Chapter 6

WHY DO WE NEED AN INDEPENDENT JUDICIARY ?

1. Principal role of the judiciary is to protect rule of law and ensure supremacy of law
2. safeguards rights of the individual,
3. settles disputes in accordance with the law and
4. ensure democracy

Independence of Judiciary

1. other organs of the government like the executive and legislature must not restrain the functioning of the judiciary
2. other organs of the government should not interfere with the decision of the judiciary
3. Judges must be able to perform their functions without fear or favour.
4. The Indian Constitution has ensured the independence of the judiciary through a number of measures
5. The legislature is not involved in the process of appointment of judges
6. In order to be appointed as a judge, a person must have experience as a lawyer and/or must be well versed in law
7. The judges have a fixed tenure. They hold office till reaching the age of retirement
8. Security of tenure ensures that judges could function without fear or favour.
9. The Constitution prescribes a very difficult procedure for removal of judges.
10. Judiciary is not financially dependent on either the executive or legislature. The Constitution provides that the salaries and allowances of the judges are not subjected to the approval of the legislature.
11. The judiciary has the power to penalise those who are found guilty of contempt of court (Article 129 & 215)
12. Parliament cannot discuss the conduct of the judges except when the proceeding to remove being carried out a judge is being carried out

Appointment of Judges

1. The appointment of judges has never been free from political It is part of the political process
2. The other Judges of the Supreme Court and the High Court are appointed by the president after ‘consulting’ the CJI.
3. For the appointment of Chief justice of India, A convention had developed whereby the senior-most judge of the Supreme Court was appointed as the Chief Justice of India.
4. This convention was however broken twice
5. Collegium system : the Supreme Court has come up with a novel procedure: it has suggested that the Chief Justice should recommend names of persons to be appointed in consultation with four senior-most judges of the Court.

Removal of Judges

1. The removal of judges of the Supreme Court and the High Courts is also extremely difficult
2. A judge of the Supreme Court or High Court can be removed only on the ground of proven misbehaviour or incapacity..
3. A motion containing  the  charges  against the judge must be approved by special majority in both Houses of the Parliament.

STRUCTURE OF THE JUDICIARY

1. Constitution of India provides for a single integrated judicial system
2. The structure of the judiciary in India is pyramidal with the Supreme Court at the top, High Courts below them and district and subordinate courts at the lowest level

Jurisdiction of Supreme Court

1. Supreme Court of India is one of the very powerful courts anywhere in the world.
2. It functions within  the  limitations  imposed  by  the Constitution.
3. The functions and responsibilities of the Supreme Court are defined by the Constitution.
4. Original Jurisdiction (Article 131) : Original jurisdiction means cases that can be directly considered by the It Settles disputes between Union and States and amonest states.
5. Appellate Jurisdiction : Supreme Court is the highest court of appeal. Tries appeals from lower courts in Civil, Criminal and Constitutional cases
6. Special Power : Can grant special leave to an appeal from any judgement or matter passed by any court in the territory of India.
7. Advisory Jurisdiction (Article 143) : Advises the President on matters of public importance and law.
8. Writ Jurisdiction: The Supreme Court can give special orders in the form of 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. .Can issue writs of Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo warranto to protect the Fundamental Right of the individual.
9. Article 137……. the Supreme Court shall have power
10. Article 144 …… All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme court.

JUDICIAL ACTIVISM

1. chief instrument through which judicial activism has flourished in India is Public Interest Litigation (PIL) or Social Action Litigation (SAL)
2. Through the PIL, the court has expanded the idea of rights.
3. Judicial activism has had manifold  impact  on  the political system.
4. It has forced executive accountability
5. It violate the principle of separation of power

JUDICIARY AND RIGHTS

1. Constitution provides two ways in which the Supreme Court can remedy the violation of rights
2. First it can restore fundamental rights by issuing writs of Habeas Corpus; mandamus (article 32). The High Courts also have the power to issue such writs (article 226).
3. Secondly, the Supreme Court can declare the concerned law as unconstitutional and therefore non- operational (article 13)
4. 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.
5. most important power of the Supreme Court is the power of judicial review
6. 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.
7. The term judicial review is nowhere mentioned in the constitution.
8. Together, the writ powers and the review power of the Court make judiciary very powerful.

JUDICIARY AND PARLIAMENT

1. The Indian Constitution is based on a delicate principle of limited separation of powers and checks and balances.
2. This means that each organ of the government has a clear area of functioning.
3. Thus, the Parliament is supreme in making laws and amending the Constitution, the executive is supreme in have been made are in accordance with the provisions of the Constitution
4. Despite such clear cut division of power the conflict between the Parliament and judiciary, and executive and the judiciary has remained a recurrent theme because India does not follow strict separation of power

BASIC STRUCTURE DOCTRINE

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.