Introduction:
“Never forget that justice is what love looks like in public” are the words of Cornel West. Each one of us can interpret these words according to our understanding but for me, these words show the importance of justice in a society. Without love, society will not be able to come out of their sorrow, anger, jealousy, and other negative emotions similarly without justice society will lack innocence, trust, faith, and other positive emotion. So, to promote justice and love in society we have the judiciary as one of the three important organs of the government in our country. The main function of the judiciary is to act as the guardian of the Indian Constitution, protector of the fundamental rights, interpreter of laws, settler of disputes, etc.
Evolution of Judiciary in India
Before British Rule
The literary sources such as Dharmashastras and Smritis which gives knowledge about the judicial system of Ancient India are not older than the fourth century B.C. hence; India has the oldest system of the judiciary in the world.[1] These literary sources laid down Dharma which determines the rights and duties of the citizens. The principles laid down under Dharma are mostly similar to the principles of the natural school of law. The king uses to be the highest authority to settle a dispute and rules made by him following the Vedas and Shastra’s uses to be the Constitution.
Although some judges were also appointed by the kings but they are empowered only to advise the king on various disputes and the king after taking advice from learned Brahmins, Chief Justices, Judges, Ministers, Councilors and elders pronounce his judgment. The supremacy of law has been recognized in an earlier era as well because the law was considered to be more powerful than the king and a king should always be abiding by the laws.
During British Rule
After the colonization of India, most of the Indian states came under the dominance of Britisher and under British Rule, the civil and criminal matters have been differentiated from one another, for each one of them a separate hierarchy of courts has been established. In 1774 under the Regulating Act, 1773 the Supreme Court of Judicature at Fort William, Calcutta was founded. It has the power to consider, hear, and determine both civil and criminal matters, and take actions against any subject of His Majesty in Bihar, Orissa, and Bengal.[2]
In the mid-19th Century, the various transpicuous landmarks have been contributed towards the development of the judicial system of India. The codification of law by Lord Macaulay, passing of the Indian High Courts Act, 1861 which resulted in the establishment of the High Courts in the provinces of Bombay, Calcutta, and Madras and abolition of Supreme Courts at Bombay, Calcutta and Madras and Sadar Adalats.[3] These courts are prominently the highest courts having original and appellate jurisdiction over both civil and criminal matters.
After the establishment of the Federal Court of India at Delhi under the Government of India Act, 1935 it became the highest court having the power to settle the disputes arising between federal states and provinces, to hear appeals against the judgments passed by High Courts (original, appellate and advisory jurisdiction). Any appeal against the judgment of the Federal Court can be sent to the Privy Council.
After British Rule
In 1947, when India got Independence, this Federal Court has served as an immediate precursor to the Supreme Court of India, and the abolition of the Privy Council by the Constituent Assembly has made it the supreme authority under the judicial system of India. The Supreme Court of India has jurisdiction over all the matters and the power to strike down policies and actions of executive and legislature if they are contrary to the laws.
Salient Features of Indian Judiciary
1. A Single and Integrated System
In India Supreme Court is the apex court of justice, subordinate to it there are various high courts and other lower courts. These high courts and lower courts should work under the supervision and control of the apex court. There are no separate sets of law and only a single Civil and Criminal system operates throughout the country. Any appeal against the decision of the lower court will be made in the High Court and ultimately to the Supreme Court against the orders passed by the High Court.
2. Independence of Judiciary
The Indian Constitution with the help of certain provisions provides for the independent functioning of the judiciary. It provides that the Indian judiciary should work autonomously without any interference of legislature or executive.
- Evolution of Independent Judiciary
The report published by the Sapru Committee in 1945 has suggested that to promote the independence of the judiciary there should be fixed salaries, fixed tenures, and removal of the judges only on the basis of gross misbehaviour. This report was supported by Jawaharlal Nehru and later the concept of an independent judiciary was supported by BR Ambedkar and hence various provisions have been included in the constitution to preserve the same.[4]
- Provisions of the Indian Constitution
a. Appointment of Judges
Article 124 (2) of the Indian Constitution lays down the appointment procedure of the judges of the Supreme Court and the High Court. According to this article, the appointment of judges should be done by the executive on the advice of the Chief Justice of India. To avoid the ambiguity that whether or not the advice of Chief Justice of India is bound on executive the collegium system has been introduced consisting of Chief Justice of India and the four senior-most judges of the Supreme Court.[5] It was also decided that it if there will be any discrepancy with any name mentioned by executive or judges then there should be a strong reason that why the person should not be appointed to Supreme Court or High Court.[6]
It should be ensured that the appointment of judges is not influenced by political considerations because if it will be influenced by that then the judges will not feel free to give decisions contrary to the stand or policies of the government. To announce a standard or provision ultra-virus of the constitution political involvement mustn’t be present in the appointment of judges.
b. Removal and Retirement of Judges
Article 124 (5) of the Indian constitution deals with the cumbersome procedure of the removal of judges. a judge can only be removed on the grounds of proved misbehaviour or incapacity by passing a resolution with the special majority of both the houses. The non-inclusion of the office of judges of the Supreme Court under the doctrine of pleasure removes any gaps for political biases in the removal procedure of a judge.
The removal process has been started by the parliament against Justice V Ramaswamy where the charges against him were proved and the motion was accepted by the speaker. The committee under the Judges’ Enquiry Act has also been made but when the inquiry was going on Loksabha got dissolved. Now the question arises is that whether with the dissolution of Lok Sabha the motion to remove the judge should also be removed or not. In Sarojini Ramaswamy vs. Union of India[7] it was held by the court that the motion of removal of a judge cannot lapse on the dissolution of Lok Sabha it will continue from the stage where it was left before dissolution.
c. Salaries Allowances and Pensions of the Judges
According to article 146 (3) of the Indian Constitution, it has been clearly stated that all the administrative functions of the supreme court including all salaries, allowances, and pensions payable to the officers and servants of the supreme court will be payable through a consolidated fund of India. This charge is a mandatory expenditure and it cannot be put to vote. Article 229 (3) of the Indian Constitution lays down a similar condition for the payment of salaries, allowances, and pensions of officers and servants of the High Court. All of the administrative expenses under this article will be payable from the consolidated fund of the state. This provision has been provided to avoid asking for payment of day-to-day charges incurred by the court because if the Court has to ask for these from the legislature then it might be possible that it courts found it difficult to announce judgment contrary to the governmental stand.
3. Judicial Review
The power of judicial review is an integral part of our constitution and it is vested in the High Court and supreme courts under which they can decide the validity of the provisions that are passed by legislative or executive acts of the government. It is this power by which quotes perform their duty as the guardian of the Constitution of India.
The course of Judicial Review
In the initial years, after the formulation of the constitution of India, the Supreme Court adopted a pro-legislature stance as similar to the British tradition of limited judicial review. The judgment was given by the Supreme Court in A K Gopalan vs. State of Madras[8] could be an example of a pro- legislature judgment. In this case, the validity of the preventive detention legislature was challenged and said that they are violative of article 19, article 21, and article 22. But the Supreme Court, in this case, held that the preventive detention is valid and the reason that each article should be read separately because they cover different subject matters. But as time passes the Supreme Court started taking the structuralist approach, in the fundamental rights case[9] the court held that the basic structure of the constitution cannot be amended by the parliament and it is out of the power of parliament. If we look at the recent judgment of the Supreme Court then it is visible that the court is making judgments that are helpful in social transformation and revolution. The judgment on the Sabrimala Temple case[10] which lifts the ban on the entry of women inside the Sabrimala Temple, decriminalization of section 377[11] of IPC i.e., decriminalization of homosexuality, declaration of section 497 as unconstitutional[12] and unanimously struck down a 150-year-old law considering adultery as a crime.
4. Judicial Activism
According to the Black Law Dictionary, judicial activism is a philosophy of judicial decision-making through which judges allow their personal views on public policy and other factors to guide their decision-making. It is the power of the Supreme Court and High Courts but not of the Subordinate Courts to declare a law or regulation constitutionally invalid or void if they are violative or incompatible with any of the clause of the Constitution.
The Supreme Court in Hussainara Khatoon v. State of Bihar[13] has stated that the right to a speedy trial is a fundamental right and asked the government authorities of the state to provide free legal aid to the under-trials so that justice could be provided to them. It was a landmark case where the under trial prisoners had faced persecution even without being charged with any offence. The court here responded to a writ petition filed by an advocate under article 21.
In the case of Sheela Barse v. the State of Maharashtra[14], the court treated a letter written by a journalist as a writ petition declaring the violence on women prisoners in the custody of the police. The court, in this case, has issued strikingly appropriate guidelines to the state authorities.
Powers of the Court
1. Punish for its Contempt
A person can commit contempt of court in two ways, civil and criminal. In civil contempt, if a person does not follow any guideline or order passed by the court then it will be considered as contempt of itself whereas, in criminal contempt, it could be committed in three ways a) lower or scandalizes the authority of the court in written, spoken, verbal, and by actions (b) obstructs administrative functions and (c) prejudices judicial proceedings.
The power to punish a person for commission of all these activities has been conferred to the Supreme Court under article 129 of the Indian Constitution and to the High Court under article 215 of the Indian Constitution. Although, if a person is accurately and fairly recording the proceedings of the court then it will not be considered as an offence of contempt of court.
2. Revisory Jurisdiction
Under the revisory jurisdiction, both Supreme Court and High Courts can call for a review of judgments or orders passed by subordinate courts if they feel that in any of the case the proper procedure has not been followed or if the subordinate court has acted beyond their jurisdiction. Article 137 of the Indian Constitution authorizes the Supreme Court to review its orders and judgments to correct any mistake in the judgment. This power has been given to the Supreme Court because it is known as the court of record and judgments passed by it are used in pronouncing further judgments that cannot be questioned.
Relationship and Separation of PowerBetween Judiciary, Legislature and Executive
The contents of the doctrine of separation of power have been derived by John Locke and Montesquieu from British Constitutional history. At that time, in Britain all of the executive powers have been exercised by the king, all of the legislative functions have been exercised by Parliament and all of the judicial functions have been exercised by the courts.
The purpose behind the formulation of this doctrine was to remove arbitrary power or community of power in only one hand. It was believed that if all the functions of these three organs or either two organs will be performed by only one person then the scope for ambiguity and arbitrariness could arise.
In India, a clear demarcation between the functions of these three organs cannot be seen. As said by the court in the case of Ram Jawaya Kapur v. State of Punjab[15], the Indian Constitution does not recognize the doctrine of separation of powers in absolute rigidity, but the functions of various government departments have been fully differentiated. Therefore, it can be said with certainty that our constitution does not consider various assumptions, through an organ or part of a country, of functions belonging to others.
In Keshavanand Bharti v. State of Kerala[16], Justice Beg has said that separation of power is part of the basic structure of the Constitution and none of the organs can take over the functions of another even by resorting to Article 368 of the Constitution. He further said that India does not have only functional but also personal overlapping, declaring any laws or actions of the legislature and executive as void is an example of it.
There are various judicial functions performed by the executive such as the power to pardon and various legislative functions like giving his assent on the bill passed by the houses of the parliament to convert them into law. Similarly, the legislature also keeps checks and balances on the executive as well as judicial functions, for example, the impeachment of the President and removal of Judges. Lastly, Judiciary also keeps checks and balances over the various executive and legislative functions by declaring unconstitutional action of executives and laws of the legislature as void.
In this era of privatization, liberalization, and globalization it is very difficult to define “separation of power” strictly as “mechanism of check and balance”, “community of power” or “principle of restraint” because working of these three organs with cooperation is in the best interest of the people.
Conclusion
This article has discussed the Judicial System of India. To understand the judicial system preferably in a better manner its salient features and powers have been discussed in detail. Independence of Judiciary, power of Judicial Review, and Judicial Activism have been discussed under the functions of the Judiciary and power to punish for its contempt and revisory power of the courts has been discussed under powers of the Court.
Further, the article discusses the doctrine of separation of power and the relation between these three organs. Concludingly, all of these features and powers of the Judicial System help the Judiciary in achieving their principal purpose of acting as the custodian and guardian of the fundamental rights and Constitution of India. The judicial system of India has developed itself in every aspect to make it easier and possible for themselves to interpret laws and produce judgments for the welfare of the general public.
References:
[1] Sangeetha, Bandlamudi, Independence of judiciary A critical study with special reference to the appointment of judges, SHODHGANGA, (Aug. 31, 2012), http://hdl.handle.net/10603/124062
[2] History: Supreme Court of India, https://main.sci.gov.in/pdf/Museum/m2.pdf
[3] Ibid
[4] Dev, Atul, What the Indian judiciary has done to itself, THE CARAVAN, (July 1, 2019) https://caravanmagazine.in/law/what-judiciary-done-itself
[5] In Re: Under Article 143(1) Of TheConstitution of India v. Unknown, AIR 1999 SC 1
[6] Supreme Court Advocates on Record Association v. Union of India, AIR 1994 SC 268
[7] AIR 1992 SC 2218
[8] (1950) AIR 27
[9] Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr. (Writ Petition (Civil) 135 of 1970),
[10] Indian Young Lawyers Association v. The State of Kerla (2019) 11 SCC 1
[11] Navtej Singh Johar v. Union of India, W. P. (Crl.) No. 76 of 2016
[12] Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676
[13] (1979) AIR 1369
[14] (1983) AIR 378
[15] AIR 1959 SC 549
[16] AIR (1973) SC 1461
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