Judiciary Class 11 Political Science

Table of Contents
1. Introduction
2. Why do we need an Independent Judiciary?
3. Independence of the Judiciary
4. Appointment of Judges: Process and Controversies
5. Removal of Judges
6. Structure of the Judiciary
7. Jurisdiction of the Supreme Court of India
8. Binding Nature of Supreme Court Decisions
9. What is Judicial Activism?
10. Judiciary and Rights
11. Judiciary and Parliament
12. Conclusion
13. Key terms and references
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Introduction

Courts are commonly seen as neutral arbiters of disputes between individuals, organisations or between citizens and the state. Beyond settling private disputes, the judiciary performs important public and political functions and is an essential organ of government. Since the Constitution came into force in 1950, the judiciary - and in particular the Supreme Court of India - has played a vital role in interpreting and safeguarding the Constitution. 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: Conflicts occur between persons, institutions and between citizens and the government. An impartial and independent authority is needed to resolve such disputes in accordance with law.
• Rule of law: The rule of law requires that every person and institution-whether powerful or weak-is subject to the law. An independent judiciary is essential to uphold the supremacy of law.
• Protection of rights: Courts protect individual freedoms and fundamental rights, ensuring that the state and private actors do not violate constitutional guarantees.
• Checks on abuse of power: An independent judiciary prevents the concentration of power in other organs of government and thereby reduces the risk of arbitrary rule or dictatorship.

Independence of the Judiciary

The independence of the judiciary means that the judiciary must be free from improper influence by the executive, the legislature or other powerful interests so judges can decide cases according to law and conscience.

Key elements that secure judicial independence

• Security of tenure: Judges of the Supreme Court and High Courts have a secure tenure and cannot be removed except by a difficult constitutional process. This protects judges from removal for unpopular decisions.
• Fixed remuneration and financial safeguards: Judges' salaries and allowances are charged on the Consolidated Fund of India and are not to be varied to their disadvantage during service; this prevents financial manipulation by the executive or legislature.
• Protected appointment process: The Constitution prescribes consultation in appointments and the higher judiciary's role in selecting judges has evolved to limit partisan influence.
• Contempt and protection against undue criticism: Courts have powers such as contempt of court to protect their functioning and authority from wilful interference, though judicial accountability remains important.
• Accountability to the Constitution: Judicial independence does not mean arbitrariness; the judiciary is accountable to the Constitution, the rule of law and legal procedure.

Appointment of Judges: Process and Controversies

Appointments to the Higher Judiciary (Supreme Court and High Courts) have been a source of political controversy because they determine who will interpret the Constitution and decide major public-policy disputes.

Constitutional framework and conventions

• Supreme Court Chief Justice convention: By long-standing convention the seniormost Supreme Court judge is appointed Chief Justice of India (CJI). 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. These supersessions generated intense debate about executive influence in judicial appointments.
• Constitutional provision: The President appoints Supreme Court and High Court judges after consultation with such judges of the Supreme Court and High Courts as the President may deem necessary. The language of consultation and the parties to be consulted have been the subject of judicial interpretation and subsequent practice.

Judicial decisions shaping appointment procedure

• First Judges case (S. P. Gupta v. Union of India, 1981): The Supreme Court held that the President need only consult the Chief Justice and was not bound to accept the CJI's view; this gave the executive greater influence.
• Second Judges case (Supreme Court Advocates-on-Record Association v. Union of India, 1993): The Court overruled the First Judges case and held that consultation with the Chief Justice was binding; the judgment led to the practice of the collegium-a group of senior judges recommending appointments.
• Third Judges case / In re Presidential Reference (1998): The Court clarified the composition and procedure of the collegium, indicating the CJI should consult a group of the seniormost judges (the precise formula was elaborated by the Court).
• National Judicial Appointments Commission (NJAC) controversy (2014-2015): Parliament enacted the NJAC to replace the collegium with a body including members of the executive. The Supreme Court declared the 99th Constitutional Amendment and the NJAC Act unconstitutional in 2015, restoring the collegium system while observing the need for greater transparency and accountability in appointments.

Current practice and criticism

• The collegium today recommends names to the executive; the executive may seek clarification but generally accepts collegium recommendations. Critics demand a more transparent and accountable selection process; defenders argue judicial primacy protects independence.
• Concerns include lack of written criteria, transparency, and representativeness in collegium selections; reforms have been proposed to introduce greater openness while safeguarding independence.

Removal of Judges

Removal of judges of the Supreme Court and High Courts is deliberately difficult so that judges cannot be removed for unpopular rulings. The Constitution allows removal only for proved misbehaviour or incapacity.

• Initiation of removal: A motion in either House of Parliament may be moved after being signed by a specified number of members (by convention and parliamentary rules: at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha sign such a notice). The Speaker/Chairperson admits the motion on sufficient grounds.
• Parliamentary inquiry: The motion is referred to an inquiry committee, usually comprising judges, to investigate the charges and report on whether they are substantiated.
• Special majority requirement: For removal, both Houses must pass the motion by a special majority: a majority of the total membership of the House and a two-thirds majority of members present and voting.
• Final act: If both Houses pass the motion, the President issues an order of removal.

Example - Justice V. Ramaswami (1991-1993): A motion to remove Justice V. Ramaswami was admitted in 1991 on charges of misappropriation of funds and misconduct. A judicial inquiry in 1992 found serious misconduct. Despite the findings, the motion failed in Parliament because it did not obtain the required majority of the total membership; thus the judge continued in office. This case illustrates how the parliamentary removal process is difficult to complete.

Structure of the Judiciary

The Constitution establishes a single integrated judicial system for India. The courts are organised in a hierarchical or pyramidal structure:

• Supreme Court of India at the apex.
• High Courts in the States and Union territories below the Supreme Court.
• District and subordinate courts (trial courts and lower judiciary) at the base, functioning under the superintendence of the High Courts.

Lower courts are supervised by higher courts to ensure uniformity and compliance with law and procedure.

Jurisdiction of the Supreme Court of India

 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 of the Supreme Court are binding on all courts within India. Lower courts are obliged to follow the doctrines and legal interpretations laid down by the Supreme Court.
• The Supreme Court is not strictly bound by its previous decisions and may overrule its earlier judgments where convinced of error; this flexibility helps correct earlier mistakes and adapt legal doctrine to changed circumstances.

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. 

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.

 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.

Conclusion

• The judiciary in India is a powerful and independent institution whose role has expanded since 1950. It not only decides disputes but also protects constitutional structures and fundamental rights.
• Judicial independence is secured through tenure, financial safeguards and procedures for appointment and removal; yet controversies over appointments and accountability persist and require balanced reforms.
• Judicial activism and PIL have significantly broadened access to justice and protected citizens' rights, while also raising questions about separation of powers and institutional competence.
• The relationship between the judiciary and Parliament must remain one of cooperation tempered by constitutional checks and respect for each organ's core functions to sustain a vibrant democracy.

Key terms and references

• Writs: Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo Warranto.
• Important Articles: Article 13, Article 32, Article 131, Article 136, Article 137, Article 143, Article 144, Article 226.
• Important cases and decisions: Hussainara Khatoon v. State of Bihar (1979); Sunil Batra v. Delhi Administration (1980); A. N. Ray supersession (1973) and M. H. Beg supersession (1975); Kesavananda Bharati v. State of Kerala (1973); First/Second/Third Judges cases (S. P. Gupta (1981), Supreme Court Advocates-on-Record Association (1993), In re Presidential Reference (1998)); NJAC judgment (2015).