The Indian Judiciry

7/26/2019 The Indian Judiciry

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DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITYVISAKHAPATNAM, A.P., INDIA

THE INDIAN JUDICIARY

Constitutional Law-II

Mr Nageswara Rao

AADITYA VASU2013001, 6thSEMESTER


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ACKNOWLEDGEMENT

I have taken efforts while doing this project. However, it would have been impossible without the

kind support and help of many people involved.

I am highly indebted to Prof Nageswara Rao, Professor of International Trade Law, Damodaram

Sanjivayya National Law University, Visakhapatnam for the guidance and supervision regarding

the completion of the project and without the sincere help, this project would have remained

incomplete.


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INDEX

1. Introduction 04

2. Evolution and Development of Judiciary 04

3. The Constitution and the Judiciary 06

4. Appointment and Transfer of Judges 06

5. The Supreme Court

Composition

Tenure

Immunities

Impeachment

07

6. High Courts 11

7. District Court 12

8. Village Court 12

9. Judicial Review- A Comparative Study

Extensive concept of Judicial Review in India

Constitutional Provisions

Writs

13

10.Judicial Review in United States 17

11.Judicial Activism 20

12.Public Interest Litigation 20

13.Right to Information 21

14.Conclusion 22

15.Bibliography 23


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4

INTRODUCTION

In a political system based on constitutional government, the functions of rulemaking, rule

enforcement and rule interpretation are separated into the three institutions of the legislature, the

executive and the judiciary. A judiciary that is independent of and acting as a check on the arbitrary

exercise of legislative and executive power is an essential feature of a constitutional government.

The judiciary is also the final arbiter on what that constitution itself means. In a federal system,

the judiciary also serves as a tribunal for the final determination of disputes between the union and

its constituent units. Given the tremendous importance of the role and functions of the Supreme

Court and the High Courts, various measures have been adopted to ensure the independence of the

judiciary. Let us first trace the evolution of the modern judicial system in India and then examine

the various constitutional provisions relating to its powers and functions. The Indian

Judiciaryadministers acommon law systemof legal jurisdiction, in which customs, precedents

and legislation, all codify the law of the land. It has in part, inherited the legacy of the legal system

established by the then colonial powers and the princely states since the mid-19th century, and has

partly retained characteristics of practices from the ancient and medieval times.

There are various levels of judiciary in Indiadifferent types of courts, each with varying powers

depending on the tier and jurisdiction bestowed upon them. They form a strict hierarchy of

importance, in line with the order of the courts in which they sit, with theSupreme Court of India at

the top, followed byHigh Courts of respective states with district judges sitting inDistrict

Courts and Magistrates of Second Class and Civil Judge (Junior Division) at the bottom. Courts

hear criminal and civil cases, including disputes between individuals and the government. The

judiciary is independent of theexecutive andlegislativebranches of government according to

theConstitution of India.

EVOLUTION AND DEVELOPMENT OF JUDICIARY IN INDIA

The development of judiciary in general can be traced to the growth of modern nation-

states. This was the stage when it was assumed that power and administration of justice was

prerogative of the state.
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During the ancient times, administration of justice was not considered a function of the

state as it was based on religious law or dharma. Most of the kings courts dispensed justice

according to dharma, a set of eternal laws rested upon the individual duty to be performed in four

stages of life (ashrama) and status of individual according to his status (varna). The king had no

true legislative power, the power to make ordinances on his own initiative and pleasure. Even if

a law has been enacted and royally recognised, an individual to whom custom applies may disobey

it on the ground that it conflicts the precepts of dharma. At the village level, the

local/village/popular courts dispensed justice according to the customary laws.

However, during the medieval times, the king arrogated to himself an important role in

administering justice. He was the highest judge in the land.

With the advent of the British rule in India, judicial system on the basis of Anglo-Saxon

jurisprudence was introduced in India. The Royal Charter of Charles II of the year 1661 gave the

Governor and Council the power to adjudicate both civil and criminal cases according to the laws

of England. But it was with the Regulating Act of 1773 that the first Supreme Court came to be

established in India. Located at Calcutta, the Supreme Court consisted of Chief Justice and three

judges (subsequently it was reduced to two judges) appointed by the Crown and it was made a

Kings court rather than a Companys court. The court held jurisdiction over his majestys

subjects wherever the Supreme Courts were established. Supreme Courts were established in

Madras and in Bombay later.

Judicial system during this period consisted of two systems, the Supreme Courts in the

Presidencies and the Sadr courts in the provinces. While the former followed the English law and

procedure, the latter followed regulation laws and personal laws.

Subsequently, these two systems were merged under the High Courts Act of 1861. This

Act replaced the Supreme Courts and the native courts (Sadr Dewani Adalat and Sadr Nizamat

Adalat) in the presidency towns of Calcutta, Bombay and Madras with High Courts. The highest

court of appeal however was the judicial committee of the Privy Council.

At this stage of development of the Indian legal system, we see the beginning of a new era

in the emergence of a unified court system.

The Federal Court of India was established in Delhi by the Act of 1935. This was to act as an

intermediate appellant between the High Courts and the Privy Council in regard to matters

involving the interpretation of the Indian constitution. In addition to this appellate jurisdiction, the


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Federal Court had advisory as well as original jurisdiction in certain other matters. This court

continued to function until 26 January 1950, the day the independent Indias constitution came

into force.

THE CONSTITUITON AND THE JUDICIARY

The Judiciary interprets the Constitution as its final arbiter. It is its duty as mandated by the

Constitution, to be its watchdog, by calling for scrutiny any act of the legislature or the executive,

who otherwise, are free to enact or implement these, from overstepping bounds set for them by the

Constitution. It acts like a guardian in protecting the fundamental rights of the people, as enshrined

in the Constitution, from infringement by any organ of the state. It also balances the conflicting

exercise of power between the centre and a state or among states, as assigned to them by the

Constitution.

While pronouncing decisions under its constitutional mandate, it is expected to remain unaffected

by pulls and pressures exerted by other branches of the state, citizens or interest groups. And

crucially, independence of the judiciary has been held to be a basic feature of the Constitution, and

which being inalienable, has come to mean - that which cannot be taken away from it by any act

or amendment by the legislature or the executive. This independence shows up in the following

manner: No minister, or even the executive collectively, can suggest any names for appointment

as judges, to the President, who ultimately decides on appointing them from a list of names

recommended only by the collegiumof the judiciary. Nor can judges of the Supreme Court or a

High Court be removed from office once appointed, unless an overwhelming two-thirds of

members of any of the Houses of the Parliament back the move, and only on grounds of proven

misconduct or incapacity. A person who has been a judge of a court is debarred from practicing in

the jurisdiction of that court.

Appointment and Transfer of Judges at Present

As per the Constitution, as held by the court in theThree Judges' Cases- (1982, 1993, 1998), a

judge is appointed to the Supreme Court and the High Courts by thePresident of India from a list

of names recommended by the collegiuma closed group of the Chief Justice of India and the

most senior judges of the Supreme Court, for appointments to the Supreme Court, and they,
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together with the Chief Justice of a High Court and its senior-most judges, for appointments to that

court. This has resulted in a Memorandum of Procedure being followed, for the appointments.

Judges used to be appointed by the President on the recommendation of the Union Cabinet.After

1993, as held in the Second Judges' Case, the executive was given the power to reject a namerecommended by the judiciary. However, according to some, the executive has not been diligent

in using this power to reject the names of bad candidates recommended.

The collegium system has come under a fair amount of criticism. Presently, by a recent order in

the Fourth Judges' Case, the court has invited everyone, including the public to suggest by mid-

November 2015, how to improve it, broadly along the lines of - setting up an eligibility criterion

for appointments, a permanent secretariat to help the collegium sift through material on potential

candidates, infusing more transparency into the selection process, grievance redressal and any

other suggestion not in these four categories, like transfer of judges.

Earlier, one recommendation by a collegium came to be challenged in court. The court held that

who could become a judge was a matter of fact, and any person had a right to question it. But who

should become a judge was a matter of opinion and could not be questioned. As long as an effective

consultation took place within a collegium in arriving at that opinion, the content or material placed

before it to form the opinion could not be called for scrutiny in a court.

THE SUPREME COURT

The entire judicature has been divided into three tiers. At the top there is a Supreme Court,

below it is the High Court and the lowest rank is occupied by sessions court.

The Supreme Court is the highest court of law. The Constitution says that the law declared

by the Supreme Court shall be binding on all small courts within the territory of India. Below the

Supreme Court, are the High Courts located in the states. Under each High Court there are District

Sessions Courts, Subordinate Courts and Courts of Minor Jurisdiction called Small Cause Courts.

Given the importance of the judiciary in a federal system resting on limited government, the

Supreme Court was designed to make it the final authority in the interpretation of the Constitution.

While framing the judicial provisions, the Constituent Assembly gave a great deal of attention to
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such issues as the independence of the courts, the power of the Supreme Court and the issue of

judicial review.

Composition and Appointments

The Supreme Court consists of the Chief Justice of India and such other number of other

judges as is provided by the law. When the Supreme Court was inaugurated, it had only eight

judges. Its strength has risen to twenty-five judges. The President of India, who is the appointing

authority, makes these appointments on the advice of the Prime Minister and the Council of

Ministers.

The Constitution stipulates in Article 124 (2) that the President shall appoint judges of the

Supreme Court under his hand and seal after consultation with such of the judges of the Supreme

Court as the President may deem necessary. In the case of the Chief Justice of the India, the

President shall consult such judges of the Supreme Court and of the High Courts as he may deem

necessary. In spite of this clear constitutional provision, the appointment of the Chief Justice of

India has become a matter of political controversy. Here it may be worth recalling the issues that

were raised in 1973 when the Government of India appointed Justice SS Ray as the Chief Justice

of India superseding four other judges, against the recommendations of the outgoing Chief Justice,

SM Sikri.

To eliminate politics in the appointment of judges, high minimum qualifications have beenprescribed. For appointment to the Supreme Court, a person should be a citizen of India, a judge

of the High Court for at least five years, or should have been an advocate of High Court for at least

ten years or a distinguished jurist in the opinion of the President of India.

Tenure

Once appointed, a judge holds office until he attains 65 years. A judge of the Supreme Court may

resign his office or may be removed in case of misbehavior or incapacity. According to the

procedure laid out in the Constitution, each house of the Parliament will have to pass a resolution

supported by two third of the members present and voting. The motion of impeachment against a

judge was table in Parliament for the first in 1991. This involved Supreme Court Justice V

Ramaswami. When an audit report revealed several irregularities committed by the judge during

his tenure as the Chief Justice of the Punjab and Haryana High Court, a three-man judicial


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committee was set up with a serving and a retired Supreme Court judge and the Chief Justice of

the Bombay High Court. The Committee concluded that there had indeed been a wilful and gross

misuse of official position and intentional and habitual extravagance at the cost of the public

exchequer which amounted to misbehavior. Justice Ramaswami, however, maintained that there

were procedural irregularities in the notice of the motion, the constitution of the committee and its

functioning. The impeachment motion moved in May 1993 failed with 196 out of 401 voting for

it and the remaining 205 abstaining. But accepting reality, the judge subsequently resigned.

Salaries

A very important element that determines the independence of the judges is the remuneration

received by them. The salaries and allowances of the judges are fixed high in order to secure their

independence, efficiency and impartiality. Besides, the salary, every judge is entitled to a rent-free

official.

accommodation. The Constitution also provided that the salaries of the judges cannot be changed

to their disadvantage, except in times of a Financial Emergency. The administrative expenses of

the Supreme Court, the salaries, allowances, etc., of the judges are charged on the Consolidated

Fund of India.

Immunities

To shield judges from political controversies, the Constitution grants them immunity from

criticisms against decisions and actions made in their official capacity. The Court is empowered

to initiate contempt proceedings against those who impute motives to the judges in the discharge

of their official duties. Even the Parliament cannot discuss the conduct of the judge except when a

resolution for his removal is before it.

Impeachment

Our Constitution provides for removal of a judge of the Supreme Court or the high court for proved

misbehavior or proved incapacity, by what is popularly called the process of impeachment, where

under two thirds of the members of each House of Parliament may vote for the removal of the

judge. So far, only one impeachment proceeding has been initiated against a Supreme Court judge.


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It failed because Congress abstained from voting and consequently two- thirds majority was not

available. The disciplinary control exercised in Justice Veeraswami case (1991) is an impractical

and extremely difficult process to pursue. The additional immunity with which judges have

cloaked themselves in Justice Veeraswami case has meant that even an FIR for any criminal

misconduct cannot be registered against a judge and the he cannot be subjected to an investigation

without the prior permission of the Chief Justice of India. This has resulted in a situation whereby

no sitting judge has been subjected to even investigation in the last 15 years since that judgment,

despite public knowledge and complaints of widespread corruption in the judiciary It is concerned

with the behavior of a single judge. If the impeachment process is only kicked off after the judge

has broken some generally agreed upon standard, it does thus qualify as an institution of Judicial

Accountability. But as long as the power to initiate impeachment proceedings is vested with the

executive and/or the legislature, it can be misused to intimidate judges and thus be turned into

an instrument of judicial dependence charges must be very serious; secondly they must be provable

by documentary evidence which is annexed to the Notice of Motion and finally, the charges must

have been given substantial publicity in the media. In the absence of all the three conditions been

satisfied, MPs are afraid and reluctant to sign a charge sheet against a sitting judge. It is normally

exceedingly difficult to get documentary evidence to prove charge against sitting judge. Moreover,

the bulk of the main stream media is afraid to publicize charges against the sitting judge for fear

of contempt. In Justice Ramaswamis case, the above three conditions were satisfied. Even

documentary evidence was available. In the case of Justice MM Punchi, the charge sheet was

prepared by the Committee on Judicial Accountability in 1998, when Justice Punchi was a judge

of the Supreme Court of India. It was signed by 25 MPs of Rajya Sabha. However, before it could

get the signature of the requisite number of 50 MPs of Rajya Sabha, Justice Punchi was appointed

Chief Justice of India. After that, it became virtually impossible to get the Notice of Motion signed

by any MPs. Consequently, Notice of Motion could not be presented to the Speaker. K G

Balakrishnan had recommended the removal of Calcutta High Court judge Soumitra Sen to the

government as he was accused of having been involved in financial misappropriation before he

was appointed as a judge. This recommendation revived the debate over the cumbersome process

for impeachment as laid down in the Constitution as well the question of judicial accountability.

This is why, impeachment of judges; however, corrupt they might be being not a practical remedy

in disciplining them. Care must be taken to preserve the independence of judiciary and to ensure


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separation of judiciary from executive. The adjudicative power must, necessarily, vest in a

committee of senior judges, and the consequential action should be taken by the President of India

on the advice of the Chief Justice of India in accordance with the judicial finding. This can be a

mode in addition to, and as an alternative to impeachment.

High Courts

There are 24 High Courts at the State level.Article 141 of the Constitution of India mandates that

they are bound by the judgments and orders of theSupreme Court of Indiaby precedence. These

courts have jurisdiction over a state, a union territory or a group of states and union territories.

Below the High Courts are a hierarchy of subordinate courts such as the civil courts, family courts,

criminal courts and various otherdistrict courts. High courts are instituted asconstitutional

courts underPart VI, Chapter V,Article 214 of theIndian Constitution.

The High Courts are the principal civil courts oforiginal jurisdiction in the state along with District

Courts which are subordinate to the High courts. However, High courts exercise their original civil

and criminal jurisdiction only if the courts subordinate to the high court in the state are not

competent (not authorised by law) to try such matters for lack of pecuniary, territorial jurisdiction.

High courts may also enjoy original jurisdiction in certain matters if so designated specifically in

a state or Federal law. e.g.: Company law cases are instituted only in a high court.

However, primarily the work of most High Courts consists of Appeals from lower courts and writ

petitions in terms ofArticle 226 of theConstitution of India.Writ Jurisdiction is also original

jurisdiction of High Court. The precise territorial jurisdiction of each High Court varies.

Judges in a high court are appointed by the President after consultation with theChief Justice of

India,Chief Justice of High Court and the governor of the state. The number of judges in a court

is decided by dividing the average institution of main cases during the last five years by the national

average, or the average rate of disposal of main cases per judge per year in that High Court,whichever is higher. TheCalcutta High Court is the oldest High Court in the country, established

on 2 July 1862, whereas theAllahabad High Court is the largest, having a sanctioned strength of

judges at 160. High courts which handle a large number of cases of a particular region, have

permanent benches(or a branch of the court) established there. For litigants of remote regions,

'circuit benches' are set up, which work for those days in a month when judges visit
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District Court

TheDistrict Courts of India are established by theState governments in India for every district or

for one or more districts together taking into account the number of cases, population distribution

in the district. They administer justice in India at a district level. These courts are under

administrative control of theHigh Court of theState to which the district concerned belongs. The

decisions of District court are subject to the appellate jurisdiction of the concerned High court.

The district court is presided over by one District Judge appointed by the state Government. In

addition to the district judge there may be number of Additional District Judges and Assistant

District Judges depending on the workload. The Additional District Judge and the court presided

have equivalent jurisdiction as the District Judge and his district court. The district judge is also

called "Metropolitan session judge" when he is presiding over a district court in a city which is

designated "Metropolitan area" by the state Government. The district court has appellate

jurisdiction over all subordinate courts situated in the district on both civil and criminal matters.

Subordinate courts, on the civil side (in ascending order) are, Junior Civil Judge Court, Principal

Junior Civil Judge Court, Senior Civil Judge Court (also called sub-court). Subordinate courts, on

the criminal side (in ascending order) are, Second Class Judicial Magistrate Court, First Class

Judicial Magistrate Court, Chief Judicial Magistrate Court. In addition, 'Family Courts" are

established to deal with matrimonial disputes alone. The Principal judge of family court is

equivalent to District Judge.

Village Courts

Village courts, calledLok Adalat (people's court) orNyaya Panchayat (justice of the villages),

compose a system ofalternative dispute resolution. They were recognized through the

1888Madras Village Court Act,then developed (after 1935) in various provinces and (after 1947)

Indian states. The model from the Gujarat State (with a judge and two assessors) was used from

the 1970s onwards in 1984 the Law Commission recommended to create Nyaya Panchayats in

rural areas with laymen ("having educational attainments"). The 2008Gram Nyayalayas Act have

foreseen 5,000 mobile courts in the country for judging petty civil (property cases) and criminal

(up to 2 years of prison) cases. However, the Act has not been enforced properly, with only 151
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functional Gram Nyayalayas in the country (as of May 2012) against a target of 5000 such

courts. The major reasons behind the non-enforcement includes financial constraints, reluctance

of lawyers, police and other government officials.

Judicial Review-A Comparative Study

The power of judiciary to review and determine the validity of a law or an order may be described

as the powers of Judicial Review.It means that the constitution is the supreme law of the land and

any law inconsistent therewith is void through judicial review. It is the power exerted by the courts

of a country to examine the actions of the legislatures, executive and administrative arms of

government and to ensure that such actions conform to the provisions of the nations Constitution.

Judicial review has two important functions, like, of legitimizing government action and the

protection of constitution against any undue encroachment by the government.

Extensive Concept of Judicial Review in India.

The Supreme Court has been vested with the power of judicial review. It means that the Supreme

Court may review its own Judgement order. Judicial review can be defined as the competence of

a court of law to declare the constitutionality or otherwise of a legislative enactment. Being the

guardian of the Fundamental Rights and arbiter of the constitutional conflicts between the Union

and the States with respect to the division of powers between them, the Supreme Court enjoys the

competence to exercise the power of reviewing legislative enactments both of Parliament and the

States legislatures.

The power of the court to declare legislative enactments invalid is expressively provided by the

Constitution under Article 13, which declares that every law in force, or every future law

inconsistent with or in derogation of the Fundamental Rights, shall be void. Other Articles of the

Constitution (131-136) have also expressively vested in the Supreme Court the power of reviewing

legislative enactments of the Union and the States. The jurisdiction of the Supreme Court was

curtailed by the 42nd Amendment of the Constitution (1976), in several ways. But some of these

changes have been repealed by the 43rd Amendment Act, 1977. But there are several other

provisions which were introduced by the 42nd Amendment Act 1976 not repealed so far.


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These are:

(i) Arts. 323 A-B. The intent of these two new Articles was to take away the jurisdiction of the

Supreme Court under Art. 32 over orders and decisions of Administrative Tribunals. These

Articles could, however, be implemented only by legislation. Art. 323A has been implemented by

the Administrative Tribunals Act, 1985 (ii) Arts. 368 (4)-(5). These two Clauses were inserted in

Art. 368 with a view to preventing the Supreme Court to invalidate any Constitutional Amendment

Act on the theory of basic features of the Constitution.

These Clauses have been emasculated by the Supreme Court itself, striking them down on the

ground that they are violative in the two basic features of the Constitution:

(a) the limited nature of the amending power under Art. 368 and

(b) judicial review in the Minerva Mills case1.

The court was very reluctant and cautious to exercise its power of Judicial Review, during the first

decade, when the Supreme Court declared invalid only one of total 694 Acts passed by the

Parliament.

During the second decade the court asserted its authority without any hesitation which is reflected

in the famous Golak Nath2case and Kesavananda Bharti3case. In these cases, the Supreme Court

assumed the role of constitution making.

Indian Judiciary has been able to overcome the restriction that was put on it by the 42nd

amendment, with the help of the 43rd and 44th amendments. Now the redeeming quality of Indian

judiciary is that no future governments could clip its wings or dilute its right of Judicial Review.

In fact, now the Judicial Review is considered to be the basic feature of our Constitution.

1AIR 1980 SC 178921967 AIR 16433(1973) 4 SCC 225


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Constitutional Provisions for Judicial Review:

The Indian Constitution adopted the Judicial Review on lines of U.S. Constitution. Parliament is

not supreme under the Constitution of India. Its powers are limited in a manner that the power is

divided between centre and states.

Moreover, the Supreme Court enjoys a position which entrusts it with the power of reviewing the

legislative enactments both of Parliament and the State Legislatures. This grants the court a

powerful instrument of judicial review under the constitution.

Both the political theory and text of the Constitution has granted the judiciary the power of judicial

review of legislation. The Constitutional Provisions which guarantee judicial review of legislation

are Articles 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372.

Article 372 (1) establishes the judicial review of the pre-constitution legislation.

Article 13 declares that any law which contravenes any of the provisions of the part of Fundamental

Rights shall be void.

Articles 32 and 226 entrusts the roles of the protector and guarantor of fundamental rights to the

Supreme and High Courts.

Article 251 and 254 states that in case of inconsistency between union and state laws, the state law

shall be void.

Article 246 (3) ensures the state legislatures exclusive powers on matters pertaining to the State

List.

Article 245 states that the powers of both Parliament and State legislatures are subject to the

provisions of the constitution.

The legitimacy of any legislation can be challenged in the court of law on the grounds that the

legislature is not competent enough to pass a law on that particular subject matter; the law is repug-

nant to the provisions of the constitutions; or the law infringes one of the fundamental rights.


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Articles 131-136 entrusts the court with the power to adjudicate disputes between individuals,

between individuals and the state, between the states and the union; but the court may be required

to interpret the provisions of the constitution and the interpretation given by the Supreme Court

becomes the law honored by all courts of the land.

There is no express provision in our constitution empowering the courts to invalidate laws, but the

constitution has imposed definite limitations upon each of the organs, the transgression of which

would make the law void. The court is entrusted with the task of deciding whether any of the

constitutional limitations has been transgressed or not.

Writs

Article 226 can be, and is more often, used for reviewing the action of administration. One can say

that there is an increase of litigation in this respect. The High Court can issue directions, orders or

writs in the nature of habeas corpus mandamus, prohibition, quo-warranto, and certiorari for the

enforcement of fundamental rights or for any other purpose.

Habeas corpus is a writ issued by the court to bring before the court a person from illegal custody.

The court will examine the legality of detention and release the person if detention is found illegal.

Mandamus is issued to a public authority to do an act which under law, it is obliged to do or to

forbear from doing.

Prohibition is a writ to prevent a court or tribune! from doing something in excess of its authority.

High Court has power to issue an order of prohibition to the executive authority prohibiting it from

acting without jurisdiction.

Certiorari is a writ issued to a judicial or quasi-judicial authority to correct its order. This writ is

issued on specified grounds like violation of natural justice; excess, abuse or lack of jurisdiction;

fraud; and error of law apparent on the face of the record.


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Quo-warranto is a writ issued to a person who authorized occupies a public office to step down

from that office. High courts and the Supreme Court have the power to issue not only these writs

but also appropriate directions and orders.

Changing Trends in Judicial Review:

Recently there is a rising trends in judicial activism in the land. The doors of the judiciary are kept

open for redressing the grievances of persons who cannot ordinarily have access to justice. The

strict observance of the traditional rule of locus standi will do injustice to certain persons who do

not have the money, knowledge and facilities of approaching court.

In such cases if a public spirited person comes forward on their behalf courts relax the rules an

adjudicate over the matter. Thus, in the matter of socially and economically backward groups or

persons who are not aware of their rights or not capable of pursuing their case in a court, the

complex and rigorous procedural formalities are not insisted upon. At this level there are cases

when press reports were taken as write petitions and reliefs granted. Letters addressed to the courts

were also treated as petitions.

Judicial review is one of the important techniques by which the courts examine the actions of the

legislature, the executive and the other governmental agencies and decide whether or not these

actions are valid and within the limits set by the Constitution.

Therefore, with the power of judicial review the courts act as a custodian of the fundamental rights.

The Indian Judiciary, given the federal structure of the Constitution, also settles conflicts of

jurisdiction in legislation between the Centre and the states. With the growing functions of the

modern state judicial intervention in the process of making administrative decisions and executive

them has also increased.

Judicial review in United States

In the United States,judicial reviewis the ability of acourt to examine and decide if

astatute,treaty or administrativeregulation contradicts or violates the provisions of existing law,

aState Constitution,or ultimately theUnited States Constitution.While the U.S. Constitution does
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not explicitly define a power of judicial review, theauthority forjudicial review in the United

States has been inferred from the structure, provisions, and history of the Constitution.

Two landmark decisions by theU.S. Supreme Court served to confirm the inferred constitutional

authority for judicial review in the United States: In 1796,Hylton v. United States

4

was the firstcase decided by the Supreme Court involving a direct challenge to the constitutionality of an act

ofCongress,the Carriage Act of 1794 which imposed a "carriage tax". The Court engaged in the

process of judicial review by examining the plaintiff's claim that the carriage tax was

unconstitutional. After review, the Supreme Court decided the Carriage Act was not

unconstitutional. In 1803,Marbury v. Madison5was the first Supreme Court case where the Court

asserted its authority for judicial review to strike down a law as unconstitutional. At the end of his

opinion in this decision, Chief Justice John Marshall maintained that the Supreme Court's

responsibility to overturn unconstitutional legislation was a necessary consequence of their sworn

oath of office to uphold the Constitution as instructed inArticle Six of the Constitution.

As of 2014, the United States Supreme Court has held 176 Acts of the U.S. Congress

unconstitutional.

The Constitution does not expressly provide that the federal judiciary has the power of judicial

review. Rather, the power to declare laws unconstitutional has been deemed an implied power,

derived fromArticle III andArticle VI6.

The provisions relating to the federal judicial power in Article III state:

The judicial power of the United States, shall be vested in one Supreme Court, and in

such inferior courts as the Congress may from time to time ordain and establish. . ..

The judicial power shall extend to all cases, in law and equity, arising under this

Constitution, the laws of the United States, and treaties made, or which shall be made,

under their authority. . .. In all cases affecting ambassadors, other public ministers and

consuls, and those in which a state shall be party, the Supreme Court shall

haveoriginal jurisdiction.In all the other cases before mentioned, the Supreme Court

43 US 3 Dall 171 (1796)55 US 137 (1803)6Virginia Constitution of 1776
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shall haveappellate jurisdiction,both as to law and fact, with such exceptions, and

under such regulations as the Congress shall make.

TheSupremacy Clause of Article VI states:

This Constitution, and the Laws of the United States which shall be made in Pursuance

thereof; and all Treaties made, or which shall be made, under the Authority of the

United States, shall be the supreme Law of the Land; and the Judges in every State

shall be bound thereby, any Thing in the Constitution or Laws of any State to the

Contrary notwithstanding. . .. [A]ll executive and judicial Officers, both of the United

States and of the several States, shall be bound by Oath or Affirmation, to support this

Constitution.

The power of judicial review has been implied from these provisions based on the following

reasoning. It is the inherent duty of the courts to determine the applicable law in any given case.

The Supremacy Clause says "This Constitution" is the "supreme law of the land." The Constitution

therefore is the fundamental law of the United States. Federal statutes are the law of the land only

when they are "made in pursuance" of the Constitution. State constitutions and statutes are valid

only if they are consistent with the Constitution. Any law contrary to the Constitution is void. The

federal judicial power extends to all cases "arising under this Constitution." As part of their

inherent duty to determine the law, the federal courts have the duty to interpret and apply the

Constitution and to decide whether a federal or state statute conflicts with the Constitution. All

judges are bound to follow the Constitution. If there is a conflict, the federal courts have a duty to

follow the Constitution and to treat the conflicting statute as unenforceable. The Supreme Court

has final appellate jurisdiction in all cases arising under the Constitution, so the Supreme Court

has the ultimate authority to decide whether statutes are consistent with the Constitution.7

In their comments relating to judicial review, the framers indicated that the power of judges to

declare laws unconstitutional was part of the system of separation of powers. The framers stated

7Marbury vs Madison
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that the courts' power to declare laws unconstitutional would provide a check on the legislature,

protecting against excessive exercise of legislative power.

Judicial Activism in India

TheSupreme Court of India is the highest judicial forum and final court of appeal

ofIndia established under Constitution of India, as per which Supreme Court is the highest

constitutional court and acts as the guardian of Constitution. India follow the integrated and yet

independent judiciary.

Since independence, judiciary has been playing a very active role in dispensing the justice since

A K Gopalan vs State of Madras8case (1950) followed byShankari Prasad vs State of Rajasthan

case9, etc. However, judiciary remained submissive till 1960s but its assertiveness started in 1973

whenAllahabad High Court rejected the candidature ofIndira Gandhi and introduction of PILby

Justice P N Bhagwati further expanded its scope.

Public Interest Litigation

In the 80s, the Supreme Court evolved a new jurisdiction which has come to be known as Public

Interest Litigation which evolved a liberal interpretation of the fundamental right of life and liberty

guaranteed by Article 21 to include the right to live with dignity and, therefore, to enjoy the enjoy

the basic amenities of life such as food, water, shelter, basic education, health care and even the

right to a healthy environment. Simultaneously, the court declared that they could and should direct

the executive to provide these amenities to citizens who were denied these. The frequent use of

this concept has led to several instances where courts have directed actions that were considered

to be exclusively in the domain of the executive e.g. orders to convert commercial vehicles in

Delhi to natural gas fuel. It is for consideration whether judges should be held accountable for any

attempt to exceed their powers and to encroach on the territory of the executive.

81950 AIR 27, 1950 SCR 889AIR 1951 SC 455
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Right to Information

This Act should be seen as only a step towards enforcing the accountability of the Judiciary directly

to the people, until a specific and more detailed law is enacted in this regard. Judicial Standards

and Accountability Bill, 2010 Recognizing that sunlight is the best disinfectant , the Judicial

Standards and Accountability Bill 2010 has been introduced looking at three major aspects:

judicial standards governing court proceedings declaration of assets and liabilities by Judges

mechanisms for dealing with complaints of misbehavior and incapacity of a Judge of the Supreme

Court/High Court The Judicial Standards and Accountability Bill, 2010 provides for the

constitution of a National Judicial Council to inquire into complaints against errant judges which

is being perceived as a long awaited initiative to introduce some accountability for judges of the

higher judiciary. It lays down judicial standards and provides for accountability of judges, and

establishes credible and expedient mechanism for investigating into individual complaints for

misbehavior and to regulate the procedure for such investigation and for the presentation of an

address by Parliament to the President in relation to proceeding for removal of a Judge. It was

tabled in the Lok Sabha on December 1, 2010 by Law Minister Veerappa Moily even as Opposition

MPs were demanding a JPC probe into the 2G spectrum scam. The Bill seeks to repeal the Judges

(Inquiry) Act, 1968 while retaining the basic features and aims to achieve the objectives of the

Bill. The various measures envisaged in the bill will increase accountability of judges thereby

further strengthening the independence of the judiciary.


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Conclusion

A powerful legislation is certainly the need of the hour as the public is losing faith in the quality

of justice in our country. Despite the measures taken from time to time, to ensure an independent

judiciary, there still is an inadequacy of law to tackle the menace, as much are the shortcomings in

the already existing laws. We should try to incorporate within the mechanism the provisions of

other countries like US to ensure judicial accountability. Equally important is the issue of striking

a balance between the competing principles of judicial independence, on the one hand, and

accountability and transparency, on the other. The Supreme Court in a short period of three years

has brought down the number of pending cases from more than one lakh to just around 20,000

cases through systematic judicial measures based on the report Modernization of Civil Justice

System: Implementation Plan of the National Judicial Academy. The current rate of disposal and

fresh filing of cases, promises a zero pendency future for the Supreme Court. The recent instances

which have brought forth the need for judicial accountability and transparency has led to intense

public scrutiny. The judiciary needs to be held in respect by the general public and indeed by the

Legislature and the Executive if it is to function adequately. And that respect cannot be demanded,

it has to be earned. By bringing transparency in judiciary will not make the judiciary less

independent. In fact, this is indispensable for judicial accountability and restoring the faith of the

public in the system of justice in our country.


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Bibliography

Books:-

1. M.P. Jain, Indian Constitutional Law, 6thEdition, Lexis Nexis.

2. J.N. Pandey, Constitutional Law of India, 52ndEditon, Central Law Agency.

3. Dr. DD Basu, Constitution of India, 21stEdition, Lexis Nexis.

The Indian Judiciry

Documents

Transcript of The Indian Judiciry