(VI) Judiciary

 TEXTUAL QUESTIONS AND ANSWERS

PART – A

Q.1. What are the different ways in which the independence of the judiciary is ensured? Choose the odd ones out.

(i) Chief Justice of the Supreme court is consulted in the appointment of other judges of supreme court.

(ii) Judges are generally not removed before the age of retirement.

(iii) Judge of a High Court can’t be transferred to another High Court.

(iv) Parliament has no say in the appointment of judges.

Ans :- The odd ones are (i) and (iii) 

Q.2. Does independence of judiciary mean that the judiciary is not accountable to any one? Write your answer in not more than 100 words.

Ans :- The independence of judiciary does not mean that the judiciary is not accountable to any one. But the independence of judiciary means that no other organs of the government would restrain the functioning of the judiciary and the judges would perform their functions without any fear or favour. The independence of judiciary does not imply arbitrariness. Judiciary also is a part of the democratic political structure. it is, therefore accountable to the constitution, to the democratic traditions and for the people the country.

Q.3. What are the different provisions in the constitution in order to maintain the independence of judiciary?

Ans :- The independence of judiciary means that the other organs of the government like the executive and Legislature must not restrain the functioning of the judiciary in such a way that it is unable to do justice. It also means that the judges are able to perform their functions without fear or favour and the other organs of the government should no interfere with the decision of the judiciary.

The Indian constitution seeks to achieve the independence of judiciary through a number of measures described in its provisions such as-

(i) Appointment of Judges :- To avoid the consideration of party politics, the legislature has no say in the appointment of judges.

(ii) Fixed Tenure :- The judges have fixed tenure. They hold office till they reach the age of retirement. Only in exceptional cases the judges may be removed. The constitution prescribes a very difficult procedure for the removal of judges.

(iii) Financial Independence :- The judiciary is not financially dependent on the other organs of the government legislature and executive. The constitution provides that the salaries and allowances of the judges are not subjected to the approval of the legislature.

(iv) Immunity from Criticism :- The action and decisions of the judges are immune from the personal criticisms.

(v) Contempt of Court :- The judiciary has to power to penalize those who are found guilty of the contempt of court.

(iv) No Discussion of the conduct of Judges in Parliament :- The constitution specially bars the parliament from discussing the conduct of the judges except when impeachment proceedings are being carried out.

Q.4. The following is statement about Ecuador: What similarities or differences you find between this example and the judicial system in India? “If would he helpful if a body of common law or judicial president, existed that could clarify a journalist’s rights.

Unfortunately, Ecuador’s courts don’t work that way. 

Ans :- There is no similarity in this example and the judicial system in India. In India, the judicial decisions are the important source of law. Judicial decisions of the eminent judges become precedents and the other Courts generally follow them as rigidly as the laws passed by the legislature. The judges give their own interpretation and in the light of these interpretations decide the cases. Hence they expand or modify laws. The rulings of the supreme court, High Court, etc are often quoted by lawyers with effect and authority. In the above said example that it would be helpful if a body of common law or judicial president existed that could clarify a journalist’s rights. But the Ecuador’s court don’t work in such a manner. The judicial decisions do not become the precedents and the judge may rule one way today and the other way tomorrow without explaining why.

Q.5. Read the following statement: Match them with the different jurisdictions the Supreme Court can exercise – original, Appellate, and Advisory.

(i) The government wanted to know if it can pass a law about the citizenship status of residents of Pakistan occupied areas of Jammu and Kashmir.

(ii) In order to resolve the dispute about river Cauvery the government of Tamil Nadu wants to approach the court.

(iii) Court rejected the appeal by people against the eviction from the dam site.

Ans :- Original Jurisdiction means cases that can be directly considered by the supreme court without going the lower courts before that.

Appellate Jurisdiction means that the supreme court is the highest court of appeal. A person can appeal to the supreme court against the decisions of the High courts. However High Court must certify that the case is fit for appeal. The Advisory Jurisdiction means that the president can refer any matter that is of public importance but the president is not bound to accept such an advice. Now we match them with the different jurisdictions as given in the question. 

(i) It is an Advisory Jurisdiction.

(ii) It is an original Jurisdiction.

(iii) It is an Appellate Jurisdiction.

Q.6. In what way can public interest litigation help the poor.

Ans :- A person whose rights have been violated in a dispute, can approach the court or he could move to the court of law. But since 1979, the court has changed the trend for the poor when it decided to hear a case was filed not by the aggrieved persons by others on their behalf. The case involved an important issue of public interest. For the betterment of life conditions of the poor, the voluntary organisation sought judicial intervention for Protection of existing rights of the poor. Protection of the environment, bonded labourers, prohibition of traffic in women, acquisition of cycle rickshaws by licensed rickshaw pullers and other grievances of the weaker sections, relief’s for under trial prisoners in jails, etc. Have been given due importance. Public Interest Litigation has become too much important vehicle of judicial activism. The chief instrument through which judicial activism has flourished in India is Public Interest Litigation or Social Action Litigation. 

Many prisoners in Bihar who had spent long years in jail were released after the supreme court heard that case which was filed by an advocate it must be remembered that the problems of the poor are qualitatively different. And these problems can be solved by the intervention of the supreme court after filing the Public Interest Litigation or PIL.

Q.7. Do you think that judicial activism can lead to a conflict between the judiciary and the executive? Why?

Ans :- The judicial activism can lead to a conflict between the judiciary and the executive. Judicial activism has deep impact on the political system. It has forced executive accountability. But the judicial activism it become more easy to make the electoral system much more free and fair the courts have asked the candidates contesting elections to file affidavits indicating their assets and income along with educational qualifications. This gives the dissatisfaction to the candidates and the judicial activism has blurred the line of distinction between the executive and legislature on the one hand and the judiciary on the other. The court has been involved in resolving issues which belong to the executive.

Reducing air or sound pollution or investigating cases of corruption or bringing about electoral reform is not exactly the duty of the judiciary. These are matters which are the duties of administration and hence sometimes Judicial activism can lead to a conflict between the judiciary and the executive.

Q.8. How is the judicial activism related to the protection of fundamental rights? Has it helped in expanding the scope of fundamental rights?

Ans :- The constitution of India has granted six Fundamental Rights to its citizens. These rights are-

(i) Right to Equality.

(ii) Right to Freedom.

(iii) Right against Exploitation.

(iv) Right to Freedom of Religion. 

(vi) Right to constitutional Remedies.

According to the sixth rights i.e “Right to constitutional Remedies” which has been given in the Articles 32 and 226 of the constitution, all the above given fundamental rights are to be protected through the various write which the High courts and the Supreme Court can issue form time to time.

These write are following-

(a) The Habeas Corpus :- Which provides a remedy against wrongful detection of a person. By it the court directs the detaining authority to produce the detained person in the court and justify the cause of his detention.

(b) The Mandamus :- By which the court can order an interior authority to do an act which falls within its jurisdiction.

(c) The prohibition :- By which the court can prohibit on interior authority from doing an act which does not fall within its jurisdiction.

(d) The quo warranties :- By which the court can restrain a person from acting in a public office to which he is not entitled.

(e) The certiorari :- Which the court can order an interior authority to transfer the matter to or to some other authority for proper consideration.

Through various decisions, the judiciary has given new interpretation to the constitution and protected the rights of citizens. Judiciary is entrusted with the task of protecting rights of individuals. The constitution provides two ways for the remedy of the violation of rights. First by issuing writs. And the second by declaring the concerned law unconstitutional. The review power of supreme court is that the supreme court has the power to review legislations on the ground that they violate the fundamental rights.

This features enabled the judiciary to protect the constitution effectively and also to protect the rights of citizens. The practice of entertaining the Public Interest Litigation has further added to the powers of the judiciary in protecting rights of citizens.

Q.9. Describe the composition original and appellate jurisdiction and other jurisdiction of supreme court of India.

Ans :- The supreme court of India-

Composition :- Article 124 (i) of the constitutions stipulates that so A long as the parliament does not make provision for the appointment of more judges through a law, the supreme court shall have one chief justice and seven judges. The parliament has increased the number of the judges several times. At present these is a chief justice and 25 other judges in the supreme court.

Appointment and Tenure of the Judges :- The chief of the supreme court and the other judges are appointed by the president of India. The judges of supreme court hold office till they complete the age of 65 years.

(i) Original Jurisdiction of the supreme court :-

(a) Such cases of the centre and the states come directly to the supreme court in which-

(ii) The central government and a state or states are the parties

(iii) The central government and one or more states on the other or

(iv) Two or more states are involved.But no such case will come under its original jurisdiction which is concerned with a treaty of contract which was negotiated before the enforcement of the constitution or a contract in which it is given specifically that case concerning that the contract will not be taken bro the supreme court.

(b) According to Article 32, Original Jurisdiction of the supreme court extends to the Fundamental Rights also. It can issue various types of writs to enforce them. The High courts also enjoy concurrent jurisdiction over them.

(ii) Appellate Jurisdiction :- The appellate jurisdiction of the supreme court are of three types- constitutional, criminal and civil.

(a) Constitutional Appeals :- A constitutional appeal means an appeal to the supreme court against the decision of a High Court for interpretation of the constitution in any case. Such an appeal can be brought to supreme court if the High Court certifies that interpretation of the constitution is required in that case or secondary if the supreme court grant a special leave to appeal.

(b) Appeal in cases :- As regards the appeals in civil cases, the 30th amendment, 1972 has brought about significant changes. Prior to the 30th amendment appeal to the supreme court in civil proceedings against a judgment decree or final order of a High court required that the amount or value of subject matter of the dispute way not less them Rs 20,000. The 30th amendment sought to do away with the monetary limits for invoking the appellate jurisdiction of the supreme court.

(c) Criminal Appeals :- The following criminal cases can be brought to the supreme court as appeal-

(i) If a criminal is acquitted by a lower court and he is sentenced to death by High court.

(ii) If a High court awards death sentence is case which it had taken from a lower court undecided.

(iii) If the High Court verifies that the case is a fit to be taken to the supreme commander as an appeal.

(iii) Advisory Jurisdiction :- The president of India can seek the advice of the supreme court. In such a case the supreme court gives its advisory opinion to the president. How ever, such an advisory is not binding upon the president.

(iv) Power to interpret and protection the constitution :- The constitution is the supreme law of the land and supreme court acts as the final interpreter of the constitution. It has the power to reject any act of the legislature or executive, which if final to be unconstitutional.

(v) Supreme court as the court of Record :- Its decisions bind all courts in India. These use its decisions as laws and decide the cases before them on the basis of these discussions.

(vi) Power to review its own judgement :- The supreme court has the power to review its own decisions. Art 137 lays down that”the supreme court shall have the power to review any judgement pronounced or order a made by if”.

(vii) All dispute involving the elections of the president and vice president are heard directly by the supreme court.

Thus besides exercising original, appellate, constitutional and advisory jurisdictions, the supreme court exercises several other powers and functions.

Q.10. Describe the power of Judicial Review of the supreme court of India.

Or

What do you mean by Judicial Review?

Ans :- According to Dimock, “Judicial Review is the examination by the courts in cases actually before them, of legislative status and executive or administrative acts to determine whether or not they are prohibited by a written constitution or are in excess of power granted by it.” In the words of pennock and smith, “Judicial review refers to powers of the courts to interpret constitution and to declare Acts of the legislature, executive or administrative void, if it finds them into conflict with the supreme law.

In simple words we can say that Judicial Review is that power of the court by which it-

(i) Reviews the act of the legislature and executive in cases that come before it;

(ii) Determine the constitutional validity of the Acts;

(iii) Rejects that Act or any of its part which is found to be unconstitutional or against the constitution.

Judicial Review in India: The constitution of India is the supreme law of the land, and the supreme court of India has the supreme responsibility of interpreting and protecting the constitution. 

It also acts as the guardian protector of the fundamental Rights of the people. For this purpose, the supreme court exercises the power of determining the constitutionality of the legislature and executive measure and rejects any measure or any of its part which is found to be unconstitutional. This power of the supreme court is referred to as the Judicial Review power. The State High Courts also exercises such a power but their judgements can be rejected or modified or upheld by the supreme court. Constitutional basis of Judicial Review in India: The following Articles of the constitution provide the constitutional basis to the system of Judicial Review-

(i) Article 13 :- This articles states that laws which are against the fundamental rights are to be void. The supreme court has the power to determine their constitutionality.

(ii) Article 32 :- This article contest the right to move to the supreme court for getting expired the fundamental rights enshrined in part III of the constitution.

(iii) Articles 131 and 132 :- These two articles explain the original and appellate jurisdiction of the supreme court respectively.

(iv) Article 226 :- This article provides a basis to the exercise of Judicial Review power by the State High Courts for protecting the fundamental right of the people. 

(v) Article 246 :- This article also provides a basis to judicial review of the supreme court has been assigned the power to decide all cases of union- state dispute over the division of powers between them.

(vi) Article 124′ (6) and 219 :- Under these articles the judges of the supreme court and High Courts respectively are to take an oath of allegiance”to the constitution as by law established”.

Importance of the power of Judicial Review:

(i) Judicial Review is implicit in the case of a written constitution: In India there is a written constitution and in the written constitution the wording and language is sometimes technical which is difficult to understand for a common man. So for the proper interpretation of the constitution’s the power of Judicial review is necessary.

(ii) Judicial review is necessary for protecting the civil liberties:

It has rightly been said that the rights and liberties of the citizens are not unlimited. So, for the safety and security of the state and keeping in view the public interests, the government may impose some limitations on them weather these limitations are just or unjust, it is the jurisdiction and duty of the court to decide which can be done only through the power of Judicial Review.