Judiciary Class 11 Political Science

Introduction

 Courts are often viewed as mediators in disagreements between individuals or private entities. However, the judiciary also carries out certain political functions and is a crucial part of the government. The Supreme Court of India is among the most powerful courts globally. Since 1950, the judiciary has been vital in interpreting and safeguarding the Constitution. This chapter will explore the judiciary's role and significance. Previously, in the chapter on fundamental rights, you learned about the judiciary's importance in protecting our rights. After studying this chapter, you will understand: 

•  The meaning of judicial independence. 
•  The Indian judiciary's role in safeguarding our rights. 
•  The judiciary's role in interpreting the Constitution. 
•  The relationship between the judiciary and the Parliament of India. 

Why do we need an Independent Judiciary?

• Dispute Resolution: In any society, conflicts are inevitable—whether between individuals, groups, or between individuals/groups and the government. These disputes need to be resolved by an independent authority following the principle of rule of law. 
• Rule of Law: This principle ensures that everyone, regardless of their status (rich or poor, man or woman, forward or backward caste), is subject to the same law. The judiciary's main role is to uphold this rule of law and maintain the supremacy of law. 
• Protection of Rights: The judiciary safeguards individual rights, settles disputes according to the law, and prevents democracy from slipping into dictatorship by individuals or groups. 
• Need for Independence: To perform these functions effectively, it is crucial that the judiciary is free from political pressures. An independent judiciary is essential for upholding the rule of law, protecting rights, and ensuring fair and impartial justice in society. 

Independence of Judiciary

• Meaning: The independence of the judiciary means that the other branches of government, like the executive and legislature, should not interfere with the judiciary's ability to deliver justice. 
• Non-Interference: The executive and legislature must not interfere with judicial decisions. Judges should be able to perform their duties without fear or favoritism. 
• Accountability: Independence does not mean being arbitrary or unaccountable. The judiciary is part of the democratic system and is accountable to the Constitution, democratic traditions, and the people. 

Ensuring Independence:

• Appointment of Judges: The Constitution ensures judicial independence by keeping the legislature out of the judge appointment process, preventing party politics from influencing appointments. 
• Criteria for Appointment: Judges are appointed based on legal experience and expertise, not political opinions or loyalty. 
• Security of Tenure: Judges have a fixed tenure and security of office, allowing them to work without fear. They can only be removed in exceptional cases through a difficult procedure, ensuring job security. 
• Financial Independence: The judiciary is financially independent; judges' salaries and allowances are not subject to legislative approval. 
• Protection from Criticism: Judges are protected from personal criticism, and the judiciary can penalize contempt of court. This protects judges from unfair criticism. 
• Parliamentary Discussion: Parliament cannot discuss judges' conduct except during removal proceedings, allowing judges to work without fear of criticism. 

Appointment of Judges: Controversies and Processes

Political Controversy and Influence

•  The appointment of judges to the Supreme Court and High Court is politically controversial and impacts how the Constitution is interpreted. 
•  Judges' political philosophy and views on judiciary activism affect the fate of legislation. 
•  Various political figures, including the Council of Ministers, Governors, Chief Ministers, and the Chief Justice of India (CJI), influence the judicial appointment process. 

Appointment of Chief Justice of India

•  Traditionally, the senior-most judge of the Supreme Court is appointed as the Chief Justice of India. 
•  This convention was broken in 1973 when A. N. Ray was appointed CJI, superseding three senior judges, and again in 1975 when Justice M.H. Beg was appointed, superseding Justice H.R. Khanna. 

Appointment of Other Judges

•  Other judges of the Supreme Court and High Court are appointed by the President after consulting the CJI. 
•  Initially, the role of the Chief Justice in this process was seen as consultative, but the Supreme Court later ruled that the President must follow the Chief Justice's advice. 

Collegiality in Recommendations

•  The Supreme Court suggested that the Chief Justice recommend candidates for appointment in consultation with the four senior-most judges of the Court. 
•  This established the principle of collegiality in making recommendations for judicial appointments. 
•  Currently, the recommendations of the group of senior judges carry more weight in judicial appointments. 

Role of Supreme Court and Council of Ministers

•  Both the Supreme Court and the Council of Ministers play crucial roles in judicial appointments. 
•  The process involves a balance of power between these entities, with the Supreme Court's recommendations holding significant influence. 

Removal of Judges

Removing judges from the Supreme Court and High Courts is a very challenging process. A judge can only be removed for proven misbehavior or incapacity. To initiate the removal, a motion with the charges against the judge must be approved by a special majority in both Houses of Parliament. 

• Special Majority: This refers to a specific voting requirement that is necessary for certain decisions in Parliament. It indicates that a higher level of agreement is needed beyond a simple majority. 
• Difficult Procedure: The process for removing a judge is intentionally made difficult to ensure that judges are not removed without a strong consensus among Members of Parliament. 
• Balance of Power: While the executive (the government) plays a crucial role in appointing judges, the legislature (Parliament) holds the power to remove them. This setup maintains a balance of power and ensures the independence of the judiciary. 
• Historical Context: There has been only one instance where the removal of a Supreme Court judge was considered by Parliament. In that case, although the motion received a two-thirds majority, it failed to secure the support of the majority of the total strength of the House, leading to the judge's retention. 

Unsuccessful Attempt to Remove a Judge

• 1991 Motion: The first-ever motion to remove a Supreme Court Justice was initiated in 1991, signed by 108 members of Parliament. Justice V. Ramaswami was accused of misappropriating funds during his time as Chief Justice of the Punjab and Haryana High Court. 
• 1992 Inquiry Findings:. high-profile inquiry commission, consisting of Supreme Court Judges, found Justice Ramaswami guilty of serious misconduct, including using public funds for private purposes and disregarding statutory rules. 
• Parliamentary Outcome: Despite the strong findings against him, Justice Ramaswami survived the parliamentary removal motion. The motion received the necessary two-thirds majority among those present and voting, but the Congress party's abstention prevented it from securing the support of half the total strength of the House. 

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Structure of the Judiciary

• Supreme Court at the top 
• High Courts below the Supreme Court 
• District and subordinate courts at the lowest level 

 Lower courts operate under the direct supervision of higher courts. 

Jurisdiction of the Supreme Court of India

• Original Jurisdiction: Resolves disputes between the Union and the States, as well as disputes among States. 
• Appellate Jurisdiction: Hears appeals from lower courts in civil, criminal, and constitutional cases. 
• Advisory Jurisdiction: Provides advisory opinions to the President on matters of public importance and law. 
• Writ Jurisdiction: Can issue writs such as Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto to protect individual Fundamental Rights. 
• Special Powers: Has the authority to grant special leave to appeal from any judgement or matter passed by any court in India. 

Jurisdiction of the Supreme Court 

 The Supreme Court of India is a highly powerful court, but it operates within the limits set by the Constitution. Its functions and responsibilities are defined by the Constitution, which also outlines its specific jurisdiction and scope of powers. 

Original Jurisdiction

•  Original jurisdiction refers to cases that can be directly considered by the Supreme Court without being passed through lower courts first. 
•  Cases involving federal relations, such as disputes between the Union and the States or among States themselves, fall under this jurisdiction. 
•  The Supreme Court acts as an umpire in these disputes, interpreting the powers of the Union and State governments as outlined in the Constitution. 
•  This jurisdiction is exclusive to the Supreme Court, meaning that lower courts, including High Courts, cannot handle these cases. 
•  By resolving these disputes, the Supreme Court plays a crucial role in maintaining the balance of power between the Union and the States. 

Writ Jurisdiction

•  Writ jurisdiction allows individuals whose fundamental rights have been violated to approach the Supreme Court directly for relief. 
•  The Supreme Court can issue special orders in the form of writs, directing the executive to act or refrain from acting in a certain manner. 
•  While High Courts can also issue writs, individuals have the option to approach either the High Court or the Supreme Court for redressal of their rights. 

Appellate Jurisdiction

•  The Supreme Court serves as the highest court of appeal in India, where individuals can challenge decisions made by the High Courts. 
•  For a case to be appealed to the Supreme Court, the High Court must certify that it is a fit case for appeal, involving significant legal or constitutional issues. 
•  In criminal cases, if a lower court has imposed the death penalty, an appeal can be made to the High Court or the Supreme Court. 
•  The Supreme Court has the discretion to admit appeals even if the High Court has not allowed them. 
•  Appellate jurisdiction entails that the Supreme Court will re-evaluate the case and the legal questions involved. 

Advisory Jurisdiction

•  In addition to original and appellate jurisdiction, the Supreme Court possesses advisory jurisdiction. This allows the President of India to seek the Court's advice on matters of public importance or constitutional interpretation. 
•  However, the Supreme Court is not obligated to provide advice, and the President is not bound to accept it. 
•  The advisory powers are useful for the government to obtain legal opinions on important matters before taking action, potentially preventing future litigations. 
•  The government can also adjust its actions or legislations based on the Supreme Court's advice. 

Articles 137 and 144

•  Article 137 grants the Supreme Court the power to review any judgment or order made by it. This means that the Court can reconsider its own decisions if it believes there has been an error or a misinterpretation of the law or Constitution. 
•  Article 144 mandates all authorities, both civil and judicial, in the territory of India to act in aid of the Supreme Court. This ensures that the orders and decisions of the Supreme Court are enforced throughout the country. 

Binding Nature of Supreme Court Decisions

•  Decisions made by the Supreme Court are binding on all other courts in India. This means that lower courts must follow the interpretations and rulings set by the Supreme Court. 
•  The Supreme Court itself is not bound by its previous decisions and has the authority to review and change its rulings if necessary. This ability to change its own decisions is important for correcting mistakes and ensuring that the law is interpreted correctly. 
•  In cases of contempt of court, the Supreme Court has the power to decide on the matter itself, further emphasizing its authority and the enforceability of its orders across the country. 

Judicial Activism refers to the proactive role of the judiciary in protecting and promoting public interest, often through the mechanism of Public Interest Litigation (PIL). Let's explore this concept in detail. 

What is Judicial Activism?

• Judicial Activism involves the judiciary taking an active role in addressing issues that affect the public at large, rather than just responding to cases brought before it.
• It signifies a shift from a reactive to a proactive approach, where courts engage with matters of public concern based on reports, complaints, or societal issues.
  

What is Public Interest Litigation (PIL)?

• Public Interest Litigation, also known as Social Action Litigation, is a legal mechanism that allows individuals or organizations to file petitions in court on behalf of those who cannot do so themselves, especially in cases affecting public interest.
• Traditionally, courts could only be approached by individuals directly aggrieved by a situation. However, with the emergence of PIL, the scope was widened to include issues impacting the larger community.

Historical Background

• The concept of PIL emerged in India around 1979 when the judiciary began accepting cases filed by individuals or groups on behalf of those unable to represent themselves.
• One of the pioneering cases was related to 'under trials' in Bihar, where prisoners were found to be incarcerated for longer periods than their sentences warranted. The media reports led to legal action and became a landmark in the history of PIL.

Early Examples of PIL

• Hussainara Khatoon vs. Bihar (1979): This case addressed the plight of under trial prisoners in Bihar and became one of the first public interest litigations.
• Sunil Batra vs. Delhi Administration (1980): This case originated from a letter received by Justice Krishna Iyer, highlighting the inhumane conditions in Tihar Jail. It marked a significant step in recognizing the role of PIL in addressing human rights violations.

Expansion of Rights through PIL

• PIL has played a crucial role in expanding the definition of rights to include clean air, unpolluted water, and decent living conditions as fundamental rights for all citizens.
• The judiciary, through PIL, has taken a proactive stance in addressing issues affecting marginalized sections of society, ensuring their rights are protected and promoted.

Impact of Judicial Activism

• Judicial activism has democratized the judicial system by allowing not just individuals but also groups to access the courts for redressal.
• It has enhanced executive accountability and contributed to making the electoral system more transparent and fair.
• Courts have mandated candidates contesting elections to disclose their assets, income, and educational qualifications, empowering voters with essential information.

Criticism of Judicial Activism

• Despite its positive aspects, the rise of PIL and judicial activism has led to an overburdening of the courts with cases.
• Critics argue that it has blurred the lines between the judiciary, executive, and legislature, with courts intervening in matters traditionally within the purview of the executive.
• Issues like pollution control, corruption investigations, and electoral reforms, which are primarily administrative responsibilities, have seen increased judicial involvement, raising concerns about the balance of power among government organs.

Conclusion

• Judicial Activism, particularly through the instrument of Public Interest Litigation, has significantly transformed the role of the judiciary in India. 
• It has expanded the scope of rights, enhanced public access to justice, and held authorities accountable. 
• However, the challenges and criticisms associated with its implementation necessitate a careful consideration of the boundaries and roles of each government organ in a democratic setup. 

Judiciary and Rights

• Restoring Fundamental Rights: The Supreme Court can issue writs such as Habeas Corpus and Mandamus under Article 32 to restore fundamental rights. High Courts also have this power under Article 226. 
• Declaring Laws Unconstitutional: The Supreme Court can declare a law unconstitutional under Article 13, rendering it non-operational. 
• Judicial Review: This is a crucial power of the Supreme Court, allowing it to assess the constitutionality of any law. If a law is found inconsistent with the Constitution, it is declared unconstitutional and inapplicable. Although the term "judicial review" is not explicitly mentioned in the Constitution, the written nature of the Constitution and the Supreme Court's authority to strike down laws that violate fundamental rights imply this power. 
•  The Supreme Court can also review laws based on the federal distribution of powers. For example, if the central government enacts a law that a State believes concerns a subject in the State list, the State can challenge the law in the Supreme Court. This review power extends to laws passed by State legislatures as well. 
• Writ Powers and Review Power: Together, these powers make the judiciary very strong. The review power allows the judiciary to interpret the Constitution and laws, helping protect the Constitution and citizens' rights. Public Interest Litigations (PILs) have further enhanced the judiciary's role in protecting citizens' rights. 
• Role of the Supreme Court: The Constitution establishes the Supreme Court as both the protector of citizens' fundamental rights and the interpreter of the Constitution. Judicial review is a key aspect of this role. 
• Right Against Exploitation: This right prohibits forced labor, trade in human flesh, and employment of children in hazardous jobs. Initially, it was challenging for victims to approach the court due to violations of these rights. However, PIL and judicial activism enabled courts to address such violations. 
• Judicial Activism: Courts began considering cases of rights violations, such as police blinding jail inmates, poor working conditions in stone quarries, and child sexual exploitation. This trend has made rights more meaningful for marginalized communities. 
• Global Acceptance of PIL: The practice of public interest litigation is gaining acceptance in various countries. Courts in South Asia and Africa exhibit judicial activism similar to that of the Indian judiciary. In South Africa, the Constitution allows citizens to bring cases of rights violations before the Constitutional Court, making it a fundamental right. 

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Judiciary and Parliament 

Judicial Review and Constitutional Safeguards

• The Supreme Court of India plays a crucial role in protecting the Constitution by reviewing and ensuring that the actions of the President, Governor, and other political practices do not undermine constitutional principles.
• Initially, certain areas like the powers of the President and Governor were considered beyond judicial review. However, the Court has actively brought these under its scrutiny to prevent subversion of the Constitution.

Judicial Activism in Administration of Justice

• The Supreme Court has intervened in various instances to direct executive agencies, such as the Central Bureau of Investigation (CBI), to initiate investigations in high-profile cases involving politicians and bureaucrats.
• Cases like the hawala scandal, the Narasimha Rao case, and illegal petrol pump allotments are examples where judicial activism has played a significant role in upholding justice.

Separation of Powers and Conflicts

• The Indian Constitution is based on a principle of limited separation of powers, where each government organ has specific functions:
  • Parliament: Supreme in making laws and amending the Constitution.
  • Executive: Supreme in implementing laws.
  • Judiciary: Supreme in settling disputes and ensuring laws comply with the Constitution.
• Despite this clear division, conflicts between the Parliament and judiciary, as well as the executive and judiciary, have been common in Indian politics.

Early Controversies: Right to Property and Fundamental Rights

• Soon after the Constitution came into effect, a dispute arose over the Parliament’s authority to restrict the right to property to facilitate land reforms.
• The judiciary ruled that fundamental rights could not be restricted by the Parliament, even through constitutional amendments.

Key Issues in Disputes

• The main issues in the conflict included:
  • Scope of the right to private property.
  • Parliament’s power to curtail fundamental rights.
  • Parliament’s authority to amend the Constitution.
  • Ability of the Parliament to make laws that abridge fundamental rights while enforcing directive principles.

Intensification of Conflict (1967-1973)

• The conflict escalated during this period, involving laws related to:
  • Preventive detention.
  • Job reservations.
  • Acquisition of private property for public purposes.
  • Compensation for acquired private property.

Kesavananda Bharati Case (1973)

• The Supreme Court’s ruling in this case became pivotal in defining the relationship between the Parliament and judiciary.
• The Court established the concept of the Constitution’s basic structure, which cannot be violated, even by parliamentary amendments.
• It determined that the right to property was not part of the basic structure and could be abridged, while reserving the right to define what constitutes the basic structure.

Impact of the Kesavananda Bharati Case

• The ruling shifted the nature of conflicts between the legislature and judiciary.
• The right to property was removed from the list of fundamental rights in 1979, further altering the relationship between these government organs.

Ongoing Issues and Potential Conflicts

• Despite the changes, certain issues remain contentious, such as:
  • Judiciary’s ability to regulate legislative functions.
  • Protection of individuals facing disciplinary actions from legislatures by the courts.
• The Constitution prohibits parliamentary discussions on judges’ conduct, leading to tensions when legislatures criticize the judiciary.
• Both legislatures and judiciary have, at times, criticized each other, leading to perceptions of violating principles like parliamentary sovereignty.

Conclusion: Balance of Power

• The relationship between the Parliament and judiciary exemplifies the delicate balance of power in a democratic setup.
• Each organ’s respect for the authority and functions of the others is crucial for maintaining this balance and ensuring the smooth functioning of democracy.

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Conclusion

• In this chapter, we explored the judiciary's role in India's democratic framework. Despite occasional tensions with the executive and legislature, the judiciary's prestige has grown significantly. 
• However, there are rising expectations from the judiciary. Ordinary citizens are puzzled by cases of easy acquittals and witnesses altering testimonies for the rich and powerful. These are concerns the judiciary shares. 
• The judiciary in India is a powerful and independent institution. Its decisions have reinterpreted the Constitution and safeguarded citizens' rights. As discussed, democracy relies on the balance of power between the judiciary and Parliament, with both bodies operating within constitutional limits.