Chapter Notes

Why do we Need an Independent Judiciary?

In any society, disagreements and disputes are a normal part of life. They can happen between individuals, between groups, or even between citizens and the government. To resolve these conflicts fairly, we need an independent body that can apply the law without bias. This is the primary role of the judiciary.

The judiciary is built on the principle of rule of law. This important idea means that every person—rich or poor, man or woman, from any caste—is subject to the same set of laws. No one is above the law.

The main functions of the judiciary are to:

• Protect the rule of law and ensure that the law is supreme.
• Safeguard the rights of every individual.
• Settle disputes according to the law.
• Ensure that democracy doesn't turn into a dictatorship by a single person or group.

To perform these critical functions effectively, the judiciary must be independent. This means it must be free from any political pressure from the other organs of government, like the executive and the legislature.

Independence of Judiciary

The independence of the judiciary simply means that:

• The executive and legislature must not interfere with the functioning of the judiciary in a way that prevents it from delivering justice.
• The other government organs should not meddle with the decisions made by the judiciary.
• Judges must be able to carry out their duties without any fear or favour.

The Indian Constitution includes several measures to protect and ensure the judiciary's independence.

How Independence is Ensured

• Appointment Process: The legislature is not involved in appointing judges. This is done to prevent party politics from influencing the selection. To become a judge, a person must have experience as a lawyer or be an expert in law; their political opinions are not supposed to be a factor.
• Fixed Tenure: Judges hold their position until they reach the age of retirement. They cannot be removed easily; the process is deliberately made very difficult. This security of tenure allows them to make decisions without fear of losing their jobs.
• Financial Independence: The judiciary is not financially dependent on the executive or legislature. The Constitution ensures that the salaries and allowances of judges are not subject to the approval of the legislature, which prevents any financial pressure from being applied.
• Immunity from Criticism: The actions and decisions of judges are protected from personal criticism. Parliament cannot discuss the conduct of a judge unless it is considering a motion to remove that judge.
• Power of Contempt of Court: The judiciary has the power to punish those found guilty of contempt of court. This authority protects judges from unfair criticism and ensures their decisions are respected.

Appointment of Judges

The appointment of judges is an important political process because the political philosophy of a judge can influence how they interpret the Constitution. The Council of Ministers, Governors, Chief Ministers, and the Chief Justice of India (CJI) all have a say in the process.

Appointment of the Chief Justice of India (CJI)

For many years, a convention was followed where the senior-most judge of the Supreme Court was appointed as the CJI. However, this tradition was broken twice:

1. In 1973, A. N. Ray was appointed, superseding three senior judges.
2. In 1975, Justice M.H. Beg was appointed, superseding Justice H.R. Khanna.

Appointment of Other Judges

Other judges of the Supreme Court and High Courts are appointed by the President after 'consulting' the CJI. The meaning of this "consultation" was a subject of debate for many years.

Initially, the Supreme Court viewed the CJI's role as purely consultative, meaning the final decision rested with the Council of Ministers. Later, the Court ruled that the President must follow the CJI's opinion.

Finally, the Supreme Court developed a new procedure based on the principle of collegiality.

• The Chief Justice should recommend names for appointment in consultation with the four senior-most judges of the Supreme Court.
• This "collegium" of senior judges now plays a crucial role, and its decision carries significant weight in the appointment process.

Removal of Judges

Just as their appointment is carefully handled, the removal of judges is also extremely difficult. A judge of the Supreme Court or a High Court can only be removed on the grounds of proven misbehaviour or incapacity.

The removal process is as follows:

1. A motion containing the charges against the judge must be approved by a special majority in both the Lok Sabha and the Rajya Sabha.
2. This difficult procedure ensures that a judge cannot be removed without a broad consensus among Members of Parliament.

This system creates a balance of power: the executive plays a role in appointments, while the legislature holds the power of removal.

Structure of the Judiciary

The Constitution of India establishes a single integrated judicial system. Unlike some federal countries that have separate court systems for the central government and the states, India has one unified structure.

The Indian judiciary is structured like a pyramid:

• Supreme Court of India: At the very top. Its decisions are binding on all other courts.
• High Courts: Below the Supreme Court. Each state has a High Court, which is the highest judicial authority in that state.
• District and Subordinate Courts: At the lowest level. These courts handle cases at the district and local levels and function under the direct supervision of the High Courts.

Jurisdiction of Supreme Court

The Supreme Court of India is one of the most powerful courts in the world, but it functions within the limits set by the Constitution. Its scope of powers is called its jurisdiction.

Original Jurisdiction

This refers to cases that can be heard directly by the Supreme Court for the first time, without going through lower courts. This jurisdiction primarily covers federal disputes:

• Disputes between the Government of India and one or more States.
• Disputes between two or more States. In these matters, the Supreme Court acts as an umpire, interpreting the powers of the Union and State governments as laid out in the Constitution.

Writ Jurisdiction

As a protector of Fundamental Rights, any individual whose rights have been violated can directly approach the Supreme Court. The Court can issue special orders known as writs (like Habeas Corpus and Mandamus) to the executive, directing it to act or refrain from acting in a particular way to restore the person's rights. High Courts also have the power to issue writs.

Appellate Jurisdiction

The Supreme Court is the highest court of appeal in the country. A person can appeal to the Supreme Court against a decision of a High Court.

• However, the High Court must certify that the case is fit for appeal, meaning it involves a serious matter of interpretation of law or the Constitution.
• In criminal cases, if a lower court has sentenced someone to death, an appeal can be made. The Supreme Court can then reconsider the case and the legal issues involved. If it finds that a lower court has misinterpreted the law, it can change the ruling.

Advisory Jurisdiction

The Supreme Court also has an advisory role. The President of India can refer any matter of public importance or one that involves interpreting the Constitution to the Supreme Court for its advice.

• The Supreme Court is not obligated to give advice on such matters.
• The President is not bound to accept the advice given.

Judicial Activism

In recent times, the Indian judiciary has become more proactive in protecting the rights of citizens, a trend known as judicial activism. The main instrument for this has been the Public Interest Litigation (PIL), or Social Action Litigation (SAL).

Traditionally, a person could only go to court if they were personally affected by an issue. However, around 1979, the Supreme Court began to hear cases filed by public-spirited citizens and social organisations on behalf of those who were poor, oppressed, or unable to approach the court themselves.

• Hussainara Khatoon vs. Bihar (1979): This early PIL was filed by an advocate based on newspaper reports about undertrials who had been in jail for years, sometimes longer than the maximum sentence for their alleged crimes.
• Sunil Batra vs. Delhi Administration (1980): A prisoner sent a scribbled note to a Supreme Court judge complaining about physical torture in Tihar Jail. The judge treated it as a petition, pioneering the acceptance of such complaints.

Through PILs, the court expanded the scope of rights to include things like clean air, unpolluted water, and a decent living. Judicial activism has had several impacts:

• It has made the judicial system more accessible to the poor and marginalised.
• It has forced the executive to be more accountable.
• It has helped make the electoral system fairer by requiring candidates to disclose their assets, income, and educational qualifications.

However, judicial activism also has a negative side. It has sometimes blurred the line between the judiciary and the other branches of government. By taking up issues like reducing pollution or investigating corruption, the judiciary has entered domains that are typically managed by the executive and legislature. This has led to concerns that it might be straining the delicate balance of power among the three organs of government.

Judiciary and Rights

The judiciary is the primary protector of our fundamental rights. The Constitution gives the Supreme Court two key powers to do this:

1. The power to issue writs under Article 32 to restore fundamental rights.
2. The power to declare any law unconstitutional if it violates fundamental rights, under Article 13.

The second power is known as Judicial Review.

Judicial Review

Judicial Review is the power of the Supreme Court (and High Courts) to examine the constitutionality of any law passed by the legislature or any action taken by the executive. If the court finds that a law is inconsistent with the Constitution, it can declare the law unconstitutional and therefore invalid.

While the term "judicial review" is not explicitly mentioned in the Constitution, this power is implied because India has a written constitution, and the judiciary is tasked with protecting it. The court also uses this power to review laws that may violate the federal distribution of powers between the central government and the states.

Judiciary and Parliament

The Indian Constitution is based on a delicate principle of limited separation of powers and checks and balances. While Parliament is supreme in making laws, the executive in implementing them, and the judiciary in interpreting them, conflicts between these organs have been a recurring feature of Indian politics.

A major controversy arose soon after the Constitution was implemented over the right to property.

• Parliament wanted to pass land reform laws, which required restricting the fundamental right to property.
• The Supreme Court initially ruled that Parliament could not abridge any fundamental right, even through a constitutional amendment.

This led to a serious conflict between 1967 and 1973. The central issues were:

• The scope of the right to private property.
• The extent of Parliament's power to amend the Constitution and curtail fundamental rights.

The Kesavananda Bharati Case (1973)

This landmark case provided a resolution. The Supreme Court ruled that there is a basic structure of the Constitution, and no one, not even Parliament, can violate or change this basic structure through an amendment.

The Court did two more things:

1. It declared that the right to property was not part of the basic structure and could therefore be limited. (It was later removed from the list of Fundamental Rights in 1979).
2. It reserved for itself the right to decide which aspects of the Constitution form the 'basic structure'.

This ruling has since regulated the relationship between the judiciary and Parliament. However, some areas of potential conflict remain, such as the judiciary's power to intervene in the internal proceedings and privileges of the legislature. These issues highlight the importance of each organ of government respecting the authority of the others.