RESEARCH PROJECT

ON

ROLE OF LEGISLATURE &JUDICIARY IN

ENSURING JUSTICE

Submitted to

MAHARASHTRA NATIONAL LAW UNIVERSITY, AURANGABAD

Submitted by

NAMAN KUMAR

B.A.LL.B .(HONS) SEMESTER - I

R0LL NO- 2022/BALLB/80

Subject- LEGAL METHODS

UNDER THE GUIDANCE OF

DR. ASHOK WADJE

&

MR.PRAFULLA LELE

ASSISTANT PROFESSOR OF LEGAL METHODS

Maharashtra National Law University,Aurangabad

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Declaration
This is Naman Kumar ROLL.no. 80 from Maharashtra National Law University,
Aurangabad. Currently pursuing BALLB degree, I semester, Batch- 2022-2027
This declaration is made by me at Aurangabad, stating that the project is
prepared and drafted by me.
It contains the project work that was assigned to me during my I semester period
and is successfully accomplished from my side.
This project is a sincere attempt at the compilation of the aforementioned work
given to me.
This has not been submitted, either in whole or in part, to any other Law
University or affiliated Institute under which any University is recognized by the
Bar Council of India, for the award of any other law degree or diploma, within
the territory of India.

NAMAN KUMAR
2022/BALLB/80

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CERTIFICATE

This is to certify that NAMAN KUMAR of FIRST SEMESTER of 2022-27 batch has successfully
completed his project on the topic Role of Legislature and the Judiciary in ensuring justice. This
project is based on the original ideas of the researcher and not copied or published anywhere.

SIGNATURE OF FACULTY

Date :

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ACKNOWLEDGEMENT

I express my sincere gratitude to all those people who have been associated with this project and have
helped us with it and made it a worthwhile experience.

Firstly, I want to thank the Almighty for providing me wonderful opportunities in life.

I extend my thanks to the various people who have shared their opinions and experiences through which I
received the required information crucial for my project.

I would like to thank my Parents and friends for supporting me.

Finally, we express our thanks to professor who gave us this opportunity to learn the subject in a practical
approach and my seniors who guided me and gave me valuable suggestions regarding the project.

THANK YOU

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INTRODUCTION

The judicial system is empowered to strike a balance between the rights and obligations of citizens in the
administration of justice. Since both the judiciary and the government have the power to alter the rights of
people, there has to be someone to play the role of a protector. The judiciary protects the rights of citizens
whenever there is an overreach on the part of the government. For example, when the UPA government
introduced biometric data collection for Aadhaar ID, the Supreme Court upheld citizens’ right to privacy,
which prevented the government from making it compulsory to possess an aadhaar ID. In a democratic
system, there ought to be a balance between the legislature and the judiciary. But when the legislature tries
to go beyond its limits and take away people’s rights, the judiciary makes sure that such action is declared
unconstitutional or illegal. The judiciary also makes sure that the legislature doesn’t modify the constitution
to its liking in the garb of amendments. It is, thus, the guardian of the constitution.

The legislature is an important organ that is involved in policy formulation. The Parliament of India is the
main body that formulates laws and policies by providing legitimate reasoning for such decisions. It acts as
a medium for the public to debate on the issues and their respective policies. The parliament is the apex
body when it comes to finalizing a policy by the virtue of its elected members, who draw their powers from
the Indian Constitution. However, the legislature only has advisory power, it cannot obstruct any policy. The
legislature is free to criticize any policy, but cannot command it. Therefore, the legislature can examine the
proposals of every policy introduced by the Prime Minister and his Cabinet Ministers, but it is incapable of
taking the lead on its own.

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Methodology

This research work for the project has been carried with help of secondary resources. The data or
information for the said topic has been cited whenever and wherever required, and due credits are given to
the original content writer. There is no use of the primary method for the collection of data and is strictly
limited to secondary resources. Both direct and indirect methods have been used by the researcher to gather
the information

Adding to this, several examples are provided, and the work done by the eminent authorities, researchers,
authors of the books, and conclusions have been taken into consideration.

Significance of the study

This article presents in-depth research on the topic Role of Legislature and the Judiciary in ensuring justice.
The paper will start with Legislature and the Judiciary and then go on to extraterritoriality. The researcher
intends to deliver precise information to the readers.

This research attempts to give extensive information of the issue to the academics and has attempted to
explain every element feasible in order to make it understandable.

This study intends to offer students with understanding of a less-discussed issue. Examples have also been
presented to aid comprehension.

Scope and Limitations of the Study/Project Work

Despite the limitations of time and money at the disposal of the researcher, it has been decided to confine
this study to the selected method of finding resources through several sites, which are provided in the
bibliography. Several examples are also provided to understand the study properly to the reader.

This study is self-exploratory in nature and therefore multistage stratified sampling techniques have been
used for the collection of the data.

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RESEARCH QUESTION

1.WHAT IS HISTORY OF JUDICIAL SYSTEM IN INDIA?

2.WHAT IS LEGISLATURE AND ITS ROLE IN ENSURING JUSTICE ?

3.WHAT ARE THE Hurdles in the judicial system ?

4.WHAT ARE THE ROLES AND FUNCTION OF JUDICIARY

5.JUDICIAL INDEPENDENCE AND CONSTITUTIONAL PROVISIONS IN INDIA

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LAW MAKING (LEGISLATURE)

The Parliament is the institution that primarily makes laws in India. Bills are introduced in
Parliament and they are enacted after a long process that includes voting by both Houses and the
assent of the President. But it is not the sole law-making body, although it is responsible for the
majority of laws that exist today. The judiciary in India has the authority to make laws too. The
Supreme Court does this through the pronouncement of judgments, and these are binding on all the
lower courts. The lower courts have to follow the precedents set by the Supreme Court while dealing
with cases. The legislature is that organ of the government which passes the laws of the government.
Legislature may be of two types :- Unicameral or Bicameral. A system in which there is only one
House of the Legislature, it is called Unicameralism, while if there are two Houses of the Legislature,
it is known as Bicameralism. Most national Legislatures arc bicameral is having two Houses. The
term ‘legislature’ is a generic term meaning a body which legislates. Combining the two views, we can
say Legislature or Parliament is that branch of government which performs the function of
lawmaking through deliberations. The term ‘ Legg means law and “lature’ the place and
etymologically Legislature means a place for law-making. Another term, which is used as a synonym
of Legislature, is ‘Parliament.’

It is the agency which has the responsibility to formulate the will of the state and vest it with legal
authority and force. In simple words, the legislature is that organ of the government which
formulates laws. Legislature enjoys a very special and important in every democratic state. This word
stands derived from the French word ‘Parley’ which means to ‘talk’ or to discuss and deliberate. In
this way, we can say ‘Parliament’ means the place where deliberations are held. It is the assembly of
the elected representatives of the people and represents national public opinion and power of the
people.The legislature is an important organ that is involved in policy formulation. The Parliament of
India is the main body that formulates laws and policies by providing legitimate reasoning for such
decisions. It acts as a medium for the public to debate on the issues and their respective policies. The
parliament is the apex body when it comes to finalizing a policy by the virtue of its elected members,
who draw their powers from the Indian Constitution. However, the legislature only has advisory
power, it cannot obstruct any policy.

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The legislature is free to criticize any policy, but cannot command it. Therefore, the legislature can
examine the proposals of every policy introduced by the Prime Minister and his Cabinet Ministers,
but it is incapable of taking the lead on its own.

The Indian Parliament must be considered as a constitutional tool that validates the decisions of the
government more than a policy formulation body. A policy will be accepted or rejected in the
parliament based on the decisions of the parliamentary groups. Therefore, the fate of a policy most
certainly is based upon the decisions of the elected members in the Parliament. It cannot be assumed
that every member of the Parliament is well-versed with the subject of a particular policy in question,
therefore the powers must be distributed to different committees. This not only provides a detailed
evaluation of the policy but also employs required expertise in taking decisions regarding the policy.
Thus, it can be said that, though the legislature is an important organ of the government, it plays a
minor role in policy formulation.

Laws are made by the sovereign of the country. These laws are made to regulate specific acts, and
their ultimate goal is to maintain law and order in society. The role of the judiciary is to apply these
laws to the cases that come before it to reach the correct decision. Throughout the years, the courts
have developed ways to apply laws more effectively, which include the rules of interpretation.
According to these rules, the courts may use the literal rule, golden rule, mischief rule, or any other
rules of interpretation based on the requirement. Since there are cases of varying degrees, no matter
how extensive the provisions of a statute are, they may not be adequate to cover all the issues of a case
effectively. Thus, rules of interpretation help the courts to interpret the appropriate meaning of the
terms of a statute so that it can remove the absurdity caused by the literal interpretation and do
justice to the case at hand.

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History of Judicial System in India

In ancient India, the lowest court was the family court starting from the family arbitrator and the judge at
the highest pedestal was the king. One of the primary duties of the sovereign was the dispensation of justice,
and in this process, the King was aided by his counsellors and ministers. As the civilization advanced and
the duties of the King were delegated to the judges who had knowledge of the Vedas. Justice was
administered on the basis of ‘dharma’ or a structure of rules specifying the responsibilities that an individual
must fulfil in his life. Customs served as a source of law. This system continued till the Mughal period.

During the Mughal period, the office of Qazi was responsible for the dispensation of justice. Every
provincial capital and every large town had a Qazi. The Qazis held the trial in the presence of the parties
and were expected to write their legal documents very carefully. The King was the highest court of appeal.
This system of justice was replaced by the British.

The British introduced the common law system in India and established the Sadar Diwani Adalat. They
were later followed by the establishment of high courts. The first high court was established at Calcutta in
1862. The high courts were also established in Madras and Bombay. Subsequently, the federal court was
established by the Government of India Act, 1935 which had a wider jurisdiction than the high courts. Thus,
the present judicial system of India is based largely on the common law system.

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Functions of the Indian Judiciary

1. Upholding and interpreting the Constitution: The judiciary is responsible for

protecting and upholding the Constitution and its ideals. The courts interpret
the Constitution and strike down any law, ordinance, rule, or regulation which
violates or infringes the Constitutional provisions.

2. Resolving inter-state disputes: The Constitution of India lays down a federal

structure of governance. Thus, disputes between the states and the Union and
the States are inevitable. The judiciary, particularly the Supreme Court, plays
a key role in resolving such disputes.

3. Protection of Fundamental Rights: Part III of the Constitution confers certain

fundamental rights on citizens as well as non-citizens and legal as well as
natural persons. The judiciary ensures that these fundamental rights are not
violated. If any act of the legislature or the executive abridges these rights,
then the Constitutional courts have the power to issue writs.

4. Assistance in law-making: In several cases, the courts lay down guidelines

which are later incorporated in the statutes by the legislature. The courts often
make suggestions to the legislature to draft a new law or to modify or amend
existing law in order to meet the problems of contemporary society. The
judiciary also provides an advisory opinion to the President and resolves any
doubts relating to the Constitutional provisions.

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The judicial system in India is hierarchical in nature. There are primarily four layers
of hierarchy:

• The Supreme Court of India,

• The high court of various states,

• The subordinate courts,

• Tribunals,

• Nyay Panchayats,

• Lok Adalat.

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13
 Role of Judiciary in India

The Judiciary in India performs various important role and functions which do not remain con ned within
the traditional jurisdiction of Civil and Criminal. In case of violation of law, a suit is led against the
o ender. The judges, by way of interpreting the existing laws, make new laws. The Supreme Court,
decides constitutional questions. Superintendence over lower courts is another function of the judiciary.
The Supreme Court of India enjoys limited power of judicial review in invalidating laws made by
Parliament or State Legislatures. The judge hears both sides and decides whether there has been a break
of the law. The Supreme Court sometimes gives advices to the executive and the legislature on
constitutional points, if sought for. The Judiciary acts as a protector of rights of the citizens guaranteed by
the law of the land and the constitution. The judges perform certain executive functions. Appointments of
o cers and servants, maintenance of records, administration of sta etc. are performed by the judiciary.
The court can declare any law which transgresses a fundamental right as invalid. In India the judiciary has
the power to issue writs in the name of habeas corpus, prohibition, mandamus, quo warranto and
certiorari. The Judiciary is regarded as the guardian of the constitution.The importance of the judiciary in a
democratic society can hardly be exaggerated. Judiciary is a part of the democratic process. In many
states the judiciary enjoys the power of judicial review by virtue of which the judiciary decides the
constitutional validity of the laws enacted or of the decree issued. The primary it is a matter of no
importance whether in his opinion the law is good or bad; his study is apply it. he is primarily an
interpreter of law. It can invalidate such laws and decrees which are not constitutional. Judiciary is that
branch of government that interprets laws, punishes their breach and thereby protects individual's
liberties and rights against violation by fellow individuals and by state o cials and organs. Judiciary not
only administers justice, it protects the rights of the citizens and it acts as the interpreter and guardian of
the constitution. The judiciary performs various functions in a modern democratic state.

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Functions of Indian Judiciary – What is the role of the Judiciary?

The functions of the judiciary in India are:

1. Administration of justice: The chief function of the judiciary is to apply the law to specific cases or
in settling disputes. When a dispute is brought before the courts it ‘determines the facts’ involved
through evidence presented by the contestants. The law then proceeds to decide what law is
applicable to the case and applies it. If someone is found guilty of violating the law in the course of
the trial, the court will impose a penalty on the guilty person.

2. Creation of judge-case law: In many cases, the judges are not able to, or find it difficult to select the
appropriate law for application. In such cases, the judges decide what the appropriate law is on the
basis of their wisdom and common sense. In doing so, judges have built up a great body of ‘judge-
made law’ or ‘case law.’ As per the doctrine of ‘stare decisis’, the previous decisions of judges are
generally regarded as binding on later judges in similar cases.

3. Guardian of the Constitution: The highest court in India, the SC, acts as the guardian of the
Constitution. The conflicts of jurisdiction between the central government and the state
governments or between the legislature and the executive are decided by the court. Any law or
executive order which violates any provision of the constitution is declared unconstitutional or null
and void by the judiciary. This is called ‘judicial review.’ Judicial review has the merit of
guaranteeing the fundamental rights of individuals and ensuring a balance between the union and
the units in a federal state.

4. Protector of Fundamental Rights: The judiciary ensures that people’s rights are not trampled upon
by the State or any other agency. The superior courts enforce Fundamental Rights by issuing writs.

5. Supervisory functions: The higher courts also perform the function of supervising the subordinate
courts in India.

6. Advisory functions: The SC in India performs an advisory function as well. It can give its advisory
opinions on constitutional questions. This is done in the absence of disputes and when the executive
so desires.

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7. Administrative functions: Some functions of the courts are non-judicial or administrative in nature.
The courts may grant certain licenses, administer the estates (property) of deceased persons and
appoint receivers. They register marriages, appoint guardians of minor children and lunatics.

8. Special role in a federation: In a federal system like India’s, the judiciary also performs the
important task of settling disputes between the centre and states. It also acts as an arbiter of disputes
between states.

9. Conducting judicial enquiries: Judges normally are called to head commissions that enquire into
cases of errors or omissions on the part of public servants.

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Judicial independence and constitutional provisions

In India, there is an independent judiciary. The legislature and the executive are prevented from interfering
with the judicial functions. This ensures that the judges are able to discharge their duties without any fear.

There are several constitutional provisions which secure the judiciary’s independence. It is pertinent to note
that Article 50, a Directive Principle, provides that the State shall take steps to ensure that the judiciary
operates separately from the executive. There are various other constitutional safeguards which ensure the
Independence of the judiciary

• The Supreme Court has the power to appoint the judges of the Supreme Court as well as the various
high courts. Article 124(2) provides that the judges of the Supreme Court are to be appointed by the
President in consultation with the judges of the Supreme Court and the high court.

• The judges of the Supreme Court, once appointed, enjoy the office until they attain the age of 65
years. Similarly, the judges of the high court enjoy the offices until they attain the age of 62 years.

• Article 124(4) provides for the procedure of the removal of the judges of the Supreme Court. The
judges of the Supreme Court can be removed only by Presidential order. The removal must be
supported by a special majority of at least 2/3rd of the members present and voting. The President
has to address both the Houses of Parliament and the resolution for removal must be presented to
him in the same session. A judge of the Apex Court can only be removed on the grounds of
incapacity or misbehaviour.

• So far, no judge of the Supreme Court has been impeached. Veeraswami Ramaswami was the first
judge against whom the proceedings were initiated but the motion could not sail through the Lok
Sabha.

• Furthermore, the salaries and allowances of the judges of the Supreme Court as well as the high
courts cannot be reduced except when a financial emergency has been declared under Article 360.

• The salaries and allowances of the Judges of the constitutional courts are charged under the
consolidated fund of India.

• The legislature cannot deliberate upon the conduct of a judge while discharging his official duties.

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 • The Parliament as well as the State Legislatures are further barred from curtailing the jurisdiction of
the court and can only extend it.

• Despite the aforementioned safeguards, if anyone undermines the authority of the court, then the
Supreme Court, as well as the high courts, have the power to punish for contempt under Article 129
and Article 215 respectively.

Hurdles in the judicial system

The judicial system in India is currently facing several hurdles. Some of them are:

1. The constitutional courts, that is, the Supreme Court and the high courts are overburdened with the
caseload. This results in enormous delays in justice and sometimes, litigation continues for decades.

2. Litigation is a costly affair and in several instances, the common people are forced to forgo their
rights and claims as they are unable to afford the legal proceedings.

3. The judiciary lacks the infrastructure to properly deal with the huge caseload. The judicial
complexes are overcrowded and several Courts have a shortage of digital infrastructure.

4. Several British-era laws have become obsolete and need to be amended and modified or repealed.

5. The caseload before the subordinate courts is also huge and resultantly frequent adjournments are
granted by the courts which results in delays.

6. The undertrial prisoners languish in jails for years while their cases are pending.

7. There are about 21 judges in India for 1 million people. The ratio of judges to people is very low
and the need to improve this ratio was highlighted by the Law Commission in the 245th Report.
The Report stated that the shortage of judges was leading to a huge backlog of cases and the issue
required urgent and immediate attention.

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Conclusion

In India, the relationship between Legislative and Judiciary has generated intense debate among jurists &
political analysts. Has the over-active judiciary through its various pronouncements overstepped or it is
simply trying to fill the gaps where the legislatures have failed to deliver? The issue in this regard came on
July10,2013 when the Apex Court ruled that MPs & MLAs on conviction of certain offences will be
immediately disqualified from holding membership of the House without being given 3 months of the
appeal, as was the case before. The ruling invited sharp criticism from political parties & jurists. Former
Supreme Court Judge Markandeya Katju expressed reservation over it saying that it should be viewed as
judiciary can’t make laws. Making the laws is the work of legislature. Because the court struck down
Section 8(4) of the Representation of the Peoples Act 1951 which protects convicted lawmakers against
disqualification on a ground of pendency of appeal against their conviction of certain offences: A person
convicted any offences and sentenced to imprisonment for varying terms under Section8(1),(2),(3) shall be
disqualified for a further period of 6 years since release. But the Section8(4) of the RP Act gives protection
to MPs & MLAs as they can continue in office even after conviction if an appeal is filed within 3 months.
Here if the judiciary is favoured then the power of the people will be distorted & will flout the Provisions of
the constitution & if the legislature is favoured then criminalization of politics will be observed.

On the other hand, the judiciary in modern states is playing a vital role in the process of law making. The
judiciary adds flesh & blood to the dry bones of law by their interpretations & judgment. The executive
have also some important functions e.g. conducting fair & transparent election process, proper work which
leads to proper judiciary activities by which the gap of the constitution can be fulfilled.

Vibrant and independent judiciary is essential for any democracy to thrive. The judiciary in India ensures
that there is a rule of law and that the rights of the citizens are not violated. It also keeps a check on the
other two organs of the government, that is, the legislature and the executive.

However, the judicial system in India is facing several challenges which need to be addressed on a priority
basis. There is an urgent need to address the shortage of judges and to ensure that the cases are disposed of
in a timely manner. Furthermore, the judicial infrastructure and the working conditions of the trial court
must be improved so as to attract talent to the judicial profession.

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In a democratic society, the existence of an active judiciary is essential. The functions it performs are crucial
for the working of a democratic society. Along with the legislature, it formulates rules by setting precedents
that affect future cases. But the decisions taken by the judiciary can be overturned by the legislature if it is
determined to go against them. Apart from these, the non-essential or miscellaneous functions performed by
the judicial system, like granting licences, patents, copyrights, dealing with marriages and divorces, etc., are
all done to assist citizens in various aspects of life. India is blessed with a strong and active judiciary that
has maintained a balance between the sectors of government to ensure that India remains the world’s largest
democracy. Therefore, the judiciary, as an organ of the government, plays an active and important role in
the administration of the country.

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References

• http://www.legalservicesindia.com/article/500/Judiciary-system-in-India.html

• https://nios.ac.in/media/documents/SrSec338New/338_Introduction_To_Law_Eng/
338_Introduction_To_Law_Eng_L13.pdf

• https://www.jstor.org/stable/41854044

• https://www.thehindu.com/news/national/how-are-sc-judges-appointed-in-india/
article65399076.ece

• https://www.allahabadhighcourt.in/event/
TheIndianJudicialSystem_SSDhavan.pdf

• https://www.jetir.org/papers/JETIR1802116.pdf

BIBLIOGRAPHY

*JETIR1802116 Journal of Emerging Technologies and Innovative Research (JETIR) www.jetir.org

*https://www.drishtiias.com/daily-updates/daily-news-editorials/role-of-judiciary-in-improving-
lawmaking

* https://blog.ipleaders.in/an-analysis-of-the-role-of-legislature-and-judiciary-in-a-speedy-trial/

* https://highcourtchd.gov.in/sub_pages/left_menu/publish/articles/articles_pdf/goodgovernance.pdf

* https://www.ncsl.org/research/about-state-legislatures/legislative-judicial-relations.aspx

* https://ncert.nic.in/ncerts/l/keps206.pdf

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* http://www.tnsja.tn.gov.in/article/BS%20Chauhan%20Speech-%20Lucknow.pdf

* https://legislative.gov.in/about-us/functions22

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