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Chapter Six
JUDICIARY
INTRODUCTION
Many times, courts are seen only as arbitrators in disputes between individuals
or private parties. But judiciary performs some political functions also. Judiciary
is an important organ of the government. The Supreme Court of India is in fact,
one of the very powerful courts in the world. Right from 1950 the judiciary has
played an important role in interpreting and in protecting the Constitution. In
this chapter you will study the role and importance of the judiciary. In the
chapter on fundamental rights you have already read that the judiciary is very
important for protecting our rights. After studying this chapter, you would be
able to understand
± the meaning of independence of judiciary;
± the role of Indian Judiciary in protecting our rights;
± the role of the Judiciary in interpreting the Constitution; and
± the relationship between the Judiciary and the Parliament of India.
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WHY DO WE NEED AN INDEPENDENT JUDICIARY?
In any society, disputes are bound to arise between individuals,
between groups and between individuals or groups and government.
All such disputes must be settled by an independent body in
accordance with the principle of rule of law. This idea of rule of law
implies that all individuals — rich and poor, men or women, forward
or backward castes — are subjected to the same law. 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.
What is meant by an independent
judiciary? How is this independence
ensured?
Independence of Judiciary
Simply stated independence of
judiciary 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 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 No fisticuffs please, this is rule of law!
READ A CARTOON
R K Laxman in The Times of India.
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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
and protected?
The Indian Constitution has ensured the
independence of the judiciary through a number of
measures. The legislature is not involved in the process of
appointment of judges. Thus, it was believed that party
politics would not play a role in the process of
appointments. In order to be appointed as a judge, a
person must have experience as a lawyer and/or must be
well versed in law. Political opinions of the person or his/
her political loyalty should not be the criteria for
appointments to judiciary.
The judges have a fixed tenure. They hold office till
reaching the age of retirement. Only in exceptional cases,
judges may be removed. But otherwise, they have security
of tenure. Security of tenure ensures that judges could
function without fear or favour. The Constitution
prescribes a very difficult procedure for removal of judges.
The Constitution makers believed that a difficult
procedure of removal would provide security of office to
the members of judiciary.
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. The actions and
decisions of the judges are immune from personal
criticisms. The judiciary has the power to penalise those
who are found guilty of contempt of court. This authority
of the court is seen as an effective protection to the judges
from unfair criticism. Parliament cannot discuss the
conduct of the judges except when the proceeding to
remove a judge is being carried out. This gives the
judiciary independence to adjudicate without fear of being
criticised.
I remember the case of Machal
mentioned in chapter two.
Don’t they say, ‘justice delayed
is justice denied’? Somebody
should do something about
this.
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Activity
Hold a debate in class on the following
topic.
Which of the following factors do you think,
work as constraints over the judges in
giving their rulings? Do you think these are
justified?
± Constitution
± Precedents
± Opinion of other courts
± Public opinion
± Media
± Traditions of law
± Laws
± Time and staff constraints
± Fear of public criticism
± Fear of action by executive
Appointment of Judges
The appointment of judges has never been free from
political controversy. It is part of the political process. It
makes a difference who serves in the Supreme Court and
High Court— a difference in how the Constitution is
interpreted. The political philosophy of the judges, their
views about active and assertive judiciary or controlled
and committed judiciary have an impact on the fate of the
legislations enacted. Council of Ministers, Governors and
Chief Ministers and Chief Justice of India — all influence
the process of judicial appointment.
As far as the appointment of the Chief Justice of India
(CJI) is concerned, 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.
Again, Justice M.H. Beg was appointed superseding
Justice H.R. Khanna (1975).
I am afraid, I am getting
confused. In a democracy, you
can criticise the Prime Minister
or even the President, but not
the judges! And what is this
contempt of court? But am I
being guilty of contempt if I
asked about these matters?
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The other Judges of the Supreme Court and the High
Court are appointed by the President after ‘consulting’
the CJI. This, in effect, meant that the final decisions in
matters of appointment rested with the Council of
Ministers. What then, was the status of the consultation
with the Chief Justice?
This matter came up before the Supreme Court again
and again between 1982 and 1998. Initially, the court
felt that 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
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. At the
moment therefore, in matters of appointment the decision
of the group of senior judges of the Supreme Court carries
greater weight. Thus, in matters of appointment to the
judiciary, the Supreme Court and the Council of Ministers
play an important role.
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. Do you remember what special majority
means? We have studied this in the chapter on Elections.
It is clear from this procedure that removal of a judge is a
very difficult procedure and unless there is a general
consensus among Members of the Parliament, a judge
cannot be removed. 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
But I think, finally the Council
of Ministers would have greater
say in appointing judges. Or is
it that the judiciary is a self- appointing body?
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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. In that case, though the motion
got two-thirds majority, it did not have the support of the majority of
the total strength of the House and therefore, the judge was not
removed.
Unsuccessful Attempt to Remove a Judge
In 1991 the first-ever motion to remove a Supreme Court
Justice was signed by 108 members of Parliament. Justice
V. Ramaswami, during his tenure as the Chief Justice of
the Punjab and Haryana High Court was accused of
misappropriating funds. In 1992, a year after Parliament
had started the removal proceedings, a high-profile inquiry
commission consisting of Judges of the Supreme Court
found Justice V. Ramaswami “guilty of wilful and gross
misuses of office . . . and moral turpitude by using public
funds for private purposes and reckless disregard of
statutory rules” while serving as the Chief Justice of the
Punjab and Haryana High Court. Despite this strong
indictment, Ramaswami survived the parliamentary
motion recommending removal. The motion
recommending his removal got the required two-thirds
majority among the members who were present and voting,
but the Congress party abstained from voting in the
House. Therefore, the motion could not get the support of
one-half of the total strength of the House.
Check your progress
± Why is independence of the judiciary
important?
± Do you think that executive should have
the power to appoint judges?
± If you were asked to make suggestions
for changing the procedure of appointing
judges, what changes would you
suggest?
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STRUCTURE OF THE JUDICIARY
The Constitution of India provides for a single integrated judicial
system. This means that unlike some other federal countries of the
world, India does not have separate State courts. 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 (see the diagram below). The lower courts function
under the direct superintendence of the higher courts.
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
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Jurisdiction of Supreme Court
The Supreme Court of India is one of the very powerful courts
anywhere in the world. However, it 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
of India
Original
Settles
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 judgement or
matter passed by any court in the territory of India.
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Original Jurisdiction
Original jurisdiction means cases that can be directly considered by
the Supreme Court without going to the lower courts before that.
From the diagram above, you will notice 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
As you have already studied in the chapter on fundamental rights,
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
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protection of the environment, and many other issues in
the interest of the public. PIL has become the most
important vehicle of judicial activism.
Judiciary, which is an institution that traditionally
confined to responding to cases brought before it, began
considering many cases merely on the basis of newspaper
reports and postal complaints received by the court.
Therefore, the term judicial activism became the more
popular description of the role of the judiciary.
Some Early PILs
± In 1979, newspapers published reports about
‘under trials’. There were many prisoners in
Bihar who had spent long years in jail, longer
than what they would have spent if they had
been punished for the offences for which they
were arrested. This report prompted an
advocate to file a petition. The Supreme Court
heard this case. It became famous as one of
the early Public Interest Litigations (PILs). This
was the Hussainara Khatoon vs. Bihar case.
± In 1980, a prison inmate of the Tihar jail
managed to send a scribbled piece of paper to
Justice Krishna Iyer of the Supreme Court
narrating physical torture of the prisoners.
The judge got it converted into a petition.
Though later on, the Court abandoned the
practice of considering letters, this case,
known as Sunil Batra vs. Delhi Administration
(1980) also became one of the pioneers of
public interest litigation.
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
I have heard someone say that
PIL means ‘private interest
litigation’. Why would that
be so?
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Together these two provisions of the 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. The second of
the two ways mentioned above involves judicial review.
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.
Besides, as we saw in the section on jurisdiction of the
Supreme Court, 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. Suppose, the central government makes
a law, which according to some States, concerns a subject
from the State list. Then the States can go to the Supreme
Court and if the court agrees with them, it would declare
that the law is unconstitutional. In this sense, the review
power of the Supreme Court includes power to review
legislations on the ground that they violate fundamental
rights or on the ground that they violate the federal
distribution of powers. The review power extends to the
laws passed by State legislatures also.
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. Many
people think that this feature enables the judiciary to
protect the Constitution effectively and also to protect the
rights of citizens. The practice of entertaining PILs has
further added to the powers of the judiciary in protecting
rights of citizens.
I think I’d rather become a
judge! Then, I won’t have to
worry about elections and
public support, and can still
have really lots of power.
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