“So long as we may have an independent judiciary, the great interests of people will be safe.”
- John Rutledge.
The judiciary is the part of the government, responsible for interpreting the law, resolving conflicts, and providing justice to all citizens. The judiciary is seen as the protector of the Constitution and the watchdog of democracy. An unbiased and independent court is essential for democracy to work properly.
Structure of the Indian Judiciary
A single, integrated judicial system exists in India. The Supreme Court (SC) is at the summit of a pyramid-shaped structure that makes up India's judicial system. District and subordinate courts are below the SC, which is followed by the High Courts. The upper courts directly supervise how the lower courts run their operations.
Position of the supreme court under the Constitution.
The position of the supreme court of India can be seen with reference to its power as an appellate court, guardian of the constitution, and as the constitution and as a federal court.
As a Federal Court
In a federal state, which has a written constitution, the power is divided between the center and the state government and it is therefore, essential for some authority to determine and decide upon the disputes between them, and to maintain the distribution of the power guaranteed by the constitution.
Art 131 of the constitution vets the supreme court with original and exclusive jurisdiction to determine and decide upon the disputes between the center and the state and the states.
As a Court of Appeal
The Supreme Court of India is the final appellate authority of the land, and most of the functions performed by the Apex court are in relation to its Appellate jurisdiction.
Art 132 to 136 deals with that appellate jurisdiction.
133- civil appellate matters
134- Criminal Court of Justice
136- Separate leave petition
As a Guardian of the Constitution:
Art 13 – Constitution declares that any law which contravenes any of the provisions of part III of the Constitution dealing with fundamental rights shall be declared void.
Art 251 and 254 – in case there is an inconsistency between Union and States law, the state laws are declared void.
Art 246- expressly provides that the center and state legislature have legislative power over a specified list of subjects.
Art 245 – makes the power of both Parliament and state legislature, ‘subject to the provisions of the constitution.’
As a Protector of Fundamental right
The mere declaration of fundamental rights is not sufficient unless there are proper judicial remedies for their enforcement.
Art 32
As an Advisory Body
Art- 143 Power of the President to consult the supreme court.
Independence of Judiciary
- Special mode of appointment of Judges- Presidential reference 1999 nine-judge bench – collegium of judges.
- Security of tenure: SC -65, HC- 62, Impeachment only by 2 grounds – Proved misbehavior and incapacity.
- Immunity in respect of salaries and allowances of judges: Art- 125, 218 of the constitution.
- Administrative power of SC and HC: Art- 146, 229 SC and HC have the authority to recruit their staff and frame other rules regarding their condition of service.
- Salaries drew from the consolidated fund
- Bar as to participate after retirement
- Power to Punish for Contempt
- Bar as to the discussion of Conduct of Judges
1.
Issues in Judicial Appointments
The method of appointment of judges of the Chief Justice of SC and HC is laid down in the constitution. This has been provided in Art- 124(2) and 217(1) of the constitution.
There are 2 different phases in relation to judicial appointments,
1. First: The phase of Appointments by the Executive. (1950-1993)
2. Second: The phase of appointments by the collegium. (1993-present)
1. First: The phase of Appointments by the Executive.
The true intention of constitution-makers is that the executives be involved in the appointment process of the judges. This phase was carried out smoothly until the period of Emergency.
The seniority of appointment was bypassed and the Supreme Court judge because of his political connections got appointed as the Chief Justice of the Supreme Court.
2. Second: The phase of appointments by the collegium. (1993-present)
Nowhere in this world, there is a system of appointment of judges by the judges themselves.
Drawbacks in the collegium system
- Collegium system lacks performance audit,
- Absence of a Separate Secretariat.
- CJI act as initiator as well as appointer.
- Increase the influence of the Bar Council.
- The competence of judges is not measured, only seniority prevails.
- Utmost secrecy. The answer to why someone is appointed and why one is rejected is not given out.
Other related terms to Judiciary
Judicial Power
It denotes the power exercised by the judiciary as an organ of the state.
Judicial Review
It denotes the power given to the higher judiciary to test the validity of any legislative actions or any other executive actions taken by the government.
Judicial Policymaking
This is associated with related terms such as Judicial Activism, Judicial Creativity, and Judicial Legislation. Judiciary do not merely declare the law; they also create the law.
eg:
Vishaka vs the State of Rajasthan, (1997) = gives guidelines in the case of harassment of women at the workplace.
Judicial Activism
Judicial Activism deals with the political role played by the judiciary, like its counterparts in other branches of the government, that is, the legislature and the executive.
The term judicial activism can be equated with, judicial supremacy, judicial absolution, judicial imperialism, and judicial anarchy. This is opposed to the term ‘restraint’ which is popularly called ‘Judicial conservatism.’
Needed areas for Judicial reforms
1. Rural Court
“Law Commission in its 114th report advocated setting up of Gram Nyayalaya”
2. Indian Judicial service
3. Judicial Procedure
4. Higher court
5. Judicial Commission
6. Crime Investigation
7. Judicial code of conduct
8. Judicial Standards and accountability bill
9. Judicial restraint against the activism
10. Amendment of Contempt of Courts Act
11. Role of media
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