Judiciary

Judiciary is an organ of government. The main function of the judiciary is to

explain and interpret the law.
Need of Judiciary
1. To Settle the dispute between individuals, between groups and
between individuals or groups and government.
2. To protect rule of law and ensure supremacy of law.
3. To protect the rights of individuals.
4. To take independent decisions free from any political pressure.
Independence of Judiciary
● Judiciary is not under the control of other organs of government as
executive and legislative.
● The other organs of government should not interfere with the decision
of the judiciary.
● Judges must be able to perform their functions without fear and favour.
● Judiciary is accountable to the Indian Constitution, to democratic
traditions and to the people of the country.
Indian constitution made some provisions to ensure independence of
the judiciary:
● The legislature is not involved in the process of appointment of
judges.
● The judges have fixed tenure. They hold office till reaching the
age of retirement.
● The judiciary is not financially dependent on either the executive
or legislature.
Establishment of Judiciary
Under the Government of India Act, 1935, provision has been made for the
establishment of a Federal Court, under which the Federal Court in India was
established on 1 October 1937. After independence the Supreme Court was
inaugurated on 29 January 1950 in Delhi.
Structure of Judiciary:

Appointments of Judges:
● The Judges of the Supreme Court and High Courts are appointed by
the President.
● In the case of the appointment of the Chief Justice of India, a
convention or tradition was developed in our country. According to that
the Senior most judge of the Supreme Court is appointed as the
Chief Justice of India.
● The other judges of the Supreme Court and High Court are appointed
by the president after consulting the Chief Justice of India.
● In order to appoint judges of SC and High Court, the CJI must consult
with the four senior most judges of the Supreme Court.
● In matters of appointment to the judiciary the Supreme Court and
executive (Cabinet Ministers) Play an important role.
Removal of Judges:
 ● The removal of judges of the Supreme Court and High Courts is also
extremely difficult.
● A judge of the Supreme Court and High Court can be removed only on
the ground of proved misbehaviour or incapacity.
● Impeachment motions must be appointed by special majority in both
houses of the parliament.
Supreme Court of India:
● India is a federal state having a single and united judicial system
with three-tier structure, i.e. Supreme Court, High Courts and
Subordinate Courts.
● The Indian Constitution under Article 124(1) states that “There
shall be a Supreme Court of India consisting of a Chief
Justice of India (CJI) and 34 judges (In Original Constitution
there were 8 Judges ).
● The Jurisdiction of the Supreme Court of India can broadly be
categorised into Original Jurisdiction, Appellate Jurisdiction
and Advisory Jurisdiction.
● The Supreme Court at the apex of the Indian Judiciary is the
highest authority to uphold the Constitution of India, to protect
the rights and liberties of the citizens, and to uphold the values of
rule of law. Hence it is known as the Guardian of our
Constitution.
● Here the Collegium system ( appointment of judges to the
courts) was followed which is also known as the three judges
cases, which comprises the Chief Justice of India and Four
Senior most judges of SC, One Chief justice of the High court
and two of its senior-most judges.
Qualifications for Supreme Court Judges:
● He should be a citizen of india
● He should have been a judge of a High Court or he should have been
an advocate in one or more High Court for at least 10 consecutive
years
● He should be an accomplished jurist in the eyes of the President
Tenure of Supreme Court Judges:
● All the judges of the Supreme Court (Chief Justice and Judges) hold
their office till the age of 65.
Jurisdiction of Supreme Court:
Original Jurisdiction (Art 131)
Means that some cases can be heard directly by the Supreme Court. Cases
heard in Supreme Court directly are
● The Government on one hand and one or more states on the other.
● Government and one or more states on one side and other states on
the other two or more states.
Appellate Jurisdiction (Art 132,133,134)
The appeal lies with the Supreme Court against the High Court in the following
4 categories.
1. Constitutional matters: If the High Court certifies that the case
involves a substantial question of law that needs interpretation of the
constitution.
 2. Civil Matters: If the case involves a substantial question of law of
general importance.
3. The Criminal Matters: If High court has on appeal reversed the order
of acquittal of an accused and sentenced him to death or has
withdrawn for trial before itself any case from subordinate court.
4. Special leave to appeal is granted by SC if it is satisfied that the case
does not involve any question of law. However, it cannot be passed in
case of the judgement passed by a court or tribunal of armed force.
However, under this jurisdiction, the Supreme Court can transfer to
itself cases from one or more high courts if it involves the question of
law in the interest of justice.
Advisory Jurisdiction (Art 143)
Article 143 authorises the President of India to seek an advisory opinion from
the Supreme Court in the two categories of matters:
1. Matters of public importance
2. Of any question arising out of pre-constitution, treaty,agreement,
engagement, Sanad or other similar instruments.
Also, Article 144 states that all authorities of Civil and Judicial in the
territory of India shall act in aid of the Supreme Court.
Writ Jurisdiction
The Supreme Court can give its special order in the form of a writ to prevent
the violation of fundamental writs. The High Court can also issue writs.
Powers of Supreme Court:
1. Power to punish for contempt (civil or criminal) of court with simple
imprisonment for 6 months or fine up to 2000 ₹. Civil Contempts means
wilful disobedience to any judgement. Criminal contempts means doing
any act which lowers the authority of the court or causing interference
in judicial proceedings
2. Judicial review to examine the constitutionality of legislative enactments
and executive [Link] grounds of review is limited by Parliamentary
legislation or rules made by the Supreme Court
3. Deciding authority regarding the election of President and Vice-
President.
4. Enquiry authority in the conduct and behaviour of UPSC members.
5. Withdraw cases pending before High Courts and dispose of them itself.
6. Appointment of Ad-hoc Judges Article 127 states that if at any time
there is lack of quorum of Judges of Supreme Court, The CJI may with
previous consent of the President and Chief justice of High Court,
concerning request in writing the attendance of Judge of High Court
duly qualified to be appointed as Judge of the Supreme Court.
7. Appointment of Retired judges of the Supreme court or High
Court- Article 128 states that the CJI at any time with the previous
 consent of the president and the person to be so appointed can appoint
any person who had previously held the office of SC.
8. Article 126 states that when the office of CJI is vacant or when Chief
Justice is by reason absence or otherwise unable to perform duties of
office, the President in such a case can appoint a Judge of the court to
discharge the duties of his office.
9. The Supreme Court under Article 137 is empowered to review any
judgement or order made by it with a view to removing any mistake or
error that might have crept in the judgement or order.
10. The Supreme court is a court of record the Supreme Court is a court
of record as its decisions are of evidentiary value and cannot be
questioned in any court.
Judicial Activism:
The Judiciary plays an important role in upholding and promoting the rights of
citizens in a country. The Active role of the judiciary in upholding the rights of
citizens and preserving the constitutional and legal system of the country is
known as judicial activism.
Judicial Activism methods in india:
The concept of Public Interest Litigation (PIL) or Social Action Litigation
SAL) is a very popular medium for judicial Activism in [Link] methods
followed in India are:
● Judicial Review (power of judiciary to interpret the constitution and to
declare any such law or order of the legislature and executive void,If it
finds them in conflict with the Constitution)
● In normal Course of law, a person can approach the courts only if
he/she has been personally aggrieved. It means a person whose rights
have been violated or who is involved in a dispute could move the court
but now any person or voluntary organisation can approach the
Supreme Court or High Court against violation of rights. If it is in social
and public interest . It is called Public Interest Litigation or Social
Action Litigation
Constitutional Interpretation:
● Access of international statute for ensuring constitutional rights
● Supervisory power of the higher courts on the lower courts.
Significance of Judicial Activism:
● It is an effective tool for upholding ‘citizens' rights and implementing
constitutional principles when the executive and legislature fails to do
so.
● Citizens have the judiciary as the last hope for protecting their rights
when all other doors are closed. The Indian Judiciary has been
considered as the guardian and protector of the Indian Constitution.
● There are provisions in the constitution itself for the judiciary to adopt a
proactive role. Article 32 and 226 of the Constitution provides the
 power of judicial review to the higher judiciary to declare any executive,
legislative or any administrative action void if it is in contravention with
the Constitution.
● According to experts, the shift from locus stand to public interest
litigation made the judicial process more participatory and democratic.
● Judicial Activism counters the opinion that the judiciary is a mere
spectator.
Criticism of Judicial Activism:
Judicial activism has also faced criticism several times. In the name of
judicial activism, the judiciary often mixes personal bias and opinions
with the law. Another criticism is that the theory of separation of powers
between the three arms of the state goes for toss with judicial activism.
Many times, the judiciary, in the name of activism interferes in the
administrative domain, and ventures into judicial
adventurism/overreach. In many cases, no fundamental rights of any
group are involved in this context, judicial restraint is talked about.
Judicial Review:
Judicial Review is a special power of the Judiciary to examine the
constitutionality of the laws and [Link] a law passed by the parliament or an
order passed by executive violates any provision of the constitution. Judiciary
(Supreme Court) has the right to declare it unconstitutional.
Judicial review is defined as the doctrine under which executive and
legislative actions are reviewed by the judiciary. Even though we have
separation of powers in India, names The Executive, The Legislature, The
Judiciary. The judiciary is vested with the power of review over actions of the
other two arms.
● Judicial Review is considered a basic structure of the constitution
(Indira Gandhi Vs Raj Narain case)
● Judicial review is the power of the courts to consider the
constitutionality of acts of organs of government and declare it
unconstitutional if it violates or is inconsistent with the basic principles
of the Constitution
● This means that the power of the legislature to make laws is not
absolute and that the validity and constitutionality of such laws are
subject to review by the courts.
● Judicial Review is also called the interpretational and observer roles of
the Indian Judiciary
● The Indian Constitution adopted the Judicial Review on lines of the
American Constitution.