Indian Constitution At Work Chapter 6 Judiciary

We need courts to apply the law of the country. The Judiciary is also responsible for upholding the rights of citizens and seeing that no one including the government violates them.

Qualifications of a High Court Judge:

1. He should be a citizen of India.

2. He must have worked for at least 10 years on some judicial post.

3. He must have been an advocate in any High Court of India.

The judges of a High Court can remain in office till the age of 65 years. He can resign from his post even before this age. A High Court judge can be removed from his post before the age of 65 years if charges of corruption are proved against him. The Parliament can send such a resolution to the President of India and he has the right to remove the judges from his office.

The Supreme Court of India is the highest – judicial authority in our country. It is in New Delhi.

Court cases are broadly divided into two categories. One is the Civil Court, which concerns matters like money, property inheritance, marriage disputes, etc. The other is the Criminal Court in which cases of theft, cheating robbery, physical injury, murder etc.

Meaning of the term judiciary: One of the organs of the government is the judiciary. Its main function is to punish those who violate and disobey the laws passed by the legislature. But in modern days the importance of judiciary has increased very much. It acts as the guardian of the Fundamental Rights of the citizens and also of the Constitution. Judiciary in our country is a very powerful institution.

The President is empowered to seek legal advice from the Supreme Court on any question of public importance. The Supreme Court will render its advice after full consideration of the subject concerned. The President may seek the advice of the Supreme Court about such a treaty between the Centre and a State to which the original jurisdiction of the Supreme Court does not extend. There is no such power with the Supreme Court of the USA.

The President is not bound to accept these legal advice of the Supreme Court.

Original Jursidiction of the Supreme Court: The Supreme Court shall have original jurisdiction in any of the following disputes:

(a) between the Union and one or more states, or

(b) between the Union of India and any state or states on one side and one or more states on the other, or

(c) between two or more states.

The original jursidiction means a jurisdiction relating to a case which can be initiated, at first instance, in the Supreme Court itself.

A judge of the Supreme Court may be removed from his office before the expiry of his term by the President on the ground of proved misbehaviour or incapacity. The President shall make such order for removing a judge only after an address to each House of Parliament supported by a majority of the total membership of that House and not less than two-third majority of the members present and voting, has been presented to the President. The address for the removal of a judge shall be passed by each House separately in the same session of Parliament.

Composition of the Supreme Court: There shall be a Supreme Court of India consisting of a Chief Justice and 30 other judges. (The original constitution provided for 7 other judges). The Judges of Supreme Court are appointed by the President after consultation with such Judges of the Supreme Court or High Courts as he deems appropriate. While appointing a judge other than the Chief Justice, the President shall consult the Chief Justice of lndia. A Judge of Supreme Court shall hold the office until he attains the age of 65 years. Every judge of the Supreme Court shall be entitled to get as much salary as determined by the Parliament by law. At present the Chief Justice gets a salary of Rs. 100,000 per month and the other judges Rs. 90,000 per month.

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The High Court: The number of judges in a High Court is not fixed according to our Constitution. Every High Court has a Chief Justice and a number of other judges. It is only the President who can fix the number of judges in a High Court.

Appointment of Judges: The Chief Justice and other judges of a High Court are appointed by the President. While appointing the Chief Justice, the President consults the Chief Justice of India and the Governor of the State. While appointing other judges of a High Court he consults the Governor, the Chief Justice of the Supreme Court and the Chief Justice of the High Court concerned.

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The powers of a High Court can be mentioned as under:

1. Basic Powers: The matters concerning the Fundamental Rights, will and contempt filed directly in the High Court.

2. Appellate Powers: A High Court entertains appeals against lower courts regarding civil and criminal cases decided by any session judge or district judge.

3. Administrative Powers: A High Court controls and inspects the working of all the lower courts in its jurisdiction. It lays down rules and regulation for their working.

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Like the Supreme Court of India, the High Courts have also been vested with the powers of judicial review. High Court can strike down any law of the state or any order of the executive if it violates any provision of the Constitution or curtails or takes away any of the Fundamental Rights of the people.

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Chief Justice of the Supreme Court is consulted in the appointment of other judges of Supreme Court.

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Judge of a High Court cannot be transferred to another High Court.

A judge of High Court may be removed from his office in the like manner as a judge of Supreme Court is removed from his office. Under Article 124, the President shall make such order to remove a judge only after an address by each House of Parliament supported by a majority of the total membership of that house and not less than two-third majority of the members present and voting has been presented to the President.

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The independence of judiciary does not mean that the judiciary is not accountable to any one. But the independence of judiciary means that no other organs of the government would restrain the functioning of the judiciary and the judges would perform their functions without any fear or favour. The independence of judiciary does not imply arbitrariness. Judiciary also is a part of the democratic political structure. It is, therefore accountable to the Constitution, to the democratic traditions and to the people of the country.

The judges of a High Court can remain in office till the age of 65 years. He can resign from his post even before this age.

The concept and procedure, as well as the relief under Public Interest Litigation have been fashioned by the Supreme Court of India. The public interest litigation has been initiated by some Judges of the Supreme Court themselves. The Supreme Court has opened a new chapter on public litigation. Merely on a postcard or application the complaints are registered and necessary orders passed. Under the former Chief Justice P.N. Bhagwati’s leadership, Public Interest Litigation acquired a new dimension. Under this scheme, the grievances of weaker sections, bonded labourers, women and children have been given due importance. Public Interest Litigation scheme has been used to provide reliefs for undertrial prisoners in jails, acquisition of cycle rickshaws by licensed riskshaw pullers, prohibition of human trafficking etc.

To reduce the time and expenditure, a system of Lok Adalats has been started in our country. The basic idea behind the scheme of Lok Adalats is to eliminate delay in imparting justice and to speed up clearance of pending cases as soon as possible. Under this system the cases are decided quickly and without much expenditure. In Delhi, in 1985, the first Lok Adalat was held and 150 cases were decided in a single day. The concept of Lok Adalat implies resolution of peoples disputes by discussion, counselling, persuasion and conciliation so that it gives speedy and cheap justice with the mutual and free consent of the parties concerned.

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Jurisdiction of High Court:

(i) The High Court shall have powers to issue order and writs in the nature of Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo-Warranto for the enforcement of Fundamental Rights and for any other purpose. While the Supreme Court can issue orders, directions and writs only for the enforcement of Fundamental Rights (Part III of the Constitution), the High Courts are empowered to issue orders, directions and writs for the enforcement of Fundamental Rights as well as for any other purpose.

(ii) The original jurisdiction of the High Courts also extends to matters of administration, probate, matrimonial, contempt of court and cases ordered to be transferred from a lower court involving the interpretation of the Constitution to its own file.

(iii) The High Courts of Kolkata, Chennai, and Mumbai exercise original civil jurisdictions when the amount involved is more than two thousand rupees. In criminal cases, it extends to cases committed to them by Presidency Magistrates.

(iv) The High Courts of Kolkata, Mumbai and Chennai have the original jurisdiction as they had before the enforcement of the new Constitutions on straight way cases involving the hearing Christians and the Parsis.

(a) The Writ of Habeas Corpus: The writ of Habeas Corpus is the protector of individual liberty and the foundation stone of the rule of law. Such a writ is to that body who has taken someone else in custody against the spirit of law. Through this writ the detainer is ordered to produce the detainee before the court.

(b) The Writ of Certiorari: The writ of Certiorari is usually issued with the writ of prohibition. Through this writ, a higher court orders a lower court to send the case or the record concerned to the former.

(c) The Writ of Quo Warranto: The writ of Quo Warranto is issued to an individual who has usurped a public office. He is asked through that writ about his right to hold the said office. This writ is issued only when there is no other way out for remedying the grievances. Moreover, it can be issued only for a public office and not for the office of any private organization. In reply to such a writ the officer concerned has to legally prove his right to hold that office, otherwise, court can get the office vacated.

(d) The Writ of Mandamus: The writ of mandamus is issued by the Supreme Court to a lower court, an official or an association. The aim of this writ is to protect the right of the petitioner and to get some public duty done by that authority to whom the writ is issued. The Supreme Court can issue this writ only for protecting the Fundamental Rights but the High Courts are empowered to issue it for other purposes also in addition to safeguarding the Fundamental Rights.

Two main suggestions to ensure speedy and inexpensive justice in India are as following:

1. In every state of India the “Lok-Adalats” should be established and organized at the state as well as the district levels and these should be made popular among the people through publicity.

2. To have the speedy justice, the pending cases should be expedited and decided by the courts at the earliest. Moreover, the government should establish new courts as and when needed. Moreover the court fees as well as fees of the advocates should be controlled and minimised.

For the judicial activism, the chief instrument in India is Public Interest Litigation (PIL) or Social Action Litigation (SAL). Through PIL, the court has expanded the idea of rights, clean air, unpolluted water, decent living, etc. The judiciary takes these rights into consideration for those people also who cannot approach easily to the courts. And hence the problems of the poor people are settled. Thus, the speedy and inexpensive justice may be availed by the citizens.

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I. Meaning of Independence of Judiciary: The independence of judiciary means that the other organs of the government like the executive and legislature must not restrain the functioning of the judiciary is such a way that it is unable to do justice. It also means that the judges are able to perform their functions without fear or favour and the other organs of the government should no interfere with the decision of the judiciary.

II. Provisions: The Indian Constitution seeks to achieve the independence of judiciary through a number of measures described in its provisions such as:

1. Appointment of Judges: To avoid the consideration of party politics, the legislature has no say in the appointment of judges.

2. Fixed Tenure: The judges have a fixed tenure. They hold office till they reach the age of retirement. Only in exceptional cases the judges may be removed. The constitution prescribes a very difficult procedure for the removal of judges.

3. Financial Independence: The judiciary is not financially dependent on the other organs of the government – legislature and executive. The constitution provides that the salaries and allowances of the judges are not subjected to the approval of the legislature.

4. Immunity from Criticism: The action and decisions of the judges are immune from the personal criticisms.

5. Contempt of court: The judiciary has power to penalize those who are found guilty of the contempt of court.

6. No Discussion of the conduct of Judges in Parliament: The constitution specifically bars the Parliament from discussing the conduct of the judges except. When inpeachment proceedings are being carried out.

The Supreme Court of India:

Composition — Article 124 (1) of the Constitution stipulates that so long as the Parliament does not make provision for the appointment of more judges through a law, the Supreme Court shall have one Chief Justice and seven judges. The Parliament has increased the number of the judges several times. At present there is a Chief Justice and 30 other judges in the Supreme Court.

Appointment and Tenure of the Judges: The Chief Justice of the Supreme Court and the other judges are appointed by the President of India. The judges of Supreme Court hold office till they complete the age of 65 years.

1. Original Jurisdiction of the Supreme Court: (a) Such cases of the centre and the states come directly to the Supreme Court in which:

(i) The central government and a state or states are the parties.

(ii) The central government and one or more states on the one hand and one or more states on the other or

(iii) Two or more states are involved.

(a) But no such case will come under its original jurisdiction which is concerned with a treaty of contract which was negotiated before the enforcement of the constitution or a contract in which it is given specifically that case concerning that the contract will not be taken to the Supreme Court.

(b) According to Article 32, original jurisdiction of the Supreme Court extends to the Fundamental Rights also. It can issue various types of writs to enforce them. The High Courts also enjoy concurrent jurisdiction over them.

2. Appellate Jurisdiction: The appellate jurisdiction of the Supreme Court are of three types: Constitutional, Criminal and Civil.

(a) Constitutional Appeals: A constitutional appeal means an appeal to the Supreme Court against the decision of a High Court for interpretation of the constitution in any case. Such an appeal can be brought to Supreme Court if the High Court certifies that interpretation of the constitution is required in that case or secondary if the Supreme Court grant a special leave of appeal.

(b) Appeal in Civil Cases: As regards the appeals in civil cases, the 30th amendment, 1972 has brought about significant changes. Prior to the 30th amendment appeal to the Supreme Court in civil proceedings against a judgement, decree or final order of a High Court required that the amount or value of subject-matter of the dispute was not less than Rs. 20,000. The 30th amendment sought to do away with the monetary limits for invoking the appellate jurisdiction of the Supreme Court.

(c) Criminal Appeals: The following criminal cases can be brought to Supreme Court as appeal.

(i) If a criminal is acquitted by a lower court and he is sentenced to death by High Court.

(ii) If a High Court awards death sentence in case which it had taken from a lower court undecided.

(iii) If the High Court certifies that the case is a fit to be taken to the Supreme Court as an appeal.

Judiciary is one of the three organs of the government and like the other two organs namely the executive and the legislature, it is also required to perform many other functions than that of giving justice alone. It is because of the complex character of the society which is ever widening and getting more complex. The most important functions performed by the judiciary are as under:

1. As the Custodian of the Constitution: It is the duty of judiciary to act as the custodian of the Constitution by way of properly interpreting it. It can declare any law passed by the legislature as ultra vires and unconstitutional if it is not in accordance with the letters and spirit of the constitution.

2. Interpretation of Law: The judiciary is also called upon to interpret laws. It is to see that laws are interpreted in a scientific way and in the spirit in which they were enacted. It is only though the the process and power of interpretation of laws that the judiciary finds opportunity of bringing to the notice of the executive conflicting and contradicting laws.

3. Custodian of Fundamental Rights: In almost all democratic countries like India the people have been given some Fundamental Rights. Judiciary is to see that people enjoy them and all the contrary laws are declared ultra vires.

4. Legislative Functions: It performs legislative functions by way of giving ‘judge-made laws’ to the nation, thereby filling-up gap between the society and the legislature.

5. Administrative Functions: Each court is required to perform some administrative functions. It is to see that working of administration in each court is smooth and that there is adequate staff for giving justice.

6. Advisory Functions: The courts are required to advise the head of the State or the executive government about the validity of a particular law so that after having been passed these are not declared unconstitutional or ‘ultra vires’.

7. To act as court of record.

8. Miscellaneous Functions: (a) They look after minors. (b) They issue licenses, (c) Administer oath of office. (d) Appoint receivers and, (f) Grant probates, bails, etc.

The organisation of judiciary in districts of the whole of India is uniform. There are three types of law courts in every district under the High Court. 1. Civil, 2. Criminal, 3. Revenue.

The detail of the composition and powers of the Subordinate Courts in the districts of the Indian States is given below:

1. The Criminal Court: The highest court in the district is that of the District and Session Judges. It is empowered to hear both the civil as well as criminal cases. It should be noted that the District and the Session Court is one and the same court and the same person acts in both the civil and criminal capacities. When he deals with civil cases, he is called the Session Judge. This court tries these cases with the help of jury or assessors and is competent to inflict any punishment sanctioned by the law. Due to excess of work, the District and Sessions Judge is helped by one or more additional Session Judges. He is appointed by the Governor of the State in consultation with the Chief Justice of the High Court under whose jurisdiction the state falls.

The District and Session Judge hears appeals from subordinate courts under it. He can hear appeals regarding serious crimes like dacoities and murder and is empowered to sentence the culprits to death, but such punishment must be confirmed by the High Court. The lowest criminal court in the district is that of Third Class Magistrate’s Court. This Magistrate hears petty cases like those of beating and quarrels, etc. He is empowered to sentence one month’s imprisonment and maximum fine of Rs. 50. Then there is the Second Class Magistrate’s Court in which cases of comparatively graver nature are heard. The second class Magistrate is empowered to sentence for six month’s imprisonment or can fine Rs. 200 as maximum.

Above the Third and Second Class Magistrate’s Courts are the courts of first class Magistrates who have appellate jurisdiction also besides the original jurisdiction. These courts hear cases of graver nature and also appeals from the Third and Second Class Magistrates. The First Class Magistrate is empowered to exercise original jurisdiction in cases involving a sentence of imprisonment upto two years and fines upto Rs. 1,000. All appeals are filed to the District and Session Court against the decisions of the First Class Magistrates.

2. The Civil Courts: The highest civil court in a district is that of a District Judge. He/she is the highest judge of district in the civil cases. There are courts of many sub-judges under him. Sub-judges are divided into several ranks. They are empowered to hear cases involving a sum of Rs. 5,000. They possess original jurisdiction and also can hear appeals against the Munsiff’s court. There are also Senior Civil Judges to help the District Judges who generally possess the powers of a District Judge. The Munsiff is empowered to hear cases involving a sum of Rs. 2,000.

Besides the Munsiff’s court, there is also a provision of small cases, court competent to hear cases involving sum upto Rs. 1,000. No appeal can be made against the decisions of this court, hence only very experienced persons are appointed as judges of this court.

3. Revenue Courts: Revenue Courts hear cases relating to the revenue of the district. The lowest Revenue Court is the court of Naib-Tehsildar and above him the Court of Tehsildar. They hear revenue cases. The highest revenue court in the district is the Court of Collector (Deputy Commissioner). Appeals against his court can be made in the Court of the Commissioner. Appeal against the Court of Commissioner can be taken to the Board of Revenue and, against them appeal can be taken to the High Court.

I. Meaning: According to Dimock, “Judicial Review is the examination by the courts in cases actually before them, of legislative status and executive or administrative acts to determine whether or not they are prohibited by a written Constitution or are in excess of power granted by it.” “Judicial Review’ according to Ferguson and McHenry, is the power of any Court to hold unconstitutional, hence unenforceable, any law or official action that it deems to be in conflicts with the basic law of the Constitution”. In the words of Pennock and Smith, ‘Judicial review refers to powers of the courts to interpret Constitution and to declare Acts of the legislature, executive or administration void, if it finds them into conflict with the Supreme Law.

II. Power of Judicial Review of the Supreme Court:

Supreme Court as the Guardian of the Constitution: Supreme Court is the guardian and final interpreter of the Constitution. The Supreme Court is voted with the power of Judicial review. It is the power of the Supreme Court to declare any law null and void if that law violates the Constitution. Article 13, for instance, bearing the marginal headings. “Laws inconsistent with or in derogation of the Fundamental Rights” laid down that all laws in force in India immediately before the commencement of the Constitution in so far as they were on consistent with the provision of Part III shall, to the extent of such instances of inconsistency, be void. Article 12 (2) clearly says, “the state shall not make any law which takes away or abridges the rights conferred by this part and law made in contravention will be void.” It is the Supreme Court which by its judicial review will decide whether a law in connection with the Fundamental Rights is void or not. The court has the power of judicial review for which a citizen moves for the enforcement of the Fundamental Rights under Article 32 (2) of the Constitution, when the Court is so moved, it will have to decide whether any legislation or executive action of the Union or of a State violates a Fundamental Right, and if so it will “issue direction or writs, including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-warranto and Certiorari, whichever may be appropriate for the enforcement of any of the rights conferred by this part.”

Under Article 245 the Supreme Court can review the extent of law made by Legislatures of States. Further, Article 246 (3) provides that the legislature of any State has exclusive power to make laws for any subject of the State List. This means that if Parliament ever made a law on any such subject, except in the time of emergency, it shall be void. This again could be decided by the Supreme Court alone, whether or not some provisions of the law of the State Legislatures are repugnant to the provisions of the Parliamentary law. Under Art. 254, our Supreme Court can also decide any inconsistency between the law made by Parliament and laws made by Legislatures of the States.

III. Importance of the Power of Judicial Review:

1. Judicial Review is implicit in the case of a written Constitution: In India there is a written Constitution and in the written Constitution the wording and language is sometimes technical which is difficult to understand for a common man. So for the proper interpretation of the Constitution’s the power of judicial review is necessary.

2. Judicial Review is necessary for Protecting the Civil Liberties: It has rightly been said that the rights and liberties of the citizens are not unlimited. So, for the safety and security of the State and keeping in view the public interests, the government may impose some limitations on them. Whether these limitations are just or unjust, it is the jurisdiction and duty of the court to decide which can be done only through the power of Judicial Review.

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Role of Chief Justice: The Chief Justice of India is appointed by the President. As far as the appointment of Chief Justice of India is concerned over the years, a convention had developed the senior most judge should be appointed. But in 1973 A. N. Ray was appointed as Chief Justice superseding three judges. Similarly in 1975 Justice M. H. Beg was appointed superseding Justice H. R. Khanna. For the other judges of the Supreme Court are appointed by the Presdient consulting the Chief Justice of India, But finally it rested with the government.

The Chief Justice of Supreme Court and other judges of Supreme Court hold office upto the age of 65 years. Though the other organs of the government don’t interfere in the functioning of the judiciary in such a way that it is unable to do justice but it does not imply arbitrariness, absence of accountability.

Judiciary is a part of the democratic political structure of the country. If the government (Organs of the government 1. legislature, 2. Council of ministers), interfere in any proceeding of the judiciary, the Supreme Court has been active in seeking to prevent suppresion of the Constitution through political practice. Thus 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.

I. Meaning of the term Judiciary: One organ of the government is the judiciary. Its main function is to punish those who violate and disobey the laws passed by the Legislature. But in modern days the importance of judiciary has increased very much. It acts as the guardian of the Fundamental Rights of the citizens and also of the Constitution.

II. Main Functions of Judiciary:-

1. Judicial functions: When a dispute is brought before a court it is the responsibility of the court to ‘determine the facts’ involved. The usual manner in which the courts determine the facts is through evidence given by the contestants. Once the facts have been established, the court proceeds to decide what law is applicable to a particular controversy or circumstances. Herein the judiciary becomes the interpreter of laws which is the prime function of the judiciary. So the major task of the judiciary is to ‘determine the facts of laws and to apply them to particular circumstances.’

2. Law-making functions: The judiciary while interpreting the existing laws also performs the role of a law-maker. It may sound surprising but “judge-made” laws are common to all systems of jurisprudence. Such occasions arise when the provisions of the existing laws may be ambiguous, or sometimes two or more laws of particular government appear to conflict under a given circumstance. Herein the judiciary plays an important role in determining what the law is and when two laws apparently conflict, which shall prevail.

3. Interpretation of laws: The laws are framed by the legislature and are enforced by the executive. Sometimes the people are not clear about the meaning of certain provisions of the laws. Each word denotes so many meanings and everybody interprets those words in such a way as it suits his/her own interest. Such terms, clauses and words are to be interpreted by the judiciary. The interpretation given by the judiciary is always considered to be the correct and a just one. This interpretation of the law is accepted all over the country. The judiciary also interprets the Constitution of the country. While interpreting the Constitution, the judiciary keeps in view the objects for which the legislature had made a particular provision.

4. Guardianship of the Constitution: In federal states like India, the USA and Switzerland, the judiciary is the guardian of the Constitution. Chief Justice Huges of America once said, “We are under Constitution but the Constitution is what the judges say it is”. In federal states conflicts in jurisdiction and authority frequently occurs, as there are several law-making and executive authorities, each owing its power to the Constitution. Under the circumstances the judiciary becomes the umpire and regulates the laws of the States and Central Government. In case the law made by any these law-making bodies conflict with the constitutional provision, the judiciary declares them ultravires.

5. Protector of Fundamental Rights: The judiciary also acts as the defender of the individual rights. Such a role of judiciary is important as it prevents the individuals’s right from being violated. If one has sufficient reasons to believe that attempt would be made to violate his/her right he/she could approach courts for protection. Then the courts would issue orders prohibiting such attempts till the rights of the parties were determined. Judiciary is the watchdog of rights and liberties of people. In India, the Supreme Court and the High Courts are empowered to protect the Fundamental Rights of the citizens.

A person whose rights have been violated or who is involved in a dispute, can approach the court or he could move to the court of law. But since 1979, the court has changed the trend for the poor when it decided to hear a case was filed not by the aggrieved persons but by others on their behalf. The case involved an important issue of public interest. For the betterment of life conditions of the poor, the voluntary organisations sought judicial intervention for protection of existing rights of the poor.

Protection of the environment, bonded labourers, prohibition of traffic in women, acquisition of cycle rickshaws by licensed rickshaw pullers and other grievances of the weaker sections, reliefs for undertrial prisoners in jails, etc. have been given due importance. Public Interest Litigation has become too much important vehicle of judicial activism.

The chief instrument through which judicial activism has flourished in India is Public Interest Litigation or Social Action Litigation. Many prisoners in Bihar who had spent long years in jail were released after the Supreme Court heard that case which was filed by an advocate. It must be remembered that the problems of the poor are qualitatively different. And these problems can be solved by the intervention of the Supreme Court after filing the PIL or Public Interest Litigation.

The judicial activism can lead to a conflict between the judiciary and the executive. Judicial activism has had deep impact on the political system.

It has forced executive accountability. By the judicial activism it becomes more easy to make the electoral system much more free and fair. The courts have asked the candidates contesting elections to file affidavits indicating their assets and income along with educational qualifications.

This gives the dissatisfaction to the candidates and the judicial activism has blurred the line of distincton between the executive and legislature on the one hand and the judiciary on the other. The court has been involved in resolving issues which belong to the executive.

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 which are the duties of administration and hence sometimes judicial activism can lead to a conflict between the judiciary and the executive.

The Constitution of India has granted six Fundamental Rights to its citizens. These rights are:

(i) Right to Equality.

(ii) Right to Freedom.

(iii) Right against Exploitation.

(iv) Right to Freedom of Religion.

(v) Cultural and Educational Rights.

(vi) Right to Constitutional Remedies.

According to the sixth rights i.e., “Right to Constitutional Remedies” which has been given in the Article 32 and 226 of the Constitution, all the above given fundamental rights are to be protected through the various writs which the High Courts and the Supreme Court can issue from time to time. These writs are following :

(a) The Writ of Habeas Corpus: The writ of habeas corpus is the protector of individual liberty and the foundation stone of the rule of law. Such as writ is to that body who has taken someone else to custody against the spirit of law. Through this writ the detainer is ordered to produce the detainee before the court.

(b) The Writ of Mandamus: The writ of mandamus is issued by the Supreme Court to a lower court, official or an association. The aim of this writ is to protect the right of the petitioner and to get some duty done by that authority to whom the writ is issued. The Supreme Court can issue this writ only for protecting the fundamental rights, but the High Courts are empowered to issue for other purposes also in addition to safeguarding the fundamental rights.

(c) The Writ of Quo-warranto: The writ of Quo-warranto is issued to any individual who has usurped a public office. He is asked through this writ about his right to hold the said office. The writ is issued only when there is no other way out for remedying the grievances. Moreover, it can be issued only for a public office and not for the office of any private organization. In reply to such a writ, the officer concerned has to legally prove his right to hold that office, otherwise the court can get that office vacated.

(d) The Writ of Prohibition: The writ of prohibition is issued by a higher court to a lower one. This writ is usually issued when either the lower court is exercising some powers beyond its jurisdiction or any party fears the possibility of injustice in that court. Such a writ can be issued to some a public tribunal as well whose function is semi-judicial. Through this writ a higher court orders a lower court or a public tribunal to stop the proceedings of a certain case.

(e) The Writ of Certiorari: The writ of certiorari is usually issued with the writ of prohibition. Through this writ, a higher court orders a lower court to send the records concerned with a case therewith to the former.

Through various decisions, the judiciary has given new interpretation to the Constitution and protected the rights of citizens. Judiciary is entrusted with the task of protecting rights of individuals. The Constitution provides two ways for the remedy of the violation of rights. First by issuing writs and the second by declaring the concerned law unconstitutional. The review power of Supreme Court is that the Supreme Court has the power to review legislations on the ground that they violate the fundamental rights. This feature enables the judiciary to protect the Constitution effectively and also to protect the rights of citizens. The practice of entertaining the Public Interest Litigations has further added to the powers of the judiciary in protecting rights of citizens.

I. Meaning of the term Independence of Judiciary. Why is the independence of the judiciary desirable? Since the days of monarchs, despots and theoratic regimes, much sanctity is attended to the judiciary. ‘Justice’ is depicted as a blind-folded person, who holds the scale of justice. Such depiction is symbolic of the impartial quality of a judge. Be in a democracy or a despotic regime, impartial judges have been highly praised. In order to be impartial, it is required that judges should be independent. Unless they are independent they cannot properly meet out justice.

An independent judiciary can only protect the rights of individuals against encroachment by other. Encroachment need not only be from private persons. Even Government officials, in course of their duty are likely to encroach upon the rights of individuals. Under the circumstances, it is only an independent judiciary that can come to the rescue of the aggrieved party. In federal policy independence of the judiciary is imperative.

The judiciary in a federal system functions as the defender of the constitution. It is also acts as an impartial arbiter of disputes that often arise between national and State Governments. Unless the judges are independent and the conditions of their service are unencroachable and their service is secure, they cannot freely express their opinion.

About the independence and impactiality of Judiciary Prof. Laski says, “The men who are to make justice in the courts, the way in which they are to perfrom their functions, the method by which they are to be chosen, the terms upon which they shall hold their powers, these and other related problems lie at the heart of political philosophy.”

II. Importance of Independent Judiciary:

It is very important to make judiciary independent and impartial because an individual comes to the court when he has been harassed by the Legislature or Executive and when he has been denied his due. It protects the poor from the rich. It protects the ordinary citizen from the wrong acts of the Executive, it protects the fundamental rights and liberties of the individuals, it interprets the laws and the Constitution.

It decides disputes between the Centre and the States in federal set-up. All these functions can be performed properly by the judiciary only if it is independent and impartial. If the people lose faith in the fairness of the justice, if they start feeling that justice can be purchased and influenced, the Government cannot last longer.

In fact the existence of the State depends upon the judiciary. It is a fact that in ancient days when judiciary acted in subordination of the Executive and had no independent organisation could not protect the people from oppression. Montasquieu propounded his theory of separation of powers, making judiciary independent only for the protection of individual liberty.

American President has also laid emphasis on independence of judiciary. In his opinion the judges should give justice independently, impartially and fearlessly in all cases whether they are between the individual and the Government or between the majority and the minority groups or between the individuals. Dr. Garner has said, “if the judges lack wisdom, probity and freedom of decision, the high purposes for which the judiciary is established cannot be realised”.

Tips: -

V. Imp.

I. Introduction: There are many factors that are helpful in the establishment of the Independence of Judiciary in a country. The main factors are as given:

II. Factors that establish the Independence of Judiciary:

1. Appointment of Judges: The method of appointment of judges also affects the independence of judiciary. If the appointment is made under the influence of party-politics, then neither a capable person would be appointed, nor the judge would be able to decide cases independently.

The three methods of appontment of the judges (1) Election by people, (2) Election by Legislature ; and (3) Appointments by executive have already been described in this very chapter. We have seen that one of these methods is free and defect: however, the judges are appointed by the executive in most of the countries’. To remove its defects Laski has suggested, that the executive should make the appointment of judges on the recommendation of a committee constituted by judges of high ability.

2. High Qualifications: A highly qualified judge is more likely to be independent in views. An incompetent judge, not equipped with legal acumen, is apt to be a tool in the hands of others and tarnish the fair name of judiciary. In India, a judge of the Supreme Court is to be either a judge of High Court for a period of the five years, or an advocate of High Court for ten years, on an eminent jurist.

Through in the United States, the qualifications, of federal judges are not specified yet they are generally conversant with legal technicalities. Judges in the United Kingdom are persons expert in law.

3. Security of Service: The judges can remain independent only when they enjoy security of service. The judges should not afraid of losing their job. They should feel quite safe about their posts. If any other organs has the right to remove a judge from the post, the judge cannot remain impartial and just.

A judge won’t be able to deliver a decision against that person or persons who has the authority to remove the judge. No judge would like to put his job in stake. Therefore the judge should not be removed from the post as he is performing his duties honestly and sincerely. The executive should not be given the power to remove judges. But it does not mean that a judge can do whatever he likes, and his services cannot be terminated before he reaches the age of retirement. This may lead to the misuse of authority by the judge. The method of removal of judges should be difficult.

4. Tenure of Office: The tenure of office of the judges should be sufficiently long. Almost in all the countries the tenure of the office of the judges is longer as compared to other Government servants. There are so many reasons for the same.

If the judges are appointed for a short period they cannot be honest. They will try to amass more and more wealth during this short span of time because they are not sure whether they will be able or not to earn their livelihood after the retirement. A long tenure is also good because a judge gains experience and comes to know about the technicalities of law. An experienced judge will do better justice. In U.S.A. a judge can continue on the post till life. In India the judge retires at the age of sixty-five.

5. Good Salary: The judges should be paid a very handsome salary and then only they can remain impartial and honest. Financial difficulties may make a judge corrupt.

If the judges are not paid decently they won’t be able to meet their needs properly. With a meagre salary the judges cannot maintain a good standard of living. The judges are to decide cases involving huge amounts and in such case can be tempted to accept bribe.

If the judges accept illegal gratification, they can not remain impartial. Thus the Indian Constitution has fixed the salary of the Chief Justice of the Supreme Court at Rs. 100,000/- per month and that of other judges at Rs. 90, 000/- per month.

6. Separation from the Executive: The judiciary should be kept free from the influence of the executive. The judiciary should enjoy the power of performing functions which concern the executive. If the judiciary under the executive or both the judicial and executive powers are in the same hands then the judges cannot remain impartial.

Only those judges can remain independent who are appointed on the basis of merit. If the appointment of the judges are made unjustly or on recommendation, the judiciary can never remain independent. The judges will always remain under the influence of the appointing authority. There are three methods for making appointments of the judges, which are prevalent in the world.

Modes of the Appointment of the Judges:-

(a) Election by the People: In some States of U.S.A. and Switzerland this method has been adopted. But this method is considered defective. A popularly elected judge can never remain independent, impartial and honest. Laski says that of all the methods of appointment of judges the methods of popular election of judges is the most defective. Firstly, the people are not wise enough to judge the qualities of a person whom they elect, to be the judge. They cannot elect an honest and impartial judge. Secondly, the judge will be elected on the basis of political parties. The elected judges will always favour the political party which helped in his election and would disfavour those voters who opposed him. Thirdly, he cannot perform his duties sincerely because he will do everything to secure his re-election. Forthly, to get elected he will make use as so many corrupt practices. A person who indulges in mal-practices cannot become impartial, honest and sincere. A judge elected through popular election cannot deliever the goods properly.

(b) Election by the Legislature: In certain States the judges are elected by the Legislature of the State. This system prevails in the U.S.S.R., Switzerland and certain States of U.S.A. The judges elected in this way cannot be impartial and honest. The judges will remain under the influence of the political parties. This method is also not without defects.

(c) Appointment by the Executive: Appointment by the executive is most common and most satisfactory method for the choice of the judges. It prevails in Great Britain and the British dominions as well as in the Federal Government of U.S.A. and some States of U.S.A. and in India also though political considerations play a part in making the selection, when once appointed the judges are independent and are not under the influence of the executive. This method makes for the independence of the judiciary. The Executive is considered to be the best qualified agency for the appointment of trained and skilled lawyers to the post of the judges. The executive should appoint the judges in consultation with the Chief Justice or the Public Service Commission. A judge who is appointed on the basis of merit will always be impartial and independent.

A.

Nyaya Panchayats

B.

Lok Adalat

D.

a motion passed by two-thirds majority of the Parliament

Supreme Court

65 years

Constitution

district

1. This is a case of pollution by Reliance thermal power plant.

2. The farmers has been the beneficiary in this case.

3. The chikoo growers of Dahanu are the petitioners in this case.

4. The main contention of the Dhahanu Taluka Environmental Protection Authorty and the Supreme Court was about setting up of the pollution control plant. Reliance acquired the plant only in 2003, so it would have pleaded for the further extension of the time limit for the setting up of the pollution control plant. I would have also argued that the pollution was not wholly of its making as it had acquired the plant in 2003. Accordingly it would have argued for the reduction in the penalty.

5. The farmers might had argued that since Reliance had failed in its commitment to install, the pollution control unit in 2004, it did not had intentions to do it. So it must be penalized more.

1. The Central Government and the Delhi Government.

2. The role of Supreme Court is that to see that the government policies and actions at central as well as states are in tune with the parameters of the pollution control regimes or not. If not – it has to see that the governments comply with these parameters. It is in these regards that the Supreme Court had asked for phasing out all non-CNG commercial vehicles on Sept. 22, 2001 within a week. Keeping in view the difficulties in implementing it, the Supreme Court later gave a breather to the government that it had never insisted on CNG for taxis and auto rickshaws but it refused to relax the only CNG norm for city’s buses.

3. This episode shows the judicial activism of the Courts. The Supreme Court was concerned about the environmental degradation in the city. To stop the delaying to cities of the Delhi Government, it had come heavily and had directed for phasing out of all non-CNG Commercial vehicles in week. It is the duty of the government to ensure a pollution free environment. Here check and balance was also operating between the executive and the judiciary. The Judiciary has to see that the government does not byepass its commitments. The Contempt of Court may follow if the government is not able to comply with the direction of the supreme court.

There is no similarity in this example and the judicial system in India. In India, the judicial decisions are the important sources of law. Judicial decisions of the eminent judges become precedents and the other courts generally follow them as rigidly as the laws passed by the legislature. The judges give their own interpretation and in the light of these interpretations decide the cases. Hence they expand or modify laws. The rulings of the Supreme Court, High Court, etc. are often quoted by lawyers with effect and authority. In the above said example that it would be helpful if a body of common law or judicial precedent existed that could clarify a journalist’s rights. But the Ecuador’s court don’t work in such a manner. The judicial decisions do not become the precedents and the judge may rule one way today and the other way tomorrow without explaining why.

Original Jurisdiction means cases that can be directly considered by the Supreme Court without going to the lower courts before that. Appellate Jurisdiction means that the Supreme Court is the highest court of appeal. A person can appeal to the Supreme Court against the decisions of the High Courts. However High Court must certify that the case is fit for appeal. The Advisory Juridiction means that the President can refer any matter that is of public importance but the President is not bound to accept such an advice. Now we match them with the different jurisdictions as given in the question.

1. The government wanted to know if it can pass a law about the citizenship status of residents of Pakistan-coccupied areas of Jammu and Kashmir.

It is an Advisory Jurisdiction.

2. In order to resolve the dispute about the river Cauvery the government of Tamil Nadu wants to approach the court.

It is an Original Jurisdiction.

3. Court rejected the appeal by the people against the eviction from the dam site.
It is an Appellate Jurisdiction.