Judiciary

Written and reviewed by Subhra Gupta, Humanities faculty at UniDrill (M.A. Sociology, University of Delhi · 7 years teaching Humanities). Based on NCERT Political Science Class XI (Indian Constitution at Work), Chapter 6.

Can a court cancel a law passed by Parliament?

Imagine Parliament passes a law with a huge majority, but the law takes away a right the Constitution guarantees. Who stops it? In India, the answer is the judiciary. The Supreme Court can declare such a law void. This chapter explains why courts have that power, why judges need protection from the people they might rule against, and how the Supreme Court and Parliament have, at times, disagreed over where each one's limit lies.

Why we need an independent judiciary

The main job of the judiciary is to uphold the rule of law: the principle that everyone, rich or poor, man or woman, from a forward or backward caste, is subject to the same law. It also acts as the umpire in disputes between citizens, between citizens and the government, and between the Union and the States.

An umpire is useful only if neither team can order the umpire around. So independence of the judiciary has three meanings: the other organs of government must not restrain its functioning, they must not interfere with its decisions, and judges must be able to do their work without fear or favour.

Independence does not mean being above criticism or answerable to no one. The judiciary is accountable to the Constitution, to democratic traditions and to the people.

Appointing and removing judges

Appointment. The President appoints Supreme Court and High Court judges after consulting the Chief Justice of India (CJI). By convention the senior most judge becomes CJI. Twice this was set aside, and both cases are exam favourites.

Because the word "consultation" was unclear, the Supreme Court explained it in a series of rulings between 1982 and 1998. These produced the collegium system: the CJI recommends names in consultation with the four senior most judges of the Supreme Court.

Two views. For the exam: appointments are made by the President, but in practice on the recommendation of the collegium led by the CJI. Another reading: supporters of the collegium argue that leaving judges to choose judges keeps politicians out and protects independence. Critics argue that a process run only by judges lacks transparency and public accountability, and prefer a wider body. In 2015 the Supreme Court struck down a law that would have created a National Judicial Appointments Commission, and the collegium continues.

Removal. A judge of the Supreme Court or a High Court can be removed only on the grounds of proven misbehaviour or incapacity (Article 124(4)), and only on a motion approved by a special majority of both Houses of Parliament. In practice, the only motion that has reached the stage of a vote in Parliament is the one against Justice V. Ramaswami. It was debated in 1993, but many members abstained, so the motion could not get the required majority and he was not removed.

The shape of the court system

India has a single integrated judiciary, shaped like a pyramid. This is different from federal countries such as the USA, which have separate federal and State court systems.

Four jurisdictions of the Supreme Court

Three details are often tested. First, special leave to appeal lets the Court hear an appeal from a judgment of any court in India, even without the usual High Court certificate. Second, in its advisory jurisdiction the Court is not bound to give advice, and the President is not bound to accept it. Third, Article 137 lets the Court review its own judgments, and Article 144 requires all civil and judicial authorities to act in aid of the Supreme Court.

Not every case the Supreme Court hears first is Original jurisdiction. A petition under Article 32 goes straight to the Supreme Court, but it belongs to the writ jurisdiction. Original jurisdiction refers to Union and State disputes.

The five writs

A writ is a written order from the court. The Supreme Court (Article 32) and the High Courts (Article 226) can issue five.

Pause and predict: a person has been held by the police for several days and no one knows where. Which writ would a family member seek?

Check your answer: Habeas Corpus. It requires the authorities to bring the detained person before the court and justify the detention.

Public Interest Litigation: opening the court to everyone

Traditionally only the person whose right was violated could go to court. Many of the people who suffered most, such as prisoners and the very poor, could not afford to. From 1979 onwards the Supreme Court changed this by allowing public spirited citizens and groups to file cases on behalf of others. This is Public Interest Litigation (PIL), also called Social Action Litigation.

The Court has even treated newspaper reports and postcards as petitions. Among its effects are wider access to courts, greater accountability of the executive, and directions that candidates declare their assets, income and educational qualifications. The drawbacks include the burden of cases on the courts and a blurring of the line between the judiciary and the other organs.

Beyond the textbook. For the exam: PIL began in 1979 when the Court allowed people other than the victim to file cases. In reality: the legal term for the old rule is locus standi, the requirement that the petitioner must be personally affected. PIL relaxed it. The Court has since set limits, warning that petitions filed for publicity or private interest should be rejected. Why it matters: a question may test the idea that PIL widened access, and another may test the concern about misuse.

Judicial review

Judicial review is the power of the courts to examine the constitutionality of laws. Under Article 13, a law that is inconsistent with the Fundamental Rights is void. The phrase "judicial review" appears nowhere in the Constitution, but the power is implied by a written Constitution, by the Supreme Court's power to strike down laws that violate rights, and by the federal division of powers. It applies to laws made by Parliament and by State legislatures, and it covers both violations of Fundamental Rights and violations of the federal division of powers.

Parliament and the judiciary: the tussle over property

In the early decades, disputes between Parliament and the courts centred on the right to property and on how far Parliament's power to amend the Constitution extended. Parliament passed land reform and other laws that affected property, the courts examined whether they violated Fundamental Rights, and Parliament responded with amendments.

In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court held that the Constitution has a basic structure, and that Parliament cannot violate it through an amendment. The Court also ruled that the right to property was not part of that basic structure, and it kept to itself the power to decide what counts as basic structure. In 1979, the right to property was removed from the list of Fundamental Rights.

Two views. For the exam: the Court said Parliament can amend the Constitution but cannot destroy its basic structure. Another reading: some scholars argue that this doctrine protects the identity of the Constitution from majority-driven changes. Others argue that it gives unelected judges the final say on what elected Parliament may change. The textbook's wider point is that India follows a limited separation of powers with checks and balances: Parliament is supreme in law making, the executive in implementation, and the judiciary in adjudication and interpreting the Constitution.

Timeline

Exam traps

60-second revision

Where this chapter connects

• Previous: Legislature shows the laws the courts review.
• Next: Federalism explains the Union and State disputes that the Supreme Court settles.
• Related: Rights in the Indian Constitution covers the Fundamental Rights that the writs protect.
• Related: Constitution as a Living Document continues the story of the amending power and the basic structure.