Class 11 NCERT chapter 6 Judiciary

                             Judiciary 

Why do we need an Independent Judiciary ?

• In any society , disputes are bound to arise between individuals , between groups and between individuals or groups and government.
• All such disputes muct be settled by an independent body in accordance with the principle of rule of law.
• The principle rolw of the judiciary is to protect rule of law and ensure supremacy of law . 
• It is necessary that the judiciary is independent of any political pressures .

 Independence of judiciary 

Simply stated independence of judiciary means that 

1. The other organs of the government like the executive and legislature must not restrain the functioning of the judiciary in such a way that it is unable to do justice.

      2. The other organs of the government should not interfere with the decision of the Judiciary .

      3.  Judges must be able to perform their functions without fear or favour .

• Independence of the judiciary does not imply arbitrariness or absence of accountability .
• Judiciary is a part of the democratic political structure of the country .

The Independent of judiciary be provided and protected 

• The Indian constitution has ensured the independence of the judiciary through a number of measures.
• The legislature is not involved in the process of appointment of judges .
• In order to be appointed as a judge, a person must have experience as a lawyer and \or must be well versed in law .
• The judges have a fixed tenure .
• They hold office till reaching the age of retirement .
• Only in exceptional cases , judges may be removed .
• The constitution prescribes a very difficult procedure for removal of judges .
• The constitution makers believed that a difficult procedure of removal would provide security of office to the members of judiciary .
• The judiciary is not financially dependent on either the executive or legislature .
• The constitution provides that the salaries and allowances of the judges are not subjected to the approval of the legislature .
• The actions and decisions of the judges are immune from personal criticisms .
• The judiciary has the power to penalise those who are found guilty of contempt of court .
• parliament cannot discuss the conduct of the judges except when hte proceeding to remove a judge is being carried out .

Appointment of judges 

• The appointment of judges has never been free from political controversy .
• It is part of the political process . It makes a difference who serves in the supreme court and high court a difference in how the constitution is interpreted .
• The political philosophy of the judges , their views ablut active and assertive judiciary or controlled and committed judiciary have an impact on the fate of the legislations enacted .
• In 1973 A.N. Ray was appointed as CJI superseding three senior judges .
• The other judges of the supreme court and the high court are appointed by the president after 'consulting ' the CJI .
• Initialy , the court felt that role of the cheif justic was purely consulative .
• Finally , the supreme court has come up with a novel procedure: It has suggested that the cheif justice should recommend names of persons to be appointed in consltation with four senior - most judges of the court .
• The supreme court has established the principle of collegiality in making recommendations for appointments .

Removal of judges 

• The removal of judges of the supreme court and the high court is also extremely difficult.
• A judge of the supreme court or high court can be removed only on the ground of proven misbehaviour or incapacity .
• A motion containing the charges against the judge must be approved by special majority in both houses of the parliament .
• In that cases , though the motion got two - third majority , it did not have the support of hte majority of the total strength of the houses and therefore, the judge was not removed .

Structure of the Judiciary 

• The kconstitution of India provides for a single integrated judicial system .
• The structure of the Judiciary in India is pyramidal with the supreme court at the top, High Courts below them and district and subordinate courts function under the direct superintendence of the higher courts .

1 . Supreme Court of India 

• Its decisions are binding on all courts .
• Can transfer the judge of high courts
•  Can move cases from any Court to itself can transfer cases from one  High Court to another.

2.  High court 

• Can hear appeals from lower courts .
• Can issues with of restoring fundamental rights.
•  Can deal with cases within the jurisdiction of the state.
•  Exercise superintendence and control over the court below it.

3 .   District Court 

• Deal with cases arising in the district.
•  Considered appeal on decision given by lower courts
•  DecideS case involving serious criminal offences.

4 .   subordinate courts 

• Consider cases of Civil and criminal nature

Jurisdiction of supreme court 

• The supreme court of India  is one of the very powerful courts anywhere in the world .
• The functions and responsibilities of the supreme court are defined by the constitution .
• The supreme court has specific jurisdiction or scope of powers.

1. Original :   settles disputes between Union and states and amongst States . 
2. Appellate : tries appeal from Lower court in in civil, criminal and constitutional cases
3.  Advisory:  advise the president on matters of public importance and law 
4. Special Powers can grant special leave to an appeal from any judgement or metters passed by any court in the territory of India.

Original Jurisdiction 

• The original jurisdiction of the supreme court established it as an umpire inall disputes regarding federal matters .
• In any federal country , legal disputes are bound to arise between the union and the states : and among the states themselves .
• The power to resolve such cases is entrusted to the Supreme Court of India it is called origin jurisdiction  because the supreme court alone has the power to deal with such cases neither the higher codes 9 the lower courts can deal with such cases.

Writ jurisdiction 

• The supreme court can give special orders in the form of writs.
•  The high courts can also issues with, but the persons whose rights are violated have the choice of either approaching the high court or approaching the supreme court directly.
• Appellate  jurisdiction 
• The supreme court is the highest court of appeal. A person can appeal to the Supreme Court against the decision of the high court.
•  The supreme court holds the power to decide whether to admit appeal even when appeal is not allowed to buy the high court.
•  The high court to have appellate jurisdiction over the decision given by courts below them.

 Advisory jurisdiction 

• In addition to original and appellated jurisdiction, the Supreme Court of India process advisory jurisdiction also.
• The supreme court is not bound to give advice on such matters and President is not bound to accept such and advice.
•  In the first place, it allowed the government to seek legal opinion on a matter of importance before taking action on it.
• Secondly, in the light of the advice of the supreme court the government can make suitable Chand change in its action or legislation. 
• These article help us to understand to unified nature of our Judiciary and the power of the supreme court.

 Judicial activism

•  The chief instrument through which judicial advertism has flourished in India in Public Interest legislation [PIL] or social action legislation[SAL]. 
• In 1979, the court set the trend when it decide to hear a case where the case was filed not by the aggrieved person but by other on their behalf.
•  Judiciary, which is institution that traditionally confirned to responding to cases brought before it being consider considering many cases merely on the basis of newspaper reports and poster complaint received by the court .
• Through the PIL,  the court has expanded the idea of rights.
•  Secondly, through PIL and judicial activism of the post 1980 period, the  Judiciary has also shown readiness  to take into consideration the rights of those section who cannot easily approach the courts. 
• Judicial activism has had many fold impact on the political system.
•  It has democratictise the judicial system by giving not just to individuals but also group access to the courts .
•  In the first place it has overburdened the courts.
•  secondly, judicial activism has blurred the line of districtinction between the executive and legislature on the one hand and the Judiciary on the other.
•  The court has been involved in resolving question which belong to the executive.

Judiciary and rights 

The constitution provide two way in which the supreme court can read the remedy the relation of rights 

1. Firstly ,it can restore fundamental right by issuing writs of Habeas Corpus: mandamus etc (article 32 ).the high court's also have the power to issue such writs (article 226 )
2. Secondly, the supreme court can declare the concerned law as unconstitutional and therefore non-operational (article 13).
3.  The writ powers and the review power of the court make judiciary very powerful .
4. The practice of entertaining PIL as has further added to the powers of judiciary in protecting right of citizens.

Judiciary and Parliament

• The Indian Constitution is based on a delicate principle of Limited separation of power and checks and balances.
• The Parliament is Supreme in making law and amending the constitution
•  The executive is Supreme in implementing them while the Judiciary is Supreme in settling disputes and deciding whether the laws that have been made in accordance with the provisions of the constitution.
•  The Parliament wanted to put some restriction on the right to hold property so that land Reform could be implemented.
•  The court held that the Parliament can not restrict fundamental rights.
•  The Parliament then tried to amend the constitution. but the court said that even through an amendment of fundamental right cannot be abridged.
•  During the period 1967 and 1973 this controversy became very serious .
• In 1973 the supreme court gave a decision that has became very important in regulating the relations between the Parliament and the Judiciary since then this case is famous as the Keshav Nanda Bharti case.
•  In this case the Court ruled that there is a basic structure of the constitution and nobody not even the Parliament can violet the basic structure.

 The court did two more things.

1.  First it said that right to property was not part of basic structure and therefore could be suitably abridged.
2.  Secondly ,the court reserved to itself the right to decide whether various matter are part of the basic structure of the Constitution .

• This ruling has changed the nature of conflict between the legislature and Judiciary.
•  The right to property was taken away from the list of fundamental right in 1973 and this also helps in changing the nature of the relationship between these two organs of government.
•  In the parliamentary system. the legislature has the power to govern itself and regulate the behaviour of its members.
• The legislature can punish a person who the legislature holds guilty of breaching privilege of the Legislature.