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Judiciary is important and independent organ of the government.
Structure of Indian Judiciary is ÷
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2..High Court
3...District Court
Why do we need a Judiciary?
1..Plays important role in interpreting and in protecting the constitution
2..Disputes can arise between individuals, between groups and between individuals or groups and government.
3..Role of Judiciary is to protect rule of law and ensure supremacy of law.
4..Rule of law means law doesn’t discriminate anyone basing on religion, caste, creed, gender and law is supreme for everyone.
5..Safeguard rights of the individual and settles disputes.
6..Judiciary safeguard democracy by ensuring that an individual or a group does not become dictator.
7..Judiciary is important body of a government, without any political pressures.
Independence of Judiciary means:
1.. No restrain on the functioning of Judiciary by other organs of the government.
2.. No interference with the decision of Judiciary
Judges perform their functions without fear or favor.
3.. Independent Judiciary doesn’t mean arbitrariness or having no accountability.
4.. Judiciary is accountable to the Constitution, to the democratic traditions and to the people of the country.
Measures to maintain the Independence of Judiciary:
1.. Independence doesn’t imply absence of accountability.
2..Legislature isn’t involved in the process of appointment of Judges. Appointment of Judges is based on experience as a lawyer and/or must be well versed in law.
3..Political opinions or political loyalty should not be the criteria for appointments.
4..Security of tenure ensures that judges could function without fear of favor.
5..Judiciary isn’t financially dependent on executive or legislature.
6.. Judiciary has the power to penalize those who are found guilty of contempt of court.
7..Parliament cannot discuss the conduct of the judges except when the proceeding to remove a judge is being carried out.
Appointment of Judges-
1.. Council of Ministers, governors and Chief Ministers and Chief Justice of India (CJI) all influence the process of judicial appointment.
2.. Appointment of Chief Justice of India (CJI) follows the convention of appointing the senior-most judge of the Supreme Court was appointed as the Chief Justice of India.
This convention was however broken twice.
3.. In 1973 A. N. Ray was appointed as CJI superseding three senior Judges. Again, Justice M.H. Beg was appointed superseding Justice H.R. Khanna (1975).
4.. Chief Justice of India recommends names of person to be appointed judges of Supreme Court and High Court in consultation with four senior most judges of the court. This system is called Collegium.
5.. The Judges are appointed by President after Consultation with Chief Justice of India.
Tenure of Judges is not fixed in Supreme Court.
There are these provisions:
* He/ She holds office until he attains the age of 65 years.
* He/ She can resign his office by writing to the president.
*He/ She can be removed from his office by the President on the recommendation of the Parliament.
Removal of Judges-
* A Judge can be removed only on the ground of proven misbehavior or incapacity.
*A motion containing the charges against the judge must be approved by special majority in both houses of the Parliament.
* Unsuccessful Attempt to remove a Judge was seen in 1991.
* First ever motion to remove a Supreme Court Justice (V.Ramaswami) was signed by 108 members of Parliament.
*While in making appointments, the executive plays a crucial role; whereas the legislature has the powers of removal. This is in order to maintain balance of power and independence of the judiciary.
Process of removal of a Judge-
● The Judges Enquiry Act (1968) regulates the procedure relating to the removal of a judge of the Supreme Court by the process of impeachment:
● A removal motion signed by 100 members (in the case of Lok Sabha) or 50 members (in the case of Rajya Sabha) is to be given to the Speaker/Chairman.
● The Speaker/Chairman may admit the motion or refuse to admit it. If it is admitted, then the Speaker/Chairman is to constitute a three member committee to investigate into the charges.
● The committee should consist of
(a) the chief justice or a judge of the Supreme Court,
(b) a chief justice of a high court, and
(c) a distinguished jurist.
● If the committee finds the judge to be guilty of misbehavior or suffering from an incapacity, the House can take up the consideration of the motion.
● After the motion is passed by each House of Parliament by special majority, an address is presented to the president for removal of the judge.
● Finally, the president passes an order removing the judge. No judge of the Supreme Court has been impeached so far.
Structure of the Judiciary
The Constitution of India provides for a single integrated judicial system. This provision in Indian Constitution has been taken from Government of India Act, 1935.
Judiciary in India has a pyramidal structure, meaning that unlike other federal countries in world, India does not have separate State courts
Supreme Court of India-
☆ It is the apex 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.
☆ It is the protector and guarantor of the fundamental right.
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.
☆ There are 25 High Courts in India.
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-
The Supreme Court of India is most powerful court anywhere in the world. The functions and responsibilities of the Supreme Court are defined by the Constitution.
1.. Original Jurisdiction
It refers to the cases that can be directly considered by the Supreme Court without going to the lower courts before that.
Cases here relate to the federal matters, meaning cases that arises between Union and the States; and among the States themselves.
It is called original Jurisdiction because Supreme Court alone has the power to deal with such cases.
SC here also interprets the powers of Union and State government as laid down in the Constitution.
2.. Writ Jurisdiction
If Fundamental right has been violated, aggrieved person can directly move the Supreme Court for remedy under Art. 32 or to High Court under Art. 226 of Constitution of India.
The Supreme Court and High Court can give special orders in the form of writs.
Through writs, the Court can give orders to the executive to act or not to act in a particular way.
3.. Appellate Jurisdiction
The Supreme Court is the highest court of appeal.
An appeal can be made in SC against the decisions of the High Court.
An appeal can be made only if High court finds case is fit for appeal, or needs an interpretation of law or constitutional provision.
SC has the power whether or not to accept the appeal and id accepted will give the interpretation.
In same way High Court has appellate jurisdiction over lower courts.
4.. Advisory Jurisdiction
The President of India can seek advice of SC on matters of public importance or that which involves interpretation of Constitution.
SC is not bound to give such advice neither President is binding to follow that advice.
However it has two fold importance:
1) Avoid litigation on Govt. part by avoiding such actions.
2) Advice of the Supreme Court, allows government to make suitable changes in its action or legislations.
Decisions made by the Supreme Court are binding on all other courts within the territory of India.
Supreme Court can review it’s own decision and has done at several instances in past.
Cases of contempt of SC are heard by SC only.
JUDICIAL ACTIVISM
Normal Scenario: an individual can approach the courts only if he/she has been personally aggrieved.
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.
Court filed by activist, public spirited citizens and voluntary organisation on behalf of other people, relating to matters of public importance. These are called Public Interest Litigation (PIL).
PIL largely referred to the issues like, protection of existing rights, betterment of life conditions of the poor, environmental concerns etc.
Initially PIL were based on basis of newspaper reports and postal complaints received by the court. Court usually heard cases brought to it but this step reflected the activist part of Judiciary and hence referred to as Judicial activism.
Post-1980 period, through PIL Judiciary also heard cases of that section of society who can’t easily approach court.
Judicial Activism has served in various ways:
1) It has mad Judiciary pro-active and more accessible for everyone.
2) Renewed faith in Judiciary among people.
3) It has forced Executive to be more responsive and accountable.
4) It has made electoral system much more free and fair.
Judicial Activism has certain drawbacks as well:
1) Interference with the task of Executive and Legislative.
2) Disturbed the balance between 3 organs of Government (Legislative, Executive and Judiciary)
3) It could be a threat to principles of the democracy.
Judicial Review-
SC protects rights of individual in two ways:
1) Restore Fundamental Rights by issuing writs under Article 32.
2) SC can declare the concerned a law as unconstitutional (ultra vires) and therefore non-operational (Article 13).
SC is protector of the Fundamental Rights of Citizen and final interpreter of Constitution.
SC has the power 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.
Constitution of India has no mention of term Judicial Review. Despite this India’s written Constitution and invoking writs to protect Fundamental Rights indicates towards Judicial Review power of the court.
SC can use review power if a law violates the distribution of powers laid down by the Constitution under 7th Schedule.The review power also extends to the laws made by state legislature.
JUDICIARY AND PARLIAMENT
In order to prevent control of Courts by legislature certain provisions are brought. Powers of the President and Governor were brought under the purview of the courts. SC involvement in administration of Justice by ordering probe by executive agencies like CBI. These cases relate to functionaries of Executive and Legislative involving corruption and other charges.
Principle of separation of Power:
Legislature: making laws and amending the Constitution
Executive: implementing these
Judiciary: settling disputes and assuring laws made are consistent with the Constitution.
Right to Property, is one fine example demonstrating relation of Judiciary and Parliament:
In order to initiate Land Reforms, Parliament wanted to curtail land holding by the people.To do so Parliament through an amendment abrogated the Right to Property.
SC said that even through an amendment, a fundamental right cannot be abridged. Period from 1967-1973 saw this controversy become serious.
Besides land reforms there were other contentious issues like laws enforcing preventive detention, laws governing reservations in jobs, regulations acquiring private property for public purposes, and laws deciding the compensation for such acquisition of private property.
In 1973 SC in it’s ruling of Kesavananda Bharati case laid down the Basic Structure of Constitution which will be defined from time to time by SC and any law inconsistent with this can be struck down by the SC, even if that has been done by Parliament through amendment.
Right to Property was removed from Fundamental Rights in 1979.
Relation between Parliament and Judiciary has several contentious issues:
■ can the judiciary intervene in and regulate the functioning of the legislatures? Or legislature does this on their own.
■ Can a person who is held guilty for breach of parliamentary privileges seek protection of the courts? Or should be totally in the hands of Presiding Chair of the respective House of Legislature.
■ Can a member of the legislature against whom the legislature has taken disciplinary action get protection from the court?
■ Similarly, should the conduct of judges be discussed in the Parliament?
These questions raises concerns over principle of Parliamentary Sovereignty and Independence of Judiciary.
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