Independence of Judiciary
• independence of judiciary means that
(1) other organs of government like executive and legislature must not restrain functioning of judiciary in such a way that it is unable to do justice.
(2) other organs of government should not interfere with decision of judiciary.
(3) Judges must be able to perform their functions without fear or favour.
• Independence of judiciary does not imply arbitrariness or absence of accountability. Judiciary is a part of democratic political structure of country. Therefore, it is accountable to Constitution, to democratic traditions and to people of country.
• Indian Constitution has ensured independence of judiciary through several measures:
(1) legislature is not involved in process of appointment of judges.
(2) judges have a fixed tenure – security of tenure ensures that judges could function without fear or favour.
(3) Constitution prescribes a very difficult procedure for removal of judges.
(4) judiciary is not financially dependent on either executive or legislature. Constitution provides that salaries and allowances of judges are not subjected to approval of legislature.
(5) judiciary has power to penalise those who are found guilty of contempt of court.
(6) Parliament cannot discuss conduct of judges except when proceeding to remove a judge is being carried out.
Appointment of Judges
• Generally, senior-most judge of Supreme Court is appointed by President as Chief Justice of India. However, this convention was broken twice. In 1973 A.N. Ray was appointed as CJI superseding three senior judges. Again, Justice M.H. Beg was appointed superseding Justice H.R. Khanna [1975].
• other judges of Supreme Court and High Court are appointed by President after consulting CJI.
• Supreme Court has come up with a novel procedure for appointment of judges. It has been suggested that Chief Justice should recommend names of persons to be appointed in consultation with four senior-most judges of Court. Thus, Supreme Court has established principle of collegiality in making recommendations for appointments.
• Thus, in matters of appointment to judiciary, Supreme Court and Council of Ministers play an important role.
Removal of Judges
• removal of judges of Supreme Court and High Courts is extremely difficult.
• A judge of Supreme Court or High Court can be removed only on ground of proven misbehaviour or incapacity.
• A motion containing charges against judge must be approved by special majority in both Houses of Parliament. It should be noted that while executive plays a crucial role in making appointments; legislature has power of removal.
• This has ensured both balances of power and independence of judiciary.
Structure of Judiciary
• Constitution of India provides for a single Integrated Judicial System. This means that unlike some other federal countries of world, India does not have separate State Courts.
• structure of judiciary in India is pyramidal with Supreme Court at top, High Courts below them and district and subordinate courts at lowest level.
• lower courts function under direct superintendence of higher courts.
Jurisdiction of Supreme Court
• Supreme Court of India is one of very powerful courts anywhere in world. However, it functions within limitations imposed by Constitution.
• functions and responsibilities of Supreme Court are defined by Constitution. Supreme Court has specific jurisdiction or scope of powers.
Original Jurisdiction
• Original Jurisdiction means cases that can be directly considered by Supreme Court without going to lower courts before that.
• Original Jurisdiction of Supreme Court establishes it as an umpire in all disputes regarding federal matters.
• In any federal country, legal disputes are bound to arise between Union and States; and among States themselves. power to resolve such cases is entrusted to Supreme Court of India. This is known as original jurisdiction because Supreme Court alone has power to deal with such cases.
Appellate Jurisdiction
• Supreme Court is highest court of appeal.
• A person can appeal to Supreme Court against decisions of High Court.
• However, High Court must certify that case is fit for appeal, that is to say that it involves a serious matter of interpretation of law or Constitution.
• In criminal cases, if lower court has sentenced a person to death, then an appeal can be made to High Court or Supreme Court.
• Appellate Jurisdiction means that Supreme Court will reconsider case and legal issues involved in it.
• High Courts have appellate jurisdiction over decisions given by courts below them.
Writ Jurisdiction
• Any individual whose fundamental right has been violated can directly move Supreme Court for a remedy.
• Supreme Court can give special orders in form of writs.
• High Courts can issue writs, but persons whose rights are violated have choice of either approaching High Court or approaching Supreme Court directly.
Advisory Jurisdiction
• Supreme Court of India possesses Advisory Jurisdiction. This means that President of India can refer any matter that is of public importance, or that involves interpretation of Constitution to Supreme Court for advice.
• However, Supreme Court is not bound to advise on such matters, and President is not bound to accept such advice.
Judiciary and Rights
• Constitution provides two ways in which Supreme Court can remedy violation of rights.
• First, it can restore Fundamental Rights by issuing writs of Habeas Corpus; mandamus . [Article 32]. High Courts have power to issue such writs [Article 226].
• Secondly, Supreme Court can declare concerned law unconstitutional and non-operational [article 13].
• Together these two provisions of Constitution establish Supreme Court as protector of Fundamental Rights of citizen on one hand and interpreter of Constitution on other.
• most important power of Supreme Court is power of judicial review.
• Judicial Review means power of Supreme Court [or High Courts] to examine Constitutionality of any law if Court concludes that law is inconsistent with provisions of Constitution, such a law is declared unconstitutional and inapplicable.
• term judicial review is nowhere mentioned in Constitution.
Judiciary and Parliament
• Indian Constitution is based on a delicate principle of limited separation of powers and checks and balances. This means that each organ of government has a clear area of functioning.
• Thus, Parliament is supreme in making laws and amending Constitution, executive is supreme in implementing them while judiciary is supreme in settling disputes and deciding whether laws that have been made are by provisions of Constitution.
• In Kesavananda Bharati Case, Court ruled that there is a basic structure of Constitution and nobody—not even Parliament [through amendment]—can violate basic structure.
• This ruling has changed nature of conflicts between legislature and judiciary.
Judicial Activism
• chief instrument through which judicial activism has flourished in India is Public Interest Litigation [PIL] or Social Action Litigation [SAL].
• PIL has become most important vehicle of judicial activism.
• Through PIL, court has expanded idea of rights. Clean air, unpolluted water, decent living., are rights for entire society.
• Judicial Activism has a manifold impact on political system. It has democratised judicial system by giving not just individuals but groups access to courts. It has forced executive accountability. It has attempted to make electoral system much freer and fairer.
• court asked candidates contesting elections to file affidavits indicating their assets and income along with educational qualifications so people could elect their representatives based on accurate knowledge.