NCERT Textbook - Judiciary Humanities/Arts Notes | EduRev

Political Science Class 11

Humanities/Arts : NCERT Textbook - Judiciary Humanities/Arts Notes | EduRev

 Page 1


124
Indian Constitution at Work
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.
2020-21
Page 2


124
Indian Constitution at Work
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.
2020-21
125
Chapter 6: Judiciary
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.
2020-21
Page 3


124
Indian Constitution at Work
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.
2020-21
125
Chapter 6: Judiciary
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.
2020-21
126
Indian Constitution at Work
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.
2020-21
Page 4


124
Indian Constitution at Work
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.
2020-21
125
Chapter 6: Judiciary
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.
2020-21
126
Indian Constitution at Work
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.
2020-21
127
Chapter 6: Judiciary
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?
2020-21
Page 5


124
Indian Constitution at Work
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.
2020-21
125
Chapter 6: Judiciary
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.
2020-21
126
Indian Constitution at Work
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.
2020-21
127
Chapter 6: Judiciary
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?
2020-21
128
Indian Constitution at Work
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?
2020-21
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