The Judiciary is a vital organ of the government, serving as an arbitrator in private disputes and performing crucial political functions. The Supreme Court of India is globally recognized as one of the most powerful judicial institutions, playing a fundamental role in interpreting and protecting the Constitution since its inception in 1950. Disputes are inherent in society (between individuals, groups, or individuals/groups and the government). To resolve these, an independent body must strictly adhere to the Rule of Law.

Rule of Law: This principle dictates that all persons—rich and poor, men or women, from forward or backward castes—are subjected equally to the same laws.

The judiciary’s primary constitutional role is to protect the Rule of Law, ensure the supremacy of law, safeguard individual rights, settle disputes, and prevent any individual or group from subverting democracy to attain dictatorship. Fulfilling these responsibilities requires the judiciary to be completely independent of political pressures.

Independence of the Judiciary: Meaning and Constitutional Assurance

Independence of Judiciary: This means judges must be able to perform their duties without fear of reprisal or favour towards any party.

This independence requires two specific actions from the other government organs (Executive and Legislature) :

1.     Non-Restraint: They must refrain from restraining the judiciary’s functioning in any way that impedes its ability to deliver justice.

2.     Non-Interference: They must not interfere with or attempt to overturn the decisions made by the judiciary.

Note: Independence does not imply arbitrariness or lack of accountability. The judiciary is accountable to the Constitution, democratic traditions, and the people of India.

Constitutional Mechanisms to Protect Independence

The Indian Constitution ensures judicial independence through several key measures.

●      Non-Involvement of the Legislature in Appointment: The legislature is excluded from the appointment process to prevent the injection of party politics or political loyalty. Appointment criteria are based on professional merit (experience as a lawyer or being well-versed in law).

●      Security of Tenure and Fixed Term: Judges hold office until a specified retirement age, ensuring they function without fear or favouritism. Removal is only permitted in rare, exceptional cases through an explicitly difficult procedure.

●      Financial Independence: Salaries and allowances are specified in the Constitution and are explicitly not subjected to the approval of the legislature, preventing the Executive or Legislature from using financial control as leverage.

●      Protection from Criticism and Contempt Power: Judges’ actions and decisions are immune from personal criticisms. The judiciary can penalize individuals found guilty of
 Contempt of Court, acting as an effective shield against unfair criticism that could undermine public faith.

●    Restriction on Parliamentary Discussion: Parliament cannot discuss the conduct of any judge, except when the formal proceeding for the removal of that judge is actively being carried out.

Appointment and Removal of Judges

The Process of Appointment

Judicial appointment is part of the political process, influenced by the Council of Ministers, Governors, Chief Ministers, and the Chief Justice of India (CJI). The political philosophy of the judges impacts how the Constitution is interpreted and the fate of legislation.

●      Convention of Seniority for the CJI: Traditionally, the senior-most judge of the Supreme Court was appointed as the CJI.  This convention was deliberately broken on two occasions :

1.     1973: A. N. Ray was appointed as CJI, superseding three senior judges.

2.     1975: Justice M. H. Beg was appointed, superseding Justice H. R. Khanna.

●      Evolution of Collegiality for Other Judges: For other SC/HC judges, the President appoints after ‘consulting’ the CJI. This role evolved: from initially being purely consultative (final decision with Council of Ministers) to eventually establishing

Collegiality between 1982 and 1998.  Under collegiality, the CJI recommends names only after consulting four senior-most judges. The collective decision of this senior group now carries significant weight.

Procedure for Removal of Judges

The procedure for removing a Supreme Court or High Court judge is extremely difficult, reinforcing job security.

●      Grounds for Removal: A judge can be removed only on the proven grounds of misbehaviour or incapacity.

●      Special Majority: A motion detailing the charges must be approved by a special majority in both Houses of Parliament. Special majority means approval by:

1.     A majority of the total strength of the House, and

2.     At least two-thirds of the members of that House who are present and voting.

●      The Unsuccessful Attempt to Remove Justice V. Ramaswami: This was the first and only instance of a removal motion against an SC judge.

○      1991: The motion was signed by 108 Members of Parliament. Justice Ramaswami was accused of misappropriating funds during his earlier tenure as Chief Justice of the Punjab and Haryana High Court.

○      1992: An inquiry commission found him guilty of “wilful and gross misuses of office… and moral turpitude by using public funds for private purposes and reckless disregard of statutory rules”.

○      Failure of Motion: The motion received the required two-thirds majority of those present and voting. However, because the Congress party abstained from voting, the motion failed to secure the support of the majority of the total strength of the House (the first requirement of the special majority). The judge was not removed.

This division—Executive influence in appointments, Legislature power in removal—ensures the balance of power and judicial independence.

The Integrated Structure and Hierarchy of the Indian Judiciary

The Constitution establishes a single integrated judicial system, unlike some other federal countries. This structure ensures legal uniformity and places lower courts under the direct superintendence of the higher courts.

The Indian judiciary follows a pyramidal structure :

5. Detailed Powers and Jurisdiction of the Supreme Court

The Supreme Court functions within the specific scope of jurisdiction defined by the Constitution.¹

 Special Constitutional Powers

●      Article 137 (Review of Judgments): Grants the Supreme Court the power to review any judgment pronounced or order made by itself.

●      Article 144 (Aid to the Supreme Court): Mandates that all civil and judicial authorities within the territory of India shall act in aid of the Supreme Court,  ensuring the effective enforcement of its decisions nationwide.

●      Binding Authority: SC decisions are binding on all other courts within India. Its orders are enforceable nationwide.

Judicial Review and the Protection of Rights

Judicial Review: This is the power of the Supreme Court (and High Courts) to examine the constitutionality of any law passed by the legislature. If a law is inconsistent with the Constitution, it is declared unconstitutional and non-operational.

●      The term “Judicial Review” is not explicitly mentioned in the Constitution , but it is implicitly conferred by the written constitution and the power (under Article 13) to strike down laws that violate fundamental rights.

●      Scope of Review: Extends to two grounds :

1.     Violation of Fundamental Rights.

2.     Violation of the Federal Distribution of Powers (e.g., if the Centre trespasses on the State List).

The combination of writ powers and judicial review fundamentally establishes the judiciary as the ultimate protector of the rights of citizens and the guardian of the Constitution.

 Judicial Activism and Public Interest Litigation (PIL)

Judicial Activism and Public Interest Litigation (PIL) (also called Social Action Litigation/SAL) have made the judiciary more people-friendly.

Traditionally, courts required strict locus standi (only the personally aggrieved person could approach the court). This changed around 1979.

●      Public Interest Litigation (PIL): The Court started hearing cases filed by concerned citizens or organizations acting on behalf of the aggrieved, focusing on issues of public welfare.

●      Judicial Activism: Defined by the judiciary’s readiness to initiate judicial intervention based merely on newspaper reports or postal complaints received by the court, rather than waiting for formally brought cases.

Case Studies of Early PILs

1.     Hussainara Khatoon vs. Bihar (1979): An advocate filed a petition following newspaper reports about ‘under-trials’ in Bihar prisons incarcerated longer than their maximum possible sentence.

2.     Sunil Batra vs. Delhi Administration (1980): A Tihar jail inmate sent a hand-scribbled note detailing physical torture, which Justice Krishna Iyer converted into a formal petition (though the practice of converting letters was later discouraged).

Expansion of Rights and Access to Justice

Through PIL, the judiciary expanded the scope of fundamental rights, recognizing rights essential for society, such as the right to clean air, unpolluted water, and decent living.This enabled access to justice for the poor and deprived, allowing public-spirited citizens and social organizations to file petitions on their behalf.

“It must be remembered that the problems of the poor …are qualitatively different from those which have hitherto occupied the attention of the Court and they need … .a different kind of judicial approach. If we blindly follow the adversarial procedure in their case, they would never be able to enforce their fundamental rights.”

— Justice Bhagwati in Bandhua Mukti Morcha vs. Union of India, 1984.

The courts intervened in systemic violations like the blinding of jail inmates by police, inhuman working conditions in stone quarries, and sexual exploitation of children.

Impact and Criticisms

Positive Impacts of Judicial Activism :

●      Democratization: Extended access to courts to groups and organizations, not just individuals.

●      Executive Accountability: Forced the executive to be more accountable for its actions.

●      Electoral Reform: Mandated candidates contesting elections to file detailed affidavits declaring assets, income, and educational qualifications.

●      Curbing Corruption: Directed executive agencies (like the CBI) to initiate investigations against high-profile figures (e.g., hawala case, Narasimha Rao case, illegal allotment of petrol pumps case).

Criticisms and Strains on the System :

●      Court Overburdening: The volume of PILs caused delays in other judicial matters.

●      Blurred Institutional Lines: Critics argue it blurred the constitutional separation between the executive, legislature, and judiciary.

●      Judicial Overreach: The Court involved itself in matters typically belonging to the executive (e.g., reducing pollution, investigating corruption, administrative logistics). This creates strain on the democratic principle that relies on each organ respecting the defined jurisdiction of the others.

Recurrent Conflicts: Judiciary and Parliament

The Indian system is based on a delicate principle of limited separation of powers and checks and balances. While Parliament is supreme in law-making, the Executive in implementation, and the Judiciary in dispute settlement, conflicts between these organs are recurrent.

Historical Issues of Conflict (1967–1973)

An early conflict arose over Parliament’s power to restrict the Right to Property for land reforms. The Supreme Court initially held that Parliament could not restrict fundamental rights, not even through a constitutional amendment.

The controversy between 1967 and 1973 was driven by four key issues :

1.     What is the scope of the right to private property?

2.     What is the scope of Parliament’s power to curtail, abridge, or abrogate fundamental rights?

3.     What is the scope of Parliament’s power to amend the constitution?

4.     Can Parliament make laws that abridge fundamental rights while enforcing Directive Principles?

The Basic Structure Doctrine: Kesavananda Bharati Case (1973)

The constitutional crisis culminated in the landmark Kesavananda Bharati case in 1973.

●      The Basic Structure Ruling: The Court ruled that the Constitution contains a Basic Structure—a set of core foundational principles—that cannot be violated by Parliament through any means, even a constitutional amendment.

●      Property Right Resolution: The Court simultaneously ruled that the right to property was not part of this basic structure and could therefore be abridged.(The right to property was subsequently removed from the list of fundamental rights in 1979).

●      Judicial Supremacy: Crucially, the Court reserved the authority to decide which elements constitute the basic structure of the Constitution.

This ruling affirmed the judiciary’s role as the final interpreter of the Constitution.

The framers had anticipated the need for judicial limits on power:

“While there can be no two opinions on the need for the maintenance of judicial independence,…it is also necessary to keep in view one important principle. The doctrine of independence is not to be raised to the level of a dogma so as to enable the judiciary to function as a kind of super -legislature or super -executive. The judiciary is there to interpret the Constitution or adjudicate upon the rights…”

— Alladi Krishnaswami Ayyar, CAD, Vol. XI, p. 837, 23 November 1949.

Contemporary Areas of Conflict

Ongoing conflicts include :

●      Parliamentary Privileges: Debate over whether the judiciary can intervene when a person held guilty of breaching parliamentary privilege seeks judicial protection.

●      Mutual Criticism: Despite the constitutional ban, instances exist where Parliament/State legislatures have criticized the judiciary. Conversely, the judiciary has sometimes criticized legislatures or issued instructions on legislative business, viewed as violating parliamentary sovereignty.

Global Context and Conclusion

Judicial Systems in Other Countries

India’s legal system has inspired innovations globally.

●      South Africa: The Constitution has formally incorporated Public Interest Litigation into its bill of rights . It is a fundamental right for a citizen to bring cases before the Constitutional Court regarding the violation of the rights of other persons .

●      Ecuador: Unlike the US and India, courts do not rely on judicial precedent (common law) . Judges are not obligated to respect higher court rulings or provide written decisions explaining the legal basis . A judge may rule one way today and the opposite way tomorrow in a similar case without explanation .

Conclusion

The Indian judiciary remains a powerful and independent institution. Through its decisions, it has provided new interpretations to the Constitution, protecting fundamental rights and ensuring the rule of law. Despite periodic tensions with the executive and legislature, the prestige and role of the judiciary have continually increased.  The success of democracy relies on maintaining the delicate balance of power, requiring all organs to operate within constitutional limits. The judiciary’s current challenge lies in meeting public expectations regarding complex issues like curbing corruption and preventing the acquittal of the wealthy and powerful.

Chapter 5: The Legislature Solution | 11th Class