GRADE 11 NOTES

SUBJECT: POLITICAL SCIENCE (028)

Judiciary
Q.1 Why do we need an independent judiciary?

Ans: 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 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. In order to be able to do all
this, it is necessary that the judiciary is independent of any political pressures.

Q.2 What do we mean by ‘independence of judiciary’?

Ans: 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.

Q.3 Does an independent judiciary mean that it is not accountable?

Ans: 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.

Q.4 How is the independence of judiciary provided and protected?

Ans: The Indian Constitution has ensured the independence of the judiciary through a number of
measures.

1. The legislature is not involved in the process of appointment of judges. In order to be appointed as a
judge, a person must have experience as a lawyer and/or must be well versed in law.

2. The judges have a fixed tenure. They hold office till reaching the age of retirement. They have security
of tenure. This ensures that judges could function without fear or favour. The Constitution prescribes a
very difficult procedure for removal of judges. The Constitution makers believed that a difficult
procedure of removal would provide security of office to the members of the judiciary
3. The 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.

4. The actions and decisions of the judges are immune from personal criticisms. The judiciary has the
power to penalise those who are found guilty of contempt of court. Parliament cannot discuss the conduct
of the judges except when the proceeding to remove a judge is being carried out. This gives the judiciary
independence to adjudicate without fear of being criticised.

Q.5 State two instances where the convention for the appointment of the Chief Justice of India was
broken.

Ans: Over the years, a convention had developed whereby the senior-most judge of the Supreme Court
was appointed as the Chief Justice of India. This convention was however broken twice.

1. In 1973 A. N. Ray was appointed as CJI superseding three senior Judges.

2. In 1975, Justice M.H. Beg was appointed superseding Justice H.R. Khanna.

Q.6 What is the status of consultation with the Chief Justice of India for appointment of judges to the
Supreme Court?

Ans: This matter came up before the Supreme Court again and again between 1982 and 1998. Initially,
the court felt that role of the Chief Justice was purely consultative. Then it took the view that the opinion
of the Chief Justice must be followed by the President. Finally, the Supreme Court suggested that the
Chief Justice should recommend names of persons to be appointed in consultation with four senior-most
judges of the Court. At the moment, therefore, in matters of appointment, the decision of the group of
senior judges of the Supreme Court carries greater weight.

Q.7 How can a judge be removed?

Ans: A judge of the Supreme Court or High Court can be removed only on the ground of proven
misbehaviour or incapacity. A motion containing the charges against the judge must be approved by
special majority in both Houses of the Parliament. Removal of a judge is a very difficult procedure and
unless there is a general consensus among Members of the Parliament, a judge cannot be removed. While
in making appointments, the executive plays a crucial role; the legislature has the powers of removal. This
has ensured both balance of power and independence of the judiciary.

Q.8 What is a single integrated judicial system?

Ans: The Constitution of India provides for a single integrated judicial system. This means that unlike
some other federal countries of the world, India does not have separate State courts. 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. The lower courts function under the direct supervision of the
higher courts.

Supreme Court of India

• Its decisions are binding on all courts.

• Can move cases from any court to itself.

• Can transfer cases from one High Court to another.

High Court

• Can hear appeals from lower courts.

• Can issue writs for restoring Fundamental Rights.

• Can deal with cases within the jurisdiction of the State.

• Exercises superintendence and control over courts below it.

District Court

• Deals with cases arising in the District.

• Considers appeals on decisions given by lower courts.

• Decides cases involving serious criminal offences.

Subordinate Courts • Consider cases of civil and criminal nature.

Q.9 Elaborate on the jurisdiction of the Supreme Court of India.

Ans: 1. Original Jurisdiction: Original jurisdiction means cases that can be directly considered by the
Supreme Court without going to the lower courts before that. All cases involving federal relations go
directly to the Supreme Court. The Original Jurisdiction of the Supreme Court establishes it as an umpire
in all disputes regarding federal matters. It deals with disputes between the central government and state
governments and disputes between two or more states. It is called original jurisdiction because the
Supreme Court alone has the power to deal with such cases.

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

3. 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. In addition, 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. 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.

4. Advisory Jurisdiction: 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
this advice.

Q.10 What is the utility of the advisory powers of the Supreme Court?

Ans: 1. It allows the government to seek legal opinion on a matter of importance before taking action on
it. This may prevent unnecessary litigations later.

2. In the light of the advice of the Supreme Court, the government can make suitable changes in its action
or legislations.

Q.11 What is Public Interest Litigation? How did it emerge?

Ans: 1. In normal course of law, an individual can approach the courts only if he/she has been personally
aggrieved.

2. However, this concept changed in 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.

3. 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.

4. Around the same time, the Supreme Court also took up the case about rights of prisoners. This opened
the gates for a large number of cases where publicspirited citizens and voluntary organisations sought
judicial intervention for protection of existing rights, betterment of life conditions of the poor, protection
of the environment, and many other issues in the interest of the public.

5. The judiciary has now begun considering many cases mainly merely on the basis of newspaper reports
and postal complaints received by the court.

Q.12 What are the advantages of PIL and judicial activism?

Ans: 1. 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.

2. 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.

3. It has had manifold impact on the political system. Judicial activism has democratised the judicial
system by giving groups access to the courts. It has forced executive accountability. 4. It has also made an
attempt to make the electoral system much more free and fair. 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.

Q.13 What are the disadvantages of judicial activism?

2. It has blurred the line of distinction between the executive and legislature on the one hand and the
judiciary on the other. The court has been involved in resolving questions which belong to the executive.
Thus, for 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. Therefore, some people feel that judicial activism
has made the balance among the three organs of government very delicate. Democratic government is
based on each organ of government respecting the powers and jurisdiction of the others. Judicial activism
may be creating strains on this democratic principle.

Q.14 Give two ways in which the Supreme Court can remedy the violation of rights.

Ans: The Constitution provides two ways in which the Supreme Court can remedy the violation of rights.
1. It can restore fundamental rights by issuing writs of Habeas Corpus; mandamus etc. The High Courts
also have the power to issue such writs.

2. The Supreme Court can declare the concerned law as unconstitutional and therefore non-operational.

Q.15 What is judicial review? OR How is the Supreme Court the guardian and interpreter of the
Constitution?

Ans: 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. In the case of
federal relations too, the Supreme Court can use the review powers if a law is inconsistent with the
distribution of powers laid down by the Constitution. For example: If the central government makes a law
which according to some States, concerns a subject from the State list. Then the States can go to the
Supreme Court and if the court agrees with them, it would declare that the law is unconstitutional. Thus,
the power of judicial review makes the Supreme Court the guardian and interpreter of the Constitution.

Q.16 Under what situations can the Supreme Court use the power of judicial review?

Ans: 1. 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.

2. In the case of federal relations too, the Supreme Court can use the review powers if a law is
inconsistent with the distribution of powers laid down by the Constitution. For example: If the central
government makes a law which according to some States, concerns a subject from the State list. Then the
States can go to the Supreme Court and if the court agrees with them, it would declare that the law is
unconstitutional.

Sub-Unit: ‘Judicial Over reach’(ADDED THIS YEAR)

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.