EXERCISES
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 cannot be transferred to another High Court.
iv. Parliament has no say in the appointment of judges.
Answer: The statement that is the odd one out is (iii) Judge of a High Court cannot be transferred to another High Court.
Explanation: The Constitution of India does allow for the transfer of judges from one High Court to another. While this power exists, it is exercised by the President after consulting the Chief Justice of India to ensure it is not used arbitrarily. The other options are measures that help ensure the independence of the judiciary. The consultation with the Chief Justice in appointments (i), the security of tenure until retirement (ii), and keeping the appointment process free from direct parliamentary influence (iv) are all designed to protect the judiciary from political pressure and allow judges to function without fear or favour.
2. Does independence of the judiciary mean that the judiciary is not accountable to any one? Write your answer in not more than 100 words.
Answer: No, the independence of the judiciary does not mean it is not accountable to anyone. While it operates independently of the executive and legislative branches to ensure impartial justice, the judiciary is fundamentally accountable to the Constitution of India. It must function within the framework and limitations set by the Constitution. Furthermore, it is accountable to the democratic traditions and the people of the country. A process for the removal of judges for proven misbehaviour or incapacity, though difficult, exists, which acts as a mechanism of accountability to the legislature, representing the will of the people.
3. What are the different provisions in the constitution in order to maintain the independence of the judiciary?
Answer: The Constitution of India includes several provisions to ensure the independence of the judiciary:
● Appointment Process: The legislature is not involved in the appointment of judges. The President appoints judges in consultation with the judiciary itself (the Chief Justice of India and a collegium of senior judges), which helps to minimise political influence.
● Security of Tenure: Judges have a fixed tenure and hold office until they reach the age of retirement. They cannot be removed from office arbitrarily. The process for removal is intentionally difficult, requiring a special majority in both Houses of Parliament.
● Financial Independence: The salaries and allowances of judges are charged to the Consolidated Fund of India and are not subject to the vote of the legislature. This prevents the executive or legislature from using financial control as a lever of influence.
● Immunity from Criticism: The conduct of judges in the discharge of their duties cannot be discussed in Parliament, except when a motion for their removal is under consideration. This protects them from political pressure and unfair criticism.
● Power to Punish for Contempt: The judiciary has the power to penalise those found guilty of contempt of court, which protects its authority and dignity.
4. Read the news report below and identify the following aspects:
(Supreme Court orders REL to pay Rs 300 crore to Dahanu farmers)
Our Corporate Bureau 24 March 2005
Mumbai: The Supreme Court has ordered Reliance Energy to pay Rs. 300 crore to farmers who grow the chikoo fruit in the Dahanu area outside Mumbai. The order comes after the chikoo growers petitioned the court against the pollution caused by Reliance’s thermal power plant. Dahanu, which is 150 km from Mumbai, was a self-sustaining agricultural and horticultural economy known for its fisheries and forests just over a decade ago, but was devastated in 1989 when a thermal power plant came into operation in the region.
The next year, this fertile belt saw its first crop failure. Now, 70 per cent of the crop of what was once the fruit bowl of Maharashtra is gone. The fisheries have shut and the forest cover has thinned. Farmers and environmentalists say that fly ash from the power plant entered ground water and polluted the entire eco-system. The Dahanu Taluka Environment Protection Authority ordered the thermal station to set up a pollution control unit to reduce sulphur emissions, and in spite of a Supreme Court order backing the order the pollution control plant was not set up even by 2002. In 2003, Reliance acquired the thermal station and re-submitted a schedule for the installation process in 2004. As the pollution control plant is still not set up, the Dahanu Taluka Environmental Protection Authority asked Reliance for a bank guarantee of Rs. 300 crores.
Answer:
● What is the case about? The case is about the environmental pollution caused by a thermal power plant, originally operated by one company and later acquired by Reliance Energy, in the Dahanu area. The pollution, primarily from fly ash, has devastated the local agriculture, horticulture (specifically chikoo crops), fisheries, and forests.
● Who has been the beneficiary in the case? The farmers of the Dahanu area, particularly the chikoo growers, have been the beneficiaries. The Supreme Court ordered Reliance Energy to pay them Rs. 300 crore as a bank guarantee for failing to install a pollution control unit.
● Who is the petitioner in the case? The chikoo growers of the Dahanu area are the petitioners. They took the case to the court to seek redress for the environmental damage affecting their livelihood.
● Visualise what would have been the different arguments put forward by the company. The company might have argued that it was not solely responsible for the historical pollution, as it acquired the plant later. It could have presented its own schedule for installing the pollution control unit as evidence of its commitment. It might also have questioned the direct link between its operations and the specific damages claimed by the farmers, or argued that the financial penalty was excessive.
● What arguments would the farmers have put forward? The farmers would have presented evidence of the ecological devastation since the plant’s operation began, including crop failures, loss of fisheries, and thinning forest cover. They would have argued that the fly ash from the plant contaminated the groundwater and ecosystem, destroying their livelihood. They would have highlighted the company’s failure to comply with the orders from the environmental protection authority and the Supreme Court to set up a pollution control unit, demonstrating a lack of good faith.
5. Read the following news report and,
Centre, Delhi join hands on CNG issue
Mentioned: The Hindu 23 September 2001
NEW DELHI, SEPT. 22. The Centre and the Delhi Government today agreed to jointly approach the Supreme Court this coming week… for phasing out of all non-CNG commercial vehicles in the Capital. They also decided to seek a dual fuel policy for the city instead of putting the entire transportation system on the single-fuel mode “which was full of dangers and would result in disaster.”
It was also decided to discourage the use of CNG by private vehicle owners in the Capital. Both governments would press for allowing the use of 0.05 per cent low sulphur diesel for running of buses in the Capital. In addition, it would be pleaded before the Court that all commercial vehicles, which fulfil the Euro-II standards, should be allowed to ply in the city. Though both the Centre and the State would file separate affidavits, these would contain common points. The Centre would also go out and support the Delhi Government’s stand on the issues concerning CNG.
These decisions were taken at a meeting between the Delhi Chief Minister, Ms. Sheila Dikshit, and the Union Petroleum and Natural Gas Minister, Mr. Ram Naik.
Ms. Dikshit said the Central Government would request the court that in view of the high powered Committee appointed under Dr. R.A. Mashelkar to suggest an “Auto Fuel Policy” for the entire country, it would be appropriate to extend the deadline as it was not possible to convert the entire 10,000-odd bus fleet into CNG during the prescribed time frame. The Mashelkar Committee is expected to submit its report within a period of six months.
The Chief Minister said time was required to implement court directives. Referring to the coordinated approach on the issue, Ms. Dikshit said this would take into account details about the number of vehicles to be run on CNG, eliminating long queues outside CNG filling stations, the CNG fuel requirements of Delhi and the ways and means to implement the directive of the court.
The Supreme Court had … refused to relax the only CNG norm for the city’s buses but said it had never insisted on CNG for taxis and auto rickshaws. Mr. Naik said the Centre would insist on allowing use of low sulphur diesel for buses in Delhi as putting the entire transportation system dependent on CNG could prove to be disastrous. The Capital relied on pipeline supply for CNG and any disruption would throw the public transport system out of gear.
Answer:
● Identify the governments at different levels: The governments identified are the Central Government (Union Government) and the Delhi Government (State/Union Territory Government).
● Identify the role of Supreme Court: The Supreme Court is acting as the final authority on a matter of public policy and environmental law. It has issued directives (ordering the use of CNG for commercial vehicles) and is the body that the Central and Delhi governments must approach to seek modifications or extensions to these directives.
● What elements of the working of judiciary and executive can you identify in it? The executive (both Central and Delhi governments) is responsible for implementing the law and the court’s orders. We see them coordinating policy, holding meetings, and deciding on a course of action. The judiciary (Supreme Court) is interpreting the law and issuing orders to enforce it, in this case, to protect the environment. The executive is shown to be responding to the judiciary’s directives, even while seeking to modify them.
● Identify the policy issues, matters related to legislation, implementation and interpretation of the law involved in this case.
○ Policy Issues: The core issue is creating an effective “Auto Fuel Policy” to combat air pollution in Delhi. This involves deciding between a single-fuel mode (CNG only) versus a dual-fuel policy (allowing low-sulphur diesel), and managing the transition for public and commercial transport.
○ Legislation: While not explicitly mentioned, environmental protection laws form the legal basis for the Supreme Court’s intervention.
○ Implementation: This is a major focus. The report details the challenges of converting thousands of buses to CNG within a set timeframe, the lack of sufficient CNG filling stations, and the logistical problems of relying on a single fuel source.
○ Interpretation: The Supreme Court had interpreted the law to mandate a specific action (CNG conversion). The governments are now seeking a different interpretation or a relaxation of the court’s order based on practical challenges.
6. The following is a statement about Ecuador. What similarities or differences do you find between this example and the judicial system in India?
“It would be helpful if a body of common law, or judicial precedent, existed that could clarify a journalist’s rights. Unfortunately, Ecuador’s courts don’t work that way. Judges are not forced to respect the rulings of higher courts in previous cases. Unlike the US, an appellate judge in Ecuador (or elsewhere in South America, for that matter) need not provide a written decision explaining the legal basis of a ruling. A judge may rule one way today and the opposite way, in a similar case, tomorrow, without explaining why.”
Answer: There are significant differences between the judicial system described in Ecuador and the one in India.
● Judicial Precedent: In India, the principle of stare decisis (let the decision stand) is fundamental. The rulings of higher courts, especially the Supreme Court, are binding on all lower courts. This creates a body of common law and ensures consistency and predictability in legal judgments. In Ecuador, as described, judges are not forced to respect higher court rulings, leading to inconsistency.
● Written Decisions: In India, judges are required to provide written decisions that explain the legal reasoning behind their rulings. This ensures transparency and allows for the decisions to be reviewed and to serve as precedents. The example states that in Ecuador, this is not a requirement.
● Consistency: The Indian system strives for consistency. A judge cannot rule one way today and the opposite way tomorrow in a similar case without strong legal justification. The Ecuadorian system, as described, appears to allow for such arbitrary and unexplained changes in rulings.
A key similarity might be that both judiciaries are tasked with settling disputes and interpreting the law, but the process and principles guiding them are fundamentally different. The Indian system is built on a foundation of precedent and reasoned judgments, which appears to be lacking in the Ecuadorian example.
7. Read the following statements: Match them with the different jurisdictions the Supreme Court can exercise – Original, Appellate, and Advisory.
● 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. -> Advisory Jurisdiction
● In order to resolve the dispute about river Cauvery the government of Tamil Nadu wants to approach the court. -> Original Jurisdiction
● The court rejected the appeal by people against the eviction from the dam site. -> Appellate Jurisdiction
8. In what way can public interest litigation help the poor?
Answer: Public Interest Litigation (PIL) can significantly help the poor and disadvantaged sections of society in several ways:
● Gives Access to Justice: Poor individuals often lack the financial resources or knowledge to approach the courts. PIL allows public-spirited citizens, social organisations, or lawyers to file cases on their behalf, giving them a voice in the judicial system.
● Addresses Collective Rights: Many problems faced by the poor are not individual but collective, such as lack of clean drinking water, poor sanitation, or exploitation at work. PIL is an effective tool for addressing these large-scale issues that affect entire communities.
● Expands the Scope of Rights: Through PILs, the judiciary has expanded the meaning of fundamental rights, like the Right to Life, to include the right to a clean environment, decent livelihood, and speedy justice, which are crucial for the well-being of the poor.
● Enforces Executive Accountability: PILs can be used to hold government agencies accountable for their inaction or failure to implement welfare schemes and laws designed to help the poor.
9. Do you think that judicial activism can lead to a conflict between the judiciary and the executive? Why?
Answer: Yes, judicial activism can certainly lead to a conflict between the judiciary and the executive. This is because judicial activism, by its nature, involves the judiciary taking a proactive role and often stepping into areas that are traditionally managed by the executive.
The conflict arises for these reasons:
● Blurring of Powers: Our Constitution is based on a principle of separation of powers, where the executive is responsible for administration and policy implementation. When courts, through judicial activism, begin to issue detailed directives on matters like managing pollution, investigating corruption, or electoral reforms, the executive may see it as an encroachment upon its domain.
● Questions of Competence: The executive may argue that it has the administrative expertise and resources to handle complex policy issues, which the judiciary may lack. It can lead to friction when courts dictate specific administrative actions.
● Accountability: The executive is directly accountable to the legislature and the people through elections. The judiciary is not. When the judiciary makes decisions with significant policy and financial implications, it can create a situation where a non-elected body is making decisions for which an elected body is held accountable, leading to tension.
10. How is judicial activism related to the protection of fundamental rights? Has it helped in expanding the scope of fundamental rights?
Answer: Judicial activism is deeply related to the protection of fundamental rights. The judiciary’s primary role is to act as the guardian of these rights. Judicial activism is the process through which the judiciary actively and creatively interprets the Constitution to safeguard and enforce these rights, especially for marginalised groups.
Yes, judicial activism has significantly helped in expanding the scope of fundamental rights in India. The most prominent example is the interpretation of Article 21 (Right to Life and Personal Liberty). Through various activist judgments, the Supreme Court has ruled that the Right to Life is not merely about physical survival but includes the right to live with human dignity. This has led to the inclusion of several other rights under its umbrella, such as:
● The right to a clean environment, including unpolluted air and water.
● The right to a decent livelihood.
● The right to speedy trial.
● The right to education.
By relaxing the rule of locus standi (the right to bring an action) through Public Interest Litigation (PIL), judicial activism has allowed the courts to protect the fundamental rights of those who could not approach the courts themselves, thereby making these rights more meaningful and accessible for all citizens.
Chapter 6 Judiciary Notes | 11th Class
| Chapter 5 | Link |
| Judiciary Notes | Click Here |
