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JUDICIARY CHAPTER 6

Introduction

We all know judiciary is important for settling the disputes between individuals and private
parties. but besides, sorting out disputes it aso performs a very vital political function. that is to
protect rights of individuals. it interprets the provisions of constitution and protects the rights of
citizens.
(by interpreting it means that it explains the laws in the constitution in such a way that it is in
sync with principles of constitution which is liberty, justice etc. to make it more simple, a law has
different interpretations. a dictator will try to mould law in his favor while a communist
government might try to mould law in favor of a group. so a our judiciary interpret law in favor of
principles like justice, secularism, rights. i hope now you must have got the meaning of word
interpretation.)
To allow judiciary to carry out its functions effectively and fearlessly, we need an independent
judiciary. and to make our judiciary independent , constitution has made certain provisions for
it.

Q&A
Q1. Why do we need an independence of judiciary?
a1. independence of judiciary is required:
a. to settle disputes according to the rule of law.
b. to protect rule of law
c. ensure supremacy of law
d. safeguards rights of individuals
e. ensure that democracy does not give way to individual or group dictatorship
Q2.what is the meaning of rule of law?
A2. rule of law means that all individuals whether rich or poor, men or women, forward or
backward castes , they all are subjected to the same law.
meaning of independence of judiciary
it means that
a. other organs of government like executive and legislature must not restrain the functioning
of judiciary that it (judiciary) is not able to do justice.
b. other organs should not interfere with decisions of judiciary
c. judge must be able to perform functions without any fear.
but that does not mean that judiciary will do whatever it wants. it does not mean taking arbitrary
decisions.
How can independence of judiciary be provided and protected?
a. legislature is not involved in the process of appointment of judges : so political party will not
be able to appoint judges. they need to have experience of law
b. judges have a fixed tenure. they hold office till the age of retirement. this security ensures that
they are able to function without fear of losing their jobs.
c. removal of judges is very difficult. since their removal from jobs is difficult they have a
security of tenure and can thus function fearlessly.
d. judiciary is not dependent on executive and legislature for their salaries. legislature does not
discuss on the salaries of judges. they also can not discuss about conduct of judges in
parliament, unless the judge is not being impeached. if the judge is discussed it can lead to
contempt of court and the MP can be penalised.
the above points will be discussed in little details here.but before that lets attempt q&a
q1. what does independence of judiciary means?
a1. it means that
a. other organs of government like executive and legislature must not restrain the functioning
of judiciary that it (judiciary) is not able to do justice.
b. other organs should not interfere with decisions of judiciary
c. judge must be able to perform functions without any fear.
but it does not mean that judiciary takes arbitrary decisions. judiciary is a part of democratic
political structure.
q2. How can independence of judiciary be provided and protected?
a2. legislature is not involved in the process of appointment of judges
b. judges have a fixed tenure. they hold office till the age of retirement. this security ensures that
they are able to function without fear of losing their jobs.
c. removal of judges is very difficult.
d. judiciary is not dependent on executive and legislature for their salaries. legislature does not
discuss on the salaries of judges. they also can not discuss about conduct of judges in
parliament, unless the judge is not being impeached. if the judge is discussed it can lead to
contempt of court and the MP can be penalised.
q3. Why is the removal of judge difficult?
a3. It is difficult to that there is security of tenure. and judges can work fearlessly.
Appointment of judges
council of ministers, governors, chief ministers and chief justice of india all decide about the
process of judicial appointment. and as a convention, senior most judge of supreme court is
appointed as chief justice of india. but this convention was broken twice. in 1973, AN Ray was
appointed as CJI superseding three senior judges. and Justice MHBeg was appointed
superseding HR Khanna in 1975.
the other judges of supremecourt and high court are appointed by president after consulting CJI.
This means that council of ministers has greater say in appointing judges. so what does CJI
do? supreme court has adopted principle of collegiality. it means that CJI along with
consultation of four senior most judges should recommend names of persons to be appointed.
therefore, decision of judges of supreme court carries weight. In total, the supreme court and
council of ministers decide the appointment of judges.
q&a
q1. who is appointed as chief justice of india?
a1. senior most judge of supreme court is appointed as chief justice of india.
q2. Name two judges who supreseded the convention to become CJI ?
a2. 1. AN Ray and justice MH Beg
q3. Name the judge who superseded justice HR Khanna to become CJI?
A3. Justice MH beg
Q4. Why MH Beg and AN Ray was able to break the convention in 1970s to become CJI?
Ans4. Indira Gandhi wanted committed bureaucracy and committed judiciary to sustain her rule.
Moreover in 1975 she imposed emergency. So she needed committed system who will adhere
to her demands.
Q5. How is a Judge appointed?
A5. To appoint a judge, principle of collegiality is adopted. Names of judges are suggested by
CJI in consultation with four senior most judges. And the president appoints them .
Removal of judge
Removing a judge is a very difficult process. A judge of high court or supreme court can only be
removed on proven misbehaviour and incapacity. (Incapacity means that he is not properlyable
to discharge his responsibility). It requires a special majority in both houses of parliament to
remove a judge. (special majority means two thirds of those present and voting and simple
majority of total membership of house). Therefore, while making appointments, executive is
important and while removing legislature is important.
One unsuccessful attempt was made to remove a judge. Though it was passed by two thirds of
members who were present and voting, it could not get one half of total strength of the house.
The name of the Justice was V.Ramaswamy.
Q&A
Q1. How are judges appointed?
A1. They are appointed by special majority.
Q2. On which justice was resolution Against his removal passed?
A2. Justice V. ramaswamy
Q3. On what grounds can judge of supreme court or high court be removed?
A3. Proven misbehaviour or incapacity.

Structure of Judiciary
Ours is a single integrated judicial system. That means we have supreme court at the top, and
high court below it , followed by lower(subordinate) courts.
Supreme court

High court

Lower(subordinate) court
Functions of Supreme Court
The functions and responsibilities of supreme court are defined in our constitution. It has
specific jurisdiction or scope of powers:
Original jurisdiction: it means cases that can be directly considered by supreme court without
going to lower courts before that. And those are federal cases. Disputes arising between union
and states, and amongst states themselves directly go to supreme court. The supreme court
has the sole power to resolve such cases. Neither high court nor lower court can deal with such
cases. The supreme court not just settles the issue but also interprets the powers of union and
state government as laid down in constitution.
Writ jurisdiction: as we have already studied this, any individual whose fundamental rights has
been violated he/she can directly approach supreme court. The supreme court and high courts
can order Writs. It is on the indiividual, whether he wants to apprroach high court or supreme
court. Through such writs, court can order executive whether to act or not to act.
Appellate jurisdiction: it means that the supreme court will reconsider the case and legal
issues involved in it. The supreme court is the highest court of appeal. A person can appeal to
supreme court against the decisions of the High Court. But high court has to certify that the case
is fit for appeal. And in criminal case, if death has been given by lower court, guilty can appeal
to supreme court. Supreme Court has the right to decide whether to admit appeal even when it
is not granted by high court. Because if the supreme court thinks that the interpretation of law is
different than what has been given by lower court, then it intervenes. High courts also have
appellate jurisdiction over lower courts.
Advisory jurisdiction: supreme court possesses adisory functions. The president can ask
supreme court for advice on any matter that is of public importance or that which involves
interpretation of the constitution. But supreme court is not bound to give advice and president is
not bound to accept such advice. The advantage of advisory function is that 1) it allows
government to seek legal opinion on important matter so that later it does not lead to
unnecessary legal hassles. 2) when the supreme court gives advice the government can make
changes in its action or legislations.
Special powers: supreme court can grant special leave to an appeal from any judgment or
matter passed by any court in the territory of india.
Besides this, decisions made by supreme court are binding on all other courts within territory of
india. It is enforceable across the country. And supreme court can review its own decisions any
time.
Q&A
Q1. How does advisory jurisdiction help?
A1. Advisory jurisdiction helps in a way that :
it allows government to seek legal opinion on important matter so that later it does not lead to
unnecessary legal hassles.
when the supreme court gives advice the government can make changes in its action or
legislations.
Q2. What are the powers of supreme court?
A2. Original jurisdiction: it means cases that can be directly considered by supreme court
without going to lower courts before that. And those are federal cases. Disputes arising between
union and states, and amongst states themselves directly go to supreme court. The supreme
court has the sole power to resolve such cases. Neither high court nor lower court can deal with
such cases. It also interprets the powers of union and state government as laid down in
constitution.
Writ jurisdiction: any individual whose fundamental rights has been violated he/she can
directly approach supreme court. The supreme court and high courts can order Writs. It is on
the individual, whether he wants to approach high court or supreme court. Through such writs,
court can order executive whether to act or not to act.
Appellate jurisdiction: it means that the supreme court will reconsider the case and legal
issues involved in it. The supreme court is the highest court of appeal. A person can appeal to
supreme court against the decisions of the High Court. But high court has to certify that the case
is fit for appeal. And in criminal case, if death has been given by lower court, guilty can appeal
to supreme court. Supreme Court has the right to decide whether to admit appeal even when it
is not granted by high court.
Advisory jurisdiction: supreme court possesses advisory functions. The president can ask
supreme court for advice on any matter that is of public importance or that which involves
interpretation of the constitution. But supreme court is not bound to give advice and president is
not bound to accept such advice. The advantage of advisory function is that 1) it allows
government to seek legal opinion on important matter so that later it does not lead to
unnecessary legal hassles. 2) when the supreme court gives advice the government can make
changes in its action or legislations.
Special powers: supreme court can grant special leave to an appeal from any judgment or
matter passed by any court in the territory of india.
Besides this, decisions made by supreme court are binding on all other courts within territory of
india. It is enforceable across the country. And supreme court can review its own decisions any
time.
Q3. What is the original jurisdiction of supreme court?
A2. Original jurisdiction: it means cases that can be directly considered by supreme court
without going to lower courts before that. And those are federal cases. Disputes arising between
union and states, and amongst states themselves directly go to supreme court. The supreme
court has the sole power to resolve such cases. Neither high court nor lower court can deal with
such cases. The supreme court not just settles the issue but also interprets the powers of union
and state government as laid down in constitution.
Q4. What is writ jurisdiction?
A4. It means that any individual whose fundamental rights has been violated he/she can
directly approach supreme court. Through such writs, court can order executive whether to act
or not to act. This is called writ jurisdiction.
Q4. What is Appellate jurisdiction?
A4. it means that the supreme court will reconsider the case and legal issues involved in it. A
person can appeal to supreme court against the decisions of the High Court. But high court has
to certify that the case is fit for appeal. And in criminal case, if death has been given by lower
court, guilty can appeal to supreme court. Supreme Court has the right to decide whether to
admit appeal even when it is not granted by high court.
Q5. What is Advisory jurisdiction?
A5. Advisory jurisdiction means that the president can ask supreme court for advice on any
matter that is of public importance or that which involves interpretation of the constitution. But
supreme court is not bound to give advice and president is not bound to accept such advice.
Judicial Activism
In simple terms it means the activism shown by judiciary in resolving cases. Initially,
only people who have been aggrieved or hurt or cheated can approach the court. But
this restricted entry of people who are not educated or donot have enough finances. So
the judiciary introduced PIL(public interest litigation) where anybody from the public can
file the case of behalf of people who are being cheated or aggrieved.
And also judiciary has started picking up cases on its own from newspaper or media
when it sees that executive is not doing its work. For example: recently supreme court
scolded executive for allowing food being wasted in godowns and ordered to distribute it
for free. So judiciary is also forcing executive accountability.
In simple terms it means judiciary becoming active and picking up cases on its own or
with the help of public, media to bring justice. And this can be achieved through PIL or
SAL(social action litigation). PIL emerged in 1979. And around the same time supreme
court took up the case of rights of prisoners. And with this large number of public
spirited citizens and voluntary organisations sought judicial intervention for the
betterment of life conditions of poor, protection of environment and many other issues.
Through PIL, courts has expanded idea of rights. Clean air, unpolluted water and
decent living are rights of the entire society.
This has impacted the political system. It has democratised the judicial system by giving
groups also access to courts. Before 1980s, only individuals who were aggrieved could
approach court for justice.
It has also made attempts to make elections much more free and fair. The court have
asked candidates contesting elections to file affidavits indicating their assets and
income alongwith educational qualifications so that people could elect their
representatives based on accurate knowledge.
But there is a negative side to PIL.
It has overburdened courts
Judicial activism has blurred the distinction between executive and legislature on one
hand and judiciary on the other hand. It means that judiciary has started taking note of
work of executive. For example: In the case of food being wasted,it was the duty of
executive to prevent food wastage and also allow food storage. But judiciary took note of
food wastage and ordered executive to take action for it. But this is not the work of
judiciary.

Cases in which judicial activism was involved:

Blinding of inmates in bihar jail (to know more about this watch gangajal movie of ajay
devgan
Sexual exploitation of children
Inhuman working in stone quarries
In 1979, a newspaper published a report on bihar prisoners about under trials.
They reported that they have been spending more years in jail as a punishment than it
would have required. An avocated filed a petition and supreme court took up the case.
And this was one of the earliest PILs. This is known as hussainara khatoon v/s bihar
case.
2. In 1980, a prison inmate of tihar jail managed to send a scribbled piece of paper to
justice Krishna Iyer narrating physical torture of prisoners. The judge got it converted
into a petition. It came to be known as sunil batra v/s delhi administration.

Q&A
Q1. What is PIL?
A1. PIL is an instrument by which groups, organisations or individuals can file a case in
court on behalf of the aggrieved person.
Q2. Why was PIL introduced?
A2. PIL was introduced for bringing justice to poor and needy. Initially, poor couldnot
approach the court because of less legal knowledge and less financial resources. But,
after 1980s, supreme court came out with Public interest litigation in which the public
spirited individual or voluntary organisation can file a case on behalf of aggrieved.
For example: in 1979, an advocate filed a petition after reading about Bihar inmates
spending long years in jail than their punishment would have required. Supreme court
took up the matter and it became famous as one of the early PILs.
Q3. How has PIL impacted democratic system?
A3. PIL has made our political system much more democratic. Now even poor and
needy can get justice now. It has made our executive system more accountable. It has
also made attempts to make elections much more free and fair. The court have asked
candidates contesting elections to file affidavits indicating their assets and income
alongwith educational qualifications so that people could elect their representatives
based on accurate knowledge. Also , it has expanded the concept of rights by including
clean air, unpolluted water, and decent living as rights of entire society.
Q4. What are the disadvantages of PIL?
A4. PIL has overburdened courts. It has also blurred the distinction between executive
and legislature on one hand and judiciary on the other.
Q5. Give two example of PIL?
A5. 1. In 1979, a newspaper published a report on bihar prisoners about under trials.
They reported that they have been spending more years in jail as a punishment than it
would have required. An avocated filed a petition and supreme court took up the case.
And this was one of the earliest PILs. This is known as hussainara khatoon v/s bihar
case.
2. In 1980, a prison inmate of tihar jail managed to send a scribbled piece of paper to
justice Krishna Iyer narrating physical torture of prisoners. The judge got it converted
into a petition. It came to be known as sunil batra v/s delhi administration.
Q6. In what year PIL was introduced?
A6. 1979.
Judicial review
Supreme court has another important power besides judicial activism and that is of
judicial review. Under judicial review, SC (supreme court) has the power to check
whether the law made by executive is within the provisions of constitution or not. If it is
unconstitutional, then the law is declared invalid.
For example: if executive comes out with law that free exchange of ideas in not allowed
in newspapers and all newspapers should be shut down, then SC will intervene and
declare this law as invalid and non operational.
This power SC checks that executive does not make any authoritarian or dictatorial law
which takes away the rights of people. The term judicial review is not mentioned in the
constitution but SC has the power to interpret the law so judicial review comes under
the power of SC. And also as we saw in original jurisdiction, the SC can declare a law
invalid if it concerns the distribution of powers of states and union. The review powers
also extends to states legislatures.
So, together with writ power which is for protecting the fundamental rights of an
individual and the review power of courts, judiciary is a very powerful body. PILs have
further made judiciary very powerful.
So the SC can protect the violation of rights in two ways:
It can restore fundamental rights by issuing writs (article32). High courts can also issue
writs(Article 226)
SC can declare the law as unconstitutional and non operational (article13)
In this way, SC protects the rights of individual.
Q&A
Q1. How does SC protects the rights of individual?
A1. The SC protects the rights of individual by:
It can restore fundamental rights by issuing writs (article32). High courts can also issue
writs(Article 226).
SC can declare the law as unconstitutional and non operational (Article13). This power
can also be termed as judicial review. Where SC can delare a law unconstitutional if it
goes against the basic principles of constitution.
Judicial activism has also expanded the scope of rights. PIL is an instrument through
which judicial activism is brought into effect.
Q2. What is judicial review?
A2. It means the power of 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
unconstitutional and invalid.
Q3. Where can judicial review be applied?
A3. Judicial review can be applied on:
Fundamental rights
Federal relations: the SC can use judicial review powers if it sees that distribution of
powers is inconsistent with the constitution.
Q4. How is judiciary a powerful organ?
A4. Judiciary is a powerful organ:
Judicial activism
Judicial review
Writ power
JUDICIARY AND PARLIAMENT

Our constitution has provided a system of balance of power. no organ of government


can claim supremacy. Each organ has clear functioning. Parliament is supreme in law
making and amending the constitution. And executive is supreme in implementing them.
while judiciary is supreme in settling disputes and deciding whether laws have been
made in accordance with the principles of constitution.
Since executive has been careless in working for public welfare , so judiciary has played
an active role in working for the public interest. It has made use of judicial review and
judicial activism to protect the rights of citizens.
Also areas which were considered beyond the scope of judicial review have now been
brought under its purview. Like the powers of President and Governor. SC involved
itself in the administration of justice by giving directions to executive agencies. Thus, it
gave directions to CBI to initiate investigations against politicians and bureaucrats in the
hawala case, Narasimha Rao case. Illegal allotment of petrol pumps case etc. many of
theseare the result of judicial activism. But judicial review and judicial activism has led to
fights between executive and judiciary.
One of the most controversial case was over right to property which became famous as
keshavananda bharati case. It will be discussed after the Q&A round.
Q& A
Q1. How has our constitution maintained division of powers?
A1. Our constitution has provided a system of balance of pow6er. no organ of
government can claim supremacy. Each organ has clear functioning. Parliament is
supreme in law making and amending the constitution. And executive is supreme in
implementing them. while judiciary is supreme in settling disputes and deciding whether
laws have been made in accordance with the principles of constitution.
Q2. Give few examples where judiciary has become active in political cases?
A2. Judiciary has given directions to CBI to initiate investigations against politicians and
bureaucrats in the hawala case, Narasimha Rao case, illegal allotment of petrol pumps
case
keshavananda bharati case
immediately after the implementation of constitution began, a controversy arose over
parliament's power to limit or restrict the right to property. They wanted to acquire
property for the public use. But court intervened and said that this is unconstitutional
and government cannot restrict right over property. Because right to property is a
fundamental right and fundamental rights cannot be violated or restricted. Parliament
then tried amending the fundamental rights in the constitution but court said that
parliament cannot amend fundamental rights.
During the period of 1967 and 1973, this fight between executive and judiciary became
very popular. in 1973, the court gave decision which became very famous as
keshavananda bharati case. The court said that there is a basic structure of constitution
which cannot be amended or violated by the executive. And it also said that right to
property is not the basic structure of constitution and therefore, right to property can be
amended to bring public welfare. Nad secondly it also said that it is ONLY court that will
decide what is the basic structure of constitution. This is perhaps the best case which
shows that how courts uses its power to interpret the constitution.
Therefore right to property was taken away as fundamental right in 1979 and this also
changed the relation between legislature and judiciary.
This was keshavananda bharati case.

.Q&A
Q1. What is keshavananda bharati case? (v.imp)

A1. immediately after the implementation of constitution began, a controversy arose


over parliament's power to limit or restrict the right to property. But court intervened and
said that this is unconstitutional and government cannot restrict right over property.
Parliament then tried amending the fundamental rights in the constitution but court said
that parliament cannot amend fundamental rights.
During the period of 1967 and 1973, this fight between executive and judiciary became
very popular. in 1973, the court gave decision which became very famous as
keshavananda bharati case. The court said that there is a basic structure of constitution
which cannot be amended or violated by the executive. And it also said that right to
property is not the basic structure of constitution and therefore, right to property can be
amended to bring public welfare. Nad secondly it also said that it is ONLY court that will
decide what is the basic structure of constitution.

Q2. What are the problems which our judiciary is currently facing?
A2. The problems which our judiciary is currently facing are:

Corruption
Delay in giving judgements
Witnesses turning hostile: that means witnesses not giving true account of
circumstances
Lack of staff
Overburdening of cases
No transparency among judges
Only wealthy and influential can approach courts

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