JUDICIARY

Introduction

1. Lord Bryce
1. ''there is no better test of the excellence of the govt than the functioning of its judicial system"
2. efficient judicial system is integral component for good governance
3. studies show direct correlation between efficiency of judiciary an economic growth
4. judiciary ensures democracy doesn't get converted into tyranny of majority
1. hence given power of judicial review to ensure Rule of Law

Nature of Judiciary in Indian constitution

1. Granville Austin: once political revolution was over in 1947, India started with second revolution 'social and economic revolution'
2. PBM: constitution is revolutionary document which transforms India from traditional society to modern
3. Pt Nehru: constitution looks at judiciary as active participant in social revolution
1. art 36: Judiciary also comes in definition of state. can take measures for achievement of directives
2. art 141: law declared by SC shall be binding on all courts withing the territory of the country
1. eg- vishakha guidelines before legislature brought law
4. India's constitution creates the most powerful judiciary, fiercely independent

Powers of SC

1. art 129: SC is court of record and can punish for its contempt
2. art 137: only SC can review its orders
3. art 142: has complete power to do justice
4. art 144: other agencies to act in aid of SC

Jurisdiction of SC

1. Art 131
1. original jurisdiction of SC
2. to exclusion of other courts
1. between GoI and any other state
2. GoI and state on one side and state on other side
3. two or more states
1. when it doesn't involves any treaty/agreement signed before the commencement of constitution and continues
2. when said that jurisdiction under this art doesn't extend to the said provision
2. art 143: advisory jurisdiction
3. writ jurisdiction
4. appellet jurisdiction
1.  highest court of appeal
2. to reduce no. of cases, appelate jurisdiction is restricted and discretion of SC and requires certificate from HC except where HC has given death sentence, life imprisonment or imprisonment of 10 years or above
3.  SC has appelate jurisdiction related to civil, criminal and matters related to interpretation of constitution
4. provision of special leave petition where SC can grant permission for petition against order of any court other than armed forces court

Independence of Judiciary

1. system of appointment
1. difficult to remove judge of SC or HC
2. salary and allowance
1. expenditure charged upon CFI

Assessment of SC in India

1. differences between scholars
2. Upendra Bakshi:
1. appreciates role of SC
2. SC is doing chemotherapy of carcinogenic politics of India
3. SC of India has become SC of Indians
4. survey show most favourite instituion of Indians is judiciary
3. Pratap Bhanu Mehta:
1. mentions about 'Post Democracy'
1. strengthening of power of non-elected institutions like SC, CAG, ECI
2. India's Judiciary: the promise of uncertainty
1. judiciary as 'self perpetuating', paradoxical and highly politicized institution
4. Lavanya Rajmani:
1. judiciary in India prefers to play the role for which it is inequipped and fails to play the role for which it is made
5. Pratap Bhanu mehta, Devesh Kapoor - book: Public Institutions in India
1. SC has by and large played significant role in sustaining the liberal democratic structure
2. most powerful judiciary and due to this remains controversial
3. role has been positive and problematic
4. upheld basic liberties but didn't question govt with regard to preventive detention and govt action in such cases
5. has given leeway to govt actions banning books to appease orthodox sections of society
6. SC record in 'Areas of Substantive Justice' upholding rights such as Right to health and education, shelter needs to be appreciated
7. PIL is important vehicle for extention of judicial powers
8. Pratap Bhanu Mehta
1. to protect constitution, judiciary has gone to level which powers are not provided to it by constitution
2. constitutionalism does not results from acts of judiciary, constitutionalism actually results when people develop overlapping consensus over democratic culture
3. there is uncertainty in working of judiciary, doesn't work on overarching principle
4. most decisions are based on individual judge's sense
5. unpredictable nature militates against the spirit of constitution
6. politicisation of judiciary and Judicialisation of Politics: judges try to balance delicate political balances
7. strengthened its position in comparison to other two branches
8. Judicial power in India creates and destroys itself
9. judiciary has strengthened its position at cost of other branches
1. it has protected erring judges in name of judicial independence
10. India represent classical case of judicial governance
1. more concerned with stagmatisation of executive rather than its own duty
9. Prof Upendra Bakshi; art : Unfair to Justices
1. defended the role played by judiciary
2. overall judiciary has contributed to deepening of democracy and protection of liberal order
10. conclusion
1. record better than other institution
2. some landmark judgement include Keshwanand Bharti Case which has protected the sanctity of constitution
3. Zia Modi: if judiciary would not have given the doctrine of basic structure, democracy could have collapsed like in other countries of 3rd world
4. Maneka Gandhi case: Due process of Law which has increased protection of rights
5. in order to fulfill its constitutional obligation under art 39A to provide free justice and legal aid, has instituted the system of PIL

 

Judicial Activism

1. when institution goes beyond their constitutionally mandated scheme and interfere working of other branches, it is activism
2. not unique in India
3. activism not unique to judiciary like ECI, CAG
4. conditions giving rise to judicial activism
1. written constitution
2. FR in constitution
3. country part of global human rights regime
5. unique factors in India
1. decline of parliament
2. overreach by executive
3. coalition politics
4. corruption
5. civil society activism
6. emergency and violation of rights
7. political culture where judges enjoy lot of respect
6. Judicial Review
1. ordinary function of judiciary
7. when judiciary decides law and how it should be implemented, it is activism
8. eg- Keshwananda bharti case
1. invented the concept of doctrine of Basic Structure and assumed role of constituent assembly
2. interpretation of term consultation has made 99th CA invalid
9. different from judicial over reach
1. subjective difference
2. activism is acceptable by public
3. subjective and differs from people to people
10. judicial highheadedness
1. judiciary is not using its power in right context
2. eg- contempt of court notice against erring judges to protect them
11. desirability
1. two thoughts
1. Conventional School:
1. Lord Jowedd: indecent for judges to make laws
2. Justice Bharucha: judiciary neither has resources, nor expertise
3. Justice Katju: judges should tell if there is one, don't make if there is none
1.  
2. Contemporary School
1. Justice Reed: interpretation is  always creative, judges always make law when they tell law
2. Justice PN Bhagwati: if judiciary doesn't do activism, it means judges are trying to escape from their responsibilities, preferring to live in comfort zone
3. Kalpana Kannabiren: era of pedantic legalism is over and judicial activism has started
2. in case of indie
1. matter of debate
2. critics: Justice Katju, PM Manmohan Singh, Pratap Bhanu Mehta
3. Prof Upendra Bakshi: admirer
1. most cases it is seen to be needed
12. if there was no judicial activism, the only solution with people of India was revolution
13. judicial activism in India has protected
1. sanctity of constitution
2. strengthened human rights
3. address corruption
4. filled gap of policy paralysis
5. electoral reforms
6. substantive justice, Right to education, right to health
14. Bhiku Parekh: India is example of judicial sovereignty, there exist 'judicial co-governance'
15. Pratap Bhanu Mehta: post democracy in India

Conclusion

1. country should not be run by judges
2. it can be medicine but not daily dose
3. other two branches should start fulfilling their responsibility.