Chapter - 6
JUDICIARY
-SHABANA YASMIN
Introduction: The judiciary is the organ of the government that interprets the
law. It applies the laws
• To punish lawbreakers.
• To settle disputes.
• To protect fundamental rights of the citizens.
• To prevent the violation of the constitution.
What is meant by an independent judiciary?
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.
How is independence of Judiciary ensured?
How can the independence of judiciary be provided and protected?
• The legislature is not involved in the process of appointment of judges.
Thus, it was believed that party politics would not play a role in the process
of appointments.
• The judges have a fixed tenure. They hold office till reaching the age of
retirement. Only in exceptional cases, judges may be removed
(Impeachment). Security of tenure ensures that judges could function
without fear or favour.
• 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.
• 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.
Appointment of Judges
• Council of Ministers, Governors and Chief Ministers and Chief Justice of
India — all influence the process of judicial appointment.
• As far as the appointment of the Chief Justice of India (CJI) is concerned,
over the years, a convention had developed whereby the senior-most judge
of the Supreme Court was appointed as the Chief Justice of India.
• The other Judges of the Supreme Court and the High Court are appointed
by the President after ‘consulting’ the CJI. This, in effect, meant that the final
decisions in matters of appointment rested with the Council of Ministers.
• Chief Justice should recommend names of persons to be appointed in
consultation with four senior-most judges of the Court. Thus, the Supreme
Court has established the principle of collegiality in making
recommendations for appointments.
Removal of Judges
• A judge of Supreme court or High Court can only be removed by the process
of impeachment.
• 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.
• Special majority : This refers to a majority of 2/3rd members present, and
voting supported by over 50% of the total strength of the House.
Original Jurisdiction
Original jurisdiction means cases that can be directly considered
by the Supreme Court without going to the lower courts before
that.
• Dispute between the Government of India and one or more States.
• Article 32 of the Constitution gives an extensive original jurisdiction
to the Supreme Court in regard to enforcement of Fundamental
Rights.
• The Supreme Court has been conferred with power to direct transfer
of any civil or criminal case from one State High Court to another
State High Court or from a Court subordinate to another State High
Court.
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.
• Appellate jurisdiction means that the Supreme Court will reconsider
the case and the legal issues involved in it.
• The High Courts too, have appellate jurisdiction over the decisions
given by courts below them.
• The Supreme Court hears appeals against his own judgement.
Advisory Jurisdiction
• The President of India can refer any matter that is of public
importance or that which involves interpretation of Constitution to
Supreme Court for advice. However, the Supreme Court is not bound
to give advice on such matters and the President is not bound to
accept such an advice.
• Article 137: The Supreme Court shall have power to review any
judgment pronounced or order made by it.
• Article 144: All authorities, civil and judicial, in the territory of India
shall act in aid of the Supreme Court.
Writ Jurisdiction
• Habeas Corpus: It is a recourse in law through which a person can report an unlawful
detention or imprisonment to a court and request that the court order the custodian of the
person, usually a prison official, to bring the prisoner to court, to determine whether the
detention is lawful or unlawful.
• Mandamus: A (writ of) mandamus is an order from a court to an inferior government
official ordering the government official to properly fulfill their official duties or correct
an abuse of discretion.
• Prohibition: A writ of prohibition is issued by a Court to prohibit the lower courts,
tribunals and other quasi-judicial authorities from doing something beyond their
authority.
• Certiorari: The Writ of Certiorari is issued by the Supreme Court to some inferior court
or tribunal to transfer the matter to it or to some other superior authority for proper
consideration.
• Quo warranto: The writ of quo warranto may be issued against a person holding a
public office or governmental privilege. The issue of summon is followed by legal
proceedings, during which an individual's right to hold an office or governmental
Judicial Activism: Judicial activism in India implies the authority of the
Supreme Court and the high courts, but not the subordinate courts, to
declare the regulations unconstitutional and void if they breach or if the
legislation is incompatible with one or more of the constitutional clauses.
Public Interest Litigation (PIL): Public interest litigation (PIL)
refers to litigation undertaken to secure public interest and demonstrates
the availability of justice to socially-disadvantaged parties and was
introduced by Justice P. N. Bhagwati.
Activity: Find out the details about at least one case involving a
PIL and study the way in which that case helped in serving public
interest.
