Judiciary Notes in English Class 11 Political Science Chapter-6 Book-1

 

what is meant by judiciary

• The court is seen as an arbitrator who resolves disputes between different individuals 

• But the judiciary  is the important third organ  of the government

• The judiciary performs some important  political functions. 

• The Supreme Court of India SC is one of the most powerful courts in the world. 

• Since 1950, the judiciary  has played a vital role in interpreting and protecting the Constitution. 

Why do we need an independent judiciary?

• In every society across the world,  disputes arise  between individuals, between groups, and   between individuals and groups and governments.

• All these disputes  should be resolved by an independent body on the basis of the 'principle of the rule of law'. 

• 'Rule of law' means that  the same law should apply to all people, rich and poor,  men and women  , forward and backward   .

• The main function of the judiciary is  to protect the 'rule of law'  and ensure  the supremacy of law  .

• The judiciary protects the rights of the individual and  resolves disputes and conflicts according to the law. 

• The judiciary ensures  that democracy is not replaced by the dictatorship of one person or group  .

• For this it is necessary that the judiciary be free from any political pressure.

• Our constitution provides for an independent judiciary 

• The judiciary can take decisions without any pressure 

What is meant by independence of judiciary 

• Other organs of government, the legislature, the executive  and the judiciary should not interfere in the decisions of the government  or interfere in any way. 

• Judges should be able to carry out their work and deliver judgements without any fear or discrimination.

• The judiciary is a part of the democratic political structure of the country. 

• The judiciary is accountable to the constitution, democratic tradition and the people of the country.

How has the Indian Constitution provided independence to the judiciary?

• The legislature is not involved in the matter of appointment of judges. 

• This ensured that party politics played no role in these appointments. 

• To be appointed as a judge a person must have experience in advocacy or be an expert in law. 

• A person's political views  should not be the basis for his appointment.

• The tenure of judges is fixed;  they remain in office until they retire.

• Judges can be removed only in special circumstances.  Also, their tenure cannot be reduced. 

• Security of tenure allows judges to perform their duties without fear or discrimination. 

• The Constitution has laid down a very difficult procedure for the removal of judges. 

• The makers of the Constitution believed that if the process of removal was difficult, the positions of the members of the judiciary would be secure.

• The judiciary is not financially dependent on the legislature or the executive. 

• According to the Constitution, the legislature's approval will not be required for the salaries and allowances of the judges. 

• The actions and decisions of judges cannot be personally criticised.

• If someone is found guilty of contempt of court,  the judiciary has the power to punish him. 

Appointment of judges 

• In the matter of appointment of the Chief Justice of India, it has become a tradition over the years  that the most senior judge of the Supreme Court will be appointed to this post. 

• But this tradition has been broken twice.  In 1973 , Justice A. N. Ray was appointed the Chief Justice of India,  superseding three senior judges  .

• In 1975,  Justice M H Beg was appointed in place of Justice H R Khanna

• The President appoints other judges of the Supreme Court and High Courts  on the advice of the Chief Justice of India. 

• This means that the real power regarding appointments lies with the Council of Ministers. 

• Between 1982 and 1998, the issue repeatedly came before the Supreme Court. 

• Initially, the court was of the view that  the role of the Chief Justice is purely advisory  but later the court accepted that the President must accept the advice of the Chief Justice. Finally, the Supreme Court made a new arrangement.  According to this, the Chief Justice of the Supreme Court will propose some names with the advice of the other four senior-most judges  and the President will make appointments from among these.

•  Thus the Supreme Court established the principle of collegiality with regard to the recommendation of appointments. 

• That is why nowadays the group of senior judges of the Supreme Court has more influence regarding appointments. 

• In this way the Supreme Court and the Council of Ministers play an important role in the appointment of the judiciary.

Procedure for removal of judges from office

• It is very difficult to remove judges of the Supreme Court (SC) and High Court (HC) from their posts. 

• He can be removed from the post only in case of proven misconduct or incapacity.

•  Charges against a judge require the approval of a special majority of Parliament. 

• No judge can be removed unless there is a consensus among the members of Parliament. 

• While the executive has an important role in their appointment,  the power to remove them lies with the legislature. 

• This ensures that the independence of the judiciary is maintained and the balance of power is also maintained.

• So far  only one proposal to remove a judge has come up for consideration in Parliament.  In this case, although two-thirds of the members voted in favour of the proposal,  the judge could not be removed  because the proposal could not get a majority of the total number of members of the House.

Structure of the Judiciary 

1. Supreme Court of India

• All courts have to obey its decisions.

• It can transfer the judges of the High Court.

• It can get a case from any court transferred to itself.

• It can transfer a case pending in one High Court to another High Court.

2. High Court

• Can hear appeals against decisions of lower courts.

• Can issue writs to restore fundamental rights.

• Can settle cases falling within the jurisdiction of the state.

• Supervises and controls the courts subordinate to it.

3. District Court

• Hears cases filed in the district.

• Hear appeals against decisions of lower courts.

• Gives verdict on serious criminal cases.

4. Subordinate Courts

Considers cases of mortgage and civil nature.

i. Civil

• rights of the individual 

• Transfer of property

• violation of rights

• Family Dispute

ii Forensic (Criminal)

• Murder 

• Beating

• battle 

• Robbery

• Rape

• assault

• Making counterfeit notes

👉The Supreme Court of India is one of the most powerful courts in the world 

👉 Works within the limits set by the Constitution 

👉 These are the functions and responsibilities of the Supreme Court as recorded in the Constitution

Jurisdiction of the Supreme Court 

original jurisdiction 

Appellate Jurisdiction 

Advisory Jurisdiction 

Prerogative jurisdiction 

writ jurisdiction 

1. Original Jurisdiction - 

• Some cases can be heard directly by the Supreme Court.  In such cases, it is not necessary to hear them in lower courts first. 

• Cases involving federal relations go directly to the Supreme Court. 

• The Supreme Court's original jurisdiction gives it the role of arbiter in all disputes involving federal matters. 

• The Supreme Court is responsible for resolving various legal disputes between the Centre and the states. 

• It is called original jurisdiction because these cases can only be resolved by the Supreme Court.  They can neither be heard in the High Court nor in the subordinate courts. 

• By exercising this power, the Supreme  Court not only resolves disputes  but also interprets the powers of the Union and State governments given in the Constitution.

2. Appellate Jurisdiction 

• The Supreme Court is the highest court of appeal (the highest).  Any person can appeal to the Supreme Court against the decision of the High Court. 

• But the High Court has to give a certificate that the case is fit for appeal in the Supreme Court, that is, there is a serious issue involved in it like interpretation of the Constitution or law.

• If in a criminal case the lower court  awards death penalty to someone, then an appeal  can be made in the Supreme Court or High Court. 

•  Even   if the High Court does not allow an appeal in a case, the Supreme Court has the power to accept  the appeal made in that case  for consideration . Appellate jurisdiction means that  the Supreme Court will reconsider the entire case and re-examine it.  If the court feels that the law or the Constitution does not mean what the lower courts understood, then the Supreme Court can change their decision  and along with it can also give a new interpretation of those provisions.

• The High Courts also  have appellate jurisdiction against the decisions of the courts below them.

3. Writ jurisdiction

• In case of violation of fundamental rights, any person can go directly to the Supreme Court to get justice.

• The Supreme Court can give its special orders in the form of writs.  High Courts can also issue writs.

• A person whose fundamental rights have been violated  has the option to approach the High Court or directly the Supreme Court. 

• Through these writs the court can order the executive to do or not to do something.

4. Advisory Jurisdiction 

• The Supreme Court also has advisory jurisdiction. 

• According to this, the President of India can send any matter related to public interest or interpretation of the Constitution to the Supreme Court for consultation. 

• But neither is the Supreme Court bound to give advice on any such matter nor is the President bound to accept the advice of the Court.

Then what is the utility of the advisory power of the Supreme Court? 

1. This allows the government to seek the legal opinion of the court before taking action on any important issue. This can avoid legal disputes later

2. Following the advice of the Supreme Court, the government can make appropriate amendments in its proposed decision or bill.

5. Prerogative jurisdiction 

The Supreme Court has the power to hear an appeal  under a special writ petition from a case or judgment passed by any court in the Indian territory. 

Judicial activism 

What is 'Public Interest Litigation'?

• In the normal course of law a person can go to court only if he has suffered some personal loss. 

• This means that if any of his rights are violated or if a person gets caught in any dispute, he can approach the court to get justice. 

• In 1979, this concept changed. 

• This change began in 1979 when the Court decided to hear a case filed not by the victims themselves but by others on their behalf. 

• In this case, an issue related to public interest was being considered,  hence this and many similar cases were named Public Interest Litigations. 

• At the same time, the Supreme Court also considered a case related to prisoners' rights.  This led to a flood of cases in which  citizens and voluntary organizations  with a sense of public service  sought judicial intervention on many issues related to protection of rights, improving the lives of the poor,  protecting the environment and public interest. 

• Public interest litigation has become the most effective tool of judicial activism. Instead of considering the issue when someone sued, the judiciary started considering complaints based on news published in newspapers and complaints received through post.

• Thus, this new role of the judiciary became popular as judicial activism.

• After 1980, the judiciary also showed interest in those cases through public interest litigation and judicial activism 

• Where people from certain sections of society cannot easily seek refuge in the court.  To fulfil this purpose, the court has  allowed citizens, social organisations and lawyers with a spirit of public service to file petitions on behalf of the needy and poor people of the society.

• Judicial activism had a great impact on our political system.  It also tried to make the election system more free and fair. 

• The court directed the candidates contesting the elections to give affidavits regarding their assets, income and educational qualifications  so that people can elect their representatives on the basis of correct information.

Negative aspects of judicial activism 

• This has increased the workload in the courts. 

• Judicial activism has blurred the distinction between the functions of the legislature, executive and judiciary. 

• The court got entangled in problems that the executive should solve

Example - Removing air and noise pollution, investigating corruption cases or making election reforms are not really the work of the judiciary.  All these tasks should be done by the administration under the supervision of the legislature. 

judicial review 

Judiciary and rights 

• Judicial review means  that the Supreme Court can examine any law for its constitutional purposes. 

• If it is contrary to the provisions of the Constitution, it can be declared unconstitutional.

• The Supreme Court can also exercise the power of judicial review in cases of centre-state relations.

• The judiciary interprets the laws passed by the legislature and the Constitution and effectively protects the Constitution.

Dispute between   the judiciary and parliament 

• Soon after the Constitution came into force, a controversy arose over the power of Parliament to restrict the right to property. 

• Parliament wanted to impose some restrictions on the right to hold property so that land reforms could be implemented. 

• The court ruled that Parliament cannot limit the fundamental rights. 

• Parliament then attempted to amend the constitution. 

• But the court said that fundamental rights cannot be limited even by amending the Constitution. 

• This dispute deepened considerably between 1967 and 1973.  Apart from land reform laws  , preventive detention laws,  laws related to reservation in jobs,  rules regarding acquisition of private property for public purpose and laws regarding compensation for acquired private property  are some of the examples on which disputes arose between the legislature and the judiciary.

Supreme Court decision in 1973 

Keshavananda Bharati case 

In this case, the court ruled that the constitution has a basic structure and no one, including the parliament, can tamper with that basic structure.  This basic structure cannot be changed even by amending the constitution. 

The Court did two further things.

1. Regarding the contentious issue of right to property, the Court held that it is not part of the basic structure and hence reasonable restrictions can be imposed on it. 

2. Second, the court retained the power to decide whether an issue is part of the basic structure or not. This decision is the best example of the power of the judiciary to interpret the Constitution.

👉 This decision changed the nature of disputes between the legislature and the judiciary.  The right to property was removed from the fundamental rights and made a general legal right 

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