Judiciary
1. Chapter Overview
2. Why Do We Need an Independent Judiciary?
- The principal role of the judiciary is to protect the rule of law and ensure its supremacy.
- It safeguards individual rights, settles disputes according to law, and ensures democracy does not give way to individual or group dictatorship.
- For this, the judiciary must be independent of political pressures.
🔑 What Does Independence of Judiciary Mean?
- The executive and legislature must not restrain the functioning of the judiciary in a way that prevents it from doing justice.
- Other organs of government should not interfere with judicial decisions.
- Judges must be able to perform their functions without fear or favour.
3. How Is Judicial Independence Ensured?
👨⚖️ Appointment of Judges
The legislature is not involved in appointing judges — so party politics does not play a role. A judge must have experience as a lawyer or be well-versed in law. Political loyalty is not a criterion.
📅 Security of Tenure
Judges hold office till the age of retirement. They can be removed only in exceptional cases through a very difficult procedure — this ensures they function without fear or favour.
💰 Financial Independence
Salaries and allowances of judges are not subject to the approval of the legislature — the judiciary is not financially dependent on the executive or legislature.
🔒 Protection from Criticism
Actions and decisions of judges are immune from personal criticism. The judiciary can penalise those guilty of contempt of court. Parliament cannot discuss judicial conduct except during removal proceedings.
👨⚖️ Appointment of Judges — Details
- Appointment of judges has never been free from political controversy — it affects how the Constitution is interpreted.
- For the Chief Justice of India (CJI): a convention developed that the senior-most judge of the Supreme Court is appointed as CJI. This was broken twice — A.N. Ray (1973) and M.H. Beg (1975) were appointed by superseding senior judges.
- Other SC and HC judges are appointed by the President after consulting the CJI.
- Between 1982–1998, the Supreme Court evolved the Collegium System: the CJI recommends names in consultation with the four senior-most judges of the Supreme Court — establishing the principle of collegiality.
🚫 Removal of Judges
- A SC or HC judge can be removed only on grounds of proven misbehaviour or incapacity.
- A motion with charges must be approved by special majority in both Houses of Parliament.
- This difficult procedure ensures security of office for judges.
4. Structure of the Indian Judiciary
⭐ Supreme Court of India
- Its decisions are binding on all courts
- Can transfer Judges of High Courts
- Can move cases from any court to itself
- Can transfer cases from one High Court to another
🏛️ High Court (one per State)
- Hears appeals from lower courts
- Issues writs for restoring Fundamental Rights
- Deals with cases within the State’s jurisdiction
- Exercises superintendence and control over courts below it
📋 District Court
- Deals with cases arising in the District
- Considers appeals from lower courts
- Decides cases involving serious criminal offences
⬇️ Subordinate Courts (Lowest Level)
- Consider cases of civil and criminal nature
- Function under direct superintendence of higher courts
5. Jurisdiction of the Supreme Court
⚔️ Original Jurisdiction
Cases that go directly to the Supreme Court — without going to lower courts first. Mainly disputes between the Union and States, or between States. The SC acts as an “umpire” in federal matters. Neither High Courts nor lower courts can hear such cases.
📜 Writ Jurisdiction
Any individual whose Fundamental Right has been violated can directly approach the SC. The Court issues writs (special orders) — Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo Warranto. High Courts can also issue writs (Article 226).
🎯 Appellate Jurisdiction
The SC is the highest court of appeal. A person can appeal against High Court decisions. HC must certify the case involves serious interpretation of law or Constitution. In criminal cases involving the death sentence, appeals can be made directly.
💬 Advisory Jurisdiction
The President can refer any matter of public importance or constitutional interpretation to the SC for advice. However, the SC is not bound to give advice, and the President is not bound to accept it either.
⭐ Special Powers
The SC can grant special leave to appeal from any judgment passed by any court in the territory of India (Article 136). Its decisions are binding on all courts; it can also review its own decisions (Article 137).
6. Judicial Activism & Public Interest Litigation (PIL)
📖 What is PIL?
- Normally, only the personally aggrieved party can approach the court. PIL changed this.
- From 1979 onwards, the Supreme Court began hearing cases filed not by the aggrieved person but by others on their behalf.
- PIL opened the courts to public-spirited citizens, voluntary organisations, and lawyers filing petitions on behalf of the needy and deprived.
- PIL has become the most important vehicle of judicial activism.
- The judiciary began considering cases even on the basis of newspaper reports and postal complaints.
📚 Landmark Early PIL Cases
⚖️ Hussainara Khatoon vs. Bihar (1979)
Newspapers reported Bihar prisoners who had spent in jail longer than their sentences. An advocate filed a petition. The Supreme Court heard it — one of the earliest and most famous PILs about under-trial prisoners’ rights.
⚖️ Sunil Batra vs. Delhi Administration (1980)
A Tihar jail inmate sent a scribbled note to Justice Krishna Iyer describing physical torture of prisoners. The judge converted it into a petition — pioneering the practice of courts taking suo motu cognisance of rights violations.
✅ Positive Impact of Judicial Activism
- Democratised the judicial system — both individuals and groups can now access courts.
- Expanded the idea of rights — clean air, unpolluted water, and decent living are now recognised as rights for the entire society.
- Forced executive accountability — directed CBI to investigate politicians in hawala case, Narasimha Rao case, illegal petrol pump allotment case, etc.
- Made elections fairer — ordered candidates to file affidavits of assets, income, and educational qualifications.
- Made rights meaningful for poor and disadvantaged sections — addressed blinding of jail inmates, inhuman quarry conditions, child exploitation, etc.
⚠️ Negative Side of Judicial Activism
- Overburdened the courts — large numbers of PILs have flooded the judicial system.
- Blurred separation of powers — courts are involved in executive matters like pollution control, electoral reform, and corruption investigation, which are not strictly the judiciary’s domain.
- May create strains on democratic principles — democratic government requires each organ to respect the powers and jurisdiction of others.
7. Judiciary and Protection of Rights
📜 Way 1 — Issue Writs (Article 32 & 226)
The Supreme Court can restore fundamental rights by issuing writs of Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto (Article 32). High Courts can also issue writs (Article 226). Citizens can approach either court directly when rights are violated.
⚖️ Way 2 — Judicial Review (Article 13)
The Supreme Court can declare any law unconstitutional and non-operational if it violates the Constitution (Article 13). This is the power of Judicial Review — the most important power of the SC.
🔍 What is Judicial Review?
- Judicial Review means the power of the SC (or HC) to examine the constitutionality of any law.
- If a law is found inconsistent with the Constitution, it is declared unconstitutional and inapplicable.
- The term “judicial review” is not mentioned in the Constitution, but it is implied — since India has a written constitution and the SC can strike down laws that violate fundamental rights.
- Judicial review applies to both fundamental rights violations AND violations of federal distribution of powers — even laws of State legislatures can be reviewed.
8. Judiciary and Parliament — Conflict & Balance
📜 The Core Controversy
- After 1950, controversy arose over Parliament’s power to restrict right to property for land reforms. The Court held Parliament could not restrict fundamental rights. Parliament tried to amend the Constitution — but the Court said even through amendment, fundamental rights cannot be abridged.
- The conflict centred on four issues:
① Scope of right to private property
② Parliament’s power to curtail or abrogate fundamental rights
③ Parliament’s power to amend the Constitution
④ Whether Parliament can make laws abridging fundamental rights while enforcing Directive Principles
🔄 Ongoing Areas of Tension
- Can the judiciary regulate the legislature’s internal functioning? — The legislature has the power to govern itself and punish breach of parliamentary privilege. Can a person punished by the legislature seek court protection? This remains unresolved.
- Constitution prohibits discussion of judicial conduct in Parliament — yet Parliament and State legislatures have at times cast aspersions on judicial functioning, while the judiciary has also issued instructions to legislatures about legislative conduct.
9. Mind Map — Chapter 6 at a Glance
Security of tenure
Financial freedom
CJI + 4 senior judges
President appoints
→ Subordinate Courts
Single Integrated
Writ · Advisory
Special Powers
Hussainara Khatoon
Sunil Batra case
Basic Structure
Kesavananda (1973)
Unconstitutional laws
PIL expands rights
Basic Structure
Amendment power
10. Summary — Quick Revision
Judiciary protects the rule of law — all individuals are equal before law. It must be independent of political pressures to deliver justice impartially.
Independence is ensured through: legislature not involved in appointments, security of tenure, financial independence, immunity from personal criticism, and contempt of court powers.
The Collegium System (evolved 1982–1998) — CJI recommends judges in consultation with four senior-most SC judges. The President appoints. The legislature removes (special majority in both Houses).
India has a single integrated judicial system — no separate State courts. Structure: Supreme Court → High Courts → District Courts → Subordinate Courts (pyramidal).
SC Jurisdiction: Original (Union-State disputes), Appellate (highest court of appeal), Writ (issue writs for Fundamental Rights), Advisory (advise the President), Special Powers (special leave to appeal).
PIL (from 1979) — allows a third party to file cases on behalf of aggrieved persons. Key cases: Hussainara Khatoon (1979) and Sunil Batra (1980). PIL is the main vehicle of judicial activism.
Judicial Review — the most important power of the SC. It can declare any law unconstitutional under Article 13. Not explicitly mentioned in the Constitution but implied. Applies to both Fundamental Rights violations and federal power violations.
Kesavananda Bharati Case (1973) — SC ruled Parliament cannot violate the Basic Structure of the Constitution, even through amendment. The SC itself decides what constitutes the basic structure.
Right to property was removed from the list of Fundamental Rights in 1979 (as it was not part of the basic structure per the 1973 ruling). This helped resolve the Parliament-judiciary conflict over land reform.
Democracy depends on the delicate balance of power between the judiciary and Parliament — each must respect the other’s authority and function within the limits set by the Constitution.
11. Important Terms to Remember
- Rule of Law: All individuals — rich or poor, men or women — are subject to the same law. The judiciary’s principal role is to protect this principle.
- Judicial Review: The power of the Supreme Court (or High Courts) to examine the constitutionality of any law and declare it unconstitutional if it violates the Constitution (Article 13). The term is not explicitly mentioned in the Constitution but is implied.
- Public Interest Litigation (PIL): A legal action filed by a public-spirited person or organisation on behalf of those who cannot approach the court themselves. Emerged in India from 1979. The chief instrument of judicial activism.
- Judicial Activism: The proactive role of the judiciary in addressing broader public issues — going beyond the traditional role of settling disputes brought before it, including taking up cases based on newspaper reports or letters.
- Writ: A special order issued by the Supreme Court or High Courts to protect Fundamental Rights. Five types — Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo Warranto.
- Collegium System: A procedure evolved by the Supreme Court (1982–1998) whereby the CJI recommends names for judicial appointments in consultation with the four senior-most judges. Establishes the principle of collegiality.
- Basic Structure Doctrine: Established in the Kesavananda Bharati Case (1973) — the Constitution has a basic structure that cannot be amended or destroyed even by Parliament. The Supreme Court reserves the right to decide what constitutes this basic structure.
- Contempt of Court: The power of the judiciary to penalise anyone who undermines the authority of the court or makes unfair personal criticism of judges — a key protection for judicial independence.