Q. How is the independence of the judiciary ensured? Describe the various jurisdictions of the Supreme Court of India.

Explain the writ jurisdiction of a High Court. What is meant by Judicial Review?
India has adopted a federal constitution with distribution of powers between center and the states. An independent judiciary is the essence of the federal character of the constitution. It is imperative that the judiciary be impartial and independent of the legislative and executive branches of the country to ensure the functioning of the government in accordance with the constitution. The supreme court, being the guardian of the constitution, ensures that the fundamental rights of the citizens are not violated. To let the judiciary fulfill this big responsibility efficiently, the constitution has provided several measures that ensure the independence of the judiciary. However, owing to the nature of Indian politics, there have been several attempts by the govt. to extend its supremacy over the judiciary and to reduce its independence. To understand the dynamics between the govt. and the judiciary, we need to look at the provisions present in the constitution. Composition of the Supreme Court Art 124 specifies that the SC will be composed of a Chief Justice and at most 7 other judges. The number of other judges has now been increased to 25. To be appointed as a judge of the supreme court, a person must be a citizen of India and a) has been a Judge of a High Court for 5 yrs . b) has been an advocate of a High Court for 10 yrs. c) in the opinion of the president, a distinguished Jurist. Appointment of the Judges The procedure of appointment of the Chief Justice and other judges has created a lot of controversy because it is the key aspect of the independence of the judiciary. Art 124 specifies that the Chief Justice is appointed by the president after consulting with the judges of the supreme court and the high courts. Further, that while appointing other judges, the CJ must be consulted. Thus, the constitution clearly tried to prevent the executive from having complete discretionary powers in the appointment of the judges. Until 1973, the senior most judge of the supreme court was appointed as the Chief Justice. However, this convention was broken when Justice AN Ray was appointed as the CJ by passing 3 more senior judges. This was seen as a blatant assault on the independence of the judiciary. The govt. pleaded that the word "consult" does not mean that the president is bound by the advise. He is free to make his own decision. In 1977, in the case of Union of India vs Sankalchand Seth, which was related to the transfer of a Judge from one high court to another under art 222, SC held that the President has the right to differ from the advice provided by the consultants. Judges Transfer Case 1 In the case of S P Gupta vs Union of India, 1982 SC unanimously agreed with the meaning of the word 'consultation' as determined in the Sankalchand's case. It further held that the only ground on which the decision of the govt. can be challenged is that it is based on mala fide and irrelevant consideration. In doing so, it substantially reduced its own power in appointing the judges and gave control to the executive. Judges Transfer Case 2 This matter was raised again in the case of SC Advocates on Record Association vs Union of India, AIR 1982 . In this case, the SC overruled the decision of the S P Gupta case and held that in the matter of appointment of judges of high courts and supreme court, the CJ should have the primacy and the appointment of the CJ should be based on seniority. It further held that the CJ must consult his two senior most judges and the recommendation must be made only if there is a consensus among them. Judges Transfer Case 3 A controversy arose again when the CJ recommended the names for appointment without consulting with other judges in 1999. The president sought advice from the SC (re Presidential Reference 1999) and a 9 member bench held that an advice given by the CJ without proper consultation with other judges is not binding on the govt. As of now, due to the decision in Judges Transfer Case 2, the appointment of the judges in SC and High Courts are fairly free from executive control. This is an important factor that ensure the independence of the judiciary. The following are other provisions that work towards the same goal: 1. Fixed Tenure A SC Judge has a fixed tenure until retirement age. He cannot be removed except by a presidential order passed with a simple majority as well as by 2/3 majority of each house of the parliament present and voting. No judge has ever been removed by a presidential order in India. The proceedings to remove were started to Justice V Ramaswamy, but the motion was not approved because lack of required majority. In the case of C Ramachandran Iyer vs A N Bhattacharjee 1995, pressure was put the the local bar association on the judge to resign. In this case, the SC held that only the Chief Justice of the SC can be the prime mover of the action against erring judges. Thus,

after this case, action against judges was allowed only through in-house procedures of the judiciary. 2. Salary The salary of the judges cannot be changed after the appointment for their disadvantage. 3. Jurisdiction of the courts The jurisdiction of the SC can be increased but not decreased i.e. their power cannot be curtailed. 4. Art 121 No discussion about the judges in the parliament is permitted as per art 121 except for the discussion about his removal. 5. Art 129 and 215 Power to punish for its contempt. The SC and the High Courts have the power to punish anybody for civil and criminal contempt of itself under art 129 and 215. 6. Art 50 Separation of judiciary from executive Art 50 urges the state to take steps to separate the judiciary from the executive in the public service of the state. 7. Appointment of the judges only after consultation with legal experts. As discussed above, the executive does not have unlimited power over appointment of judges. 8. Art 124(7) Prohibition on practicing before any court Art 124 prohibits a retired judge from appearing and pleading before any court or tribunal.

Jurisdictions of Supreme Court

Art 129 Court of Record
SC is a court of record and has all the powers including power to punish for civil or criminal contempt of court. In the case of Delhi Judicial Service Asso. vs State of Gujarat 1991, SC held that It can even punish for contempt of any subordinate court in India as well. In the aftermath of babri masjid demolition, UP CM Kalyan Singh was punished for contempt of court for failing to deliver on his promise not to allow any construction in disputed area.

Art 131 Original Jurisdiction

The SC has original jurisdiction in any dispute arising between: a) Center and one or more states. b) Center and one or more states on one side and one or more states on another. c.) two or more states. Under original jurisdiction, individuals cannot bring a suit again Govt. of India. The suit must involves a question of law or fact on which a legal right depends. Further, the suit cannot be because of any commercial relation or political relation between the two parties. In the case of State of Karnataka vs Union of India 1978, SC held that the suit filed by State of Karnataka against the Govt. regarding its objection to the appointment of an inquiry commission is maintainable. In the case of Union of India vs State of Rajasthan 1984, it was held that a suit to recover damages under Railway Act is not maintainable. SC's original jurisdiction is not attracted for ordinary commercial disputes. The following are some exceptions under which SC does not have jurisdiction: 1. Any treaty, covenant, sanad, agreement, or any such instrument that was executed before the commencement of the constitution, and which is still in operation or provides that the jurisdiction of SC does not extend to such a dispute. 2. The parliament by law may restriction the jurisdiction of SC in disputes related to use, distribution, or control of the water or an interstate river or river valley. 3. Any matter referred to the Financial Commission. 4. Matters related to the adjustment of the expenses between the center and the state. Enforcement of Fundamental Rights Art 32 SC is the guardian of the constitution. It is the supreme defender of the people's fundamental rights. This position has been enforced by Art 32 that given any citizen to petition the SC if his fundamental rights are violated. The SC is empowered to give directions, orders, or writs including the writs of habeas corpus, mandamus, prohibition, and certiorari for the enforcement of the rights given in part III. L Chandra Kumar vs Union of India AIR 1997 - Power of judicial review vested in HC by art 226 and in SC by art 32 is a basic feature on the constitution and cannot be amended.

Art 132 Appellate Jurisdiction - Constitutional

The SC is the highest court of appeal in the country. The writs and the decrees of the SC run throughout the country. A person can appeal to the SC under its appellate jurisdiction if he is not satisfied with the decision of the lower courts. Art 132(1) allows an appeal to be filed in the SC if three conditions are satisfied: 1. The order appealed must be against the judgement of a high court in civil, criminal, or other proceedings.

2. The case involves a question of law as to the interpretation of the constitution. 3. The High Court, under 134A certifies that the case be heard by the SC. Krishnaswamy vs Governer General in Council 1947 - If there is a difference of opinion among High Courts and if there is no direct decision by SC on that point, it is a substantial question of law that can permit appeal in SC. Art 133 Appellate Jurisdiction - Civil An appeal shall lie to SC from any judgement, decree, or a final order in civil proceedings of a High Court only if the High Court certifies under 134A that 1. the case involves an substantial question of law of general importance. 2. in the opinion of the High Court, the said question needs to be decided by the SC. Madan Gopal vs State of Orrisa 1956 - The pecuniary value of a dispute is immaterial. There may be matters which cannot be measured in money but the decision could have a far reaching effect and such cases can be permitted to be appealed in SC. Art 134 Appellate Jurisdiction - Criminal An appeal shall lie to SC from any judgement, decree, or a final order in criminal proceedings of a High Court in two ways - with or without a certificate from High Court. 1. Without Certificate a) If the High Court, on appeal, has reversed an order of acquittal of an accused and sentenced him to death b) if the High Court has withdrawn a case before itself from any subordinate court and in such a case has convicted the accused and sentenced him to death. 2. With Certificate If the High Court certifies that this is a fit case for appeal to SC. Siddheshwar Ganguly vs State of WB 1958 - In this case SC issued guidelines for issuing certificated under 134A. A mere question of fact is not enough but it must also involve a substantial question of law. Art 135 Federal Court's (the one that existed before the commencement of the constitution) jurisdiction to be exercised by the SC. Art 136 Special Leave to appeal by SC Under this article, the SC is authorized to grant, on its discretion, special leave to appeal from any judgement, decree, determination, sentence, or order, in any case or matter, passed or made by any court or tribunal in the territory of India. Ramakant Rai vs Madan Rai AIR 2004 - Private party can appeal against the acquittal even if the state govt. hasn't. SC cannot refrain from doing its duty just because a private party and not the state has appealed against the order. Pritam Singh vs State AIR 1950 -SC explained how this discretionary power is to be used - Since the power is exceptional is very wide, it must be used sparingly and in exceptional circumstances. Beyond this point it is not possible to fetter the exercise of this power by any set formula. Art 137 Power to review its judgement. Under exceptional circumstance, the SC may review its judgement. Art 139 A Under this article the SC has the power to withdraw before itself any case or cases from High Courts if it feels that these cases involves the same or similar question of law that is of general importance. Union of India vs SGPC 1986 - SC may transfer a case from one High Court to another under art 136 if it feels that the case cannot be dealt with fairly in one High Court due to exceptional circumstances.

Art 143 Advisory Jurisdiction

Art 143 provides that if at any time it appears to the president that a question of law or fact has arisen or is likely to arise and that the question is of such public importance that expedient opinion of the SC is required, then he may refer it to the SC. The SC, after such hearing as it may deem fit, will report back to the president. Under 143(2), the SC is can be asked to give opinion even on matters not permitted under art 131. There is no similar provision in the American constitution. In US, the court can give ruling only on concrete cases. In re Kerala Education Bill 1953, SC has interpreted the word "may" in clause 1 as it is not bound to give its opinion. If it has a good reason, it may refuse to express its opinion. In re Special Courts Bill 1979 case, SC has held that opinions given by it under this jurisdiction are binding on all courts in the country. In re Cauvery Disputes Tribunal 1992, SC declared that the ordinance passed by the State of Karnataka to not follow the order of the tribunal to release water to TN, is unconstitutional. In the landmark case of Ayodhya Dispute and Advisory opinion 1994, the SC refused to express its opinion on whether a temple existed on the disputed location because it was superfluous, unnecessary, and favors a particular religion. Art 141 Judgement of the SC is binding on all courts, except itself. In the case of Bengal Immunity Co vs State of Bihar. 1955, SC held that the principle of Stare decisis is not an inflexible rule of law and cannot be used to perpetuate errors.

Writ Jurisdiction of High Courts

The constitution gives wide powers to all High Courts to ensure that injustice is not tolerated in any sphere. Art 226 provides that notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. It is important to note that the power is not only to enforce fundamental rights but for any other purpose, which makes its powers even wider than Supreme Court. Here, any other purpose means any legal right of legal duty. In a landmark case of L Chandra Kumar vs Union of India AIR 1997, SC has held that the power of judiciary over legislative action vested in a High Court is a basic feature of the constitution and cannot be removed through constitutional amendment.

Locus Standi : Who can apply

In general, the person whose constitutional right or legal right has been infringed has the right to apply. However, due to judicial activism, the "doctrine of sufficient interest" has originated. According to this, any person who is even remotely affected can petition the High Court. It also allows public spirited persons to file a writ petition for any person or class if that person or class is not able to do so himself due to poverty or any other reason. In ABSK Sangh vs Union of India AIR 1991, SC held that even an unregistered trade union has right to file a petition for redressal of a common grievance. In the case of Chairman, Railway Board vs. Chandrima Das AIR 2000, SC held that an advocate of Cal. High Court has sufficient interest in making a public place like a railway station a safe place and so she has right to demand compensation for the bangladeshi woman gang raped by railway employees.

Scope of Art 226

In the case of Basappa vs Naggapa, AIR 1954, SC has held that the art 226 confers wide powers to remedy injustice where ever it is found. Art 226 says, "...or writs or the kind of...", which means that it is not limited only the mentioned types of writs. It can issue orders orders of any kind that the situation may require. Thus, it makes the scope of Art 226 a lot wider than art 32. Court Martial and art 226 In a significant case (which case?), Delhi High Court held that section 18 of India Army Act is not beyond the scope of High Court. While High Court may not interfere in the sentence awarded in a court martial, such an order cannot be arbitrary and mala fide. Thus, it is open to judicial review. In the case of Union of India vs R K Sharma, AIR 2001 SC has held that court should not interfere only on compassionate grounds. Only when there is a perverseness or gross injustice on the face of it, there can be judicial review. Dispute between private parties - No Jurisdiction In Mohan Pandey vs Usha Rani Rajgaria SCC 1992, SC held that the extraordinary jurisdiction of High Court cannot be exercised in the private party disputes relating to property rights unless there is a violation of statutory rights by statutory authorities. Natural Justice Natural Justice is not exclusively the principle of administrative law. The courts are also bound by the same principle. Every administrative action must be supported by reasons. The reasons must be recorded to ensure that there is no arbitrariness. Territorial extent of writ jurisdictions Art 226 imposes two limits on HC's writ. First, it can run only in the territorial jurisdiction of the High Court and secondly the person or authority must lie in that jurisdiction. In the case of Election Commision of India vs Venkata Rao, AIR 1975 SC held that Madras High Court cannot issue a writ to ECI because it is based in New Delhi and so is out of its jurisdiction. The law commission recommended that these are serious limitations and they defeat the very purpose of this article. So it was amended by 15th amendment in 1963. High Court can now issue a writ even to a central authority if the cause of action in whole or part arises in its jurisdiction. In the case of ONGC vs Utpal Kumar Basu SCC 1994, it was held that the averment in the petition did not disclose that a part of the cause of action arose in the jurisdiction of Calcutta and so High Court does not have any jurisdiction to entertain the writ petition. Discretionary Remedy - Not to be exercised if alternate remedy is available The remedy available in 226 is a discretionary remedy and the High Court has the discretion to accept or refuse a petition. In general, if a remedy is available elsewhere, writs under 226 are discourages. However, this does not mean that any remedy available can be a ground for not entertaining the petition under 226. The remedy must be effective and sufficient. In the case of Vellaswamy v IG Police, Madras 1982, SC held that the remedy under Police Rules of TN was not sufficient and so High Court was wrong in dismissing the petition. Effect of Laches or delay Remedy under 226 should be sought with in a reasonable time. However, High Court may accept a petition is there is a reasonable cause for delay in seeking justice. Poverty has been held to be reasonable ground.

Judicial Review
The concept of Judicial Review started from the case of Marbury vs Madison in 1800 in the USA. In this case, justice John Marshall

held that judiciary has inherent power to review actions by legislature even if no explicit provision is given in the constitution.

Indian Situation
By adopting a written constitution and an independent judiciary, India has provided the rule of law instead of rule on men to the citizens. However, the rule of law will be rendered useless if the legislature is able to make laws that violate the fundamental rights of the citizen. Thus, the constitution in Art 13 has provided the judiciary with the power to review laws made by the legislature. This is called Judicial Review. Art 13 says:

1. 2. 3.

4.

All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. In this article, unless the context otherwise requires, o (a) law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; o laws in force includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. Nothing in this article shall apply to any amendment of this Constitution made under article 368.

INDEPENDENCE OF JUDICIARY IN INDIA : A CRITICAL ANALYSIS

ATIN KUMAR DAS LL.M Ist YEAR.NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL INTRODUCTION The framers of the Indian Constitution at the time of framing of our constitution were concerned about the kind of judiciary our country should have. This concern of the members of the constituent assembly was responded by Dr. B.R. Ambedkar in the following words: There can be no difference of opinion in the House that our judiciary must be both independent of the executive and must also be competent in itself. And the question is how these two objects can be secured.

The question that arises at first instance in our minds is that what made the framers of our constitution to be so much concerned about providing the separate entity to the judiciary and making it self competent. The answer to this question lies in the very basic understanding that so as to secure the stability and prosperity of the society, the framers at that time understood that such a society could be created only by guaranteeing the fundamental rights and the independence of the judiciary to guard and enforce those fundamental rights. Also in a country like India, the independence of the judiciary is of utmost importance in upholding the pillars of the democratic system hence ensuring a free society. It is a well-known fact that the independence of the judiciary is the basic requisite for ensuring a free and fair society under the rule of law. Rule of law that is responsible for good governance of the country can be secured through unbiased judiciary. The doctrine of Separation of Powers which was brought into existence to draw upon the boundaries for the functioning of all the three organs of the state: Legislature, Executive and the Judiciary, provides for a responsibility to the judiciary to act as a watchdog and to check whether the executive and the legislature are functioning within their limits under the constitution and not interfering in each others functioning. This task given to the judiciary to supervise the doctrine of separation of powers cannot be carried on in true spirit if the judiciary is not independent in itself. An independent judiciary supports the base of doctrine of separation of powers to a large extent. It is theoretically very easy to talk about the independence of the judiciary as for which the provisions are provided for in our constitution but these provisions introduced by the framers of our constitution can only initiate towards the independence of the judiciary. The major task lies in creating a favorable environment for the functioning of the judiciary in which all the other state organs functions in cooperation so that the independence of the judiciary can be achieved practically. The independence of the judiciary has also to be guarded against the changing economic, political and social scenario. Whenever there is a talk regarding the independence of the judiciary, there is also a talk of the restrictions that must be imposed on the judiciary as an institution and on the individual judges that forms a part of the judiciary. In order to ensure smooth functioning of the system there must be a right blend of the two. MEANING THE INDEPENDENCE OF THE JUDICIARY The meaning of the independence of the judiciary is still not clear after years of its existence. Our constitution by the way of the provisions just talks of the independence of the judiciary but it is no where defined what actually is the independence of the judiciary. The primary talk on the independence of the judiciary is based on the doctrine of separation of powers which holds its existence from several years. The doctrine of separation of powers talks of the independence of the judiciary as an institution from the executive and the legislature. The other meaning of the judicial independence can be found out by looking at the writings of the scholars who have researched on the topic. Scholars have followed the constituent mechanism (i.e. what constitutes the judiciary) to define the independence of the judiciary. Scholars try to define judiciary by talking about the independence of the judges which constitutes judiciary. Therefore the independence of the judiciary is the independence of the exercise of the functions by the judges in an unbiased manner i.e. free from any external factor. So the independence of the judiciary can be understood as the independence of the institution of the judiciary and also the independence of the judges which forms a part of the judiciary. Shetreet in his work tries to explain the words Independence and Judiciary separately, and says that the judiciary is the organ of the government not forming a part of the executive or the legislative, which is not subject to personal, substantive and collective control, and which performs the primary function of adjudication. The final outcome that can be derived from Shetreets writings is that the independence of the judiciary as an institution and the independence of the individual judges both have to go hand in hand as the independence of the judiciary as an institution is not

possible without the independence of the individual judges and is the institution of the judiciary is not independent, there is no question of the independence of the individual judges. NEED FOR THE INDEPENDENCE OF THE JUDICIARY The basic need for the independence of the judiciary rests upon the following points: 1. To check the functioning of the organs: Judiciary acts as a watchdog by ensuring that all the organs of the state function within their respective areas and according to the provisions of the constitution. Judiciary acts as a guardian of the constitution and also aids in securing the doctrine of separation of powers. 1. Interpreting the provisions of the constitution: It was well known to the framers of the constitution that in future the ambiguity will arise with the provisions of the constitution so they ensured that the judiciary must be independent and self-competent to interpret the provision of the constitution in such a way to clear the ambiguity but such an interpretation must be unbiased i.e. free from any pressure from any organs like executive. If the judiciary is not independent, the other organs may pressurize the judiciary to interpret the provision of the constitution according to them. Judiciary is given the job to interpret the constitution according to the constitutional philosophy and the constitutional norms. 1. Disputes referred to the judiciary: It is expected of the Judiciary to deliver judicial justice and not partial or committed justice. By committed justice we mean to say that when a judge emphasizes on a particular aspect while giving justice and not considering all the aspects involved in a particular situation. Similarly judiciary must act in an unbiased manner. COMPONENTS THE INDEPENDENCE OF THE JUDICIARY The components of the independence of the judiciary as talked of here refers to some of the requisite terms and conditions which are so necessary that if they are absent, the independence of the judiciary also cannot exist. It is very difficult to lay down certain set conditions as law is dynamic in itself and of the changing economic, political and social scenario. CONSTITUTIONAL PROVISIONS THE INDEPENDENCE OF THE JUDICIARY Many provisions are provided in our constitution to ensure the independence of the judiciary. The constitutional provisions are discussed below: 1. Security of Tenure:The judges of the Supreme Court and High Courts have been given the security of the tenure. Once appointed, they continue to remain in office till they reach the age of retirement which is 65 years in the case of judges of Supreme Court (Art. 124(2)) and 62 years in the case of judges of the High Courts (Art. 217(1)). They cannot be removed from the office except by an order of the President and that too on the ground of proven misbehavior and incapacity. A resolution has also to be accepted to that effect by a majority of total membership of each House of Parliament and also by a majority of no less than two third of the members of the house present and voting. Procedure is so complicated that there has been no case of the removal of a Judge of Supreme Court or High Court under this provision. 1. Salaries and Allowances:The salaries and allowances of the judges is also a factor which makes the judges independent as their salaries and allowances are fixed and are not subject to a vote of the legislature. They are charged on the Consolidated Fund of India in case of Supreme Court judges and the Consolidated Fund of state in the case of High Court judges. Their emoluments cannot be altered to their disadvantage (Art. 125(2)) except in the event of grave financial emergency.

1. Powers and Jurisdiction of Supreme Court: Parliament can only add to the powers and jurisdiction of the Supreme Court but cannot curtail them. In the civil cases, Parliament may change the pecuniary limit for the appeals to the Supreme Court. Parliament may enhance the appellate jurisdiction of the Supreme Court. It may confer the supplementary powers on the Supreme Court to enable it work more effectively. It may confer power to issue directions, orders or writs for any purpose other than those mentioned in Art. 32. Powers of the Supreme Court cannot be taken away. Making judiciary independent. 1. No discussion on conduct of Judge in State Legislature / Parliament: Art. 211 provides that there shall be no discussion in the legislature of the state with respect to the conduct of any judge of Supreme Court or of a High Court in the discharge of his duties. A similar provision is made in Art. 121 which lays down that no discussion shall take place in Parliament with respect to the conduct of the judge of Supreme Court or High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the judge. 1. Power to punish for contempt: Both the Supreme Court and the High Court have the power to punish any person for their contempt. Art. 129 provides that the Supreme Court shall have the power to punish for contempt of itself. Likewise, Art. 215 lays down that every High Court shall have the power to punish for contempt of itself. 1. Separation of the Judiciary from the Executive: Art. 50 contains one of the Directive Principles of State Policy and lays down that the state shall take steps to separate the judiciary from the executive in the public services of the state. The object behind the Directive Principle is to secure the independence of the judiciary from the executive. Art. 50 says that there shall be a separate judicial service free from executive control. CONCLUSION The independence of the judiciary as is clear from the above discussion hold a prominent position as far as the institution of judiciary is concerned. It is clear from the historical overview that judicial independence has faced many obstacles in the past specially in relation to the appointment and the transfer of judges. Courts have always tried to uphold the independence of judiciary and have always said that the independence of the judiciary is a basic feature of the Constitution. Courts have said so because the independence of judiciary is the pre-requisite for the smooth functioning of the Constitution and for a realization of a democratic society based on the rule of law. The interpretation in the Judges Case giving primacy to the executive, as we have discussed has led to the appointment of at least some Judges against the opinion of the Chief Justice of India. The decision of the Judges Case was could never have been intended by the framers of the Constitution as they always set the task of keeping judiciary free from executive and making it self-competent. The decision of the Second Judges Case and the Third Judges Case is a praiseworthy step by the Court in this regard. There is a saying that Power tends to corrupt, and absolute power corrupts absolutely - Lord Acton Whenever there is a mention of the independence of the judiciary, there is always a concern about the latent dangers of the judicial independence and there arises the importance of Judicial Accountability. The recent development in this regard is the recommendation of the Law Commission for the inclusion of a whistleblower provision, aimed at protecting those making complaints against judges, in a draft bill dealing with the removal of judges of the Supreme Court and High Courts. Introduction of such a bill by the Law Commission is a major step in the direction of making changes to the rigid procedure in our constitution for the removing of the judges of the Supreme Court and the High Courts. The final outcome of the above discussion is that the importance of the independence of the judiciary was long ago realized by the framers of the constitution which has been accepted by the courts by marking it as the basic feature of the constitution. It is well known law has to change so as to meet to the needs of the changing society. Similarly judicial independence has to be seen with the changing dimension of the society. Judicial Accountability and Judicial Independence have to work hand in hand to ensure the real purpose of setting up of the institution of judiciary.

UNIT STRUCTURE

1. Learning Objectives 2. Introduction 3. The Supreme Court 4. The High Court 1. Subordinate Courts 5. Judicial Review, Judicial Activism and Independence of the Judiciary in India 1. Judicial Review 2. Judicial Activism 3. Independence of the Judiciary in India 6. Let Us sum Up 7. Further Readings 8. Answers To Check Your Progress 9. Possible Questions

INTRODUCTION
In India, we have an independent and integrated judicial system. Unlike other federations, India has a single and unified judicial system for the entire country. There are High Courts at the State level and further below are subordinate courts. In this unit we shall discuss the various aspects regarding the Supreme Court and High Courts and learn about judicial review, judicial activism and independence of the judiciary as prevalent in India.

THE SUPREME COURT

The Supreme Court is the highest court of appeal in India. Let us discuss the following aspects regarding the Supreme Court: Composition: It consists of the Chief Justice and not more than 25 judges. The President may appoint an adhoc judge at the request of the Chief Justice. Appointment: Every judge of the Supreme Court is appointed by the President of of India after consultation with such judges of the Supreme Court and the High Courts of States as the President may deem necessary for the purpose. However, in the matter of appointment of a judge other than the Chief Justice, consultation of the Chief Justice of India by the President is obligatory. Qualifications: To be a judge of the Supreme Court, one must be

a citizen of India has been a judge of a High Court at least for five years; or has been an advocate of a High Court for at least ten years is a distinguished jurist in the opinion of the President. Tenure: A judge of the Supreme Court retires at the age of 65 years. He may also resign from his office. Removal: A judge of the Supreme Court can also be removed by the President from his position only on the ground of proved misbehaviour or incapacity

if a resolution in this regard is passed by the Parliament supported by two-thirds of the members present and voting in each Hose and the majority of the total membership of each House. Powers and Fuctions : The jurisdiction of the Supreme Court may be categorised as original, appellate and advisory. Original Jurisdiction: Under this jurisdiction, the Supreme Court can settle disputes (a) between the Centre and one or more States; (b) between the Centre and any State or States on the one side and one or more other States on the other; or (c) between two or more States. Appellate jurisdiction : Under this jurisdiction, the Supreme Court can hear appeals on the following cases: (a) Constitutional Cases An appeal can be made to the Supreme Court in cases which relate to the interpretation of the Constitution. (b) Civil Cases In a civil cases also, an appeal can be made to the Supreme Court against a decision of a High court. In these cases, the High Court must certify that the case involves a substantial question of law as to the interpretation of the Constitution. (c) Criminal Cases An appeal can be made in the Supreme Court against any judgement, final order or sentence given by a High Court. In criminal matters, ordinarily, the High Courts are the final courts of appeal. But the Supreme Court has been given the special power by the Parliament to hear appeal against the decisions of the High Courts in criminal matters. Advisory Jurisdiction : The Supreme Court has some advisory powers also. The President of India can seek the opinion of the Court if there is a question of law or fact where the interpretation of the Constitution is involved. The Supreme Court may give its opinion on the Presidents question but it is not binding on any party. Court of Records : The Supreme Court also acts as the Court of Records. The judgements of the Supreme Court are recorded and considered as authoritative and serves as cases, laws and proceedings. These records have great evidentiary value. Directions, orders or writs: The Supreme Court is regarded as the protector of the Fundamental Rights of the citizens. For this purpose, it has been given the power of issuing certain writs like that of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It can also issue orders and directions. Contempt of Court: The Supreme Court can punish any one who is found to be indulged in contempt of the court. Contempt of court includes criticism of a judgement of the court, criticism of judges and the court, passing derogatory remarks against the court, refusing to abide by the decisions of the court, etc. Review of judgment and order: The Supreme Court is empowered to review any judgement given by it earlier. It can do this if (a) some new facts or evidences appear ; (b) a fault is found according to its own record ; and (c) there are sufficient reasons for review. Guardian of the Constitution: The Supreme Court of India is regarded as the guardian of the Constitution. It is the Supreme or final interpreter of the Constitution. The interpretation of the Constitution given by the Supreme Court is to be respected. Judicial Review: The Supreme Court has been given the power to decide whether a law passed by the Parliament or the State legislatures and the excutive decisions taken by the Central or State government is constitutional or not. If such a law or executive decision is found unconstitutional, then it can declare it as invalid. Public Interest Litigation: Even if the victim or affected parties do not file cases, any one from the general public, not involved in the case, may file litigation (law suit), if it is in the general public interest. It is the privilege of the Court to entertain or not to entertain the application for Public Interest Litigation.

THE HIGH COURT

The Constitution provides for a High Court in every State which works under the Supreme Court of India. But in some cases, one High Court serves more than one State. For example, the Gauhati High Court serves not only Assam but also the other States of the North-Eastern region. Composition: The High Court consists of a Chief Justice and other judges. There is no fixed number regarding the judges of the High Courts. The President may also appoint a qualified person as an additional judge in a High Court for two years. Appointment: The judges of the High Court are appointed by the President of India. The President appoints the Chief Justice of a High Court after consultation with the Chief Justice of India and the Governor of the State. Qualifications: To be a judge of a High Court one must be :

a citizen of India, he must have held for, at least ten years a judicial office in the territory of India or; he must been for, at least, ten years an advocate of a High Court.

Tenure: A judge of a High Court retires at the age of 62 years. He may also resign from his office at any time. Removal: The President may remove a judge of a High Court on the ground of proved misbehaviour or incapacity. Powers and Functions: The High Courts have been given three types of powers or jurisdictions, such as, original, appellate and administrative. Original Jurisdiction Under the original jurisdiction, a High Court has the power to issue direction or orders including writs to any person, authority and any government within its jurisdiction against the violation of the Fundamental Rights of the citizens. It has limited original jurisdiction in cases relating to admiralty, will, divorce, marriage, company laws and contempt of Court. Appellate Jurisdiction Under this jurisdiction, a High Court has the power to hear appeals about civil and criminal cases against the decisions of the lower Courts. Administrative Jurisdiction Under the jurisdiction, a High Court has the authority to supervise the workings of all subordinate Courts. It can issue general rules to regulate their proceedings. The judges of the subordinate Courts are appointed, promoted and transferred in consultation with the High Court of the state. Other Jurisdiction (a) The jugments of the High Courts are regarded and considered authoritative and serve as case law. (b) A High Court can start contempt proceedings against anyone who is found to indulge in contempt of the court. (c) Every High Court can admit Public Interest Litigation like that of the Supreme Court of India. Subordinate Courts All the subordinate Courts function under the supervision of the concerned High Court. The Court of the District Judge is the highest Court in a District. The judge is called the District Judge while dealing with civil cases and Sessions Judge while dealing with criminal cases. Besides these Courts, there are Courts of Assistant judges, Sub-Judges, Munsifs and Courts of small causes. The High Court has been given control over District Courts and courts subordinate thereto including the posting and promotion of and the grant of leave to persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge.

JUDICIAL REVIEW, JUDICIAL ACTIVISM AND INDEPENDENCE OF THE JUDICIARY IN INDIA

Judicial Review Judicial review is a special power of the Supreme Court and the High Courts in India to scrutinize whether a law passed by the legislature or an action taken by the executive is in accordance with the provisions of the Constitution or not. If it is found that such a law or an action not in accordance with the Constitution, then it can declare them as invalid or unconstitutional. This means that the judiciary has to act as the guardian or custodian of the Constitution. The Supreme Court and the High Courts can exercise this power on two conditions (1) whether the law or the executive action which has come under scrutiny falls within the competence of the authority that has framed it, and (2) whether it is consistent with Part III of the Constitution dealing with the Fundamental Rights. This is an important power of the Supreme Court and the High Courts. They have been protecting the Constitution from irresponsible laws and arbitrary use of power by the executive, by exercising this power. Our Fundamental Rights are also preserved by this power of the judiciary. The concept of judicial review originated in the United States of America in the Marbury V.Madison case of 1803. The Chief Justice of the Supreme Court of America, John Marshall while delivering his judgement in this case used the famous Due Process of Law clause of the American Constitution. According to this clause, due means what is just ajnd proper and law means natural law. Justice Ma rshall said that as the Supreme Court had been made the protector of the Constitution and the rights of the people, so it had to perform its duty and give justice. While doing so, it would try to determine the exact meaning of law, to expand its details and apply the general principles of justice, equity and morality. The process, thus, initiated by justice Marshall has been continuing and the Supreme Court has been creating some new laws while deciding various cases. The power of judicial review has made the Supreme Court of America one of the strongest judiciaries in the world. However, the Supreme Court of India is not as powerful as the Supreme Court of America so far as the power of judicial review is concerned. In India, the Supreme Court while exercising its power of judicial review has to follow the principle of procedure established by law. Article 21 of the Indian Constitution provides that no person shall be deprived of his life or personal liberty except according to proced ure established by law. Here, the term law does not mean natural law but it means S tate-made laws. In other words, the court can only question the procedure and if the procedure is not followed, the court can declare any legislation made by the Parliament as unconstitutional. Further, the Supreme Court can declare any legislation as invalid if it violates the provisions of the Constitution. Thus, the Supreme Court of India has limited power of judicial review. Still, it has been able to exercise this power effectively in many cases and interpret and protect the provisions of

the Constitution. Judicial Activism In India, the judiciary has been given the power to protect the Constitution and to preserve the Fundamental Rights of the people. It has been empowered by the authority of judicial review and in that capacity it has been exercising its power in recent years which is dubbed as judicial activism. Under judicial activism, the court has begun to intervene in and question the activities of the executive and the legislature, reminding them, from time to time, of their duties and responsibilities to the society. The beginning of judicial activism in India could be traced back to 1985 when the then Chief Justice of India, Justice P.N. Bhagavati converted a letter written to him on a aost card by an aggrieved person into a Public Interest Litigation. By the middle of the 1990s, judicial activism became more and more pronounced. The activism of the Supreme Court became visible in terms of sensitizing the Central Intelligence Agency to discharge their constitutional obligations in the hawala cases in which top level political personalities were involved. It has passed landmark judgements over environmental degradation, pollution control, preservation of historical monuments, eviction of unauthorized occupation of government buildings, etc. In this way, the judiciary has become overwhelmingly busy with cases brought before it from various quarters of the society and the activism of the Indian Judiciary has benefitted the common people in terms of addressing their grievances to a large extent. Independence of the Judiciary The Constitution of India has provided for an independent and impartial judiciary in India. For ensuring independence of the judiciary, some provisions have been made which can be discussed as follows:

Appointment of judges: In India, the judges of the Supreme Court and the High Courts are appointed on the basis of prescribed qualification. They are appointed by the President of India. Security of tenure: The President appoints the judges but he can not dismiss them during their term of office without a resolution passed by the Parliament in this regard. Economic Security: The judges are paid handsomely. The salary of the judges is charged from the Consolidated Fund of the Union and the States. Their salary can not be decreased during their term of office. Privileges: Various privileges have been given to the judges like allowances, sent free residence, etc. Adequate steps are taken for the protection of the judges. Contempt of Court: The judges can not be criticized in public for the judgement they give while deciding cases. The Supreme Court and the High Courts can punish anyone for contempt of the Court. Independence of judiciary is very impartment in a democracy as its main responsibility is to give justice to the people. Therefore, provisions should be made so that the judiciary can not be controlled by either the executive or the legislature and it can discharge its duty fairly and impartially.