INTRODUCTION: Judiciary is the one of the three pillars of Indian democracy.

The other two

pillars are the legislative and the executive. Judiciary is also the final arbitrator of Indian
constitutional arrangement.
The Indian constitution, the fundamental law of the land had been drafted with the four-fold
objectives of securing justice liberty, equality and fraternity to all the Indian citizens. The
judiciary in India, specially the higher judiciary has been assigned a vital role in various areas
like upholding the federal principle, interpretation of the law made by respective legislature,
testing validity of such laws and more importantly in protecting the fundamental right of
citizen.

The judiciary makes sure that the rights and duties as provided under the constitution if India
and other statutes as performed from time to time are duly performed and there is no violation
in any of such rights and duties to be performed. The judiciary plays a major role in framing
new laws for the people of the country. In such cases, the government cannot itself make
decisions so the judiciary maintain law and order in the society.
As per the present scenario where there is a rapid in cases of crimes in the country, the judiciary
has become the last ray of hope to get justice due to the incapability of the government to
check such crimes which is the reasons it must be reported whenever needed.

The function of the judiciary in India is to apply the law to specific cases where it needs to
settle disputes when any disputes is brought before the courts, its function is to determine the
facts through evidence presented by the contesting people.
Most importantly the judiciary is the protector of fundamental rights of the citizen. Everyone
has the right to fundamental rights, however sometimes people try to take them away. Thus, the
judiciary ensure no such things happens and let’s every citizen live with harmony. A judiciary is
very crucial in upholding a democracy like ours. As well we all know cases of injustice against
people have risen now days. There is unjust discrimination happening and the judiciary must
step in to stop all this.

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DEMOCRACY IN INDIA
The democratic government in India is the largest one. The beginning of the democratic system
in India was when the Constitution of India came into effect on 26th January 1950. Democratic
India reveals that for choosing representatives through the election, every citizen of India has
the right to vote without any discrimination irrespective of any creed, caste, religion, region,
and sex. The principles on which the democratic government of India is based are liberty,
equality, fraternity, and justice. In India, there is a state government and a central government
which means it is a federal form of government.

Democracies fall into two basic categories, direct and representative. In a direct democracy, all
citizens, without the intermediary of elected or appointed officials, can participate in making
public decisions. Such a system is clearly only practical with relatively small numbers of
people – in a community organization or tribal council, for example, the local unit of a trade
union, where members can meet in a single room to discuss issues and arrive at decisions by
consensus or majority vote.

Herodotus of Halicarnassus, defined democracy as that “form of government in which the

supreme power of the state is vested in the hands of the community as a whole”. Ancient Greek
philosopher Cleon had defined democracy 2400 years ago as, “That shall be democratic, which
shall be of the people, by the people and for the people.” In modern period this definition was
revived by Abraham Lincoln as “it is a government of the people, by the people and for the
people”. James Bryce has defined, “democracy is that form of government in which the ruling
power of state is legally vested, not in any particular class or classes but in the members of the
community as a whole”. Mazzini writes, “Democracy is the government of the best and wisest,
for the progress of all and through all.” Seeley has given a precise definition as, “democracy is
a government in which everybody has a share”. Among the definitions of democracy, we can
state that people are the chief source of state power. It is a government of majority but in this
form of government interests of minorities are not too ignored.

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JUDICIARY UNDER INDIAN CONSTITUTION:
The constitution of India which was drafted by the constituent assembly and which came in to
forces on 26th January,1950 contains number of provisions that deal with structure. It introduced
a unified system in all the states and Union Territories. It virtually introduced a three-tier
judicial system viz. The Supreme Court of India, the highest court of the land, the high courts,
and a subordinate judiciary in every state and Union Territories consisting of many hierarchies.
Although the constitution contains specific provisions relating only to the Supreme Court and
High Courts and it leaves the subordinate judiciary to the states. The position of the Supreme
Court under the constitution came up for consideration before the Constituent Assembly at a
very early age. Almost simultaneously with the appointment of the union constitution
committee, a special committee was setup to consider and report on the constitution and power
of the Supreme Court.
This committee consisted of S. Varada Chari, Alladi Krishna Swami Ayyar, B.L. Mitter, K.M.
Munshi and B.N. Rau. The committee sent its report11 on May 21, 1947. Its recommendations
were mainly based on the provisions of the Act of 1935. In India the judiciary has come to
exercise vast powers of judicial review in respect of the legislative and executive functions of
the state and of the judicial actions of the judiciary. The Supreme Court and the High Courts not
only act as the arbiters to determine disputes that may arise between the centre and states but
also protect and enforce the fundamental rights of the citizens against the arbitrary action of the
states. They also interpret the laws made by the legislature and they have the final say in the
validity of any legislative or executive action of the state if it contravenes or abridges the
fundamental rights of citizens. It is a unique feature identified only with the Indian higher
judiciary that it has the power to determine the validity of constitutional amendments which
perhaps is seen nowhere under any other constitution, written or unwritten. This power of
judicial review is also vested by the judiciary by implication, even in certain quasi-judicial
bodies like administrative tribunals.

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DEVELOPMENT OF JUDICIAL PERFORMATIVE IN INDIA
It is very difficult to trace the origin of judicial activism in India. Since the judiciary has come
to be recognised as an independent and separate organ of the government under the government
of India act 1935 and subsequently under the constitution of India. It would be prudent to scan
the period subsequent to 1935 for tracing the origin. However there are a few instances even
prior to that period where certain selected judges of High Courts established under the Indian
High Courts Act, 1861 exhibited certain flashes of judicial activism. Way back in 1893, justice
Mahmood of the Allahabad High Court delivered a dissenting judgment which showed the seed
for judicial activism in India. In that case which dealt with an under trial who could not afford
to engage a layer, Justice Mahmood held that the pre-condition of the case being 17 "heard"
would be fulfilled only when somebody speaks.
The concept of judicial activism can be seen to be reflecting from the trends exemplified by
some decision and orders of the Supreme Court. They are as follows:-
i. The judiciary since 1973, claims the power to nullify on substantive grounds even an
amendment made to the constitution by the amending body if it changes "the basic
structure of the constitution". This concept of 18 judicial control over the constitution has
been evolved by and known to courts in India only.
ii. The undoubted privileges of the legislature even in respect of their internal proceedings
have been 19 brought under the purview of judicial review.
iii. Power of judicial review as exercised by the Supreme Court and the High Courts has
been recognised by 20 those courts to be an unalterable" basic structure of the
constitution.

Thus the above some examples of judicial assertiveness makes it clear that this is very
difficult to trace the origin of judicial activism in India. The amount of activism varied in
different areas like interpreting the constitution, guarding the fundamental rights of the
citizens, expansion of scope of "Locas standi" in PIL etc. Now it would be quite
essential to analyse and discuss the definition, reasons, the frame work, different
dimensions and the Indian perspective of the judicial activism. At the outset it has to be
stated that there is no precise definition of judicial activism accepted by one and all.
However there is a widely accepted nation that it is related to problems and processes of
political development of a country. In other words, judicial activism deals with the
political role played by the judiciary, like the other two branches of the state viz. the
legislature and the executive.

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An eminent Indian jurist defines judicial activism in the following words. (Judicial)
Activism is that way of exercising judicial power which seeks fundamental recodification
of power relation among the dominant institutions of state, manned by members of the
ruling 21 classes." So it is submitted that the expression "Judicial activism" has eluded a
definition as an abstract concept. It is incapable of formulation by definition only. Now
coming on the reasons of judicial activism it is further submitted that, it is very difficult
to state under any constitution. There can not be any universal acceptance of these
reasons to be correct, in view of the conflicting interests and ideologies of various groups
of the society concerned with judicial activism in particular and judicial power in
general. The following are some of the well accepted reasons which compel a court or a
judge to be active while discharging the judicial functions assigned to then either by a
constitution or any other organic law.

i)Near Collapse of responsible government.

ii)Pressure on judiciary to step in aid.
iii)Judicial enthusiasm to participate in social reform and change.
iv)Legislative vacuum left open.
v)The constitutional scheme.
vi)Authority to make final declaration as to validity of a law.
vii)Role of Judiciary as guardian of fundamental rights.
viii)Public confidence in the judiciary etc.

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HISTORY:
History of judicial system in modern India:
The modern judicial system in India has its foundations in the colonial era. The east India
company established courts with European judged English laws.
The British introduced the common law system in India & established the Sadar-Diwani-
Adalat. They were later followed by the establishment of the high court.
After India gained Independence in 1947, the constitution of India was adopted in 1950. The
Supreme Court of India was established as the highest court in the country with the power of
judicial review over legislative and executive actions.1

In 1980’s the judiciary expanded its role in social justice by allowing public interest litigation,
enabling individuals and organisations to approach the courts to address issues affecting public
interest.
Over the years, the Indian judiciary has played a crucial role in interpreting the constitution and
protecting human rights.
Landmark case: like Kesava Nanda Bharti Vs State of Kerala [1973] established the
doctrine of basic structure and upheld the supremacy of the constitution.

History of the UK judicial system

Initially, the judicial system consisted of the monarch and their advisors. Over the centuries, it
has expanded to meet the needs of the people.
Consequently, the history of the UK judicial system is quite complex below is a timeline to help
understand the historical developments the UK judicial system.

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1066-1215- The local courts were presided over by a lord. Trial by or deal was common way to
determine innocence or quite. By the end of the 12th century, trial by ordeal was published.

Assize of clarendon orders judges not on the king’s bench to travel the country to decide cases.
In 1215 the king was forced to sign the Magna Carta, which established the right to due
process.

In 1217 the first professional judges and magistrates were created.

1971- The courts Act, 1971 was passed to reaffirm what the roles of each individual court in the
UK are.
2005- In 2005 the constitutional reform act was passed, the capacity of the land chancellor’s
office was modified.

The supreme court was created and the house of the Lords appellate power was abolished.
In 2009 the house of Lords replaced by the Supreme Court which creates a separation between
the legislature and the judiciary.

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LEGISLATURE:
PROVISION REGARDING JUDICIARY IN THE CONSTITUTION

The constitution incorporates several provisions regarding the judiciary, which provide for:
1. The establishment of the Supreme Court of India, its constitution organisation
constitutional jurisdiction and powers, qualifications for the appointment of judges,
method of appointment, their condition of service and security of tenure.

2. The establishment of High Court for each state or for two or more states, its constitution,
organisation constitutional jurisdiction and powers, qualification for the appointment of
judges method of appointment, their condition of service and security of tenure.

3. The vesting of effective administration control in the High Court. Over the subordinate
judiciary, and security of tenure.

Legislative power in relation to judiciary

The law giving power parliament and the legislative assemblies is provided for in Article 245 of
the constitution and in so far as is relevant is as follows:

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245[1] Subject to the provision of this constitution, parliament may make laws for the
whole or any part of the territory of India and a legislature of a state may make laws for
the whole or any part of the state
.

The matters on which the legislative bodies can legislate in relation to the judiciary are set out
in list I, list II or list III of the VII schedule to the constitution. Parliament alone is competent to
pass laws in relation to matters listed in I list II sets out the matters o which the legislature of
the state is competent to pass laws.
List III set out the matter on which the legislature of the state is competent to pass laws. List III
sets out the matter on which both parliament and the state legislature can pass laws.

SUPREME COURT: THE CONSTITUTIONAL SCHEME

The Supreme Court as the highest Court of the country came into existence on the 26 January
1950, i.e. the date of commencement of the constitution the supreme court is the highest court
of civil and criminal appeal is also vested with original and advisory jurisdiction. In view of its
importance to the working of constitutional system, the constitutional itself has specified the
jurisdiction or confer special jurisdiction.

Salient features of its jurisdiction and power are:

1. Original jurisdiction for enforcement of fundamental rights under Article 32. Under this
Article any person can directly approach the highest court to seek enforcement of any of
the fundamental rights guaranteed under this constitution Art 32 finds its place in the
chapter on fundamental rights and is hence itself a fundamental right.
2. Exclusive jurisdiction to decide centre-state and interstate disputes.
3. Appellate jurisdiction against judgements of High Court on certificate by the High Cort
in any case involving substantial question of law relating to interpretation of the
provisions of the constitution and in any matter involving a substantial question of law.
4. Power to transfer cases pending in one High Court to another or to withdraw cases
involving similar questions and pending in more than one High Court and decide on such
cases.

Article 138 and 139 empower parliament to make laws enlarging the jurisdiction of
Supreme Court. Article 141 provides that the law declared by the Supreme Court shall be
binding an all courts within the territory of India. Article 144 provides that all the civil
and judicial authorities in India shall act in support of the Supreme Court.

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Role of Judiciary
The Indian Constitution protects the citizens from any partial judgment. That’s why
supreme power is given to the Judiciary to make decisions based on the rule of law. The
courts in India neither are nor controlled by the government and they do not represent
any political authority.

(a) Separation of Power: This independence of Judiciary calls for ‘Separation of

Power’. This basically means that both the legislature and executive are not allowed
to interfere in the functioning of the Judiciary. So, in order to successfully execute
their independent authority, the judges of both the Supreme Court and the High
Courts must be appointed without any influence on interference from other branches
of the government or from private or partisan interests.

(b) Structure of Courts: The Judiciary is one of the three lynchpins of a democracy, the
other two being the legislature and the executive.
All three work in the concert to ensure that the democratic system works efficiently.
However, the executive and the legislature need checks on their power. Judiciary has
many important roles to full which includes:

(i) To act as guardian and interpreter of the constitution.

(ii) To protect fundamental and other rights of the citizens of India. To full the duty
imposed on the shoulders of judiciary, the judicial system is divided into three
levels of Courts in India.

• District Court: It is the lowest court situated in every district of each State.
This is where most citizens go to for any dispute in their city or religion.

• High Court: Each state has its own High Court, which is most certainly the
highest judicial authority of the state. Any person aggrieved by the order of the
District Court can appeal to the high Court for its grievances.

• Supreme Court: This is the Apex Court in a country. All other Courts including
High Courts and the District Courts are subordinate to it. The decisions made by
the Supreme Court stands above all other subordinate courts. Decision passed by
the Supreme Court is nal and binding on the parties.

(c) Dispute Resolution: The courts also have the right to punish people for the
crimes they commit. Almost every social situation which needs a rule is managed
by the Judiciary. So, whenever there is a dispute, the courts intervene in providing
solutions. Whether that dispute may be between citizens, citizens and government
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or between two governments or even the central and state government, the State is
responsible for dispute resolution.

(d) Judicial Review: The judiciary has the nal hold on the Constitution of India.
As such, if there is any violation of the fundamentals of the Constitution, the court
can even over write laws passed by the Parliament. This process is called Judicial
Review.

(e) Upholding the Law and Enforcing Fundamental Rights: Almost all
fundamental rights of Indian Citizens are de ned in our Constitution. In case, any
citizens feel that any of such rights are violated, they can approach their local
High Courts or the Supreme Court under Articles 226 or 32 of the Constitution.
Judiciary under Indian Constitution.

Following Kesava Nanda's articulation of the basic features limitation on

Parliament's amendatory powers, Parliament renewed its efforts to exclude the
Judiciary from the constitutional amendment process. In 1976, Parliament passed
the Forty-Second Amendment Act' that added two clauses to Article 368. Clause
(4) states that "[n]o amendment of this Constitution (including the provisions of
Part III) made or purporting to have been made under this article [whether before
or after the commencement of section 55 of the Constitution (Forty-Second
Amendment) Act, 1976] shall be called in question in any court on any ground."'
Clause (5) states that "there shall be no limitation whatever on the constituent
power of Parliament to amend ... the provisions of this Constitution ... ."

Although Parliament later repealed much of the Forty-Second Amendment, these

two provisions remain in the Constitution. In Minerva Mills, Ltd. v. Union of
India, a five-judge panel of the Court addressed the constitutionality of the Forty-
Second Amendment's two additions to Article 368.

The panel unanimously opted to strike both provisions as unconstitutional on the

grounds that they impermissibly sought to alter one of the Constitution's basic
features. In his majority opinion, Justice Chandrachud asserted that upholding the
purported Article 368 amendment would permit Parliament to impermissibly
expand its own limited amendment powers."

He argued that the Constitution did not permit Parliament to use its amendatory
power to remove the implied basic features limitation articulated by the Kesava
Nanda Court.

Justice Chandrachud also relied upon the separation of functions principle in

striking that portion of the purported amendment that expressly precluded the
courts from hearing claims relating to the amendment process.
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In a separate opinion, Justice Bhagwati, referring to Parliament's action as "a case
of zeal over-running discretion," concluded that the two attempted Article 368
additions were unconstitutional on basic features grounds.

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