Subject: Political Science

Ch-6 Judiciary - Notes & Worksheet

Class-11

Overview of the chapter

In this chapter, we will study the role and importance of the judiciary. 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 protecting the Constitution.

Judiciary is concerned with the interpretation of laws. It punishes those who commit crimes or
have broken a law.

Role of judiciary

 All disputes are settled by an independent body –judiciary in accordance with the principle
of rule of law
 Rule of law implies that all individuals-rich and poor, men and women, forward or
backward are subjected to the same law. It also means the absence of arbitrary powers in
the hands of rulers.
 To protect the rule of law and ensure the supremacy of the law
 It safeguards the rights of the individual and ensures that democracy does not give way to
individual or group dictatorship.

Independence of judiciary

1. It means that the other branches of the government, namely, the executive and the
legislature, do not interfere with the judiciary’s functioning.
2. The judiciary’s decision is respected and not interfered with by the other organs.
3. It also means that judges can perform their duties without fear or favor.

Provisions that ensure the independence of the judiciary

1. Separation of Judiciary from the Executive and Legislature:

Judiciary in India is neither a branch of the executive nor a hand-maid of the legislature. It has an
independent identity under the Constitution. It enjoys full autonomy in its work.

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2. Appointment of Judges by the President:
The method of appointment of judges has been very sound. The Judges of the Supreme Court and
High Courts are appointed by the President. While appointing other judges to the Supreme Court,
the President consults the Chief Justice of India. Thus, neither political bias nor personal favoritism
would play any part in the appointment of judges

3. High Qualifications:
The Constitution prescribes specific and high qualifications for Judges. A person eligible for a
judgeship has to be an Indian citizen, must have experience as a Judge of a High Court for at least
five years or as an advocate of the High Court for at least ten years, or be a distinguished jurist.
Thus, only persons with high qualifications and experience are appointed as judges of the courts.

4. Long Tenure:
Judges of the Supreme Court remain in office till they attain the age of 65 years. This age limit
ensures a long tenure for the Judges.

5. Security of Tenure:
The Judges in India enjoy good security of service. No judge can be removed from office except
by a very difficult process of impeachment. In India, a Supreme Court judge can remain in office
till the age of 65 years and a High Court judge till the age of 62 years.

6. High Salary:
Every Judge of the Supreme Court gets a high salary. Besides this, each judge is entitled to free
residential accommodation, medical allowance, and several other perks. Salaries and allowances
of judges cannot be reduced during their terms of office, except in the situation of a financial
emergency in the country.

7. Prohibition of Practice after Retirement:

A Judge of the Supreme Court is prohibited to practice before any court or authority in India.

8. No discussion with respect to the Conduct of any judge:

No discussion shall take place in the Parliament or State Legislature concerning the conduct of any
judge in the discharge of their duties except when a motion for his removal is under consideration.

Appointment of Judges of the Supreme Court

The Chief Justice of India and the Judges of the Supreme Court are appointed by the President
under clause (2) of Article 124 of the Constitution.

Whenever a vacancy is expected to arise in the office of a Judge of the Supreme Court, the Chief
Justice of India will initiate a proposal and forward his recommendation to the Union Minister of
Law, Justice to fill up the vacancy.

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The Collegium system is a process through which decisions related to appointments and transfer
of judges in the Supreme Court and High Court are taken by a collegium which consists of CJI,
five senior-most judges of the Supreme Court, and senior most judge hailing from the High Court
of a prospective appointee. Currently, there are 34 judges of the Supreme Court.

Chief Justice of India- Article 126 deals with t h e appointment of an acting Chief
Justice ofIndia.
 When the current CJI retires, he recommends the name of the senior-most judge i.e,
bydate of appointment by the President of India.
 The longer a judge has been part of the Supreme Court, the more senior he or she is.
 The Union Minister of Law, Justice would seek the recommendation of theoutgoing CJI
of India for the appointment of the next CJI.
 He will put up the recommendation to the PM who will advise the President.

Appointment of the High Court Judges: The Chief Justice of a High Court is appointed by the
President with the consultation of the Chief Justice of the Supreme Court and the Governor of the
State. ... A Judge of a High Court may also be removed like a judge of the Supreme Court. The
other judges are appointed by the will of the President, Governor, and the Chief Justice of the High
Court.

Removal of judges

 The procedure relating to the removal of a judge of the Supreme Court is regulated by the
Judges Inquiry Act, of 1968, by the process of impeachment. The judge of the Supreme
Court or the High Court can be removed only on the ground of - proven misbehavior
or incapacity.
 A judge of the Supreme Court can be removed from his office by an order of the
President. The President can issue the removal order (Impeachment) after an address by
the Parliament, supported by a special majority of each House of Parliament (that is, a
majority of the total membership of that House and a majority of not less than two-thirds
of the members of that house present and voting), has been presented to the President in
the same session of Parliament for such removal.
 In case of appointment, the executive plays a crucial role, while the legislature has the
powers of removal. This has ensured both the balance of power and independence of the
judiciary.

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Structure of judiciary

Jurisdiction of Supreme Court

(1) Original Jurisdiction:

The Original Jurisdiction extends to those cases over which Supreme Court has the authority to
hear and decide in the first instance. . The Original Jurisdiction of the Supreme Court establishes
it as an umpire in all disputes regarding federal matters. It involves the following cases:
(i) Disputes between the Government of India and one or more States.
(ii) Disputes between the Government of India and any State or States on the one side and one or
more States on the other.
(iii) Disputes between two or more States which involve any question on which the existence ofa
legal right depends.
In other words, all legal disputes between the center and states and among states can be heard and
settled by the Supreme Court.

2. Appellate Jurisdiction:
The Supreme Court is the highest and the final Court of Appeal in all civil and criminal cases. It
can hear appeals against the decisions of the State High Courts, and this constitutes its Appellate
Jurisdiction. It also means that the Supreme Court will reconsider the case and the legal issues
involved in it and will change the ruling and give a new interpretation of the provision involved.
The appeal can come before the Supreme Court in case the High Court issues a certificate to this
effect. In criminal cases, an appeal lies from any judgment given by the High Court if:

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(i) The High Court has reversed an order of acquittal of an accused and sentenced him to death;
or
(ii) The High Court has withdrawn for trial a case from any subordinate court and awarded a
deathsentence to the accused; or
(iii) The High Court certifies under Article 134(A) that the case is fit for appeal to the Supreme
Court.

3. Advisory Jurisdiction:
The President of India can seek the advice of the Supreme Court in respect of any legal matter of
high public importance. In such a case the Supreme Court has to give its advisory opinion to the
President. However, such advice is not binding upon the President and even Supreme Court is not
bound to give advice. In August 2002, then President Dr. Abdul Kalam sought the advice of the Supreme
Court under Article 143 in connection with the controversy between the Election Commission and the
Government on elections in Gujarat.
Utility of Advisory powers of the Supreme Court:
a. It allows the government to seek legal opinion on a matter of importance before taking an action
on it which may prevent unnecessary legal action
b. In the light of the advice of the Supreme Court, the government can make suitable changes in its
action or legislatures.

4. Writ jurisdiction
The Supreme Court and the High Courts have the power to issue writs for the enforcement of the
Fundamental Rights of the people. It acts as the guardian protector of the fundamental rights of
the people.

5. Power to Interpret and Protect the Constitution:

The Constitution of India is the supreme law of the land. The Supreme Court acts as the final
interpreter and guardian of the Constitution. It has the power to reject any law that it finds to be
unconstitutional. It can determine the constitutional validity of all laws which are challenged
before it. This is known as the Court’s power of Judicial Review.

6. Supreme Court as the Court of Record:

The Supreme Court is a Court of Record. Its decisions bind all courts in India. High Courts and
Subordinate Courts use their decisions/judgments as laws and decide the cases before them.
Records of the Supreme Court are admitted as final evidence and cannot be questioned when these
are produced and referred to in any court in India.

Article 137
........ the Supreme Court shall have the 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

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Judicial Activism

Meaning:
The expression activism means vigorous action in pursuit of an objective. During the last more
than 30 years our judiciary, driven by a large number of factors such as Public Interest Litigation,
took the course in legal circles that came to be called Judicial Activism.
As to its meaning, Judicial Activism is not a distinctly separate concept from usual judicial
activities.
 The chief instrument through which judicial activism has flourished in India is Public
Interest Litigation (PIL)
 PIL means when a case is filed in court not by the aggrieved person but by others on their
behalf. As this case involves a consideration of an issue of public interest, it and such other
cases came to be known as Public interest litigation
 This opened the gates for a large number of cases where public-spirited citizens and
voluntary organizations sought judicial intervention for the protection of existing rights,
betterment of living 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
 Example- In the case of Paramanand Katara vs Union of India Supreme Court held that in
the field of Public Interest Litigation, which was filed by a human rights activist for the
general public interest that it is a paramount obligation of every member of the medical
profession to give medical aid to the injured person as soon as possible without waiting for
any procedural formalities

Advantages of PIL

 Vigilant citizens can find an inexpensive remedy because there is only a nominal rate of
court fees.
 Litigants can focus attention on and achieve results about larger public issues,
especially in the field of human rights, consumer welfare, and the environment
 Through PIL the court has expanded the idea of rights
 Clean air, unpolluted water, decent living, etc. are rights for the entire society
 Through PIL and judicial activism of the post-1980 period, the judiciary has also shown
readiness to take into consideration the rights of those sections who cannot approach the
courts easily.
 For this purpose, the judiciary allowed public-spirited citizens, social organizations, and
lawyers to file petitions on behalf of the needy and the deprived

Judicial Activism’s impact on the political system

 It has democratized the judicial system by giving not just individuals but also group
access to the courts
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  It has forced executive accountability
 It has also attempted to make the electoral system much fairer and freer

Negative effects of PIL

 It has overburdened the courts.

 Many people have started handling PIL as a tool for harassment because frivolous cases
can be filed without heavy court fees as compared to private litigations.
 The judiciary has been criticized due to the overstepping of its jurisdiction and that it is
unable to implement its orders effectively.
 Judicial activism has blurred the line of distinction between the executive and legislature
on the one hand and the judiciary on the other.
 PIL is being misused by the public agitating for private grievances in the grab of public
interest by seeking publicity rather than supporting the public cause
 Judicial activism has made the balance among the three organs of government very
delicate

Judiciary and Rights

The judiciary is entrusted with the task of protecting t h e rights of individuals. The
Constitutionprovides 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).

 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 concludes that the law is inconsistent with the
provisions of the Constitution, such a law is declared unconstitutional and inapplicable.
 Together, the writ powers and the review power of the Court make the judiciary
very powerful. In particular, the review power means that the judiciary can interpret
theConstitution and the laws passed by the legislature.

Judiciary and Parliament

 The courts have been active in seeking to prevent undermining the authority of the
Constitution through political practice. For example- the powers of the President and
Governor have been brought under the purview of the courts.
 Also there were many other instances where the Supreme Court actively involved itself in
the administration of justice by giving directions to the executive agencies. Example-

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 CBI gave directions to investigate politicians and bureaucrats in the Hawala case, illegal
allotments of petrol pumps, etc.
 The Indian Constitution is based on a delicate principle of limited separation of powers and
checks and balances.
 In 1973, the Supreme Court gave a decision that has become very important in regulating
the relations between the Parliament and the judiciary. It was the famous Keshavnanda
Bharti case.
a. In this case, the Court ruled that there is a basic structure of the Constitution and
nobody, not even the Parliament can violate the basic structure (even through
amendment).
b. It also said that the right to property was not part of the basic structure and therefore
could besuitably abridged/ removed.
c. The Court reserved to itself the right to decide whether various matters are part of the
basic structure of the Constitution.

Judicial Overreach

There is a thin line dividing judicial activism and judicial overreach. While the former implies
the use of judicial power to articulate and enforce what is beneficial for the society in general, the
latter is when judicial activism crosses its limit. Although this is a matter of perspective, many
examples are widely regarded as cases of judicial overreach in India.

 Judicial overreach is when the judiciary starts interfering with the proper functioning of
the legislative or executive organs of the government, i.e., the judiciary crosses its function
and enters the executive and legislative functions.
 Judicial overreach is considered undesirable in a democracy. 
 It also goes against the principle of separation of powers.
 In defense of judicial overreach, the judiciary has always maintained that it stepped in only
when there were cases of executive and legislative underreach. 

Examples
NJAC bill and the 99th constitutional amendment
The Supreme Court struck down the National Judicial Appointments Commission (NJAC) which
was established through the 99th Constitutional Amendment on grounds that it was
unconstitutional. This was to replace the collegiate system.
Allahabad High Court Order
In 2015, the Allahabad High Court passed an order stating that children of public functionaries/
bureaucrats in Uttar Pradesh should be enrolled only in government schools.

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Questions to be attempted:

1. What is the importance of the judiciary in a democratic country like India? (4)
2. What are the different provisions mentioned in the constitution to maintain the
independence of the judiciary? (4)
3. How can a judge of the Supreme Court be removed from his office? Explain the
procedure. (6)
4. How is judicial activism related to the protection of fundamental rights? Has it
helped in expanding the scope of fundamental rights? (6)