 DEFINITION OF JUDICIARY

 Judiciary is defined as a group of judges, or the part of the government that manages
the administration of justice.
Example :- Judiciary is a group of judges who assign people to federal courts.

 Judiciary is a key mechanism for ensuring legal effectiveness of environmental law

and institutional regimes.
 A judiciary well prepared and informed of the rapidly expanding environmental law,
plays a critical role in implementation and enforcement of environmental law:-

- Through the successful conclusion of environmental cases particularly

cases of transnational crimes providing a strong disincentive to non-
compliance of environmental laws.
- Enforcement of environmental rights including right to information.
- By providing access to the public and civil society to judicial procedures.
- Through coherent networking among judiciaries and exchange of
judgements and sharing information on environmental cases and
international jurisprudence.
  ROLE OF JUDICIARY

While interpreting the Constitution itself with due regard to the intention of the framers of
the Constitution etc. Within the main frame of these enlisted parameters, this chapter further
attempts to understand the nature and the legitimate extent of powers possessed by the Indian
judiciary. Before doing so, it is worth having a lucid understanding of the position of
judiciary under the constitutional scheme of India.
ROLE OF JUDICIARY Our Founding Fathers while drafting the Preamble gave precedence
to Justice over Liberty, equality and fraternity by placing these philosophical terms in that
particular order. Unless there is justice, liberty is meaningless. Justice and liberty together
secure equality. There can be no fraternity unless there is justice, liberty and equality. In the
chain of philosophical thoughts underlining the Constitution, the most significant is the
concept of Justice. Duly honouring justice lays the foundation for the welfare and progress of
society. It holds civilized beings and civilized nations together. In this scheme of things the
role of judiciary becomes very important. Role of judiciary has always been to deliver justice
to the matters which are brought in front of it. Conventionally this role was perceived as to
deliver justice by strictly following the laws in vogue. But fulfilment of the promise given in
preamble to secure Justice (social, economic and political) to all its citizens was not possible
by the judiciary while strictly following its conventional role of interpreting law as legislated.
It required a broader interpretation by judicial creativity and judicial activism to bring a social
change keeping public interest in view. The judiciary has played a crucial role in evolving
itself from its conventional role of interpreting the statute as legislated to the enhanced role of
delivering justice to the masses by creative interpretation of the existing law and in absence
of it making law to meet the needs of the society. In this process judiciary created a Magical
Wand named Public Interest Litigation for delivering justice to the backward, poor, denied,
downtrodden, destitute, deprived, depraved, disadvantaged handicapped, have-nots, half
hungry, half clad millions, ignorant, illiterate, indigent, incapable, little Indian, lost and
lonely, unaware, forlorn, forgotten, exploited, lowly and lost, weak, vulnerable and
underprivileged class of society.

STRUCTURE OF THE JUDICIARY

The Constitution of India provides for a single integrated judicial system. This means that
unlike some other federal countries of the world, India does not have separate State courts.
The structure of the judiciary in India is pyramidal with the Supreme Court at the top, High
Courts below them and district and subordinate courts at the lowest level (see the diagram
below). The lower courts function under the direct superintendence of the higher courts.
 Supreme Court of India

1. Its decisions are binding on all courts.

2. Can transfer Judges of High Courts.
3. Can move cases from any court to itself.
 4. Can transfer cases from one High Court to another.

 High Court

1. Can hear appeals from lower courts.

2. Can issue writs for restoring Fundamental Rights.
3. Can deal with cases within the jurisdiction of the State.
4. Exercises superintendence and control over courts below it.

 District Court

1. Deals with cases arising in the District.

2. Considers appeals on decisions given by lower courts.
3. Decides cases involving serious criminal offences.

 Subordinate Courts

1. Consider cases of civil and criminal nature.

  DIFFRERENT APPROCHES OF INDIAN JUDICIARY

 Judiciary :- an Offspring of the Constitution

It is a fundamental principal of our constitutional scheme that every organ of the State and
every authority under the Constitution derive its power from the Constitution and has to act
within the limits of such power. But then the question arises as to which authority must
decide what limits on the powers conferred on each organ or instrumentality of the State and
whether such limits are transgressed or exceeded. It is cardinal principal of our Constitution
that no one howsoever highly placed and no authority however lofty can claim to be the sole
judge of its power under the Constitution or whether its action is within the confines of such
powers laid down by the Constitution. The judiciary is the interpreter of the Constitution and
to the judiciary is assigned the delicate task of determining what is the power conferred on
each branch of Government, whether it is limited and if so, what the limits are and whether
any action of that branch transgresses such limits. It is for the judiciary to uphold the
constitutional values and to enforce the constitutional limitations. That is the essence of the
rule of law, which inter alia requires that “the exercise of power by the Government whether
it be legislature or the executive or any other authority be conditioned by the Constitution and
the law”. The power of judicial review is an integral part of the constitutional system and
without it, there will be no Government of laws and the rule of law would become a teasing
illusion and a promise of unreality. The Courts in India are not sui generis. They owe their
existence from power and jurisdiction to the Constitutin and the laws. The Constitution is the
supreme law and other laws are made by Parliament. It is they that give courts their
obligatory duties to the courts. One such is the settlement of disputes in which the states are
ranged against citizens. Again they decide disputes in which class interests are apparent. The
action of the courts when exercised against the State proves irksome to the State and equally
when it is between two classes, to the class which loses.

 Judiciary: The Guardian of the Constitution

The essence of a federal Constitution is the division of powers between the Centre and State
governments. The division is made by the written Constitution which is the supreme law of
the land. Since the language of the Constitution is not free from ambiguities and its meaning
is likely to be interpreted differently by different authorities at different times; it is but natural
that the disputes might arise between the Centre and its constituent units regarding the
respective powers. Therefore, in order to maintain the supremacy of the Constitution there
must be an impartial and independent authority to decide disputes between the Centre and
States and the states inter se. This function can only be entrusted to a judicial body. The
Supreme Court under our constitution is such arbitration. It is the final interpreter and
guardian of the Constitution.4 Judiciary not only is the guardian of the Constitutin, it also
protects the rule of law. The rule of law is the foundation of the democratic society. The
judiciary is the guardian of rule of law. Hence judiciary is not only the third pillar but the
Central pillar of democratic State of India. It can be described as the watch tower of the
Constitution.
  Judiciary: An Independent Entity
Article 50 constitutes “the conscience of the Constitution” which embodies the social
philosophy of the Constitution. It plainly reveals, without any scope for doubt or debate, the
intent of the Constitution makers to protect the judiciary from any form of executive control
or interference. Simply stated Article 50 provides that there shall be a separate judicial
service free from executive control. Judiciary must be free not only from executive pressure
but also from other pressures. The concept of judicial independence is a wider concept taking
within its sweep independence from any pressure or prejudice. Hence, the independence of
judiciary is a basic feature of the Constitution.

 Judiciary: An Interpreter of the Constitution

The judiciary interprets the Constitution and acts as its protector and guardian. The
Constitution has made elaborate provisions for ensuring independence of the judiciary. The
Constitution has established a single hierarchical judicial system for the whole of the
Country. Interpretation is the prime function of a Court. The court interprets the legislation
whenever a dispute comes before it. Since the will of the legislation is expressed generally in
the form of statutes, the prime concern of the judiciary is to find out the intention of the
legislature in the language used by the legislature in the statute. The work of the
interpretation of the Constitution is done by he courts through direct as well as indirect
judicial review. In direct judicial review, the Court overrides and annuls a law or an executive
decision on the ground that it is inconsistence with the Constitution. In indirect judicial
review while considering constitutionality of a statute as to steer clear of the alleged element
of unconstitutionality. Justice Douglas characterizes this practice as “tailoring an Act to make
it constitutional” and explain it further thus: “If the construction of the Act is possible that
will save it from being constitutionally infirm, the Court will adopt that construction. This
practice of saving an Act by construing it to avoid the constitutional issue has sometime been
carried a long way. There have been two approaches to the interpretation of the written
Constitution. The first approach is literal and narrow interpretation of the constitution where
the judgment of the court constitutes a mere exegesis of the fundamental text. This approach
envisages that the Constitution is treated as any other statute passed by the legislature and the
same principles of interpretation have been applied thereto as are usually applied to the
interpretation of ordinary laws. This is called the positivists or the Austinian approach. The
other is the liberal, purposive, law creative interpretation of the Constitution with insight into
social values with capacity of adaptation of changing needs. The courts begin with the
premise that the Constitution being the fundamental law of the land should be given a some
what different treatment and interpreted more liberally than an ordinary law. Interpretation of
law affects only a limited number of persons but interpretation of the Constitution and
declaring a law constitutional or unconstitutional affects the entire governmental functioning,
policy making, and even the constitutional process in the country.

 Indian Constitution: Change and Challenge

The Constitution of India has the commendable role in the transformation of Indian politico-
legal scenario. From time to time the suitable amendments in the Constitution have been
made to coup up with the change in social as well as political order. For instance, in order to
subdue the political pressure and to curb the defection menace in political parties, the Tenth
Schedule of the Constitution 8 Constituent Assembly Debates, was added in the form of Anti
Defection Law. It is a landmark amendment in the Constitution. The present Constitution is
not the same what the Constituent Assembly devolved. It has been amended for the 94th time
so far.

 Judiciary : the Embodiment of Socio-Political Change

May it a constitutional law, the statute law or the judge made law; it has to express itself in
the form of social change. The law has to coup up with the aspirations of the common
masses. The force of social change in the society is bound to affect the politico-legal
environment in the country. Democracy as well as democratic institutions cannot survive if
they shrink their shoulders in response to the rising aspirations of the society. Law, legal
institutions and legal process have to nourish the promises made to the society by the
Preamble of the Constitution. Law has to give expression to the aspirations and values of a
society and the legal process as a whole has to be implemented, in right earnest, the full range
of urge of the common man. Our juridical process must rise to the challenge of reorganizing
national life and to make law the delivery system of social justice. Our legislative process
must drop the techniques of sound and fury signifying nothing and restructure and reeducate
itself to be capable of people conscious law making and field level implementing.

CASE STUDY:-
 Arjun Munda v/s Governor of Jharkhand and Others
Governor committed irregularities in appointing the leader of the political alliance, not
commanding support of legislators, as Chief Minister of the State of Jharkhand. In Arjun
Munda v/s Governor of Jharkhand10 while disposing off the petition, the Supreme Court of
India held that “only Agenda in Assembly on 11.3.2005 would be to have a floor test between
the contending political alliances in order to see which of the political parties or alliance have
a majority in the House and hence a claim for Chief Ministership. We direct the Chief
Secretary and the Director General of Police, State of Jharkhand to see that all the elected
members of the legislature Assembly freely, safely 10 SCC 2005 (3), P-152 and securely
attend the Assembly and no interference or hindrance caused therein.” Arjun Munda proved
his majority on the floor of the House of Jharkhand Assembly for Chief Ministership. The
Apex Court in this case drove the State Assembly of Jharkhand out of the constitutional
crises which the Governor has generated. In the eyes of judiciary, Governor disregarded the
democratic norms of the political system founded by the Constitution of India.

 Amarnath Ashram Trust Society v/s Governor of Uttar

Pradesh
In Amarnath Ashram Trust Society v/s Governor of Uttar Pradesh11 the honourable Supreme
Court held that “where exercise of discretionary powers is likely to affect prejucidally it has
to be exercised bonafiedly and not arbitrarily.” The Apex Court in this case passed the
indictment that governors should use their discretionary powers democratically and fairly and
far from arbitrary approach.

 State of Karnataka v/s Union of India

The Honourable Supreme Court of India held in State of Karnataka v/s Union of India12 that
the polity of ours is the result of historical incidents and the adoption of centripetal force in
the Constitution was the need of the day. The Indian Constitution sets up what, in the words
of Ambedkar, one of the prime architect of the Constitution, is ‘a dual polity’ by the
expression, he meant, a Republic, both unitary as well as federal, according to the need of the
time and circumstances. This dual polity of ours is a product of historical incidents, or at any
rate of circumstances other than those which resulted in genuine federations in which the
desire for separate identity and governmental independence of the federating units is so
strong that nothing more than a union with strict demarcated field of Central Government’s
power is possible. Judicial observation depicted above elucidates unitary convergence in
Indian polity which carries the attenuation of central authority which confines in it the
portfolios of strategic nature. The states in this set up have independent fields of power to
function along with the collaborated field with Central authority. Thus, the political structure
of Indian polity comprises three fields of powers, the State, the central and the concurrent.
The judiciary in this case has interpreted the centralized Indian polity in the form of division
of powers between the Centre and states. This unified structure of Indian polity necessitated
the need of Governor to be the Center’s representative in each state.

 M.Kiran Babu v/s Government of Andhra Pradesh

Judiciary has interpreted a vital concept in M.Kiran Babu v/s Government of Andhra
Pradesh that in as much as the Governor is only a nominee of the President and is not elected
either directly or indirectly by the people, he cannot claim the legitimate right to govern the
people by himself. The people elect a legislature and a political party to govern them. The
Government so elected is responsible to the people through legislature. It is for this reason
that Article 163(1) declare that Governor shall act on the aid and advice of the Council
headed by the Chief Ministers, except in those matters where the Constitution requires him to
discharge his functions in his discretion. Judiciary in the above judgment is of the view that
Governor has no right to govern the people directly or indirectly. Judiciary in this
interpretation has given a message to the Governor’s fraternity that they should keep
themselves away from the active politics. Active politics is not their domain. It is submitted
that whenever the Governors in India foresee an opportunity to govern the State, directly or
indirectly, they do not hesitate in availing that opportunity even at the cost of misusing their
discretionary powers. The inbuilt intention of the governors is to keep their appointing
authority happy which is also his removing authority. In this drive they misuse their
discretionary powers.

 ADVANTAGES AND DISADVANTAGES OF INDIAN JUCICIARY

  ADVANTAGES :-

Sir John Salmond said that administering justice according to fixed legal principles has three
advantages:

 Ensures uniformity and certainty in the administration of justice

 A body of law is a normal requirement for any society.
 Judges know what rules are and hence can enforce them uniformly.
 Citizens of the society will know the rules and shape their conduct accordingly.
 Guarantees / Secures impartiality in administration of justice
 Judges could get influenced by improper motive if they are left to adjudicate matters
according to what they feel.
 Pre-determined legal provisions will force judges not to go for improper motives
 Law is not made keeping in mind any specific case or to suit the convenience of any
particular person.
 Rules of Law represent collective wisdom of the community
 Rules of law are formulated after thought-out opinion.
 By applying the rules, Judges are applying the collective wisdom of the community.
 Lord Coke: The wisdom of the law is wiser than any man's wisdom.

 DISADVANTAGES:-

 Being rigid is the usual defect of any legal system because law fails to conform itself to the
requirements of unforeseen classes of cases.
 Complex conditions of the society does not allow law to be framed to conform to all the
sections all the times.