The Indian Constitution has established an integrated judicial system with the Supreme Court at the top, followed by the High Courts. There is a hierarchy beneath a High Court such as district courts and other lower courts. This unified judicial system, which was adapted from the Government of India Act of 1935 is responsible for enforcing both central legislation as well as state legislation.

Introduction

• The judiciary is the arm of government responsible for interpreting the law, resolving disputes, and providing justice to all citizens.
• The judiciary is seen as the custodian of the Constitution as well as the watchdog of democracy. It is critical for a democracy to function properly to have an unbiased and independent court.

Characteristics

One of the Oldest Judicial Systems in the World

• The judicial system of India is one of the most well-known in the world which is employed to interpret and implement the laws of the land.
• The doctrine of separation of powers allows the court the authority to interpret laws as they see fit. The judiciary does not create statutory laws for the country but rather interprets and applies them.

Single and Integrated Judicial System

• In India, the Constitution establishes an integrated and distinct judicial system.
• The Supreme Court is at the very top of the combined system. Following the Supreme Court, there are state-level High Courts
• There is a well-organized structure of district courts and inferior courts under the High Courts. India’s judiciary is integrated since the country is a federation with a strong central government that has greater authority than the states.

Independence of Judiciary

• It implies that the executive and legislative branches of government do not interfere with the judiciary’s ability to function. Other organs accept the judiciary’s ruling and do not interfere with it. It also implies that judges are free to carry out their duties without fear of reprisal. The judiciary’s independence does not imply that it operates arbitrarily and without regard for the law. It is responsible for the country’s Constitution.
• The Constitution has a number of clauses that guarantee the judiciary’s independence is preserved and protected.

Judicial Activism

• Judicial activism is a word that developed in the United States.
• In the backdrop of unconstrained behavior by both legislative and executive organs, the idea of judicial activism evolved fast over time and gained enormous acceptability among the Indian people.

Judicial Review

• The notion of judicial review was first proposed in the United States of America in the Marbury v. Madison case of 1803.
• When it comes to constitutional review in India, however, the Supreme Court and High Court have the ability to do so under the Constitution.
• In addition, the Supreme Court of India has held that the power of judicial review is a fundamental feature of the Constitution that cannot be removed even by a constitutional amendment.
• If any legislative enactment or executive order of the State or Central governments is found to be in violation of the Constitution during the Judicial Review, it would be deemed illegal.

Interpreter of the Constitution

• The Supreme Court of India interprets the Indian Constitution and is the highest court in the country with the authority to interpret the Constitution.
• All subordinate courts will be bound by the Supreme Court’s ruling.
• The Constitution is interpreted by the judiciary through the examination of statutory statutes and provisions. The judiciary has repeatedly created precedents for the interpretation of the Constitution, which is a mammoth job in and of itself.

Structure

• India has a single judicial system that is fully integrated.
• India’s judicial system is organized in a pyramidal structure, with the Supreme Court (SC) at the apex.
• The Supreme Court is over the High courts, which are followed by the District and Subordinate courts. The lower courts work directly under the supervision of the higher courts.

Aside from the aforesaid framework, the legal system is divided into two branches:

• Criminal law is concerned with any citizen or corporation committing a crime.
• Civil law deals with disputes about a citizen’s fundamental rights being violated.

Functions/role Of Indian Judiciary

In India, the judiciary performs the following functions:

• Effective Administration of Justice: The judiciary’s main job is to apply the law to specific instances or to resolve disagreements. When a disagreement is brought before the courts, the evidence produced by the participants is used to “judge the facts.” The law then decides which law applies to the situation and implements it. The court will impose a punishment on the accused individual if they are proven guilty of breaking the law during the trial.
• The development of judge-made law: In many circumstances, judges are unable or unwilling to choose the most appropriate legislation for application. In such instances, judges use their judgment and common sense to determine what the right legislation is. Judges have accumulated a large body of ‘case law,’ or ‘judge-made law,’ as a result of their actions. According to the theory of ‘stare decisis,’ prior judicial decisions are often considered binding on subsequent judges in comparable circumstances.
• The Constitution’s Guardian: India’s highest court, the Supreme Court, serves as the Constitution’s guardian. The court resolves questions of jurisdiction between the federal government and state governments, as well as between the legislature and the executive branch. The judiciary declares any statute or executive order that breaches any section of the constitution invalid or null and void.
• Protector of Fundamental Rights: The judiciary guarantees that the State and other agencies do not infringe on people’s rights. Writs are issued by higher courts to enforce Fundamental Rights.
• Supervisory functions: In India, the higher courts are also responsible for monitoring the lower courts.
• Advisory functions: In India, the SC also serves as an advisor. It has the authority to issue advisory opinions on constitutional issues. When there are no conflicts and the executive wishes it, this is done.
• Non-judicial and administrative functions: The courts perform a variety of non-judicial and administrative activities. The courts have the power to issue licenses, administer estates (property), and appoint receivers. Marriages are registered, and guardians for small children and lunatics are appointed.
• Special responsibility in a federation: In a federal system like India’s, the judiciary is also responsible for resolving crucial issues between the centre and the states. It also serves as a mediator in inter-state issues. Conducting judicial inquiries: Judges are frequently appointed to lead commissions that investigate cases of public servant mistakes or omissions.

Supreme Court

Supreme Court of India is the apex judicial body under the Constitution of India. It is established under Article 124 of the Constitution. It is the ultimate interpreter of the Constitution as well as the highest court of appeal. Articles 124 to 147 in Part V of the Constitution deal with the organisation, independence, jurisdiction, powers, procedures etc of the Supreme Court. 

Historical Background

• The Regulating Act of 1773 marked the beginning of judicial reforms in India. It established a Supreme Court in Calcutta, primarily to oversee the administration of justice in the Bengal Presidency.
• The India High Courts Act of 1861 established High Courts in different provinces and eliminated the Supreme Courts in Calcutta, Madras, and Bombay, as well as the Sadar Adalats in Presidency towns.
• Federal Court of India was established in India in 1937 under the provisions of the Government of India Act 1935, with original, appellate and advisory jurisdiction.
• Supreme Court of India succeeded the Federal Court under the Government of India Act 1935.
• After its inauguration on January 28, 1950, the Supreme Court commenced its sittings in a part of the Parliament House. The Court moved into the present building in 1958.

Constitutional Provisions

Composition and Appointment

• The Supreme Court consists of 34 judges (one chief justice and thirty-three other judges). In 2019, the centre notified an increase in the number of Supreme Court judges from 31 to 34, including the Chief Justice of India as per the Supreme Court ( number of Judges) Amendment Act, 2019.
• The judges of the Supreme Court are appointed by the president. The chief justice is appointed by the President after consultation with such judges of the Supreme Court and the high courts as deems necessary.
• The consultation with the chief justice is obligatory in the case of the appointment of a judge other than the Chief Justice.

Evolution of Collegium System

Qualifications, Oath and Salaries

Qualifications of Judges

• Should be a Citizen of India.
• Should have been a Judge of a High Court for at least five years or have been an advocate of a High Court for at least 10 years or should be a distinguished Jurist in the opinion of the President.
• No minimum age has been prescribed by the Constitution for appointment as a judge of the Supreme Court.

Oath or Affirmation

• Oath to the judges of the Supreme Court is prescribed by the President or some person appointed by him.

Salaries and Allowances

• The salaries, allowances, leave and pension of the judges of the Supreme Court are determined from time to time by the Parliament.
• They can not be varied to their disadvantage after their appointment except during a financial emergency.
• The retired Chief Justice and judges are entitled to 50% per cent of their last drawn salaries as monthly pension.

Seat of Supreme Court

• The Supreme Court’s seat is designated under the Constitution as Delhi. It also authorises the chief justice of India to appoint other place or places as seat of the Supreme Court.
• This provision is just optional, not mandatory. This means that no court has the authority to direct the President or the Chief Justice to appoint any other place as a seat of the Supreme Court.

Tenure of Judges of the Supreme Court

The Constitution has not fixed the tenure of a judge of the Supreme Court. However has made the following three provisions in this regard

• Holds office until he attains the age of 65 years.
• Can resign his office by writing to the President.
• Can be removed from his office by the President on the recommendation of a Parliament.

Impeachment of Judges of the Supreme Court

• The Constitution has not prescribed any specific provision regarding the removal of Judges.
• The Judges (Inquiry) Act, 1968 regulates the procedure relating to the removal of a judge of the Supreme Court by the process of impeachment.
• The president can issue the removal order only after an address by Parliament has been presented to him in the same session for such removal.
• The address must be supported by a special majority of each House of the Parliament.
• The grounds of removal are proved misbehaviour or incapacity.
• A removal motion is to be signed by 100 members in the case of Lok Sabha or 50 members in the case of Rajya Sabha.
• If it is admitted, then the Speaker /Chairman is to constitute a three-member committee to investigate into charges.
• The committee consists of a Chief Justice or a judge of the Supreme Court, a chief justice of a high court and a distinguished jurist.
• If the committee finds the judge to be guilty of misbehaviour or suffering from incapacity, the House can take up the consideration of the motion.
• After the motion is passed by each House of Parliament by a special majority, an address is presented to the President for the removal of a judge.
• Finally, the President passes the order of removal.

Independence of the Supreme Court

The Supreme Court has been assigned a very significant role like the federal court, guarantor of Fundamental Rights and guardian of the Constitution. Therefore Constitution has made many provisions to ensure the judiciary’s independence. They are mentioned below.

• Mode of Appointment: The judges of the Supreme Court are appointed in consultation with the members of the judiciary itself. It curtails the absolute discretion of the executive as well as ensures that the judicial appointments are not based on any political considerations.
• Security of tenure: The judges of the SC are given security of tenure. They can be removed only by a presidential order on grounds of proven misbehaviour and/or incapacity by an elaborate procedure of impeachment.
• Salaries and allowances: Salaries and allowances of the judges of the Supreme Court are determined by the Parliament. They can not be changed to their disadvantage after their appointment. Salaries, pensions, allowances and expenses of the Supreme Court are charged on the Consolidated Fund of India.
• Powers and Jurisdiction: The jurisdiction of the Supreme Court can not be curtailed by the Parliament. However, the Parliament can extend the same. The SC has the power to punish any person for its contempt, as per Article 129.
• Ban on Practise after Retirement: It ensures that they do not favour anyone in the hope of future favour.

Jurisdiction and Power

The Constitution has conferred a very extensive and vast jurisdiction on the Supreme Court.

Original Jurisdiction

• As a Federal Court, the Supreme Court decides the disputes between different states.
  • Between the Centre and one or more States.
  • Between the Centre and any State or states on one side and one or more other States on the other.
  • Between two or more States.
• In case of federal disputes, the Supreme Court has exclusive and original jurisdiction.
• However, a dispute between the citizen and the Centre or state can not be entertained under it.

Writ Jurisdiction

The Supreme Court has been assigned the role of guarantor and defender of the Fundamental Rights. The Supreme Court is empowered to issue writs such as habeas corpus, mandamus, prohibition, quo warranto, and certiorari to enforce these rights.

In this regard, the Supreme Court has original jurisdiction however the writ jurisdiction of the Supreme Court is not exclusive and it is concurrent to the high court’s jurisdiction.

Appellate Jurisdiction

Supreme Court is primarily a court of appeal and hears appeals against the judgements of the lower courts.

• Civil Appeals: The Supreme Court hears appeals in civil cases from any High Court or a tribunal in the territory of India. These cases could involve disputes related to property, contracts, torts, family matters, etc.
• Criminal Appeals: The Supreme Court hears appeals in criminal cases from any High Court or a tribunal in the territory of India. These cases typically involve criminal offences such as murder, theft, fraud, etc.
• Special Leave Petitions (SLPs): This is a unique feature of the Indian legal system where the Supreme Court has the discretion to grant special leave to appeal against any judgment or order in any case or matter passed by any court or tribunal in the country. This means that parties dissatisfied with a judgment of any court or tribunal can approach the Supreme Court seeking special permission to appeal.
• Constitutional Matters: The Supreme Court hears appeals on constitutional matters, including disputes involving the interpretation of the Constitution of India. These cases are often of significant importance as they deal with the fundamental law of the land.

Advisory Jurisdiction

• The Constitution authorises the President to seek the opinion of the Supreme Court in the two categories of matters under Article 143.

1. 1. On any question of law or fact of public importance which has arisen or which is likely to arise.
   2. On any disputes arising out of any pre-constitution treaty, agreement,sanad or other similar instruments.

• In the first case, the Supreme Court may refuse to tender the opinion to the President but in the second case, the Supreme Court must tender the opinion to the President.
• In both cases, the opinion is not binding on the President.

Court of Record

As a Court of Record, the Supreme Court has two powers:

• The judgements, proceedings and acts of the Supreme Court are recorded for perpetual memory and testimony. These records are admitted to be of evidentiary value and cannot be questioned when produced before any court. They are recognised as legal precedents and legal references.
• It has the power to punish for contempt of court, either with simple imprisonment for a term up to six months or with a fine or with both.

Power of Judicial Review

• Judicial review is the power of the Supreme Court to examine the constitutionality of the laws and executive orders of both the Central and state government.
• If any provision found violative of the Constitution,it can be declared as unconstitutional by the Supreme Court.

Constitutional interpretation

• Every constitutional decision relies on the court’s interpretation of what the Constitution means, why it exists in the form it does, and, most importantly, what injustices it is intended to address.
• The courts apply a number of principles while interpreting the Constitution.
  • Doctrine of Severability
  • Doctrine of Waiver
  • Doctrine of Eclipse
  • Doctrine of Colourable Legislation
  • Doctrine of Implied Powers
  • Doctrine of Incidental and Ancillary Powers

High Court

High Court occupies the top position in the judicial administration of a state. In the integrated judicial system, the high court operates below the Supreme Court but above the subordinate courts. Articles 214 to 231 in Part VI of the Constitution deal with the organisation, independence, jurisdiction, powers, and procedures of the high courts. There are total 25 High courts in India.

Historical Background

• The institution of High courts originated in India in 1862 when high courts were set up at Calcutta, Madras, and Bombay under the Indian High Courts Act 1861.
• In 1966, a fourth high court was established at Allahabad.
• In the course of time ,each province came to have its own high court.
• After 1950, a high court existing in a province became the high court for the corresponding state.
• The Constitution has prescribed a high court for each state, but the Seventh Amendment Act of 1956 authorised the Parliament to establish a common high court for two or more states or for two or more states and a union territory.

Constitutional Provisions

Strength of a High Courts

• Every high court consists of the Chief Justice and such other judges as the President may think necessary from time to time.
• Therefore, the Constitution does not specify the strength of the high court and leaves it to the discretion of the President.
• Therefore, the strength of the high court is decided by the President from time to time depending upon its workload.

Appointment of High Court Judges

• The Judges of a High Court are appointed by the President.
• Chief Justice of the High Court is appointed by the President after consultation with the Chief Justice of India and the governor of the state concerned.
• For appointing the judges of High Courts other than the Chief Justice, judges of the concerned high court are also consulted. In the case of a common high court for two or more states, governors of all the states concerned are consulted by the President.

Cases Regarding the Appointment of Judges of the High Court

Qualifications, Oath and Salaries

Qualifications of Judges:

• Should be a Citizen of India.
• Should have held a judicial office in the territory of India for ten years or
• Should have been an advocate of a High Court for 10 years.
• No minimum age has been prescribed by the Constitution for appointment as a judge of the Supreme Court.
• Unlike the Supreme Court, Constitution has not made any provisions for the appointment of a distinguished Jurist as a judge of the high court.

Oath or Affirmation:

• Oath to the judges of the Supreme Court is prescribed by the governor or some person appointed by him.

Salaries and Allowances:

• The salaries, allowances, leave and pension of the judges of a high court are determined from time to time by the Parliament.
• They can not be varied to their disadvantage after their appointment except during a financial emergency.
• The retired Chief Justice and judges are entitled to 50% per cent of their last drawn salaries as monthly pension.

Tenure of Judges of the High Court

The Constitution has not fixed the tenure of a judge of the high court. However has made the following three provisions in this regard

• Holds office until he attains the age of 62 years.
• Can resign his office by writing to the President.
• Can be removed from his office by the President on the recommendation of a Parliament.
• Need to vacate office when he/she is appointed as a judge of the Supreme Court or when transferred to another high court.

Impeachment of Judges of the High Court

• The Constitution has not prescribed any specific provision regarding the removal of Judges.
• The Judges (Inquiry) Act, 1968 regulates the procedure relating to the removal of a judge of the high court by the process of impeachment.
• The president can issue the removal order only after an address by Parliament has been presented to him in the same session for such removal.
• The address must be supported by a special majority of each House of the Parliament.
• The grounds of removal are proved misbehaviour or incapacity.
• A removal motion is to be signed by 100 members in the case of Lok Sabha or 50 members in the case of Rajya Sabha.
• If it is admitted, then the Speaker /Chairman is to constitute a three-member committee to investigate into charges.
• The committee consists of a Chief Justice or a judge of the Supreme Court, a chief justice of a high court and a distinguished jurist.
• If the committee finds the judge to be guilty of misbehaviour or suffering from incapacity, the House can take up the consideration of the motion.
• After the motion is passed by each House of Parliament by a special majority, an address is presented to the President for the removal of a judge.
• Finally, the President passes the order of removal. It implies that the procedure for the removal of judges of a high court is the same as that for a judge of the Supreme Court.

Transfer of Judges

• Article 222 of the Constitution deals with the provision for the transfer of a Judge (including Chief Justice) from one High Court to any other High Court.
• President can transfer a judge from one high court to another after consulting the Chief Justice of India.
• On transfer, he/she is entitled to receive compensatory allowances as determined by the Parliament in addition to salary.
• In 1977, the Supreme Court ruled that the transfer of high court judges should be an exceptional measure and not by way of punishment.
• In 1994, the Supreme Court held that judicial review is necessary to check arbitrariness in the transfer of judges, but only the judge who is transferred can challenge it.
• In the Third Judges Case (1998), the Supreme Court ruled that in case of the transfer of the high court judges, the chief justice of India should consult a collegium of four seniormost judges of the Supreme Court, chief justice of the two high courts (court from which the judge being transferred and the receiving court)

Independence of the High Court

Independent of the judiciary is essential to ensure fair and unbiased adjudication of disputes and upholding the rule of law. Therefore Constitution has made many provisions to safeguard and ensure the independent and impartial functioning of the High Court. They are mentioned below.

• Mode of Appointment: The judges of the High Court are appointed in consultation with the members of the judiciary itself. It curtails the absolute discretion of the executive as well as ensures that the judicial appointments are not based on any political considerations.
• Security of tenure: The judges of the SC are given security of tenure. They can be removed only by a presidential order on grounds of proven misbehaviour and/or incapacity by an elaborate procedure of impeachment.
• Salaries and allowances: Salaries and allowances of the judges of the Supreme Court are determined by the Parliament. They can not be changed to their disadvantage after their appointment. Salaries, pensions, allowances and expenses of the High Court are charged on the consolidated fund of the state.
• Powers and Jurisdiction: The jurisdiction of the High Court specified in the Constitution can not be curtailed by the Parliament as well as the State Legislature. However, the Parliament and State Legislature can extend the same.
• Ban on Practise after Retirement: The retired permanent judges of the High Court are prohibited from pleading or acting in any court or before any authority in India except the Supreme Court and other high courts. It ensures that they do not favour anyone in the hope of future favour.

Jurisdiction and Powers of the High Courts

Like the Supreme Court, the high court has been vested with quite extensive and effective powers. It is the highest court of appeal in the state. It is the protector of the Fundamental Rights of the citizens. It is vested with the power to interpret the Constitution. It also performs supervisory and consultative roles.

a) Original Jurisdiction

• It means the power of a high court to hear disputes in the first instance, not by way of appeal.
• It extends to the following matters
  • Matters of admiralty and contempt of court.
  • Regarding revenue matters
  • Disputes relating to the election of members of Parliament and the State Legislature
  • Enforcement of Fundamental Rights of Citizens
  • Cases ordered to be transferred from the subordinate courts involving the interpretation of the Constitution to its own file.
• High Courts of Calcutta, Bombay, Madras and Delhi have original civil jurisdiction in cases of higher value.
• Before 1973, the Calcutta, Bombay, and Madras High Courts also had original criminal jurisdiction. It was fully abolished by the Criminal Procedure Code 1973.

b) Writ Jurisdiction

• Article 226 of the Constitution empowers a high court to issue writs for the enforcement of Fundamental Rights and ordinary legal rights.
• High court is empowered to issue writs such as habeas corpus, mandamus, prohibition, quo warranto, and certiorari to enforce these rights.
• The high court can issue writs to any person, authority and government not only within its territorial jurisdiction but also outside the territorial jurisdiction if the cause of action arises within its territorial jurisdiction.
• In Chandra Kumar Case 1997, the Supreme Court ruled that the writ jurisdiction of both high court and the Supreme Court constitute a part of the basic structure of the constitution.

c) Appellate Jurisdiction

• A High Court is primarily a court of appeal. It hears appeals in civil and criminal matters. The appellate jurisdiction of the high court is wider than its original jurisdiction.

Civil Matters

• High Courts have appellate jurisdiction in civil matters, including appeals from judgments, orders, or decrees passed by subordinate civil courts.
• Second appeals from the orders and the judgements of the district court or other subordinate courts lie directly to the high court on both questions of law and fact.
• Appeals from the decision of the administrative and other tribunals lie to the division bench of the high court.

Criminal Matters

• Appeals from the judgements of sessions court and additional session courts lie to the High Court if the sentence is one of imprisonment for more than seven years.

d) Supervisory jurisdiction

• A high court has the power to supervise all courts and tribunals operating within its territorial jurisdiction (except military courts or tribunals).
• It covers not just administrative but also judicial superintendence.

e) Court of Record

As a Court of Record, a high court has two powers:

• The judgements, proceedings and acts of the high court are recorded for perpetual memory and testimony. These records are admitted to be of evidentiary value and cannot be questioned when produced before any court. They are recognised as legal precedents and legal references.
• It has the power to punish for contempt of court, either with simple imprisonment for a term up to six months or with a fine or with both.
• As a court of record, a high court also has the power to review and correct its own judgements or orders or decisions even though no specific power of review is conferred on it by the Constitution.

f) Power of Judicial Review

• The High Court has the power to review the constitutionality of both central and state government legislative and executive orders.
• Although the term “judicial review” is not included in our constitution, Articles 13 and 226 expressly grant the High Court this power.
• If any provision is found violative of the Constitution, it can be declared as unconstitutional by the high court.
• 42nd Constitutional Amendment Act of 1976 curtailed the power of a high court to review any central law. However, the 43rd Constitutional Amendment Act of 1977 restored the original position.

g) Control over Subordinate Courts

• The high court has administrative control and other powers over the Subordinate Courts
• It is consulted by the governor in the matters of appointment, posting and promotion of district judges and appointment of persons to the judicial service of the state.
• It deals with matters of postings, promotion, grant of leave, transfer of member of judicial service of the state.
• It can withdraw a case pending before any subordinate court if it involves the substantial question of law that requires interpretation of the Constitution.
• Its law is binding on all subordinate courts functioning within its territorial jurisdiction.

How many High Courts are there in India?

There are total 25 High courts in India

Judicial Review is the power of the Supreme Court or High Court to examine the constitutionality of the laws passed by the legislature and executive orders of both the Central and State governments. If they found inconsistent with the Constitution then declared as null and void. The power of Judicial Review flows from various articles of the Constitution like articles 13, 32, 132 and 226. Supreme Court has declared the power of Judicial Review as part of the basic structure of the Constitution.

Historical Background

• The doctrine of judicial review is originated and developed in the USA.
• It was established for the first time in the famous case of Marbury vs. Madison in 1803 by the then Chief Justice of the American Supreme Court John Marshall.
• In India, the Constitution itself confers the power of Judicial review on both the Supreme Court and High Courts.
• In the Indira Gandhi vs Raj Narain case of 1975, the Supreme Court declared Judicial Review as a basic feature of the Constitution.

Classification of Judicial Review

Justice Syed Shah Mohamed Quadri has classified the judicial review into the following three categories.

• Judicial review of constitutional amendments
• Judicial review of the laws of the Parliament, state legislatures and subordinate legislations
• Judicial review of administrative action of the Union, state and authorities under the state.

Scope of Judicial Review

A law or an executive order can be challenged in the Supreme Court on the following three grounds.

1. If it infringes the Fundamental Rights
2. If it is outside the competence of an authority which has framed it
3. If it is repugnant to the Constitutional Provisions.

Significance of Judicial Review

• It is important to uphold the supremacy of the Constitution.
• It maintains the federal balance between the Centre and the states.
• It serves as a vital mechanism for protecting Fundamental Rights and liberties from infringement by the government.
• It reinforces the principle of the rule of law.
• By providing a check on the actions of the executive and legislative, the judiciary helps to prevent the concentration of power in any one branch and promotes accountability and transparency in governance.

Constitutional Provisions for Judicial Review

Though the phrase ‘Judicial Review’ has nowhere been used in the Constitution, the provisions of several articles explicitly confer the power on the Supreme Court and High Courts.

Cases Related to Judicial Review in India

Guidelines in Judicial Review

Certain doctrines have developed in the courts to serve as guides in the judicial review process.

Doctrine of Severability

When evaluating the challenged law, the court must determine whether the law is unconstitutional in its entirety or in sections. The court has the authority to declare the challenged law unconstitutional in its entirety or in part, as the case may be.

The doctrine of Progressive interpretation

The Indian judiciary has been guided by the doctrine of progressive interpretation, which implies that the courts have construed the Constitution’s provisions in light of the social, economic, and legal circumstances that existed at the time.

The doctrine of Prospective Overruling

It is predicated on the assumption that judicial invalidation or a new interpretation of the law will have no effect on previous transactions or vested rights, but will only apply to future transactions.

The doctrine of Empirical Adjudication

While exercising the judicial review power. Courts are not designed to deal with hypothetical issues; the matter placed before them must be of a ‘Concrete’ type. The Court strives to keep its conclusions as close to the controversy’s original scope as possible. In a specific case, between the parties involved.

The presumption in favour of Constitutionally

When a law’s constitutional legitimacy is questioned, the court will not rule it ultra vires unless the invalidity is proven beyond a reasonable doubt, because there is always a presumption in favour of its constitutionality. The Supreme Court assumes that the legislature does not overstep its authority or pass legislation that is contrary to the spirit of the Constitution.

Limitations of Judicial Review

• Justiciable Issues Only: The judiciary can only review laws that are justiciable, meaning they are capable of being resolved through legal principles and not matters of political discretion or policy.
• Standing Requirements: In order to challenge a law or governmental action, the petitioner must have standing, meaning they must demonstrate a direct and personal stake in the outcome of the case.
• Respect for Separation of Powers: The judiciary must respect the separation of powers and refrain from encroaching on the legislative or executive functions unless there’s a clear violation of constitutional principles.
• Deference to Legislative and Executive Expertise: In matters involving complex policy decisions, courts often defer to the expertise of the legislative and executive branches, recognizing their constitutional authority to make policy judgments.
• Limits on Remedies: Even if a law or action is found unconstitutional, the judiciary’s power to provide remedies may be limited by practical considerations or principles of judicial restraint.

Judicial Activism

• Arthur Schlesinger Jr. introduced the term “judicial activism” in a January 1947 Fortune magazine article titled “The Supreme Court: 1947.”

• The phrase has been controversial since its introduction.

• An article by Craig Green, “An Intellectual History of Judicial Activism,” is critical of Schlesinger’s use of the term, stating that Schlesinger failed to explain what counts as activism and did not clarify whether activism is good or bad.

• Even before the phrase was used, the general concept of judicial activism already existed.

• For example, Thomas Jefferson referred to the “despotic behaviour” of Federalist federal judges, especially Chief Justice John Marshall.

Definitions

• Black’s Law Dictionary defines judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”

• Bradley Canon, a political science professor, proposed six dimensions along which courts may be perceived as activist: majoritarianism, interpretive stability, interpretive fidelity, substance/democratic process, specificity of policy, and availability of an alternate policymaker.

• David A. Strauss argues that judicial activism can be narrowly defined as one or more of three actions:

  • Overturning laws as unconstitutional.

  • Overturning judicial precedent.

  • Ruling against a preferred interpretation of the constitution.

• Some scholars and legal experts have been less confident about the term’s meaning, considering it more of a rhetorical shorthand.

• Kermit Roosevelt III argues that judicial activism is often used as a charged shorthand for decisions that the speaker disagrees with.

• Roosevelt defines judicial activism as an approach to judicial review or a description of a judicial decision where a judge is more willing to decide constitutional issues and invalidate legislative or executive actions.

• Theodore Olson, solicitor general under George W. Bush, stated that “most people use the term ‘judicial activism’ to explain decisions they don’t like.”

• Supreme Court Justice Anthony Kennedy remarked that “An activist court is a court that makes a decision you don’t like.”

Judicial Reform

Why do we need Judicial Reforms?

• The Judiciary is one of three organs of government, the others being the Executive and Legislature.
• The continuous evolution of society requires these organs to continually reform and adapt to changing needs.
• Hence, the requirement for judicial reforms is a dynamic and ongoing process.
• These reforms also help ensure that the Judiciary is equipped to handle new challenges and maintain its effectiveness in promoting equality and justice for all.

What are the current issues in the Indian Judicial System?

Some important issues plaguing the Indian Judicial System are

• Shortage of Judges: There is a shortage of judges in subordinate courts in India, with around 35% of posts remaining unfilled. This results in a poor judge-to-population ratio, as India has only 17 judges per million.
• Appointment of Judges: The judges in India are appointed and transferred via the collegium system. The system has been criticized for being opaque in its functioning.
• Pendency of Cases: The problem of pendency is particularly acute at the lower levels of the judiciary, where the majority of cases are filed and where the shortage of judges is most severe.
• Poor Condition of Infrastructure: Insufficient budget allocation results in poor infrastructure for the judiciary in India, spending only 0.09% of its GDP on maintaining the judicial infrastructure.
  • Human Resources: Lack of efficient secretarial and clerical assistance, shortage of Public Prosecutors, etc., also adds to the problem.
• Lack of gender diversity: For instance, there have been only 11 women judges on the Supreme Court since its inception, and no women Chief Justices.
• Undertrials: According to the ‘Prison Statistics India’ report published by the National Crime Records Bureau (NCRB) in 2020, there were as many as 4,88,511 prison inmates, of whom 76% were undertrials.
• Procedural issues: It includes delay in service of summons/notices to accused/defendants/respondents by process servers and police.
• Outdated Procedural laws: The Code of Civil Procedure 1908, Code of Criminal Procedure 1973, and The Evidence Act 1872 are all outdated in relation to the current needs of society.
  • They enable motions for adjournments which are routinely sought and given. As a result, litigation has become a prolonged, costly, uncertain, rigid process.
• Burden of extrajudicial work: Burdening of Judges with extra-judicial work (like Legal Services) diverts their focus and time from judicial work.

What is the impact of these issues on the overall Justice delivery system?

Issues in the Judicial system negatively impact Justice delivery. Some of these are

• Delays in the administration of justice: A large backlog of cases waiting to be heard can result in delays in the resolution of cases, which can take many years or even decades.
• Negative impact on justice quality: Judges may not have the time or resources to fully consider the merits of each case due to paucity of time. This can lead to decisions that are not fully informed or that do not adequately address the issues at hand.
• Financial burden on litigants: Prolonged litigation can be costly for litigants, as they have to bear the expenses of prolonged court proceedings.
• Negative impact on the economy: These issues in the justice system can also have a negative impact on the economy, as businesses may be delayed or prevented from moving forward due to unresolved legal disputes.
• Loss of faith in the legal system: Long delays, lack of legal aid, etc., can lead to a loss of faith in the legal system among the general public.

What are some of the factors that hinder judicial reforms?

What are some of the significant reforms in the Indian Judicial system?

Some of the significant reforms undertaken in the Indian Judicial System are

• National Mission for Justice Delivery and Legal Reforms (2011): It was launched with the objectives of increasing access by reducing delays and arrears in the system and enhancing accountability through structural changes.
  • Development of infrastructure facilities for judiciary(1993-94): As of July 2022, Rs. 9,13.21 crores have been released since the inception of the Scheme to improve judicial infrastructure.
  • Filling up vacant positions in judiciary: From 2014 to 2022, 46 judges were appointed to the Supreme Court, and 769 new judges were appointed to the High Courts.
• Alternative Dispute Resolution(ADR): Lok Adalats, Gram Nyayalayas, Online Dispute Resolution, etc., are used to ensure timely justice.
  • Commercial Courts Act 2015 stipulates mandatory pre-institution mediation and settlement of commercial disputes.
  • A Gram Nyayalaya online portal has also been created, wherein the States/High Courts upload data relating to Gram Nyayalayas, including monthly case disposal.
• Initiatives to Fast Track Special Type of Cases: Fast track courts are being set up to expedite the justice delivery and reduce the pendency of cases involving heinous crimes, senior citizens, women, children, etc.
• Leveraging Information and Communication Technology (ICT)
  • Virtual court system: In the virtual court system, regular court proceedings are conducted virtually through videoconferencing.
  • e-Sewa Kendras: To provide e-filing services to lawyers and litigants to bridge the digital divide.
  • National Judicial Data Grid (NJDG): Under NJDG, lawyers and litigants can access status information of cases and orders/judgments.
  • National Service and Tracking of Electronic Processes (NSTEP): It provides technology-enabled processes for serving and issuing summons.
  • Secure, Scalable & Sugamya Website as a Service (S3WAAS) Website: A new divyang-friendly website for e-committee, based on the S3WaaS platform, is available in 13 regional languages including English & Hindi.
  • Virtual Justice Clock: It is an initiative to exhibit vital statistics like case details, pendency, case disposed, etc., of the justice delivery system at the Court level
• Legal Services Authorities are also part of the campaign to bring justice to the people and ensure that all people have equal access to justice despite various barriers like social and economic backwardness.

What measures can be taken to reform the Judiciary?

Some measures that can be taken to reform the judiciary are

• Transparency in Appointment:Law Commission of India (LCI) 2009 recommended that the executive and judiciary should function together to find the most suitable (candidates) available for appointment. This can be achieved by combining the legal acumen of the judiciary, and in the area of antecedents, the executive’s opinion should be dominant.
• Reducing pendency: LCI (2009) recommended that:
  • Maximum Strength of the Judges in the Supreme Court should be increased.
  • The need to divide the Supreme Court into a Constitution Bench at Delhi and Cassation Benches in four regions at Delhi, Chennai/Hyderabad, Kolkata, and Mumbai to ensure timely Justice delivery.
  • Constitutional provisions need a change to enhance the retirement age of High Court and Supreme Court Judges by at least three years.
  • Increasing the number of Judges to maintain a healthy Judge-population ratio – 50 per million
• Optimum time utilization: LCI (2009) recommended:
  • Considering the staggering arrears, vacations in the higher judiciary must be curtailed by at least 10 to 15 days and the court working hours should be extended by at least half-an-hour.
• Judicial Impact Assessment: Make judicial impact assessment compulsory whenever new laws are made.
• Increase the use of the ADR mechanism and Plea Bargaining: Building awareness among litigants and prospective litigants about ADR processes and encouraging out-of-court settlements.
• All India Judicial Services (AIJS): It is a proposed national-level judicial service in India. It aims to create a unified and centralized system for the recruitment and career progression of judicial officers in the country.
• Judicial Management cadre: A Judicial Management Cadre to manage judiciary administration at all levels can be established.
• National Judicial Infrastructure Authority: Former Chief Justice of India N V Ramanna, in his remarks, said a National Judicial Infrastructure Authority should be created for the standardization and improvement of judicial infrastructure.
• Simplifying procedural laws: Simplifying procedural laws to expedite the hearing and disposal of cases and to improve and bring clarity to substantive laws by repealing/amending outdated/unworkable laws.
• Improve the functioning of Fast Track Courts: A two-pronged approach that improves the human capacity of these courts with dedicated judges and competent staff while restructuring processes is needed.
• Setting up an independent mechanism for legal services: Legal services can be entrusted to the Executive Wing of the Government for implementation, in consultation with the High Court/other stakeholders, by an appropriate amendment to the Legal Services Authorities Act, 1976.
• Timely Justice to Undertrials: Undertrials can be provided speedy justice by providing adequate opportunities for bail. The Supreme Court held that “bail is the norm, whereas jail is an exception”.
• Increase representation of women in the Judicial System: Former CJI N V Ramana has voiced support for 50% representation for women in the judiciary. He remarked that “the presence of women as judges and lawyers, will substantially improve the justice delivery system.
• Legal Education: Improving Legal Education and providing for compulsory apprenticeship to members of the Bar.
• Research and Training Centre: A Research and Training Centre for improving legislative drafting, conducting Judicial Impact Assessments, and training Law Officers of the Government can be established.
• Prompt Investigation and Prosecution: The functioning of investigating agencies (Police) and prosecuting agencies (Directorate of Prosecution) should be improved to ensure proper and timely investigation and prosecution.