Notes of Ch 6 Judiciary| Class 11th Political Science

Why do we Need an Independent Judiciary?

• 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.

• In order to be able to do all this, it is necessary that the judiciary is independent of any political pressures.

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.

• 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.

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.

• 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 1973 A. N. Ray was appointed as CJI superseding three senior Judges.
→ Justice M.H. Beg was appointed superseding Justice H.R. Khanna (1975).

• The other Judges of the Supreme Court and the High Court are appointed by the President after ‘consulting’ the CJI.

• The final decisions in matters of appointment rested with the Council of Ministers.

• This matter came up before the Supreme Court again and again between 1982 and 1998.

• Finally, the Supreme Court has suggested that 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 proven misbehaviour or incapacity.
→ A motion containing the charges against the judge must be approved by special majority in both Houses of the Parliament.

• 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. So far, only one case of removal of a judge of the Supreme Court came up for consideration before Parliament.

• So far, only one case of removal of a judge of the Supreme Court came up for consideration before Parliament.

Structure of Judiciary

Supreme Court of India

• Its decisions are binding on all courts.

• Can transfer Judges of High Courts.

• Can move cases from any court to itself.

• Can transfer cases from one High Court to another.

High Court

• Can hear appeals from lower courts.

• Can issue writs for restoring Fundamental Rights.

• Can deal with cases within the jurisdiction of the State.

• Exercises superintendence and control over courts below it.

District Court

• Deals with cases arising in the District.

• Considers appeals on decisions given by lower courts.

• Decides cases involving serious criminal offences.

Subordinate Courts

• Consider cases of civil and criminal nature

Jurisdiction of Supreme Court

• Original: Setties 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: Can grant special leave to an appeal from any judgment or matter passed by any court in the territory of India.

In Detail

Original Jurisdiction

• Original jurisdiction means cases that can be directly considered by the Supreme Court without going to the lower courts before that.

• Cases involving federal relations go directly 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 States; and among the States 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 Union and State government as laid down in the Constitution.

Writ Jurisdiction

• 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 to act in a particular way.

Appellate Jurisdiction

• The Supreme Court is the highest court of appeal.

• A person can appeal to the Supreme Court against the decisions of the High Court.

• However, 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. Of course, the Supreme Court holds the powers to decide whether to admit appeals even when 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 and along with that also give new interpretation of the provision involved.

• The High Courts too, have appellate jurisdiction over the decisions given by courts below them.

Advisory Jurisdiction

• In addition to original and 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 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.

Article 137
........ the Supreme Court shall have power to review any judgment 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).

• In normal course of law, an individual can approach the courts only if he/she has been personally aggrieved.

• That is to say, a person whose rights have been violated, or who is involved in a dispute, could move the court of law. This concept 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.

• Around the same time, the Supreme Court also took up the case about rights of prisoners. This opened the gates for large number of cases where public spirited citizens and voluntary organisations sought judicial intervention for protection of existing rights, betterment of life conditions of the poor, protection of the environment, and many other issues in the interest of the public.

• PIL has become the most important vehicle of judicial activism.

• Through the PIL, the court has expanded the idea of rights.

• Clean air, unpolluted water, decent living etc. are rights for the entire society.

• Therefore, 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.

• Secondly, through PIL and judicial activism of the post-1980 period, the judiciary has also shown readiness to take into consideration rights of those sections who 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.

Negative side of PIL

• In the first place it has overburdened the courts.

• Secondly, 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 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 Court's 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).

Judicial Review by Supreme Court


• Perhaps 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 arrives at the conclusion 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.

• 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.

• Together, the writ powers and the review power of the Court make judiciary very powerful. In particular, the review power means that the judiciary can interpret the Constitution and the laws passed by the legislature.

• The practice of entertaining PILs has further added to the powers of the judiciary in protecting rights of citizens.

Judiciary and Parliament

• The following issues were at the centre of the controversy between the Parliament and the judiciary.
→ What is the scope of right to private property?
→ What is the scope of the Parliament's power to curtail, abridge or abrogate fundamental rights?
→ What is the scope of the Parliament's power to amend the constitution?
→ Can the Parliament make laws that abridge fundamental rights while enforcing directive principles?
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