court by the President.
The President can remove a judge on the grounds of misbehaviour or incapacity
in the same manner in which a judge of the Supreme Court is removed.

9.5.2 Jurisdiction
The original jurisdiction of a High Court includes enforcement of Fundamental
Rights, settlement of disputes relating to the election to Union and State
legislatures and jurisdiction over revenue matters. Its appellant jurisdiction extends
to both civil and criminal matters. In civil matters, the High Court is either a first
appeal or a second appeal court. In criminal matters, appeal from decisions of a
session’s judge or an additional sessions judge where a sentence of imprisonment
exceeds seven years, and other specified cases other than petty crimes constitute
the appellant jurisdiction of a High Court. In addition to these normal original
and appellant jurisdictions, the Constitution vests the High Courts with four
additional powers. These are:
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Organs of the Government The power to issue writs or orders for the enforcement of the Fundamental
Rights. Interestingly, the writ jurisdiction of a High Court is larger than
that of the Supreme Court. It can not only issue writs in cases of infringement
of Fundamental Rights but also in cases of an ordinary legal right.

The power of superintendence over all other courts and tribunals except
those dealing with the armed forces. It can frame rules and also issue
instructions for guidance from time to time with directions for speedier and
effective judicial remedy.

The power to transfer cases to itself from subordinate courts concerning the
interpretation of the constitution.

The power to appoint officers and servants of the High Court.

In certain cases, the jurisdiction of High Courts is restricted. For instance, it has
no jurisdiction over a tribunal and no power to invalidate a Central Act or even
any rule, notification or orders made by any administrative authority of the Union,
whether violates of Fundamental Rights or not.
Check Your Progress Excercise 2
Note: 1) Use the space below for your answers
2) Check your answers with the model answers given at the end of this
unit.
1) In what areas does the Supreme Court have original jurisdiction? Which
area is an exclusive preserve of the Supreme Court?
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9.6 SUBORDINATE COURTS

Under the High Court, there is a hierarchy of courts which are referred to in the
Indian constitution as subordinate courts. Since these courts have come into
existence because of enactments by the state government, their nomenclature
and designation differ from state to state. However, there is a uniformity regarding
its organisational structure.

The state is divided into districts, and each district has a district court which has
an appellant jurisdiction in the district. Under the district courts, there are the
lower courts such as the Additional District Court, Sub-Court, Munsiff Magistrate
Court, Court of Special Judicial Magistrate of the II Class, Court of Special
Judicial Magistrate of I Class, Court of Special Munsiff Magistrate for Factories
Act and Labour Laws, etc. At the bottom of the hierarchy of Subordinate Courts
are the Panchayat Courts (Nyaya Panchayat, Gram Panchayat, Panchayat Adalat,
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etc.). These are, however, not considered as courts under the purview of the Judiciary
criminal courts jurisdiction.

The principal function of the District Court is to hear appeals from the subordinate
courts. However, the courts can also take cognisance of original matters under
special status, for instance, the Indian Succession Act, the Guardian Act and
Wards Act and Land Acquisition Act.

The Constitution ensures the independence of the subordinate judiciary.

Appointments to the District Courts are made by the Governor in consultation
with the High Court. A person to be eligible for appointment should be either an
advocate or a pleader of seven years standing, or an officer in the service of the
Union or the State. Appointment of persons other than the District Judges to the
judicial service of a State is made by the Governor in accordance with the rules
made by him in that behalf after consultation with the High Court and the State
Public Service Commission.

The High Court exercises control over the District Courts and the Courts
subordinate to them, in matters as posting, promotions and granting of leave to
all persons belonging to the State judicial service.

9.7 JUDICIAL REVIEW

The notion of judicial review means the revision of the decree or sentence of an
inferior court by a superior court. Judicial review has a more technical significance
in public law, particularly in countries having a written constitution, founded on
the concept of limited government. Judicial review, in this case, means that Courts
of law have the power of testing the validity of legislative as well as other
governmental action concerning the provisions of the constitution.

In England, there is no written constitution. Here the Parliament exercises supreme

authority. The courts do not have the power to review laws passed by the sovereign
parliament. However, English Courts review the legality of executive actions. In
the United States, the judiciary assumed the power to scrutinise executive actions
and examine the constitutional validity of legislation by the doctrine of ‘due
process’. By contrast, in India, the power of the court to declare legislative
enactments invalid is expressly enacted in the constitution. Fundamental rights
enumerated in the Constitution are made justiciable and the right to constitutional
remedy has itself been made a Fundamental right.

The Supreme Court’s power of judicial review extends to constitutional

amendments as well as to other actions of the legislatures, the executive and the
other governmental agencies. However, judicial review has been particularly
significant and contentious regarding constitutional amendments. Under Article
368, constitutional amendments could be made by the Parliament. But Article 13
provides that the state shall not make any law which takes away or abridges
fundamental rights and that any law made in contravention with this rule shall be
void. The issue is, would the amendment of the constitution be a law made by
the state? Can such a law infringing fundamental rights be declared
unconstitutional? It was a riddle before the judiciary for about two decades after
India became a republic.

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Organs of the Government In the early years, the courts held that a constitutional amendment is not law
within the meaning of Article 13 and hence, would not be held void if it violated
any fundamental right. But in 1967, in the famous Golak Nath Case, the Supreme
Court adopted a contrary position. It was held that a constitutional amendment is
a law and if that amendment violated any of the fundamental rights, it could be
declared unconstitutional. All former amendments that violated the fundamental
rights to property were found to be unconstitutional. When a law remains in
force for a long time, it establishes itself and is observed by the society. If all past
amendments are declared invalid, the number of transactions that took place in
pursuance of those amendments become unsettled. It will lead to chaos in the
economic and political system. In order to avoid this situation and for the purpose
of maintaining the transactions, in fact, the past amendments were held valid.
The Supreme Court clarified that no future transactions or amendments contrary
to fundamental rights should be valid. This technique of treating old transactions
valid and future ones invalid is called prospective over-ruling. The Court also
held that Article 368 with amendments does not contain the power to amend the
constitution, but only prescribes the procedure to amend. This interpretation
created difficulty. Even when there is a need to amend a particular provision of
the constitution, it might be impossible to do so if the amendment had an impact
on fundamental rights.

In 1970, when the Supreme Court struck down some of Indira Gandhi’s populist
measures, such as the abolition of the privy purses of the former princes and
nationalisation of banks, the Prime Minister set about to assert the supremacy of
the Parliament. She was able to give effect to her wishes after gaining a two-
thirds majority in the 1971 General Elections. In 1972, the Parliament passed the
25th Constitutional Amendment Act which allowed the legislature to encroach
on fundamental rights if it was said to be done by giving effect to the Directive
Principles of State Policy. No court was permitted to question such a declaration.
The 28th Amendment Act ended the recognition granted to former rulers of Indian
states and their privy purses were abolished.

These amendments were challenged in the Supreme Court in the famous

Kesavananda Bharathi Case (otherwise known as the Fundamental Rights Case)
of 1973. The Supreme Court ruled that the while the parliament could amend
even the fundamental rights guaranteed by the Constitution, it was not competent
to alter the ‘basic structure’ or ‘framework’ of the Constitution. Under the newly
evolved doctrine of ‘basic structure’, a constitutional amendment is valid only
when it does not affect the basic structure of the constitution. The second part of
Article 31C (no law containing a declaration to implement the Directive Principles
contained in Article 39 (b) and (c) shall be questioned) was held not valid because
the amendment took away the opportunity for judicial review, which is one of
the basic features of the Constitution. The doctrine of basic features gave wide
amplitude to the power of judicial review.

Later history shows the significant role played by this doctrine in the review of
constitutional amendments. For challenging the election to Parliament of a person
who holds the office of Prime Minister, the 39th Constitutional Amendment
provided a different procedure. The election can be challenged only before an
authority under special law made by Parliament, and the validity of such as law
shall not be called in question. The Supreme Court held that this amendment was
invalid as it was against the basic structure of the Constitution. It argued that free
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and fair elections are essential in a democracy. Excluding judicial examination Judiciary
of the fairness of the election of a particular candidate is not proper and goes
against the democratic ideal which is the base of our constitution.

In a later case, the Minerva Mill Case, the Supreme Court went a step ahead. The
42nd Constitutional Amendment of 1976, among other things, had added a clause
to Article 368 placing a constitutional amendment beyond judicial review. The
Court held that this was against the doctrine of judicial review, the basic feature
of the constitution.

Since the late 1970s, the judiciary began to take an active role to protect and
implement the constitutionally guaranteed fundamental rights of citizens. It is
commonly described as judicial activism; the Supreme Court has stepped to
protect the rights of the disadvantaged sections which on account of poverty,
social disability or lack of awareness, could not approach the courts for denial of
their rights. The Supreme Court did this by diluting the principle of locus standi
which limited the Court’s power of judicial review. By the principle of locus
standi, only persons aggrieved by an administrative action or by an unjust
provision of law had the right to move the court for denial of rights. In 1979 the
Supreme Court, however, decided to hear a case filed not by the aggrieved persons
but by others on their behalf as the case involved a consideration of public interest.
Again in 1982, the Supreme Court in judgement on the democratic rights of
construction workers of the Asian Games granted the Peoples Union for
Democratic Rights, the right of Public Interest Litigation (PIL). Taking recourse
to epistolary jurisdiction under which the US Supreme Court treated a post card
from a prisoner as a petition, the Supreme Court of India stated that any ‘public
spirited’ individual or organisation could move the court even by writing a letter.
It opened the gates for a large number of cases where a large number of pubic
spirited individuals and non-governmental organisations sought judicial
intervention for the protection of existing rights, the betterment of life of the
poor, protection of the environment, etc. The momentum for the implementation
of rights generated by judicial activism ultimately led to the setting of mechanisms
for the protection of rights of the weak and the deprived. In the 1990s, the National
Commission of Minorities, the National Commission on Women, the National
Commission for Backward Classes, the National Commission for Scheduled
Castes and Scheduled Tribes were established by law to protect the rights of the
minorities, Dalits, Backward classes, tribals and women. Further, the National
Human Rights Commission (NHRC) was established in 2000 to protect the
fundamental and other kinds of rights. The NHRC conducts an enquiry on its
initiative or petition presented to it by a victim into complaints of human rights
violations. Although the NHRC does not have the power of prosecution, it can
make a recommendation to the government or to the courts to initiate proceedings
against the violators of human right.

Since the granting of the right to PIL, what some claim to be the only major
democratic right of the people of India, and granted not by the Parliament but by
the judiciary, the courts have been flooded by PILs. While the flood of such
litigation indicates the widespread nature of the deprivation of democratic rights;
they also pose the danger of adding further pressure on the courts that are already
overloaded.

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9.8 JUDICIAL REFORMS
While the judiciary has earned respect for its contribution to protecting citizens
from arbitrary exercise of power, a large number of pending cases and the delays
in the dispensation of justice are seen as its major drawbacks At the All India
Seminar on Judicial Reforms in August 2010, the Chief Justice of India, S.H.
Kapadia pointed out that there are over one crore cases pending for more than
one year. Reasons for the piling of a large number of cases can be attributed to
structural and procedural flaws in the judiciary. The availability of multiple
remedies at different rungs of the judicial ladder also enables dishonest and
recalcitrant suitors to abuse the judicial system. It leads to the piling up of cases
as well as a delay in the dispensation of justice.

Another weakness of the judicial system is cumbersome procedures and

forbidding cost of justice. Suggestions for judicial reforms have been helpful to
achieve a new order and bring economic, political and social justice.

9.9 LET US SUM UP

As we saw in this unit, the existing judicature in India can be traced to the British
period. The Regulating Act of 1773, the Indian High Courts Act of 1861 and the
Act of 1935 are the important milestones in the evolution of the modern judicial
system in India. According to the Constitution of India the Supreme Court is the
highest court of law. The law declared by the Supreme Court has been made
binding on all small courts, that is, the High Courts and the Subordinate Courts

Given the importance of judiciary as a federal court and as a guardian of

fundamental rights of the citizen, the framers of the Indian Constitution gave a
great deal of thought to such issues as the independence of the courts and judicial
review.

Judicial review is a technique by which the courts examine the actions of the
legislature, the executive and the other governmental agencies and decide whether
or not these actions are valid and within limits set by the constitution. The
foundation of judicial review is (a) that the constitution is a legal instrument, and
(b) that this law is superior in status to the laws made by the legislature that is
itself set up by the constitution. It is now well established in India that judicial
review constitutes the basic structure or feature of the Constitution of India.

9.10 REFERENCES
Basu, D. D. (1983). Commentary on the Constitution of India. New Delhi, India:
Prentice Hall.

Chaube, S.K. (2009). The Making and Working of the Indian Constitution. New
Delhi, India: National Book Trust.

Granville Austin (1964). The India’s Constitution: Cornerstone of a Nation.

Bombay, India: Oxford University Press.

Mukherjee, Hiren (1978). Portrait of Parliament: Reflections and Recollections.

New Delhi, India: Vikas.
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 Judiciary
9.11 ANSWERS TO CHECK YOUR PROGRESS
EXERCISES
Check Your Progress Excercise 1
1) A person to be appointment as a judge of the Supreme Court should be a
citizen of India, should have been a High Court judge for at least five years,
and an advocate of High Court for at least ten years or a distinguished
jurist.

2) A Supreme Court judge can be removed by the impeachment motion.

According to this procedure each house of the Parliament has to pass a
resolution supported by the two third of the members present and voting.
Check Your Progress Excercise 2
1) It has original jurisdiction as a guardian of Fundamental rights and as a
federal court. As a federal court, it has exclusive jurisdiction in disputes
between the Union and a State or between one State and another, or between
a group of States and others.

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