Chapter-6

ROLE OF THE
JUDICIARY
SECTION 2 – COMPARITIVE
GOVERNMENT AND POLITICS
 INTRODUCTION
• In almost all democracies today, whether Parliamentary or
Presidential, whether Republic or Constitutional Monarchies, the
Judiciary is independent of the other two branches of
government. There are constitutional and legal provisions to
ensure that it stays independent.
• The members of the Judiciary, known as judges, are also very
vigilant about maintaining independence of the judiciary. This
of course does not mean that the Judiciary functions in an
unchecked manner. Constitutional and legal provisions do exist
 INTRODUCTION
• The primary function of the Judiciary is that of adjudication. This
means that the judiciary takes decisions about disputes or cases
according to the law, and then issues different orders to ensure
that these decisions are carried out.
• There are many instances where the Executive is a party to the
dispute either as the plaintiff or as the defendant. Given the power
of the Government, any legal dispute between it and one or more
citizens is usually unequal. There is a possibility that the
Government would use its powers to secure a favorable decision.
This is where the independence of the Judiciary becomes
JUDICIAL INDEPENDENCE
• An independent judiciary would ensure that all those who
appear before it are treated on an equal plane, and thus make
sure that decisions are in accordance with the law.
• The concept of judicial independence or an independent
Judiciary is a modern one. Monarchies desired a Judiciary which
did as it was ordered. As countries became more and more
democratic, the idea that the Judiciary should be independent of
both the Executive and the Legislature, and outside pressure
from political parties or pressure groups emerged.
JUDICIAL INDEPENDENCE
• Judiciary is important for common man as it protects his/her
fundamental rights. It also has a special role in the federal setup
to solve the disputes between the central government and state
governments.
• The first country to explicitly make provisions in its Constitution
for an independent Judiciary was the United States of America.
• The Constitution of India also provides for judicial independence.
Judges cannot be removed from office unless any violations of
law have been enquired into and proved. Any proposal for such
a removal from office must be approved by the Parliament
 JUDICIAL INDEPENDENCE - Provisions

1) Appointment of Judges :
• Article 124 of the Indian Constitution provides that the judges of the
Supreme Court and High Court should be appointed by the
President in consultation with the Chief Justice of India (CJI). They
are not elected by the Parliament or the people and hence remain
away from electoral politics.
2) Security of Term/Tenure :
• Once appointed, the judges remain in office till they complete a
fixed age of retirement which is 62 for the judges of High Court and
65 for the judges of the Supreme Court.
 JUDICIAL INDEPENDENCE - Provisions
3) Procedure of Removal :
• The process for the removal of judges is known as Impeachment. It
is a difficult process & requires 2/3 majority in both the houses of
the parliament.
• The judges can be removed only on the grounds of proved
misbehaviour, corruption, incapability, constitutional violation, etc.
4) Qualifications :
• Qualifications to appoint judges are given in the constitution and
only competent and experienced people are appointed as judges.
The principle of seniority must be maintained.
 JUDICIAL INDEPENDENCE - Provisions

5) Salary and Allowances :

• The judges should be paid attractive salaries to attract the best
of talent to judicial office. Salaries of judges cannot be reduced
unless there is a Financial Emergency only to be reimbursed
later.
• Salaries are charged on the Consolidated Fund of India which is
a non - voteable subject of the budget.
 JUDICIAL INDEPENDENCE - Provisions

6) Conditions after retirement :

• A judge of the High Court is not allowed to practise in the same
High Court but he/she can practise in the Supreme court of
India or in any other High Court.
• The Supreme Court judges cannot practise in any court in the
territory of India post retirement.
• This provision is made to protect the dignity of the courts and
the judges and also to avoid any influence or pressure on the
junior judges.
 JUDICIAL INDEPENDENCE - Provisions
7) Immunity of Judges :
• Judges of the Supreme Court and High Courts have the power
to punish any person or body of government for ‘Contempt of
Court’. All actions and decisions of judges in their official
capacity, are immune from criticisms and the actions of the
judge in his/her official capacity cannot be discussed in the
Parliament.
Thus, with the help of the above provisions, and
Judicial Review, the makers of the Indian Constitution
STRUCTURE OF INDIAN JUDICIARY
 STRUCTURE OF INDIAN JUDICIARY

SUPREME COURT OF INDIA :

1) Composition :
• In the Supreme Court, there is one Chief Justice and a number
of other judges decided by the Constitution and Parliament.
Minimum 5 judges are required to interpret the constitution or
to carry out advisory jurisdiction. At present, the number of
judges in the supreme court is 34. (33+1)
 STRUCTURE OF INDIAN JUDICIARY

SUPREME COURT OF INDIA :

2) Appointment :
• The Supreme court judges are appointed by the President in
consultation with the Chief Justice whereas if the C. J. is to be
appointed, then the president has to consult the outgoing CJI.
STRUCTURE OF INDIAN
JUDICIARY
SUPREME COURT OF INDIA :
3) Qualifications :
• Citizen of India
• Judge of High Court for at least 5
years or
• Advocate of High Court for at least
10 years or
• Distinguished jurist in the eyes of
the President.
 STRUCTURE OF INDIAN JUDICIARY

HIGH COURTS IN INDIA :

I) Composition :
• Under article 124, a High Court is
created for every state, or a
common High Court for 2 or more
states. The Strength varies from
state to state. (94 in Mumbai HC)
ESTABLISHED IN
1862
 STRUCTURE OF INDIAN JUDICIARY

HIGH COURTS IN INDIA :

II) Appointment :
• The Chief Justice is appointed by the
President in consultation with the CJI
and Governor of the state. All other
judges are appointed in consultation
with the C. J. of Supreme Court.
Additional and Acting judges may
ESTABLISHED IN
1862
also be appointed.
 STRUCTURE OF INDIAN JUDICIARY

HIGH COURTS IN INDIA :

III) Qualifications :
• Citizen of India
• Must have held judicial office in
Indian Territory for at least 10
years or
• Must have been an advocate of
High Court for at least 10 years or ESTABLISHED IN
1862
• Distinguished jurist in the eyes of
 STRUCTURE OF INDIAN JUDICIARY
HIGH COURTS :
IV) Term/Tenure :
• A judge of a High Court remains in office till he or she attains
the age of 62 years. He or she may resign from their office by
addressing their resignation to the president or he may be
removed by the president on an address of parliament
supported by 2/3 majority of members present and voting in
each House of the parliament. Judges can be removed for
incapacity, misbehavior, misuse of authority, corruption etc.
STRUCTURE OF INDIAN JUDICIARY
HIGH COURTS :

V) Transfer of Judges :
• Article 222 of Indian constitution provides that the
president of India in consultation with the Chief
Justice of Supreme Court may transfer the judge
from one high court to another High Court within the
territory of India.
There are 25 High courts in India
 POWERS AND FUNCTIONS OF INDIAN JUDICIARY
HIGH COURTS AND SUPREME COURT IN INDIA :

1) Original Jurisdiction :
Under article 131 the functions of Supreme Court are purely of a
federal character and no other court in India shall have the power to
entertain such a case. This includes any dispute between :
a)The Government of India and one or more states
b)the Government of India and any other state on one side and any
other state or states on the other side
c) two or more states
 POWERS AND FUNCTIONS OF INDIAN JUDICIARY

HIGH COURTS AND SUPREME COURT IN INDIA :

2) Writ Jurisdiction :
Under article 32 the Supreme Court has the power to issue directions
or writs for the enforcement of fundamental rights.
• Habeas corpus
• Mandamus
• Quo Warranto
• Prohibition
• Certiorari
 POWERS AND FUNCTIONS OF INDIAN JUDICIARY
HIGH COURTS AND SUPREME COURT IN INDIA :

3) Appellate Jurisdiction : (Art.132)

The Supreme Court can hear appeals in constitutional, civil, criminal
cases, and cases by special permission against any judgment decree
or final order of a High Court.
• Constitutional cases – in such a case an appeal against any
judgment decree or final order of a High Court can be filed in the
Supreme Court provided that the High Court certifies that the case
involves a substantial question of law as to the interpretation of the
constitution.
 POWERS AND FUNCTIONS OF INDIAN JUDICIARY
HIGH COURTS AND SUPREME COURT IN INDIA :

• Criminal cases – an appeal to the Supreme Court can be filed

against any judgment or sentence or an order in any case
provided
a)The High Court has on appeal reversed in order of acquittal of
an accused and sentenced him to death
b)The High Court has been drawn any case from subordinate
courts and has convicted the person and sentenced him to
death
 POWERS AND FUNCTIONS OF INDIAN JUDICIARY
HIGH COURTS AND SUPREME COURT IN INDIA :
(Appellate jurisdiction) :
• Civil cases – an appeal can be filed in the supreme
court against any judgment decree or final order of
high court provided
a)The high court certifies that the case involves
substantial question of law and the given question
needs to be decided by the supreme court of India.
 POWERS AND FUNCTIONS OF INDIAN JUDICIARY
HIGH COURTS AND SUPREME COURT IN INDIA :
• Appeal by special leave
An appeal can be filed in the supreme court under article 136
against any judgment decree or order of a high court or a
tribunal except military tribunal‘s provided that such special
leave is granted by the supreme court.
However such a discretion is to be exercised by the supreme
court under exceptional circumstances where the natural justice
has been denied or a court acts illegally.
 POWERS AND FUNCTIONS OF INDIAN JUDICIARY
HIGH COURTS AND SUPREME COURT IN INDIA :
5) Judicial Review :
• It is the power of higher judiciary to declare any law passed by the
parliament or any ordinance issued by the executives as
unconstitutional if it violates the provisions of the constitution or
falls outside of the basic framework of the constitution.
• Thus through the power of judicial review the Supreme Court can
defend the constitution. such a law cannot be enforced thereafter,
however the judiciary can act in this regard only when the law is
challenged before it.
 POWERS AND FUNCTIONS OF INDIAN JUDICIARY
HIGH COURTS AND SUPREME COURT IN INDIA :

6) Self review :
• the judgment given by the Supreme Court is final but there is
no guarantee that the Supreme Court will never make any
mistake.
• Supreme Court being the apex court there is no other court to
make an appeal against the verdict or a sentence hence the
Supreme Court has the authority to review its own decisions.
 POWERS AND FUNCTIONS OF INDIAN JUDICIARY
HIGH COURTS AND SUPREME COURT IN INDIA :

7) Miscellaneous powers :
• The Supreme Court is a court of record under article
129.
• The Supreme court has the power to punish any
individual or official for committing contempt of court.
 SUBORDINATE COURTS IN INDIA :
1) Subordinate Criminal Court or Sessions
court :
• The highest judicial authority in every district is the sessions
court. Sessions judge hears cases related to serious criminal
offenses and they can also issue a death sentence which will be
confirmed by the High Court of the state concerned.
• Subordinate criminal courts can give punishment upto two
years of imprisonment and the judicial authority which deals
with criminal matters in the session court is called the
 SUBORDINATE COURTS IN INDIA :

2) Subordinate Civil court :

• The District Judge supervises the work of all inferior
courts. He has original and appellate jurisdiction. An
appeal against his decision can be made in the High
Court of the concerned state. Small causes court are
the lower courts in a district and the decisions of them
can't be appealed.
SUBORDINATE COURTS IN INDIA :

3) Revenue courts :
• Each district has a Revenue Court to solve revenue cases. The
lower level court in revenue matters is Tehsildar court.
• Appeals from this court go to District Collector and then
Finance Commissioner that is appeals can be made to the
Board of Revenue or Finance Commission.
SUBORDINATE COURTS IN INDIA :
4) Panchayat or Village court :
• Panchayats are empowered to hear criminal cases
such as insulting a public servant, unlawful
confiscation of property, theft involving small amounts.
In civil cases they are empowered to settle matters
within villages and can impose fines up to rupees 500.
 SUBORDINATE COURTS IN INDIA :

5) Lok Nyayalaya/ Lok Adalat/ Public Courts :

• The existing system of administration of justice has
proved to be inadequate for different reasons. There is
a dominance of forms and procedures in the judicial
process and backlog of thousands of cases in all
categories. These cases must be solved under a
reasonable time frame.
 SUBORDINATE COURTS IN INDIA :

• Under the Legal Services Authorities Act of 1987, Public

Courts are established. The main objective is to reduce
cost and delay and to secure justice for weaker
sections of society.
• In the public courts, Panel of Advocates here the cases
under the supervision of Metropolitan Magistrate.
• These courts are held on every 2nd and 4th Saturday or
 JUDICIAL REVIEW
• A written Constitution in any democratic country is the highest
law of the land. The laws made by the Legislature have a
status lower than that of the Constitution. Moreover, these
laws are expected to be consistent with the Constitution.
• Hence it becomes necessary to have an institution which
would examine whether the laws are consistent with the
Constitution or not. But this is not enough. That institution
should also have the power to declare any law found
inconsistent with the Constitution to be invalid and therefore
 JUDICIAL REVIEW

• This would prevent the Legislature from making laws which

violate the Constitution. In democracies with written
Constitutions, this power is vested in the Judiciary.
• Thus, Judicial Review means the power of the Judiciary to
examine if any law approved by the Legislature is
consistent with the Constitution or not, and if it is not then
to declare it unconstitutional.
 JUDICIAL REVIEW

• Both the Executive and the Legislature are involved in

the process of law-making. It would be highly
inappropriate to give them the power to examine
whether the laws that they have made are consistent
with the Constitution or not. It is likely that they would
be biased while doing so. The Judiciary is not involved
in any way in the lawmaking process. It is an
 JUDICIAL REVIEW

• However, the power of Judicial Review does not exist in

countries which have unwritten Constitutions (for
instance in the United Kingdom). This is so because
there is no specific highest law of the land and thus the
laws passed by the Legislature cannot be examined
with reference to anything.
 All the rights secured to the
citizens under the Constitution are worth
nothing, and a mere bubble, except
guaranteed to them by an independent and
virtuous Judiciary.
~ Andrew Jackson