Chapter 6 Judiciary

Introduction

Often, courts are primarily viewed as bodies that resolve disagreements between individuals or private entities. However, the judiciary is a crucial organ of government and performs important political functions as well.

The Supreme Court of India is recognised as one of the most powerful courts globally. Since 1950, the Indian judiciary has played a significant role in interpreting and safeguarding the Constitution.

Building upon the previous chapter's discussion on fundamental rights and the judiciary's role in protecting them, this chapter delves deeper into the judiciary's role and importance.

Why Do We Need An Independent Judiciary?

In any society, conflicts inevitably arise – between individuals, between groups, and between individuals or groups and the government. An independent body is needed to settle these disputes impartially, based on the principle of the rule of law. The rule of law means that everyone, regardless of their social status, wealth, or background, is subject to the same laws.

The main responsibility of the judiciary is to uphold the rule of law and ensure the supremacy of law. This involves safeguarding individual rights, resolving disputes according to established legal principles, and preventing democracy from degenerating into the dictatorship of an individual or group. To effectively perform these functions, the judiciary must be independent of political pressures.

Independence Of Judiciary

Independence of the judiciary implies that:

• Other branches of government (executive and legislature) must not restrict the judiciary's functioning in a way that impedes its ability to dispense justice.
• Other government organs should not interfere with judicial decisions.
• Judges must be able to perform their duties without fear or favour, making judgments impartially.

Crucially, independence does not mean the judiciary is arbitrary or unaccountable. As part of the democratic structure, it is accountable to the Constitution, democratic traditions, and the people.

(This cartoon likely illustrates the role of the rule of law and, by extension, the judiciary, in resolving disputes peacefully and orderly, preventing physical conflict.)

The Indian Constitution incorporates several measures to ensure and protect the independence of the judiciary:

• Non-involvement of Legislature in Appointments: The legislature does not directly participate in the process of appointing judges, aiming to minimise the influence of party politics in appointments. Judges are expected to be appointed based on their legal experience and knowledge, not political opinions or loyalty.
• Fixed Tenure for Judges: Judges hold office until they reach a specified retirement age, providing security of tenure. They can only be removed in exceptional circumstances following a difficult procedure. This security allows them to function without fear or favour.
• Difficult Removal Procedure: The Constitution outlines a stringent process for removing a Supreme Court or High Court judge, requiring proven misbehaviour or incapacity and approval by a special majority in both Houses of Parliament. This complexity protects judges from easy removal based on political whims.
• Financial Independence: The salaries and allowances of judges are charged to the Consolidated Fund of India and are not subject to the approval of the legislature, making the judiciary financially independent of the executive and legislature.
• Immunity from Criticism: The actions and decisions of judges are protected from personal criticism. The judiciary has the power to penalise individuals for 'contempt of court', seen as a measure to protect judges from unfair attacks. Parliament cannot discuss the conduct of judges, except when considering a motion for their removal. This immunity allows judges to adjudicate freely without fear of undue criticism.

(The thought bubble "Don't they say, ‘justice delayed is justice denied’?" highlights the public concern about the pace of the judicial system and case backlogs.)

(The thought bubble "In a democracy, you can criticise the Prime Minister or even the President, but not the judges!" raises a common point of debate regarding the limits on criticising the judiciary and the power of contempt of court, prompting questions about accountability and democratic space.)

Appointment Of Judges

The process of appointing judges has historically been a subject of political debate. The individuals appointed, their political philosophies, and views on the judiciary's role (active vs. restrained) can influence the interpretation and application of the Constitution and laws. Various political actors, including the Council of Ministers, Governors, Chief Ministers, and the Chief Justice of India, play a role in this process.

For the appointment of the Chief Justice of India (CJI), a convention developed where the senior-most Supreme Court judge was appointed. However, this convention was bypassed twice (in 1973 and 1975).

Other judges of the Supreme Court and High Courts are appointed by the President after 'consulting' the CJI. Initially, the interpretation of this 'consultation' meant the final decision rested with the Council of Ministers. Over time, through a series of Supreme Court judgments (1982-1998), the Court's view evolved:

• Initially, the CJI's role was seen as purely consultative.
• Later, the CJI's opinion was deemed binding on the President.
• Finally, the Supreme Court established a collegium system, where the CJI recommends appointments in consultation with four senior-most judges of the Supreme Court.

Currently, the decision of this collegium of senior judges carries greater weight in judicial appointments. Thus, both the judiciary (through the collegium) and the executive (President, Council of Ministers) play significant roles in the appointment process.

(The thought bubble "But I think, finally the Council of Ministers would have greater say..." reflects the ongoing debate about the balance of power between the executive and judiciary in appointments, questioning whether the collegium system truly makes the judiciary a 'self-appointing body' or if executive influence remains significant.)

Removal Of Judges

Removing Supreme Court and High Court judges is deliberately designed to be a difficult process to protect judicial independence. Judges can only be removed on grounds of proven misbehaviour or incapacity.

The procedure involves a motion containing the charges against the judge, which must be approved by a special majority in both Houses of Parliament. A special majority requires the support of two-thirds of members present and voting, *and* a simple majority of the total membership of the House.

This stringent procedure ensures that removal is only possible if there is broad consensus among Parliamentarians on the judge's misconduct or incapacity. While the executive is involved in appointments, the legislature holds the power of removal, ensuring a balance of power and contributing to judicial independence.

To date, there has only been one instance where a motion for the removal of a Supreme Court judge was considered by Parliament. Although the motion received the required two-thirds majority of those present and voting, it failed because it did not have the support of a simple majority of the total strength of the House, and therefore the judge was not removed.

Unsuccessful Attempt to Remove a Judge

In 1991, a motion for the removal of Supreme Court Justice V. Ramaswami was initiated based on accusations of financial irregularities during his time as Chief Justice of the Punjab and Haryana High Court. A subsequent inquiry commission found him guilty of serious misconduct.

Despite the commission's indictment, the parliamentary motion for his removal in 1993 failed. Although the motion received the required two-thirds majority among the members present and voting, the Congress party abstained from voting. Because the motion required the support of more than half of the *total* membership of the House (the other condition for special majority), the abstention meant it did not meet this requirement, and Justice Ramaswami was not removed.

Structure Of The Judiciary

India has a single integrated judicial system, unlike some federal countries with separate state court systems. The judiciary is structured in a pyramidal form:

• At the apex is the Supreme Court of India.
• Below the Supreme Court are the High Courts in each state (or group of states).
• At the lowest level are the District and Subordinate Courts.

The lower courts function under the direct supervision of the High Courts above them. Decisions of higher courts are binding on the lower courts.

Structure of Judiciary in India

Jurisdiction Of Supreme Court

The Supreme Court of India operates within constitutional limits but possesses extensive powers defined by its specific jurisdictions:

Jurisdiction of Supreme Court of India

Articles 137 and 144 highlight key aspects of the Indian judiciary's structure and the Supreme Court's power. Article 137 gives the Supreme Court the power to review its own judgments. Article 144 mandates that all civil and judicial authorities throughout India must act in aid of the Supreme Court, ensuring its orders are enforced nationwide.

These articles underscore the unified nature of the Indian judiciary and the Supreme Court's binding authority over all other courts. The Supreme Court's ability to review its own decisions means it is not bound by its previous rulings, allowing for the evolution of law.

(The question "Isn’t it funny that giving advice is optional and accepting that advice is also optional?" highlights the non-binding nature of the SC's advisory jurisdiction, contrasting it with the binding nature of its judgments in disputes.)

(The question "Why is the Supreme Court allowed to change its own ruling?" acknowledges that legal interpretation evolves and courts may revisit previous decisions, implicitly accepting that even the highest court can refine or correct its understanding of the law over time.)

Judicial Activism

The terms judicial activism and Public Interest Litigation (PIL) (also known as Social Action Litigation or SAL) describe a notable shift in the Indian judiciary's role in recent decades, making it more proactive and accessible to the public.

Traditionally, a person could only approach the courts if they were directly and personally affected or 'aggrieved' by a legal issue. This concept of 'locus standi' was relaxed around 1979 in India. The Supreme Court began entertaining cases filed not by the direct victims but by other concerned individuals or organisations on their behalf. Cases involving broad public interest, rather than just individual disputes, became known as Public Interest Litigations.

This opened the door for public-spirited citizens and voluntary groups to seek judicial intervention on issues affecting the broader public good or the rights of vulnerable groups, such as protecting fundamental rights, improving conditions for the poor, environmental protection, and ensuring better public administration.

The judiciary, traditionally reactive (only deciding cases brought before it), became proactive, sometimes taking up cases based merely on newspaper reports or letters received by the court. This proactive stance is often described as judicial activism, with PIL being its primary tool.

(This cartoon likely depicts the judiciary extending its reach into areas traditionally belonging to the executive or legislature, symbolising the proactive or interventionist nature of judicial activism that can blur the lines between the branches of government.)

Some Early Pils

Pioneering instances of PIL in India included:

• Hussainara Khatoon vs. Bihar (1979): A petition filed by an advocate based on newspaper reports about undertrial prisoners in Bihar who had been held in jail for periods longer than the maximum sentence for their alleged offences. The Supreme Court took up this case, which became one of the first recognised PILs.
• Sunil Batra vs. Delhi Administration (1980): A Supreme Court Justice received a letter from a prisoner in Tihar Jail detailing physical torture. The judge treated this letter as a petition. While the Court later stopped accepting ordinary letters as petitions, this case was also significant in the development of PIL.

Through PIL, the judiciary has significantly expanded the understanding of what constitutes 'rights'. Concepts like the right to clean air, unpolluted water, and a decent living environment have been recognised as rights for the entire society, allowing individuals (as members of society) to seek justice when these collective rights are violated.

Furthermore, judicial activism has allowed the courts to address the rights of disadvantaged sections of society who might find it difficult to directly access the legal system. By permitting public-spirited citizens and organisations to file petitions on their behalf, the judiciary has increased access to justice for the needy and deprived.

As Justice Bhagwati stated, the problems of the poor require a different judicial approach than traditional adversarial procedures, which can hinder their ability to enforce fundamental rights.

(The thought bubble "I have heard someone say that PIL means ‘private interest litigation’. Why would that be so?" reflects criticism that sometimes PILs might be motivated by personal or group interests rather than genuine public interest, or that they might be misused.)

Judicial activism has had several impacts:

• It has democratised the judicial system by making courts more accessible to not just individuals but also groups and the public at large.
• It has helped to enforce executive accountability by prompting government action or scrutiny.
• It has contributed to making the electoral system fairer, for instance, by requiring election candidates to disclose assets, income, and educational qualifications through affidavits for public information.

However, there are also criticisms. The large number of PILs and the judiciary's proactive role have overburdened the courts. Moreover, judicial activism is sometimes seen as the judiciary encroaching upon the domains of the executive and legislature. By getting involved in issues like pollution control, corruption investigations, or electoral reform, which traditionally fall under the executive or legislature's purview, the judiciary might be blurring the lines between the three organs of government.

Democratic governance relies on a balance of power and mutual respect for each organ's jurisdiction. Critics argue that excessive judicial activism could strain this delicate balance.

(The thought bubble "I think judicial activism is more about telling the legislature and the executive what they should do..." captures the criticism that the judiciary sometimes oversteps its role by issuing detailed directives on policy implementation, potentially infringing on the executive's function.)

Answer:

Judiciary And Rights

The judiciary is explicitly tasked with protecting the rights of individuals as enshrined in the Constitution. The Supreme Court has two main avenues for remedying the violation of rights:

• Writ Jurisdiction (Article 32): The Supreme Court can issue various writs (Habeas Corpus, Mandamus, etc.) to enforce Fundamental Rights. High Courts also possess this power (Article 226), but Article 32 provides a guaranteed right to move the Supreme Court directly for FR violation.
• Judicial Review (Article 13): The Supreme Court can declare any law that is inconsistent with or violates the provisions of the Constitution, including Fundamental Rights, as unconstitutional and therefore invalid or non-operational.

These powers establish the Supreme Court as both the protector of citizens' fundamental rights and the primary interpreter of the Constitution. The term 'judicial review' is not explicitly in the Constitution, but the power is implicitly derived from the fact that India has a written constitution and the judiciary is empowered to ensure laws comply with fundamental rights (Article 13).

Judicial review also applies to laws potentially violating the federal distribution of powers. If a state challenges a central law as encroaching on a State List subject, the Supreme Court can review the law's constitutionality based on the division of powers outlined in the Constitution. This review power extends to laws passed by both central and state legislatures.

The combined power of writs and judicial review, further enhanced by the practice of entertaining PILs, makes the Indian judiciary very powerful in protecting citizens' rights and interpreting the law and Constitution.

This has made rights more meaningful for disadvantaged sections. For example, the courts have taken up cases related to bonded labour, inhuman conditions, and exploitation, directly addressing violations of the right against exploitation (Article 23 & 24) through PIL and judicial activism, reaching out to those who could not otherwise access justice.

The concept of public interest litigation is gaining acceptance globally, with some countries like South Africa even incorporating it as a fundamental right in their constitutions, allowing citizens to bring cases on behalf of others.

(The thought bubble "I think I’d rather become a judge! Then, I won’t have to worry about elections and public support, and can still have really lots of power." reflects a perception of judges holding significant power and independence, contrasting with the political nature and accountability of elected officials.)

Judiciary And Parliament

Beyond protecting rights, the judiciary in India has actively sought to prevent the subversion of the Constitution through political means. Areas previously considered outside judicial review, such as the discretionary powers of the President and Governors, have been brought under the court's scrutiny.

The Supreme Court has also issued directions to executive agencies in administering justice, for instance, ordering investigations against public figures in cases of alleged corruption. Many such instances are linked to judicial activism.

The Indian Constitution is based on a delicate balance of power and limited separation of powers, with checks and balances between the legislature (lawmaking/amending), executive (implementation), and judiciary (dispute resolution/interpretation). Despite this intended division, conflicts between Parliament and the judiciary, and the executive and the judiciary, have been a recurring feature of Indian politics.

A major point of conflict involved the Parliament's power to amend the Constitution, particularly concerning the Right to Property and the ability to amend fundamental rights to implement Directive Principles.

Initially, the Court resisted Parliament's power to restrict fundamental rights (including property rights for land reforms) through ordinary law or even constitutional amendments. This led to a significant confrontation (1967-1973).

The central issues were:

• The extent of the right to private property.
• The extent of Parliament's power to curtail fundamental rights.
• The extent of Parliament's power to amend the Constitution.
• Whether Parliament could abridge fundamental rights to enforce Directive Principles.

The landmark Kesavananda Bharati case (1973) resolved this major conflict. The Supreme Court propounded the Basic Structure doctrine, ruling that the Constitution has certain fundamental features (the 'basic structure') which cannot be altered or destroyed even by a constitutional amendment passed by Parliament. The Court stated that the Right to Property was not part of this basic structure, allowing it to be amended (which it was, removed from fundamental rights in 1979). Crucially, the Court reserved for itself the power to determine what constitutes the 'basic structure' of the Constitution.

This ruling fundamentally changed the relationship between Parliament and the judiciary, giving the judiciary significant power to interpret the Constitution and review amendments. While the conflict over the Right to Property lessened after its status change, other issues continue to create tension.

Unresolved issues include:

• Can the judiciary intervene in and regulate the internal functioning of legislatures (e.g., regarding parliamentary privileges, disciplinary action against members)?
• Can courts review actions taken by legislatures?

While legislators cannot discuss the conduct of judges in Parliament (except during removal proceedings), there have been instances of legislators criticising the judiciary and vice versa. The judiciary issuing directives on legislative business is also seen by some legislators as violating parliamentary sovereignty.

These ongoing issues underscore the complex and delicate balance between the organs of government and the necessity for each to respect the others' authority within a democratic framework governed by the Constitution.

(The quote from Alladi Krishnaswami Ayyar, a member of the Constituent Assembly, argues for maintaining judicial independence but warns against the judiciary becoming a 'super-legislature' or 'super-executive', highlighting the importance of each organ staying within its defined role.)

(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 dynamic nature of the basic structure doctrine, which has evolved over time through subsequent judgments rather than being exhaustively defined in a single ruling.)

Conclusion

This chapter has examined the pivotal role of the judiciary within India's democratic structure. Despite periodic tensions with the executive and legislature, the judiciary has generally enhanced its prestige.

The judiciary faces increasing public expectations and concerns regarding issues like delays in trials, easy acquittals for influential individuals, and the influence of wealth/power on witness testimony. The judiciary itself is also grappling with these issues.

The Indian judiciary is a powerful and independent institution. Through interpretations of the Constitution, it has significantly protected citizens' rights, often expanding their scope (particularly through judicial activism and PIL). As discussed, the stability of democracy relies on the intricate balance of power between the judiciary, Parliament, and executive, with each organ operating within the limits prescribed by the Constitution.

(This cartoon likely depicts the judiciary (symbolised perhaps by a judge or court) actively intervening or struggling against corruption in public life, suggesting its perceived role in cleaning up governance despite the challenges involved.)

Exercises

As per instructions, the content of the exercises is not included, only the section heading structure is provided.