JUDICIARY

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.
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.

 It is necessary that the judiciary is independent of any political pressures.

Independence of Judiciary -MEANING

 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 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 different provisions in the constitution in order to maintain the independence of judiciary are:

1. The conduct of the judges cannot be discussed in the parliament.

2. The legislature is not involved in the process of appointment of judges.

3. The judges have fixed tenure that ensures that they can work fearlessly. They can be removed only in exceptional

cases.

4. The removal of judges of the Supreme Court and the High Courts is extremely difficult.

5. The approval of the legislature is not required for salaries and allowances of the judges.

6. The authority of the judges protects them from any unfair criticism and the judiciary can penalise those who are

guilty of contempt of court.

7. The instructions of the judiciary have to be followed by the legislature and executive of the country.
Appointment of Judges
•The judges of the Supreme Court are appointed by the President. The CJI is appointed
by the President after consultation with such judges of the Supreme Court and high
courts as he deems necessary.
•The other judges are appointed by the President after consultation with the CJI and such
other judges of the Supreme Court and the high courts as he deems necessary. The
consultation with the chief justice is obligatory in the case of appointment of a judge
other than Chief justice. The senior most judge of the Supreme Court should alone be appointed to the
office of the Chiefof
Qualifications Justice
Judgesof India.
•A person to be appointed as a judge of the Supreme Court should have the following
qualifications:

• He should be a citizen of India.

• He should have been a judge of a High Court (or high courts in succession) for
five years; or
• He should have been an advocate of a High Court (or High Courts in succession) for
Tenureten
ofyears;
Judgesor
•• He should be a distinguished jurist in the opinion of the president.
He holds office until he attains the age of 65 years. Any question regarding his age is
to be determined by such authority and in such manner as provided by Parliament.
• He can resign his office by writing to the President.
• He can be removed from his office by the President on the recommendation of the
Parliament.
Original Jurisdiction

 Original jurisdiction means cases that can be directly considered by the Supreme Court without going to the

lower courts before that.

 The Original Jurisdiction of the Supreme Court establishes it as an umpire in all disputes regarding federal

matters. In any federal country, legal disputes are bound to arise between the Union and the States; and among

the States themselves. The power to resolve such cases is entrusted to the Supreme Court of India.

 It is called original jurisdiction because the Supreme Court alone has the power to deal with such cases. Neither

the High Courts nor the lower courts can deal with such cases. In this capacity, the Supreme Court not just

settles disputes but also interprets the powers of Union and State government as laid down in the Constitution.
Appellate Jurisdiction

 The Supreme Court is the highest court of appeal.

 A person can appeal to the Supreme Court against the decisions of the High Court.
 However, High Court must certify that the case is fit for appeal, that is to say that it involves a serious
matter of interpretation of law or Constitution.
 In criminal cases, if the lower court has sentenced a person to death then an appeal can be made to the
High Court or Supreme Court.
 The Supreme Court holds the powers to decide whether to admit appeals even when appeal is not
allowed by the High Court.
 Appellate jurisdiction means that the Supreme Court will reconsider the case and the legal issues
involved in it.
 If the Court thinks that the law or the Constitution has a different meaning from what the lower courts
understood, then the Supreme Court will change the ruling and along with that also give new
interpretation of the provision involved.
 The High Courts too, have appellate jurisdiction over the decisions given by courts below them.
ADVISORY JURISDICTION

 The Supreme Court of India possesses advisory jurisdiction also.

 This means that the President of India can refer any matter that is of public importance or that which

involves interpretation of Constitution to Supreme Court for advice. (However, the Supreme Court is not

bound to give advice on such matters and the President is not bound to accept such an advice)

 What then is the utility of the advisory powers of the Supreme Court?

The utility is two-fold.

*In the first place, it allows the government to seek legal opinion on a matter of importance before taking

action on it. This may prevent unnecessary litigations later. *Secondly, in the light of the advice of the Supreme

Court, the government can make suitable changes in its action or legislations.
WRIT JURISDICTION

 Any individual, whose fundamental right has been violated, can directly move the Supreme Court

for remedy.

 The Supreme Court can give special orders in the form of writs.

 The High Courts can also issue writs, but the persons whose rights are violated have the choice of

either approaching the High Court or approaching the Supreme Court directly.

 Through such writs, the Court can give orders to the executive to act or not to act in a particular

way.
JUDICIAL ACTIVISM:
The chief instrument through which judicial activism has flourished in India is Public Interest Litigation (PIL)
or Social Action Litigation (SAL).
What is PIL or SAL? How and when did it emerge?
 A person whose rights have been violated, or who is involved in a dispute, could move the court of law.
 This concept underwent a change around 1979.
 In 1979, the Court set the trend when it decided to hear a case where the case was filed not by the
aggrieved persons but by others on their behalf.
 As this case involved a consideration of an issue of public interest, it and such other cases came to be
known as public interest litigations.
 Public spirited citizens and voluntary organisations sought judicial intervention for protection of existing
rights, betterment of life conditions of the poor.
 Through the PIL, the court has expanded the idea of rights, clean air, unpolluted water, decent living etc.
are rights for the entire society.
 Therefore, it was felt by the courts that individuals as parts of the society must have the right to seek
justice wherever such rights were violated.
 Secondly, through PIL and judicial activism of the post-1980 period, the judiciary has also shown
readiness to take into consideration rights of those sections who cannot easily approach the courts. For
this purpose, the judiciary allowed public spirited citizens, social organisations and lawyers to file
petitions on behalf of the needy and the deprived.
Sub-Unit: ‘Judicial Over reach’ When judiciary assumes the roles and functions of the

legislature and executive, thus diluting the concept of separation of powers, it becomes

judicial overreach. Unrestrained activism on the part of judiciary often leads to its overreach.

We all know that Article 142 and judicial review have been put to many constructive uses but

some actions like declaring the NJAC (National Judicial Appointment Commission)

unconstitutional as it tried to apply checks on judicial power highlight the need for judicial

restraints in the exercise of judicial review.

ADVANTAGES OF PIL:
1) Judicial activism has had manifold impact on the political system.
2) It has democratised the judicial system by giving not just to individuals but also groups access to the
courts. It has forced executive accountability.
3) It has also made an attempt to make the electoral system much more free and fair.
4) The court asked candidates contesting elections to file affidavits indicating their assets and income
along with educational qualifications so that the people could elect their representatives based on
accurate knowledge.
DISADVANTAGES:
5) In the first place it has overburdened the courts.
6) Secondly, judicial activism has blurred the line of distinction between the executive and legislature
on the one hand and the judiciary on the other.
7) The court has been involved in resolving questions which belong to the executive. instance, reducing
air or sound pollution or investigating cases of corruption or bringing about electoral reform is not
exactly the duty of the Judiciary. These are matters to be handled by the administration under the
supervision of the legislatures.
8) Therefore, some people feel that judicial activism has made the balance among the three organs of
government very delicate.
JUDICIARY AND RIGHTS
 Judiciary is entrusted with the task of protecting rights of individuals.
 The Constitution provides two ways in which the Supreme Court can remedy the violation of rights.
 First it can restore fundamental rights by issuing writs of Habeas Corpus; mandamus etc. (article 32). The High
Courts also have the power to issue such writs (article 226).
 Secondly, the Supreme Court can declare the concerned law as unconstitutional and therefore non-
operational (article 13) Together these two provisions of the Constitution establish the Supreme Court as the
protector of fundamental rights of the citizen on the one hand and interpreter of Constitution on the other.
The second of the two ways mentioned above involves judicial review. Perhaps the most important power
of the Supreme Court is the power of judicial review. Judicial Review means the power of the Supreme
Court (or High Courts) to examine the constitutionality of any law if the Court arrives at the conclusion that
the law is inconsistent with the provisions of the Constitution, such a law is declared as unconstitutional and
inapplicable.
 The review power means that the judiciary can interpret the Constitution and the laws passed by the
legislature and this feature enables the judiciary to protect the Constitution effectively and also to protect the
rights of citizens.
 The practice of entertaining PILs has further added to the powers of the judiciary in protecting rights of
citizens.
JUDICIARY AND PARLIAMENT

 Apart from taking a very active stand on the matter of rights, the court has been active in seeking to

prevent subversion of the Constitution through political practice.

 Areas that were considered beyond the scope of judicial review such as powers of the President and

Governor were brought under the purview of the courts.

 It gave directions to CBI to initiate investigations against politicians

Shri Kesavananda Bharati (9 December 1940 – 6 September 2020) was an Indian Hindu monk who served as the
Shankaracharya (head) of Edneer Mutt, a Hindu monastery in Kasaragod district, Kerala, India from 1961 until his
death.He was the petitioner in Kesavananda Bharati v. State of Kerala, a landmark case that helped establish the
basic structure doctrine of the Indian Constitution which guarantees that the fundamental or 'basic structure' of the
Indian Constitution can not be altered by parliamentary amendment.

Was the power of Parliament to amend the Constitution unlimited ? In other words, could Parliament alter, amend,
abrogate any part of the Constitution even to the extent of taking away all fundamental rights ?
Article 368, on a plain reading, did not contain any limitation on the power of Parliament to amend any part of the Constitution. There
was nothing that prevented Parliament from taking away a citizen’s right to freedom of speech or his religious freedom. But the repeated
amendments made to the Constitution raised a doubt: was there any inherent or implied limitation on the amending power of
Parliament?
The 703-page judgment revealed a sharply divided court and, by a wafer-thin majority of 7:6, it was held that Parliament could amend
any part of the Constitution so long as it did not alter or amend “the basic structure or essential features of the Constitution.” This was
the inherent and implied limitation on the amending power of Parliament. This basic structure doctrine, as future events showed, saved
Indian democracy and Kesavananda Bharati will always occupy a hallowed place in our constitutional history.

"There are certain principles within the framework of Indian Constitution which are inviolable and hence cannot be amended by the
Parliament. These principles were commonly termed as Basic Structure."

Kesavananda Bharati Case The Hindu

Kesavananda Bharathi is the case which saved the Indian democracy; thanks to Shri Kesavananda Bharati, eminent jurist Nanabhoy
Palkhivala and the seven judges who were in the majority.
In 1970, Keshavananda Bharati head of the Edneer Mutt. -- when he was all of 21 years -- directly moved the
Supreme Court against Kerala's land acquisition law, which exempted temple and mutt property but put restrictions
over private individual property.
The hearing in the case started on October 31, 1972, and ended on March 23, 1973. The Supreme Court in a 7-6
majority judgment ruled that the basic fundamental structure cannot be altered. The basic structure of the
Constitution is interpreted to include secularism, independence of the judiciary, federalism, and conducting free and
fair elections, among others.
The case was heard for 68 days -- the longest in the history of the apex court -- before a 13-judge bench at a time
when there were only 13 judges in the Supreme Court. No case was heard by a 13-judge bench before or after that.

The seer, however, lost his case.

After the judgment, the family lost large tracts of land. In an interview to Bar and Bench in 2012, Keshavanada
Bharat said although Kerala was run by a 'Communist government', the law exempted temple and mutt-owned
properties from government acquisition, because of which "we have at least some property left with us now".
He said after losing land, the mutt did not generate enough revenue and was running on donations.
Palkhivala, his lawyer realised this case could be used to challenge Parliament’s power to amend the Constitution at
will, including over property rights.
In 1973, the Supreme Court gave a decision that has become very important in regulating the relations between
the Parliament and the Judiciary since then. This case is famous as the Kesavananda Bharati case. In this case,
the Court ruled that there is a basic structure of the Constitution and nobody—not even the Parliament (through
amendment)—can violate the basic structure.
The Court did two more things.
First, it said that right to property (the disputed issue) was not part of basic structure and therefore could be
suitably abridged.
Secondly, the Court reserved to itself the right to decide whether various matters are part of the basic structure of
the Constitution. This case is perhaps the best example of how judiciary uses its power to interpret the
Constitution. This ruling has changed the nature of conflicts between the legislature and the judiciary.
The right to property was taken away from the list of fundamental rights in 1979 and this also helped in changing
the nature of the relationship between these two organs of government.
Democracy hinges on the delicate balance of power between the judiciary and the Parliament and both
institutions have to function within the limitations set by the Constitution
What is Supreme Court of India Collegium and How it Works?
The Collegium of the Supreme Court consists of 5 senior most Judges including the Chief Justice of
India. They will consider the elevation of Chief Justices/Judges of High Court to Supreme Court,
elevation of Judges of High Courts as Chief Justices and elevation of Judges. In case of difference of
opinion, the majority view will prevail. Since Constitution mandates consultation with the Chief Justice of
India is necessary for appointments to judiciary, the collegium model evovled.

What is the Collegium System?

It is a system under which appointments and transfers of judges are decided by a forum of the Chief
Justice of India and the four senior-most judges of the Supreme Court. It has no place in the Indian
Constitution.