Chapter 6 Judiciary

Courts are often seen as resolving disputes between individuals or private parties. However, the judiciary is a crucial organ of the government and performs significant political functions. The Supreme Court of India is considered one of the most powerful courts globally. Since 1950, the Indian judiciary has played a vital role in interpreting and protecting the Constitution. This chapter explores the role and importance of the judiciary, including its independence, its function in safeguarding rights, its power to interpret the Constitution, and its relationship with Parliament.

After studying this chapter, you will understand:

• The meaning of judicial independence and how it is ensured.
• The role of the Indian judiciary in protecting citizens' rights.
• The judiciary's function in interpreting the Constitution.
• The relationship between the Judiciary and the Parliament of India.

Why Do We Need An Independent Judiciary?

In any society, disputes are inevitable between individuals, groups, and between citizens/groups and the government. For such disputes to be settled fairly, in accordance with the principle of rule of law (where all individuals are subject to the same laws, regardless of status), an independent body is necessary. The primary role of the judiciary is to uphold the rule of law and ensure its supremacy. It safeguards individual rights, resolves disputes legally, and prevents democracy from devolving into individual or group dictatorship. To effectively perform these crucial functions, the judiciary must be independent of political pressures.

A political cartoon by R.K. Laxman, suggesting a scenario where conflicts are resolved peacefully under the rule of law, contrasting it with physical confrontation.

Independence of the judiciary simply means that:

• The other organs of the government (executive, legislature) must not restrict the judiciary's functioning in a way that prevents it from administering justice impartially.
• The other government organs should not interfere with the decisions made by the judiciary.
• Judges must be able to perform their duties and make rulings without fear of reprisal or favoritism towards any party or political pressure.

However, judicial independence does not mean judges are above the law or unaccountable. The judiciary is part of the country's democratic structure and is accountable to the Constitution, democratic traditions, and the people. The challenge is ensuring independence while maintaining accountability.

The Indian Constitution has implemented several measures to secure and protect the independence of the judiciary:

• Involvement of Legislature in Appointment: The Constitution sought to insulate judicial appointments from political influence by limiting the legislature's direct involvement in the appointment process initially, relying on legal expertise and experience as criteria rather than political opinions or loyalty.
• Fixed Tenure: Judges have a fixed tenure, holding office until a prescribed age of retirement. This security of tenure allows judges to function without fear or favor during their term.
• Difficult Removal Procedure: Removing a judge before their retirement age is exceptionally difficult. The Constitution prescribes a rigorous procedure for removal based only on proven misbehavior or incapacity, requiring approval by a special majority in both Houses of Parliament. This procedure ensures judges are protected from arbitrary removal based on political motivations.
• Financial Independence: The salaries and allowances of judges are charged to the Consolidated Fund of India and are not subject to the approval or vote of the legislature, making the judiciary financially independent of the executive and legislature.
• Immunity from Criticism: Actions and decisions of judges in their official capacity are protected from personal criticism. The judiciary has the power to punish those found guilty of contempt of court, safeguarding judges from unfair attacks or interference with the administration of justice. Parliament cannot discuss the conduct of judges except when a formal motion for their removal is being debated.

These provisions collectively aim to ensure that the judiciary can function impartially, free from political or other undue pressures, to protect the rule of law and citizens' rights.

The reference to Machal's case (from Chapter 2), where a person spent decades in custody without trial, highlights concerns about delayed justice and the need for the judiciary to ensure fundamental rights like the right to a speedy trial are upheld in practice.

The concern about criticizing judges in a democracy raises questions about accountability versus independence and the concept of contempt of court. While leaders can be criticized, restrictions on criticizing judicial conduct outside specific procedures (like removal proceedings) are intended to protect the impartiality and authority of the judicial process itself.

Appointment Of Judges

The process of appointing judges to the Supreme Court and High Courts has sometimes been a subject of political debate. While expertise and legal experience are constitutional criteria, the process can be influenced by political considerations, as judicial interpretations of the Constitution can have significant political implications. The Council of Ministers (acting through the President), Governors, Chief Ministers (in relation to High Court appointments), and the Chief Justice of India (CJI) all play a role in the appointment process.

Historically, the senior-most judge of the Supreme Court was appointed as CJI by convention, but this convention was broken twice (1973, 1975). For other Supreme Court and High Court judges, the President formally appoints them after 'consulting' the CJI. The weight given to the CJI's opinion in this consultation has been a matter of debate and legal interpretation, repeatedly coming before the Supreme Court itself between 1982 and 1998. Initially, the Court viewed the CJI's role as purely consultative. Later, it emphasized that the President should follow the CJI's opinion. Finally, the Supreme Court established a 'collegiality' principle, suggesting that the CJI should make recommendations in consultation with a group of senior-most judges (a 'collegium'). Currently, the recommendations of this collegium of senior Supreme Court judges carry significant weight in judicial appointments, alongside the role of the executive (Council of Ministers).

The question "But I think, finally the Council of Ministers would have greater say in appointing judges. Or is it that the judiciary is a self-appointing body?" highlights the tension between executive appointment and ensuring judicial independence. While the President (on Council's advice) formally appoints, the collegium system gives senior judges a significant role in the nomination process, attempting to balance executive input with judicial independence and prevent appointments based solely on political considerations.

Removal Of Judges

The process for removing a Supreme Court or High Court judge before their retirement is deliberately made very difficult to protect their security of tenure. A judge can be removed only on grounds of proven misbehaviour or incapacity. A motion detailing the charges must be passed by a special majority in both Houses of Parliament. Special majority requires a two-thirds majority of members present and voting, *and* a simple majority (more than half) of the total membership of that House. This difficult procedure ensures that removing a judge requires broad political consensus and is not subject to easy manipulation by a simple ruling majority.

The legislature holds the power of removal, while the executive plays a crucial role in appointments. This division of roles is intended to ensure both a balance of power between the executive and judiciary and the independence of the judiciary. So far, only one attempt to remove a Supreme Court judge has reached Parliament. In that case (Justice V. Ramaswami, accused of misappropriation), the motion got the required two-thirds majority of those present and voting but failed to get the support of one-half of the total strength of the House, so the judge was not removed, demonstrating the difficulty of the removal process.

The check your progress questions prompt reflection on the importance of independence (preventing political bias), the appropriate balance of power in appointments (executive vs. judiciary vs. others), and potential suggestions for improving the appointment process (e.g., formal role for opposition leader, CJI, or a dedicated independent body).

Structure Of The Judiciary

The Constitution of India establishes a single integrated judicial system. Unlike some federal countries (like the USA) which have separate federal and state court systems, India's judiciary is structured in a unified manner. The lower courts operate under the direct supervision of the higher courts.

The structure is pyramidal:

Diagram illustrating the hierarchical structure of the Indian judicial system, with the Supreme Court at the apex, High Courts below, and subordinate/District Courts at the base.

• Supreme Court of India: At the apex. Its decisions are binding on all other courts. Can transfer cases and judges between High Courts.
• High Courts: Below the Supreme Court, primarily at the state level. Hear appeals from lower courts and have original jurisdiction in some cases. Can issue writs. Exercise superintendence over lower courts.
• District Courts: Below High Courts, at the district level. Deal with civil and criminal cases within the district. Hear appeals from subordinate courts.
• Subordinate Courts: Lowest level, dealing with various civil and criminal cases.

This integrated structure allows for a consistent application of law throughout the country and provides a clear hierarchy for appeals.

Jurisdiction Of Supreme Court

The Supreme Court of India possesses extensive powers and responsibilities defined by the Constitution. Its jurisdiction covers several areas:

Original Jurisdiction

This refers to cases that can be filed directly in the Supreme Court, without first being heard in lower courts. The Supreme Court has exclusive original jurisdiction over disputes between the Union (central government) and States, or between States themselves. This makes the Supreme Court the umpire in India's federal disputes, interpreting the constitutional division of powers between the Union and State governments.

Writ Jurisdiction

As protectors of Fundamental Rights, the Supreme Court (under Article 32) and High Courts (under Article 226) have the power to issue special orders called writs to enforce these rights if they are violated. These writs (Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo Warranto) are powerful tools allowing the courts to command the executive or other authorities to act or refrain from acting in specific ways, thus safeguarding citizens' fundamental rights.

Appellate Jurisdiction

The Supreme Court is the highest court of appeal. It can hear appeals against decisions of High Courts in civil, criminal, and constitutional cases. Appeals from High Courts typically require a certificate from the High Court stating the case involves a substantial question of law or interpretation of the Constitution. In criminal cases, appeals to High Court or Supreme Court are allowed if a lower court has imposed a death sentence. The Supreme Court also has the power to grant special leave to appeal against any judgment or order from any court in India, even if a regular appeal is not allowed. Through its appellate jurisdiction, the Supreme Court re-examines cases, interprets laws and the Constitution, and can overturn lower court rulings.

Advisory Jurisdiction

The Supreme Court also has advisory jurisdiction (under Article 143). The President of India can seek the Supreme Court's opinion on any matter of public importance or one that requires interpretation of the Constitution. However, the Supreme Court is not obligated to give such advice, and the President is not bound to accept it. The utility of this function lies in enabling the government to seek legal opinion before taking action, potentially preventing future litigation, or making suitable changes to policies/legislation in light of the advice.

Article 137 grants the Supreme Court the power to review its own judgments or orders. Article 144 mandates all civil and judicial authorities in India to act in aid of the Supreme Court. These articles emphasize the Supreme Court's supreme authority within the Indian judicial system. Its decisions are binding on all other courts, enforceable nationwide. The Court can review its own decisions but is not bound by them in future cases, allowing for the evolution of law.

The check your progress match the following questions test understanding of different jurisdictions. Dispute between states is Original Jurisdiction. Appeal from District Court goes to High Court (Appellate for District Court). Declaring law unconstitutional is related to Judicial Review. Single integrated judiciary and Single Constitution describe the unified nature of the Indian system.

The question about the Supreme Court changing its own ruling and a judge being part of a revisional bench after being on the original bench acknowledges that courts can make mistakes and the system allows for review to correct errors or evolve legal interpretations. Judges can participate in such reviews.

Judicial Activism

In recent times, the terms judicial activism and Public Interest Litigation (PIL) are often associated with the judiciary in India. These are seen by many as having made the judiciary more proactive and people-friendly.

Traditionally, courts primarily responded to cases brought before them by individuals who were personally affected or involved in disputes. However, this changed significantly around 1979 with the emergence of PIL (also called Social Action Litigation or SAL).

Public Interest Litigation (PIL): PIL allows individuals or groups to file cases in court not on behalf of themselves, but on behalf of others whose rights are being violated or issues of public interest are involved. The courts began accepting such cases, sometimes based on mere newspaper reports or letters received by the court. This opened the doors for public-spirited citizens and voluntary organizations to seek judicial intervention to protect rights (existing or newly interpreted), improve living conditions for the poor, protect the environment, and address many other public issues. PIL became the primary driver of judicial activism.

Judicial activism, therefore, describes the trend where the judiciary goes beyond merely interpreting laws and responding to cases, and actively intervenes to promote social justice, protect rights, and ensure executive accountability, sometimes initiating cases based on public information or complaints.

A political cartoon by Irfan, related to the judiciary's stance on bandhs and hartals (strikes/shutdowns), humorously commenting on judicial activism and its impact on public life and political actions.

Some early PILs involved improving the rights of prisoners ('under trials' spending excessive time in jail, physical torture in prisons). The courts expanded the scope of rights through PILs, including rights to clean air, unpolluted water, and decent living conditions, considering these rights for the entire society. PIL and judicial activism have also given access to justice for vulnerable sections who cannot easily approach courts themselves, allowing others to file petitions on their behalf.

Judicial activism has had significant impacts: it has democratized the judicial system by making courts accessible to groups and individuals championing public causes; it has forced greater accountability from the executive branch; and it has contributed to making the electoral system fairer (e.g., courts requiring election candidates to file affidavits detailing assets, income, and educational qualifications).

However, judicial activism also faces criticism. It can overburden the courts with a large volume of cases. Some argue it blurs the lines between the judiciary and the executive/legislature by involving courts in resolving issues that traditionally fall under the purview of the other branches (e.g., managing pollution, investigating corruption, electoral reforms). Critics suggest this puts a strain on the democratic principle of separation of powers, where each organ respects the jurisdiction of others.

The statement "I have heard someone say that PIL means ‘private interest litigation’. Why would that be so?" refers to the criticism that sometimes PILs may be filed for personal gain, publicity, or to settle private scores under the guise of public interest. This suggests potential misuse of the PIL mechanism.

The statement "I think judicial activism is more about telling the legislature and the executive what they should do. What will happen if the legislature and executive started giving justice?" reflects the concern about judicial overreach, where courts issue directives that seem to encroach upon policy-making or administrative functions. The implication is that the legislature and executive are responsible for creating and implementing laws to achieve justice, and courts should primarily interpret and enforce them, not prescribe actions to other branches.

Judiciary And Rights

A core function of the judiciary is protecting citizens' rights. The Constitution provides the Supreme Court with specific powers to address rights violations:

• Writ Jurisdiction (Article 32): The Supreme Court can restore Fundamental Rights by issuing writs (Habeas Corpus, Mandamus, etc.). High Courts also have this power (Article 226).
• Judicial Review (Article 13): The Supreme Court can declare a law unconstitutional and invalid if it violates Fundamental Rights or other provisions of the Constitution. Article 13 implicitly grants this power by stating that laws inconsistent with Fundamental Rights are void.

These provisions establish the Supreme Court as the protector of fundamental rights and the interpreter of the Constitution. The power of judicial review allows the Court to examine the constitutionality of laws passed by both Parliament and State legislatures. This review power extends to checking laws that violate fundamental rights or those that are inconsistent with the constitutional distribution of powers (federal disputes). The Supreme Court can declare such laws unconstitutional and unenforceable.

The combination of writ powers and judicial review makes the Indian judiciary very powerful, enabling it to interpret the Constitution and laws effectively, protect citizens' rights, and uphold the constitutional framework. The practice of entertaining PILs has further expanded the judiciary's power in protecting rights, particularly for marginalized and disadvantaged sections of society, making rights more meaningful through judicial intervention in various cases of violation.

Judiciary And Parliament

The relationship between the judiciary and the Parliament is based on a delicate balance of limited separation of powers and checks and balances. Each organ (legislature, executive, judiciary) has its defined area of functioning: Parliament makes laws and amends the Constitution; the executive implements them; the judiciary settles disputes and interprets laws/Constitution.

Despite this division, conflicts between Parliament and the judiciary, and executive and the judiciary, are recurrent themes in Indian politics. Examples include disagreements over the right to property, Parliament's power to amend the Constitution, and the scope of judicial review.

Key issues at the center of the conflict between Parliament and the judiciary (particularly between 1967 and 1973) included:

• Scope of the right to private property.
• Scope of Parliament's power to curtail or abrogate fundamental rights through amendments.
• Scope of Parliament's general power to amend the constitution.
• Whether Parliament can make laws that violate fundamental rights while trying to implement Directive Principles.

This conflict became very serious, involving laws on land reforms, preventive detention, reservations, and property acquisition. In 1973, the Supreme Court's landmark decision in the Kesavananda Bharati case became pivotal. The Court ruled that Parliament has the power to amend the Constitution but cannot alter its 'basic structure'. It stated that the right to property was not part of the basic structure and could be abridged. Crucially, the Court reserved to itself the power to determine what constitutes the basic structure of the Constitution. This ruling significantly impacted the relationship between the legislature and the judiciary, giving the judiciary power to review constitutional amendments themselves.

While the conflict over property rights subsided after its removal from fundamental rights in 1979, other issues remain points of contention:

• Can the judiciary intervene in regulating the internal functioning of the legislatures (e.g., disciplinary action against members, breach of privileges)? Legislatures argue they have internal sovereignty.
• Can a legislator facing disciplinary action by the legislature seek protection from the courts?
• Should the conduct of judges be debated in Parliament (Constitution prevents this, except during removal proceedings)? Instances of legislatures criticizing judges and the judiciary criticizing legislatures highlight this tension between parliamentary sovereignty and judicial independence/authority.

These issues underscore the delicate balance between government organs and the importance of each respecting the authority and jurisdiction of others in a democracy.

The question "Why can't the Court tell us once and for all what are those aspects that are ‘basic structure’ of the Constitution?" reflects the ongoing evolution of the basic structure doctrine. The Supreme Court has not exhaustively listed all components of the basic structure; it has determined them on a case-by-case basis, allowing the doctrine to adapt and respond to specific challenges over time rather than being a rigid, fixed list.

The check your progress questions test understanding of appointment process roles (executive plays a crucial role, but collegium/judiciary has significant input), salaries (not subject to legislative approval), scope of amendment (limited by basic structure doctrine), and potential interference (conflict issue).

Alladi Krishnaswami Ayyar's quote emphasizes the need for judicial independence but cautions against it becoming a dogma where the judiciary acts as a 'super-legislature' or 'super-executive', stressing its primary role in interpreting the Constitution and rights.

Conclusion

The Indian judiciary is a powerful institution within the democratic structure, renowned for its independence. Despite periodic tensions with the executive and legislature over issues like rights and the scope of constitutional powers, its prestige has grown. The judiciary plays a crucial role in interpreting the Constitution, protecting citizens' rights (especially for the poor and disadvantaged through PILs), and ensuring that the government functions within constitutional limits.

The power of judicial review and the ability to issue writs make the judiciary a vital check on other government organs. While judicial activism has brought many benefits, it also raises questions about the balance of power between the judiciary and other branches. Democracy relies on a delicate balance between the powers of the judiciary and Parliament, both operating within constitutional limits. The judiciary's power instills awe and hope, and its independence is a cornerstone of Indian democracy. The challenges regarding delays, corruption, and ensuring justice for all are ongoing concerns for the judiciary itself.

A political cartoon by R.K. Laxman, humorously depicting the judiciary actively involved in addressing issues like corruption in public life, suggesting its perceived role beyond traditional dispute resolution.

Exercises

Content for Exercises is excluded as per your instructions.