Meaning of judiciary

According to the Cambridge English Dictionary, the judiciary is that organ of

the government that is responsible for the legal system, which includes all
the judges in the country’s courts. In other words, it is that branch of the
government that interprets the law and administers justice to all citizens. It
is the third organ of the government after the legislature and the executive,
which is based on the doctrine of separation of powers. According to this
doctrine, the power of the government is divided into multiple branches,
among which the judiciary is one. Thus, it has independent powers and
responsibilities vested upon it by the sovereign.

Judiciary: Functions, Importance and an Essential Quality of Judiciary

The Judiciary is the third organ of the government. It has the responsibility
to apply the laws to

specific cases and settle all disputes. The real ‘meaning of law’ is what the
judges decide during

the course of giving their judgments in various cases. From the citizen’s point
of view, Judiciary

is the most important organ of the government because it acts as their

protector against the

possible excesses of legislative and executive organs. Role of Judiciary as the

guardian-protector

of the constitution and the fundamental rights of the people makes it more
respectable than other

two organs.

There are various levels of judiciary in India – different types of courts, each
with varying

powers depending on the tier and jurisdiction bestowed upon them. They
form a strict hierarchy
of importance, in line with the order of the courts in which they sit, with the
Supreme Court of

India at the top, followed by High Courts of respective states with district
judges sitting

in District Courts and Magistrates of Second Class and Civil Judge (Junior
Division) at the

bottom.

The Supreme Court of India is the highest judicial forum and final court of
appeal under

the Constitution of India, the highest constitutional court, with the power of
constitutional

review. Consisting of the Chief Justice of India and 30 sanctioned other

judges, it has extensive

powers in the form of original, appellate and advisory jurisdictions.

As the final court of appeal of the country, it takes up appeals primarily

against verdicts of

the high courts of various states of the Union and other courts and tribunals.
It

safeguards fundamental rights of citizens and settles disputes between

various governments in

the country. As an advisory court, it hears matters which may specifically be

referred to it under

the constitution by the President of India.

The law declared by the Supreme Court becomes binding on all courts within
India and also by

the union and state governments. Per Article 142, it is the duty of the
president to enforce the

decrees (order or mandate) of the Supreme Court.

Functions of Judiciary and Its Importance:

1. To Give Justice to the people:

The first and foremost function of the judiciary is to give justice to the
people, whenever they

may approach it. It awards punishment to those who after trial are found
guilty of violating the

laws of the state or the rights of the people.

The aggrieved (hurt or pained) citizens can go to the courts for seeking
redress (rectify &

correct) and compensation. They can do so either when they fear any harm
to their rights or after

they have suffered any loss. The judiciary fixes the quantity and quality of
punishment to be

given to the criminals. It decides all cases involving grant of compensations

to the citizens.

2. Interpretation and Application of Laws:

One of the major functions of the judiciary is to interpret (explain or

clarify)and apply laws to

specific cases. In the course of deciding the disputes that come before it, the
judges interpret and

apply laws. Every law needs a proper interpretation for getting applied to
every specific case.

This function is performed by the judges. The law means what the judges
interpret it to mean.

3. Role in Law-making:

The judiciary also plays a role in law-making. The decisions given by the
courts really determine
the meaning, nature and scope of the laws passed by the legislature. The
interpretation of laws by

the judiciary amounts to law-making as it is these interpretations which

really define the laws.

Moreover, ‘the judgments delivered by the higher courts, which are the
Courts of Records, are

binding upon lower courts. The latter can decide the cases before them on
the basis of the

decisions made by the higher courts. Judicial decisions constitute a source of

law.

4. Equity (fairness) Legislation (law enactment):

Where a law is silent or ambiguous, or appears to be inconsistent with some

other law of the

land, the judges depend upon their sense of justice, fairness, impartiality,
honesty and wisdom

for deciding the cases. Such decisions always involve law-making. It is

usually termed as equity

legislation.

5. Protection of Rights:

The judiciary has the supreme responsibility to safeguard the rights of the
people. A citizen has

the right to seek the protection of the judiciary in case his rights are violated
or threatened to be

violated by the government or by private organizations or fellow citizens. In

all such cases, it

becomes the responsibility of the judiciary to protect his rights of the people.

6. Guardian of the Constitution:

The judiciary acts as the guardian of the Constitution. The Constitution is the
supreme law of the

land and it is the responsibility of the judiciary to interpret and protect it. For
this purpose the

judiciary can conduct judicial review over any law for determining as to
whether or not it is in

accordance with the letter and spirit of the constitution. In case any law is
found ultra vires

(unconstitutional), it is rejected by the judiciary and it becomes invalid for

future. This power of

the court is called the power of judicial review.

7. Power to get its Decisions and Judgments enforced:

The judiciary has the power not only to deliver judgments and decide
disputes, but also to get

these enforced. It can direct the executive to carry out its decisions. It can
summon any person

and directly know the truth from him.

In case any person is held:

(i) Guilty of not following any decision of the court, or

(ii) Of acting against the direction of the court, or

(iii) Misleading the court, or

(iv)Of not appearing before the court in a case being heard by it, the Court
has the power to

punish the person for the contempt of court.

8. Special Role in a Federation:

In a federal system, the judiciary has to perform an additionally important
role as the guardian of

the constitution and the arbiter of disputes between the centre and states. It
acts as an

independent and impartial umpire between the central government and state
governments as well

as among the states. All legal centre-state disputes are settled by the
judiciary.

9. Running of the Judicial Administration:

The judiciary is not a department of the government. It is independent of

both the legislature and

the executive. It is a separate and independent organ with its own

organization and officials. It

has the power to decide the nature of judicial organization in the state. It
frames and enforces its

own rules.

These govern the recruitment and working of the magistrates and other
persons working in the

courts. It makes and enforces rules for the orderly and efficient conduct of
judicial

administration.

10. Advisory Functions:

Very often the courts are given the responsibility to give advisory opinions to
the rulers on any

legal matter. For example, the President of India the power to refer to the
Supreme Court any

question of law or fact which is of public importance.

11. To Conduct Judicial Inquiries:

Judges are very often called upon to head Enquiry Commissions constituted
to enquire into some

serious incidents resulting from the alleged errors or omissions on the part of
government or

some public servants. Commissions of enquiry headed by a single judge are

also sometimes

constituted for investigating important and complicated issues and problems.

12. Miscellaneous Functions:

Besides the above major functions, the judiciary also performs several other
functions. Some

such functions are the appointment of certain local officials of the court,
choosing of clerical and

other employees. Cases relating to grant of licenses, patents, and copy

rights, the appointment of

guardians and trustees, the admission of wills, to appoint trustees to look

after the property of the

minors, to settle the issues of successions of property and rights, issue of

administrating the

estates of deceased persons, the appointment of receivers, naturalization of

aliens, marriage and

divorce cases, election petitions and the like.

Through all these functions, the Judiciary plays an important role in each
state. It also plays a

role in the evolution of Constitution through the exercise of its right to

interpret and safeguard it

against all legislative and executive excesses.

Importance of Independent Judiciary:

In the life of the citizens of a state, Judiciary is a source of confidence and

fearlessness. The

common man depends upon judiciary for getting justice. Without a security
of rights and

freedom guaranteed by the judiciary, they cannot really hope to carry out
their jobs and enjoy

their living. They are more dependent upon judiciary than the legislature and
the executive.

Without judicial protection, their lives can become miserable. From citizens
point of view

Judiciary is the most important organ of the government.

Garner highlights this view when he observes, “A society without legislature

is conceivable, and

indeed, legislative organs did not make their appearance in the state until
modern times, but a

civilized state without a judicial organ and machinery is hardly conceivable.”

Judiciary enjoys a big importance in the eyes of the people because it acts
as:

(1) The dispenser of Justice.

(2) Protector of the rights of the people.

(3) Guardian protector of the Constitution of the State.

(4) Arbiter of center-state disputes.

(5) Safeguard against Legislative and executive excesses.

(6) Check against arbitrary exercise of powers by the power-holders.

(7) Guardian of Rule of Law and Justice.

An independent judiciary is always considered to be the most essential part
of every democratic

government worth its name. A government without judiciary is almost

inconceivable. A

government without independent judiciary is always held to be an

authoritarian government.

Independence of Judiciary: An Essential Quality:

The chief quality which helps the judiciary to faithfully administer justice and
to perform its

functions efficiently is judicial independence. It is only when the judiciary

works independently

without any interference of the other two organs of the government that it
can carry out its high

responsibilities.

“The independence of judiciary,” writes Dr. P. Sharan, “is a corner stone of

every democratic

government and upon it is built the structure of civil liberty.” Judiciary can
perform its functions

only when it is free to administer justice according to law. Without being

well-organized and

independent it can never serve its purpose. Therefore, Judiciary must be

organized in such a way

as can enable the judges to give their judgments without any fear or favour.

Organization of Judiciary must be based on the following features:

(1) Appointment of only highly qualified and experienced judges.

(2) The Judiciary must have prevented the executive and legislature from
committing excesses.
(3) The ability of the judiciary to maintain and independently run the judicial
administration.

(4) The Judiciary must be made the guardian protector of the Constitution,

(5) The Judiciary must ensure full, fair and less- expensive opportunities to
the people for

defending their rights and getting justice.

(6) The method of appointment of judges must be fair, systematic, effective

and transparent.

(7) Method of removal of judges should be difficult and no single should have
the power to

remove the judges.

(8) Judges must be paid high salaries, necessary allowances, good service
conditions, and

appropriate retirement benefits.

By incorporating all these features in the judicial system, a well organised

and independent

judiciary can be secured.

Judicial Review and Judicial Activism

Judicial Review refers to the power of judiciary to review and determine the
validity of a law or

an order. On the other hand, Judicial Activism refers to the use of judicial
power to articulate and

enforce what is beneficial for the society in general and people at large or
judicial activism

means the power of the Supreme Court and the high court but not the sub-
ordinate courts to

declare the laws as unconstitutional and void.

Judicial Review:

India has an independent judiciary with extensive jurisdiction over the acts of
legislature and

executive. Judicial review can be defined as the doctrine under which

legislative and executive

actions are subject to review by judiciary. It is generally considered as a

basic structure of

independent judiciary (Indira Gandhi vs. Rajnarain case).

However, judicial review can be classified into three categories-reviews of

legislative actions,

review of judicial decisions, and review of administrative action. Therefore, it

is also the duty of

judges to ensure that balance of power is maintained, protect human rights,

fundamental rights

and citizens’ rights of life and liberty.

i) Judicial review of legislative actions

Judicial review of legislative actions means the power to ensure that the law
passed by

legislature is in accordance with provisions contained in the constitution and

in particular part 3

of constitution (principle of reading down ).

ii) judicial review of decisions

In case of judicial review of decisions, for instance, when a statute is

challenged on the ground

that it has been passed by legislature without authority or rights, it is for the
courts to decide
whether the law passed by legislature is valid or not. Also no legislature in
our country has the

power to ask instrumentalities of the state to disobey or disregard the

decision given by the

courts.

iii) Judicial review of administrative action

Judicial review of administrative action is a mechanism of enforcing

constitutional discipline

over administrative agencies while exercising their powers. Judicial review of

judicial actions

can be visualized in Golaknath case, banks nationalization case, privy purses

abolition case,

Minerva mills etc.

As courts have wide powers of judicial review, these powers have to be

exercised with great

caution and control. The limitations of these powers are: It is only

permissible to the extent of

finding whether the procedure in reaching the decision has been correctly
followed but not the

decision itself.

It is delegated to our superior courts only i.e. supreme court and high court
Cannot interfere in

policy matters and political questions unless absolutely necessary. Law once
passed may become

unconstitutional with passage of the same with changed situation, this may
create vacuum in

legal system. Hence it can be said that directions given by court would be
binding only till
legislation is enacted i.e. it is temporary in nature. Can interpret and
invalidate a law but it cannot

itself make laws.

However, there are also cases in India when executive has ordered judiciary
to review policies.

For example, in ministry of health vs. treatment action campaign, the

government itself gave

direction to review its policy regarding distribution of antiretroviral drugs and

plan an e ective

and comprehensive national program to prevent mother to child transmission

of HIV.

Judicial Activism:

It can be defined as a philosophy of judicial decision making where by judges

allow their

personal views regarding a public policy instead of constitutionalism. Some

cases of activism in

India are Golaknath case in which Supreme Court declared that fundamental
rights enshrined in

part 3 are immutable and cannot be amendable Kesavananda Bharati where

by SC introduced

doctrine of basic structure i.e. Parliament has power to amend without

altering basic structure of

constitution. SC has assumed a supervisory role in CBI investigation of 2 G

scam In invoking

terror laws against Hasan Ali Khan.

Moreover, the concept of Judicial Activism also faced certain criticisms.

Firstly, it is often said
that in the name of activism, judiciary often rewrites with personal opinions.
Secondly, the

theory of separation of powers is overthrown (dissolve or displace). However,

its importance lies

with position accorded to institution as a place of hope for aggrieved persons.

There is only a thin line of separation between review and activism. While
judicial review means

to decide if the law / act is consistent with the constitution. On the other
hand judicial activism is

more of a behavioral concept of the judge concerned. It is majorly based on

public interest,

speedy disposal of cases etc.

With the power of judicial review, the courts act as a custodian of the
fundamental rights. Thus,

the power of judicial review is recognized as the part of the basic constitution
of India. The

activist role of the judiciary is implicit in the said power. With the growing
functions of the

modern state judicial intervention in the process of making administrative

decisions and

executive them has also increased. In addition, judicial activism keeping in

view the ideals of

democracy is in fact necessary to ensure that unheard voices are not buried
by more influential

and vocal voices.

Distinguish between judicial review and judicial activism in India

The interpretational and observer role of the Judiciary over the Legislature is
called Judicial
Review (JR). The judiciary is the final authority for the interpretation of
constitution in India.

The Judiciary can prevent it by declaring the act or action ultra-virus, if the
Legislature

transgresses the powers given to it by the constitution. This power is called

JR.

While Judicial Activism (JA) is the concept how actively and quickly the
judiciary performs the

act of JR. the readiness that the courts have achieved in exercising its power
to uphold the values

of the constitution have been generally come to the extent that JR has
gradually acquired the

form of Judicial Activism (JA) in India.

JA is the extent and the vigour and the readiness with which courts exercise
their power of JR.

So, there is a marked difference between both of them. Courts have actively
performed an

interventionist role and that we have witnessed the phenomenon of JA. The
courts have over

thrown or at least liberalized the concept of locust stand to allow any public
spirited person or

organisation to bring to the notice of the court any matter of injustice and
violation of

constitutional rights of any downtrodden and unprivileged classes of society.

The court has expanded the scope and amplitude of Article 21 to cover many
basic rights under

it, so that giving them the status of fundamental rights, they can be enforced
against the state
also, even by PIL. Another factor which contributed to the JA was the
expansive judicial

interpretation placed on the expression life in Article.