Judiciary refers to an institution empowered to administer justice and provide a mechanism for the resolution of legal disputes. All the courts at different levels in a country put together are called the judiciary.
The Indian judiciary consists of a Supreme Court for the entire nation, High Courts and Subordinate Courts in the states, District Courts and the courts at the local level and Lok Adalats. India has an integrated or unified judiciary. It means that the Supreme Court controls the judicial administration in the country. Its decisions are binding on all other courts of the country.
Independence of Judiciary
It means that judiciary is not under the control of the legislature or the executive. The judges do not act on the direction of the government or according to the wishes of the political party in power. That’s why all modem democracies including India have courts that are independent of the legislature and the executive.
Appointment of Judges of Supreme Court and High Courts
The judges of the Supreme Court and the High Courts are appointed by the President on the advice of the Prime Minister and in consultation with the Chief Justice of the Supreme Court. The senior judges of the Supreme Court select the new judges of the Supreme Court and the High Courts. There is, very little scope of interference by the political executive. The senior most judge of the Supreme Court is usually appointed the Chief Justice.
Removal of a Judge of Supreme Court and High Court
Once a person is appointed as judge of the Supreme Court or the High Court, it is nearly impossible to remove him or her from that position. It is as difficult as removing the President of India.
A judge can be removed only by an impeachment motion passed separately by two-thirds members of the two houses of the Parliament. It has never happened in the history of Indian democracy.
Powers of the Supreme Court
The Supreme Court can take up any dispute
- between citizens of the country
- between citizens and government
- between two or more State Governments
- between governments at the union and state level
Role of the Supreme Court and the High Courts
The Supreme Court and the High Courts have the power to interpret the constitution of the country. They can declare invalid any law of the legislature or the actions of the executive, whether at the union level or state level if they find such law or action is against the Constitution. They can determine the constitutional validity of any legislation or action of the executive in the country when it is challenged before them. This is known as the judicial review.
The Supreme Court of India was also ruled that the core or basic principles of the. The constitution cannot be changed by Parliament.
Judiciary as the Highest Authority
The powers and the independence of the Indian judiciary allow it to act as the guardian of the Fundamental Rights. Anyone can approach the courts if the public interest is hurt by the actions of the government. This is called Public Interest Litigation (PIL).
The courts intervene to prevent the misuse erf the government’s power to make decisions. They check malpractices on the part of public officials. That is why, the judiciary enjoys a high level of confidence among the people.
In a federal state like India, U.S.A., etc. many a time conflicts can arise between the Central and the State governments or between two or more states. For example, there are certain conflicts between Haryana and Punjab over the question of the distribution of river waters or certain Parts of Hindi speaking or Punjabi speaking areas. In such a case who shall settle or decide the different disputes arising between the Central and State Government or between two or more states. So the Supreme Court or Judiciary is a must for the smooth running of every federation.
How does the Judicial setup function?
At the head of the Judicial system, there is the Supreme Court followed by the High Courts.
The Supreme Court is the highest judicial tribunal of India and as such it wields very extensive powers. It enjoys various Original, Appellate and Advisory Powers.
- Its Original jurisdiction extends to disputes arising between the Union Government and the states, between one state and the other and the citizen and the State. the Supreme Court is the guardian of the Fundamental Rights of the citizens.
- The Appellate Jurisdiction of the Supreme Court extends to both the criminal and the civil cases. It can hear appeals both in criminal and civil cases against the decision of the High Courts of different States.
- The Supreme Court also acts as the Guardian of the Indian Constitution. It can declare the laws passed by the Parliament and State Legislatures ultra vires (or voids) if such laws infringe any Article of the Constitution.
- In its Advisory, capacity the Supreme Court can guide the President on matters which he refers to it from time to time.
- The Supreme Court, as head of all the Courts of the country, also supervises and controls their working.
Then the High Courts, like the Supreme Court, also interpret the Constitution of the country and can declare any law of the state legislature as invalid if they find such a law of action against the Constitution. They can determine the constitutional validity of any legislation or the execution of the state when it is challenged before them. This power is known as the judicial review. Sometimes, this action of the High Courts striking down the laws of the executive led to the tension between the State Legislative Assemblies on the one hand and the State judiciary on the other.
The High Court also acts as the Guardian of the fundamental rights of the citizens. Moreover, High Courts have been given powers to give judgements and directives to protect the public interest and human rights. If the public interest of any citizen of affected by the action of the government, he can approach the courts. This is called public interest litigation. They also check malpractices like corruption and bribery on the part of any public officer. They interfere to prevent misuse of government powers.
Appeals against the District Courts and other Subordinate Courts can also be heard by the High Courts.
At the lowest level of judiciary come the District courts and other Subordinate Courts. They decide both the criminal and the civil cases in their own areas. Appeals against their decisions are heard by the High Courts of their respective states.
Of all the political institutions in the country, legislature executive, judiciary etc., the judiciary enjoys high confidence of the people.
Independence of Judiciary
For a successful federal democracy, it is most essential that the court of law should be independent to administer justice and to interpret the Constitution and the different laws passed by various legislatures from time to time. Independence of judiciary implies that neither the executive nor the legislature nor any government or private agency should be able to influence the judges. in the course of their discharge of duties as a judge Such independence of the judiciary has been ensured in India by means of the following provisions:
- Security of Service: The judges have sometimes to give decisions against the Government, which can be embarrassing. As such they have been given full security of service. It has been provided in the constitution that the judges shall be appointed by the president but cannot be removed from office by him. Only in the event of gross misbehaviour, acting against the provisions of the Constitution, Corruption or misuse of office can a judge be removed from service by means of an impeachment by the Parliament.
- Security of Pay and Allowances: In order to make a judge desist from accepting bribes or falling prey to any financial implications, they have been given handsome salaries, besides many allowances and other facilities. The Judges of the Supreme Court formerly used to get a monthly salary of Rupees 10,000 in the case of the Chief Justice and Rs. 9,000 in the case of other Judges. However, as a result of the recommendations of the Fifth pay Commission, their pay has been further hiked. The Judges of the Supreme Court will get
Rs. 30,000 per month while the Chief Justice will get above Rs. 30,000 level.
- Independent Procedure of the Court: The Supreme Court and the High Courts are free to decide their own procedure of work and their establishment. They are not likely to be influenced by any outside agency.
- No Practice after Retirement: In order to make the Judges impartial, they have not been allowed to practice after retirement.
- Free Decisions and Decrees: The judges are free to announce their decisions and decrees in their Conuts without any danger to their courts without any danger to their person, property and fame. Their decisions cannot be criticised by the public or the press. Their personal safety is the duty of the State and is ensured at all costs.
Question for Detailed Chapter Notes (Part - 2) - Working of Institutions
Try yourself:Two features of Indian judicial system are:
Two features of Indian Judicial system are:-
Integrated Judiciary system - The Constitution establishes a single integrated judicial system for the whole of India. The Supreme Court of India is the highest court of the country and below it are the High Courts at the state level.
Independent Judiciary system - The Constitution of India makes judiciary truly independent. It provides for appointment of judges by the President, high qualification for appointment of judges, removal of judges by a difficult method of impeachment.
The PresidentTerm of Office of the President:
- The President of India holds office for five years. He can be re-elected once after the expiry of his tenure.
- He gets a monthly salary of Rs. 50,000 in addition to a number of allowances, perks and privileges.
Essential Qualifications for the President:
- He should be a citizen of India.
- He should be of thirty-five years of age at the time of the election.
- He should not be insolvent or bankrupt.
- He should not hold any office of profit under the Central or State Government. If He holds any office, he should vacate such a post before seeking the election.
- He should not be a pronounced offender or a sentenced criminal under the law of the land.
Election of the President
- The President of India is not directly elected by the people. He is elected indirectly by an electoral college composed of the elected members of both the Houses of the Parliament as well as the Legislative Assemblies of the states in accordance with the system of proportional representation by means of a single transferable vote.
- Under this system, no vote goes to waste. The vote is cast by the ballot.
- The value of the vote of a member of the State Legislative Assembly is determined by the population of that state.
- The voting strength of all the Legislative Assemblies of all the States taken together is equal to the voting strength of the two Houses of the Parliament.
- The Person to be elected as the President of India must get a particular quota.
The quota is determined by the following formula:
- The President is elected for five years term, if he so desires, he can seek election for another five years.
He used to get a salary of twenty thousand rupees which could not be reduced during his term of office.
In August 1998, the Indian Parliament passed a bill hiking the pay of the President from Rs.20,000 to Rs. 50,000 in addition to his usual allowance, perks and privileges as detailed in the Second Schedule (Part-A) of the Constitution.
This hike has been necessitated because of the revision of the pay scales of the Central Government employees as a result of the recommendations of the Fifth Pay Commission.
Removal of the President
- There is a special procedure for the removal of the President. He can be removed by impeachment for violation of the Constitution.
- This impeachment can be initiated in either House of the Parliament by at least one-fourth of the total members of that House.
- The notice for this purpose is sent to the President and 14 days later, it can be taken up for consideration by the House concerned.
- Such a resolution must be passed by a two-thirds majority of the total number of the House.
- Then the other House investigates the charges. If the other House approves the charges by a two-thirds majority again, the President is removed.
- The President has the full right to defend himself personally or through his authorized counsel.
- The procedure for the removal of the President has thus been made difficult because the President holds an important or the rather most important position under the Constitution.
Powers and Functions of the President
- The President of India enjoys vast powers. He has to perform various functions spread over to executive, legislative, judicial, and financial fields.
- It must be mentioned here that in actual practice, these powers are actually exercised by the Prime Minister and his Council of Ministers.
Executive Powers of the President
- Administration of the whole country is carried on in his name.
- He makes important appointments like those of the Prime Minister of India, Central Ministers, Governors of the States, Ambassadors, and Judges.
- He is the Supreme Commander of the Indian Armed Forces and declares war as well as concludes peace treaties.
- He receives the credentials of ambassadors from other countries.
- The President has the power of directing, coordinating, and controlling the state Governments.
- The administration of the Union Territories and the Border Areas is the responsibility of the President.
Legislative Powers of the President
- The first session of the Parliament is addressed by the President in which he lays emphasis on the internal and external policies of the Government.
- He can summon or prorogue either House of the Parliament.
- He can dissolve the Lok Sabha and order fresh elections.
- He can address a Joint Session of the Parliament of each one of the Houses separately.
- He nominates 12 members to the Rajya Sabha from different strata of society and 2 members to the Lok Sabha to represent the Anglo-Indian community in India if none of their members gets a seat in the Lok Sabha.
- He can send messages to either House of Parliament.
- He is an integral part of the Parliament; therefore, no bill passed by both the Houses of the Parliament can become a law unless he signs it.
- He issues ordinances when the Parliament is not in session.
Judicial Powers of the President
The President has been given a number of powers in the judicial sphere also:
- He appoints the Chief Justice and other Judges of the Supreme Court of India and the State High courts.
- He can seek advice from the Supreme Court on any question of law or an important issue.
- He has the powers to grant pardon and to the remit of suspending a sentence of punishment of any appeal for mercy, He can commute even death sentence to imprisonment for life or otherwise.
- He is not answerable before any Court of law for the discharges of his duties.
- No criminal suit can be initiated against him during his tenure of office.
Financial Powers of the President of India
- No money bill can be presented in the Lok Sabha without the President’s prior permission.
- The budget of the Central Government is presented to Lok Sabha by the Union Finance Minister only with the permission of the President.
- He appoints Finance Commission after five years or earlier if there arises such a need.
- He distributes the shares of the Income Tax between the union and the States. All these powers of the President are, however, exercised by him only on the advice of the Cabinet.
Ceremonial Powers of the President of India
- Being Supreme Commander of all the three services, Army, Navy, and Air force, he takes salute on 26th January on Republic Day.
- The Diplomats of all foreign countries present the letters of their credentials before the President of India.
- The President of India receives the Heads of different States whenever they happen to pay a visit to India.
Emergency Powers of the President
Of all the powers vested in the President of India, the Emergency Powers are the most important. The President of India has three types of Emergency Powers which has a direct bearing on that State.
- Emergency caused by War, Foreign Aggression or/and Internal Disturbances and its effects on that state. If the president declares a state of emergency then the Parliament can enact laws for the whole country. The Fundamental Rights of Citizens stand suspended and the administration takes a Unitary Form of Government.
- Emergency caused by the Constitutional Breakdown and its Effects on the State. If the Governor of a State reports to the President that continuation of a Government according to the provisions of the Constitution is not possible, the President can declare an emergency in that state. In such a situation, the Council of Minister and the legislature are dissolved and the administration is carried on by the Governor as per the directive of the President.
- Financial Emergency and its Effects on the state. If there is an imminent danger to the financial stability of the country, the President can proclaim Financial Emergency. Consequent to this proclamation the president can reduce the pay and allowances of the government servants. He can also exercise control over the finances of the States.
Position of the President
From the above discussion, it becomes quite clear that the President holds an office of great prestige, but if we go a little deep we see that he enjoys very little power. The president cannot declare an emergency all by himself. It is on the advice of the Prime Minister that the President cannot declare an emergency all by himself. It is on the advice of the Prime Minister that the President can declare a state of emergency. A written request is sent by the Council of Ministers headed by the Prime Minister to the President and only then he can declare a state of emergency. Moreover, such a declaration must be approved by the parliament within one month.
Vice President of India
Election of the Vice-President
The Vice-President of the Indian Union is elected jointly by the Houses of Parliament. The procedure for his election consists of a secret ballot, proportion representation and a single transferable vote. An absolute majority of votes polled is also required for the election of the Vice-President. He now gets a salary of Rs. 40,000 per month besides various allowances and privileges.
Functions of the Vice-President of India
- Ex-Officio Chairman of the Rajya Sabha: Like the Vice-President of the U.S.A., the Vice-President of the Indian Union acts as the ex-official Chairman of the Rajya sabha.
- Acting as the President of India: If the office of the President falls vacant due to his resignation, death, Impeachment illness or absence from the country the vice-President of India, like his counterpart in the U.S.A., takes over as the President. But unlike the Vice-President of the U.S.A., our Vice-President holds this office only till a new President is elected.