chapter 4

social justice
Introduction
Our society requires justice so that we are able to
have order and the wellbeing of all the people.
Now the question is what kind of justice. Rich
(Capitalist )people will argue that they want a
completely liberal society where market will rule
and state will function merely to maintain law and
order. This is justice for them.
Whereas socialists will say that justice is where
state will occupy all resources and there is equal
distribution of resources.
what is justice?
Justice involves the wellbeing of all people.
Immanuel Kant has argued that human beings
possess dignity. And if all persons are granted
dignity, then they will have equal opportunity to
develop their talents and pursue their chosen goals.
Justice means that we give equal consideration to
all individuals.
 Meaning of justice
Justice means giving equal consideration to all
individuals.

Three Principles of Justice:

The meaning of equal treatment for equals

It means that equal treatment should be provided
to equals only. This means that there can be
equality of opportunity only when people are
educated. So, while talking about equal treatment
we need to see whether they can be equally
treated. For example: if a boss says that a male
colleague in their office stays late at night. The boss
cannot say the same thing to female colleague to
stay late in office. Because the female has security
problem at night. a boss can only tell male colleague
to stay late till night. So only equals can be treated
equally.
Proportionate justice.
this is the second principle of justice. although
equality is an important principle but we cannot
have equal treatment for all. how will you feel if you
have worked so hard fo your exams and you get the
same marks as your friend who has slept and played
during exams. you will feel this is injustice. so justice
has to be according to the merit. it means
rewarding people according to the scale and
quality of effort. so for justice in society, equal
treatment needs to be balanced with
proportionality.
recognition of special needs
this is the third principle of justice. i will repeat the
same point again that everybody cannot be treated
equally. there are people with special needs also.
for example: handicaps. these people have
disabilities and cannot be compared with abled
people. so state needs to help them and provide
them facilities so that they can come equal to abled
people.
another example: we need to recognise that if
women work at night then security issues arise. and
we need to take note of that rather than comparing
them with male colleagues.
similarly, if a person lack good education , we
cannot compare him/her with a convent educated
student. for that government has provided
reservations so that underprivileged children can be
brought at par.
so, physical disbilities, lack of education and health
care are some factors which are considered grounds
for special treatment.
Just distribution
 A society requires just distribution of goods and
services for maintaining law and order. If there are
deep inequalities in society, then it requires
redistribution of goods and resources. For example:
when India was under British rule, then zamindars
had acquired vast swathes of land. But post
independence, land reforms were carried out and
land was redistributed among poor peasants.
The basic minimum quality of life needs to be
provided so that one can enjoy equality of
opportunity. Basic needs of life include housing,
nourishment, clean drinking water, education and a
minimum wage. If everybody does not have
education, then open civil services examination
does not have any value because only highly
educated people can take examinations then.
So just distribution means that resources and
goods should be so distributed that everybody can
enjoy minimum quality of life. if everybody does
not have basic minimum resources then it should
be redistributed from rich classes to poor classes.
Rawl's theory of justice
John Rawl’s, an important political thinker, has
given a theory of justice to achieve a just state. he
puts all individuals behind the 'veil of ignorance'.
'veil of ignorance' means that individuals are put in a
position where they do not know what is their status,
wealth, class, ability , talent etc. so these individuals
will choose privileges which will affect them once
they come out of veil of ignorance. Rawls said that
these individuals are rational and will choose
privileges which will help them in developing
their fuller personality.
so they will first choose liberty. Because if an
individual has liberty then he/she will be able to
achieve anything by his/her hard work.
second they will want is equality of opportunity. that
means all individuals should get the equal
opportunity. they should not be discriminated on the
basis of their caste, region, gender and religion.
And third, they will demand in difference principle.
It means that if any individual, after veil of
ignorance, comes out is disabled or unfortunate,
then society should help that least advantaged
person.
This Rawl's theory of justice where rationality rather
than moral thinking can lead us to have a fair and
just society.
Unit-4: Justice Sub-Unit: ‘Different Dimensions of
Justice’

Till now we have tried to understand what the term

justice means. After considering this, we need to
know different dimensions of justice which may
help us in establishing a just society. Legal, social,
political and economic justice are the key
dimensions of justice. Here, we will try to
understand these dimensions in some details.

1. Legal Justice: It is a narrow concept of justice

which is associated with the legal system and legal
procedure existing in a society. The court of law
interprets the law and applies it after hearing
the partners involved in a dispute. Here, justice is
what administered by the court of law and the
interpretation of the judge is considered to be an
embodiment of justice.

2. Political Justice: In any democratic society

political justice means providing equal political
rights. Political justice stands for a free and fair
participation of people in the political sphere.
Universal adult franchise is the expression of
political justice. Equality of opportunity in getting
elected and in holding public offices, freedom of
expression and association are important pillars
of political justice.

3. Social Justice: It means to end all types of social

inequalities and to provide proper opportunity to
every citizen in every sphere of life, to develop
her/his personality to ensure equality of law,
prohibition of discrimination, social security,
provision of equal political rights, etc. The concept
of social justice is based on the belief that all
human beings are equal and no discrimination
should be made on the ground of race, religion,
caste, gender and place of birth.

4. Economic Justice: It means to provide equal

opportunities to everyone to earn her/his livelihood.
It also means to help such people who are not able to
work and earn their
livelihood. The basic need of every person such as
food, cloth, shelter and education should be fulfilled.
It stands for by assuring adequate means of
livelihood to all, by making provisions for equal pay
 for equal work, fair distribution of resources, equal
economic opportunity to all, etc.

While the concept of political justice is closely

linked with the ideal of “liberty”, economic and legal
justice with “equality” and social justice with
“fraternity”, a just combination of all these four
dimensions will help in achieving justice in life.

Unit-4: Justice Sub-Unit: ‘Different Dimensions of Justice’ Till now we have tried to understand what the
term justice means. After considering this, we need to know different dimensions of justice which may
help us in establishing a just society. Legal, social, political and economic justice are the key dimensions
of justice. Here, we will try to understand these dimensions in some details.

1. Legal Justice: It is a narrow concept of justice which is associated with the legal system and legal
procedure existing in a society. The court of law interprets the law and applies it after hearing the
partners involved in a dispute. Here, justice is what administered by the court of law and the
interpretation of the judge is considered to be an embodiment of justice.

2. Political Justice: In any democratic society political justice means providing equal political rights.
Political justice stands for a free and fair participation of people in the political sphere. Universal adult
franchise is the expression of political justice. Equality of opportunity in getting elected and in holding
public offices, freedom of expression and association are important pillars of political justice.

3. Social Justice: It means to end all types of social inequalities and to provide proper opportunity to
every citizen in every sphere of life, to develop her/his personality to ensure equality of law, prohibition
of discrimination, social security, provision of equal political rights, etc. The concept of social justice is
based on the belief that all human beings are equal and no discrimination should be made on the
ground of race, religion, caste, gender and place of birth.

4. Economic Justice: It means to provide equal opportunities to everyone to earn her/his livelihood. It
also means to help such people who are not able to work and earn their livelihood. The basic need of
every person such as food, cloth, shelter and education should be fulfilled. It stands for by assuring
adequate means of livelihood to all, by making provisions for equal pay for equal work, fair distribution
of resources, equal economic opportunityto all, etc. While the concept of political justice is closely
linked with the ideal of “liberty”, economic and legal justice with “equality” and social justice with
“fraternity”, a just combination of all these four dimensions will help in achieving justicein life.

chapter 6 judiciary

Introduction
we all know judiciary is important for settling the
disputes between individuals and private parties.
but besides, sorting out disputes it also performs a
very vital political function. That is to protect rights
of individuals.
it interprets the provisions of constitution and
protects the rights of citizens.
(by interpreting it means that it explains the laws
in the constitution in such a way that it is in sync
with principles of constitution which is liberty,
justice etc. to make it more simple, a law has
different interpretations. To allow judiciary to carry
out its functions effectively and fearlessly, we need
an independent judiciary. and to make our
judiciary independent , constitution has made
certain provisions for it. )
Q1. Why do we need an independence of
judiciary?
a1. Independence of judiciary is required:
a. to settle disputes according to the rule of law.
b. to protect rule of law
c. ensure supremacy of law
d. safeguards rights of individuals
e. ensure that democracy does not give way to
individual or group dictatorship
Q2.what is the meaning of rule of law?
A2. rule of law means that all individuals whether
rich or poor, men or women, forward or backward
castes , they all are subjected to the same law.
Meaning of independence of judiciary
it means that
a. Other organs of government like executive and
legislature must not restrain the functioning of
judiciary that it (judiciary) is not able to do justice.
b. other organs should not interfere with decisions
of judiciary
c. Judge must be able to perform functions
without any fear.
But that does not mean that judiciary will do
whatever it wants. it does not mean taking
arbitrary decisions.

How can independence of judiciary be

provided and protected?
a. legislature is not involved in the process of
appointment of judges : so political party will not
be able to appoint judges. they need to have
experience of law
b. judges have a fixed tenure. they hold office till
the age of retirement. this security ensures that
they are able to function without fear of losing
their jobs.
c. removal of judges is very difficult. since their
removal from jobs is difficult they have a security
of tenure and can thus function fearlessly.
d. judiciary is not dependent on executive and
legislature for their salaries. legislature does not
discuss on the salaries of judges. they also can not
discuss about conduct of judges in parliament,
unless the judge is not being impeached. if the
judge is discussed it can lead to contempt of court
and the MP can be penalised.

q1. what does independence of judiciary means?

a1. it means that
a. other organs of government like executive and
legislature must not restrain the functioning of
judiciary that it (judiciary) is not able to do justice.
b. other organs should not interfere with decisions
of judiciary
c. judge must be able to perform functions
without any fear.
but it does not mean that judiciary takes arbitrary
decisions. judiciary is a part of democratic political
structure.
How can independence of judiciary be
provided and protected?
a2. Legislature is not involved in the process
of appointment of judges

b. judges have a fixed tenure. They hold

office till the age of retirement. This security
ensures that they are able to function without
fear of losing their jobs.

c. removal of judges is very difficult.

d. judiciary is not dependent on executive

and legislature for their salaries. legislature
does not discuss on the salaries of judges.
they also can not discuss about conduct of
judges in parliament, unless the judge is not
being impeached. if the judge is discussed it
can lead to contempt of court and the MP can be
penalised.
q3. Why is the removal of judge difficult?
a3. It is difficult to that there is security of tenure.
and judges can work fearlessly.
Appointment of judges
council of ministers, governors, chief ministers and
chief justice of India all decide about the process of
judicial appointment. And as a convention, senior
most judge of Supreme Court is appointed as chief
justice of India. But this convention was broken
twice. In 1973, AN Ray was appointed as CJI
superseding three senior judges. and Justice
MHBeg was appointed superseding HR Khanna in
1975.

the other judges of supreme court and high court

are appointed by president after consulting CJI.
This means that council of ministers has greater
say in appointing judges. so what does CJI do?
supreme court has adopted principle of
collegiality. it means that CJI along with
consultation of four senior most judges should
recommend names of persons to be appointed.
therefore, decision of judges of supreme court
carries weight. In total, the supreme court and
council of ministers decide the appointment of
judges.

Q Why MH Beg and AN Ray was able to break

the convention in 1970s to become CJI?
Ans Indira Gandhi wanted committed bureaucracy
and committed judiciary to sustain her rule.
Moreover in 1975 she imposed emergency. So she
needed committed system who will adhere to her
demands.
Q5. How is a Judge appointed?
A5. To appoint a judge, principle of collegiality is
adopted. Names of judges are suggested by CJI in
consultation with four senior most judges. And the
president appoints them .
Removal of judge
Removing a judge is a very difficult process.
1. A judge of high court or Supreme Court can only
be removed on proven misbehaviour and
incapacity. (Incapacity means that he is not
properly able to discharge his responsibility).
2. It requires a special majority in both houses of
parliament to remove a judge. (Special majority
means two thirds of those present and voting and
simple majority of total membership of house).
Therefore, while making appointments, executive
is important and while removing legislature is
important.
One unsuccessful attempt was made to remove a
judge. Though it was passed by two thirds of
members who were present and voting, it could
not get one half of total strength of the house. The
name of the Justice was V.Ramaswamy.
Q. On which justice was resolution Against
his removal passed?
A. Justice V. ramaswamy
3. On what grounds can judge of supreme
court or high court be removed?
A. Proven misbehaviour or incapacity.
Structure of Judiciary
Ours is a single integrated judicial system. That
means we have supreme court at the top, and high
court below it , followed by lower(subordinate)
courts.
Supreme court
High court
Lower(subordinate) court
Functions of Supreme Court
The functions and responsibilities of supreme court
are defined in our constitution. It has specific
jurisdiction or scope of powers:
Original jurisdiction: it means cases that can be
directly considered by supreme court without going
to lower courts before that. And those are federal
cases. Disputes arising between union and states,
and amongst states themselves directly go to
supreme court. The supreme court has the sole
power to resolve such cases. Neither high court
nor lower court can deal with such cases. The
supreme court not just settles the issue but also
interprets the powers of union and state
government as laid down in constitution.
Writ jurisdiction: as we have already studied
this, any individual whose fundamental rights has
been violated he/she can directly approach
supreme court. The supreme court and high courts
can order Writs. It is on the indiividual, whether he
wants to apprroach high court or supreme court.
Through such writs, court can order executive
whether to act or not to act.
Appellate jurisdiction: it means that the
supreme court will reconsider the case and legal
issues involved in it. The supreme court is the
highest court of appeal. A person can appeal to
supreme court against the decisions of the High
Court. But high court has to certify that the case is
fit for appeal. And in criminal case, if death has
been given by lower court, guilty can appeal to
supreme court. Supreme Court has the right to
decide whether to admit appeal even when it is not
granted by high court. Because if the supreme
court thinks that the interpretation of law is
different than what has been given by lower court,
then it intervenes. High courts also have appellate
jurisdiction over lower courts.
Advisory jurisdiction: supreme court possesses
adisory functions. The president can ask supreme
court for advice on any matter that is of public
importance or that which involves interpretation of
the constitution. But supreme court is not bound to
give advice and president is not bound to accept
such advice.
The advantage of advisory function is that 1)
it allows government to seek legal opinion on
important matter so that later it does not lead to
unnecessary legal hassles. 2) when the supreme
court gives advice the government can make
changes in its action or legislations.
Special powers: supreme court can grant special
leave to an appeal from any judgment or matter
passed by any court in the territory of india.
Besides this, decisions made by supreme court are
binding on all other courts within territory of india.
It is enforceable across the country. And supreme
court can review its own decisions any time.
Judicial Activism
In simple terms it means the activism shown by
judiciary in resolving cases. Initially, only people
who have been aggrieved or hurt or cheated can
approach the court.
But this restricted entry of people who are not
educated or donot have enough finances.
Meaning of PIL
PIL(public interest litigation) where anybody from
the public can file the case of behalf of people who
are being cheated or aggrieved.
Judiciary has started picking up cases on its own
from newspaper or media when it sees that
executive is not doing its work. For example:
recently supreme court scolded executive for
allowing food being wasted in godowns and
ordered to distribute it for free. So judiciary is also
forcing executive accountability.
In simple terms it means judiciary becoming active
and picking up cases on its own or with the help of
public, media to bring justice. And this can be
achieved through PIL or SAL(social action
litigation).
PIL emerged in 1979. And around the same time
supreme court took up the case of rights of
prisoners. And with this large number of public
spirited citizens and voluntary organisations sought
judicial intervention for the betterment of life
conditions of poor, protection of environment and
many other issues.
Through PIL, courts has expanded idea of rights.
Clean air, unpolluted water and decent living are
rights of the entire society.
This has impacted the political system. It has
democratised the judicial system by giving groups
also access to courts. Before 1980s, only
individuals who were aggrieved could approach
court for justice.
Example of SAL: It has also made attempts to
make elections much more free and fair. The court
have asked candidates contesting elections to file
affidavits indicating their assets and income
alongwith educational qualifications so that people
could elect their representatives based on accurate
knowledge.
A Negative side of PIL.
It has overburdened courts
Judicial activism has blurred the distinction between executive
and legislature on one hand and judiciary on the other hand. It
means that judiciary has started taking note of work of executive.
For example: In the case of food being wasted,it was the duty of
executive to prevent food wastage and also allow food storage.
But judiciary took note of food wastage and ordered executive to
take action for it. But this is not the work of judiciary.
Cases in which judicial activism was involved:
Blinding of inmates in bihar jail (to know more about this watch
gangajal movie of ajay devgan Sexual exploitation of
children Inhuman working in stone quarries.
In 1979, a newspaper published a report on bihar prisoners about
under trials. They reported that they have been spending more
years in jail as a punishment than it would have required. An
avocated filed a petition and supreme court took up the case. And
this was one of the earliest PILs. This is known as hussainara
khatoon v/s bihar case.
2. In 1980, a prison inmate of Bihar jail managed to send a
scribbled piece of paper to justice Krishna Iyer narrating
physical torture of prisoners. The judge got it converted into a
petition. It came to be known as sunil batra v/s delhi
administration.
Q&A
Q1. What is PIL?
A1. PIL is an instrument by which groups, organisations or
individuals can file a case in court on behalf of the aggrieved
person.
Q2. Why was PIL introduced?
A2. PIL was introduced for bringing justice to poor and needy.
Initially, poor couldnot approach the court because of less legal
knowledge and less financial resources. But, after 1980s, supreme
court came out with Public interest litigation in which the public
spirited individual or voluntary organisation can file a case on
behalf of aggrieved.
For example: in 1979, an advocate filed a petition after reading
about Bihar inmates spending long years in jail than their
punishment would have required. Supreme court took up the
matter and it became famous as one of the early PILs.
Q3. How has PIL impacted democratic system?
A3. PIL has made our political system much more democratic.
Now even poor and needy can get justice now. It has made our
executive system more accountable. It has also made attempts to
make elections much more free and fair. The court have asked
candidates contesting elections to file affidavits indicating their
assets and income alongwith educational qualifications so that
people could elect their representatives based on accurate
knowledge. Also , it has expanded the concept of rights by
including clean air, unpolluted water, and decent living as rights
of entire society.
Q4. What are the disadvantages of PIL?
A4. PIL has overburdened courts. It has also blurred the
distinction between executive and legislature on one hand and
judiciary on the other.
Q5. Give two example of PIL?
A5. 1. In 1979, a newspaper published a report on bihar
prisoners about under trials. They reported that they have been
spending more years in jail as a punishment than it would have
required. An avocated filed a petition and supreme court took up
the case. And this was one of the earliest PILs. This is known as
hussainara khatoon v/s bihar case.
2. In 1980, a prison inmate of tihar jail managed to send a
scribbled piece of paper to justice Krishna Iyer narrating
physical torture of prisoners. The judge got it converted into a
petition. It came to be known as sunil batra v/s delhi
administration.
Q6. In what year PIL was introduced?
A6. 1979.
Judicial review
Supreme court has another important power besides judicial
activism and that is of judicial review.
Under judicial review, SC (supreme court) has the power to
check whether the law made by executive is within the
provisions of constitution or not. If it is unconstitutional, then
the law is declared invalid.
For example: if executive comes out with law that free exchange
of ideas in not allowed in newspapers and all newspapers should
be shut down, then SC will intervene and declare this law as
invalid and non operational.
This power SC checks that executive does not make any
authoritarian or dictatorial law which takes away the rights of
people. The term judicial review is not mentioned in the
constitution but SC has the power to interpret the law so judicial
review comes under the power of SC. And also as we saw in
original jurisdiction, the SC can declare a law invalid if it
concerns the distribution of powers of states and union. The
review powers also extends to states legislatures.
So, together with writ power which is for protecting the
fundamental rights of an individual and the review power of
courts, judiciary is a very powerful body. PILs have further
made judiciary very powerful.
So the SC can protect the violation of rights in two ways:
It can restore fundamental rights by issuing writs (article32).
High courts can also issue writs(Article 226)
SC can declare the law as unconstitutional and non operational
(article13)
In this way, SC protects the rights of individual.
Q&A
Q1. How does SC protects the rights of individual?
A1. The SC protects the rights of individual by:
It can restore fundamental rights by issuing writs (article32).
High courts can also issue writs(Article 226).
SC can declare the law as unconstitutional and non operational
(Article13). This power can also be termed as judicial review.
Where SC can delare a law unconstitutional if it goes against the
basic principles of constitution.
Judicial activism has also expanded the scope of rights. PIL is an
instrument through which judicial activism is brought into
effect.
Meaning of judicial review
It means the power of supreme court (or high courts) to
examine the constitutionality of any law if the court arrives at
the conclusion that the law is inconsistent with the provisions of
the constitution , such a law is declared unconstitutional and
invalid.
. Where can judicial review be applied?
. Judicial review can be applied on:
Fundamental rights
Federal relations: the SC can use judicial review powers if it
sees that distribution of powers is inconsistent with the
constitution.
Q4. How is judiciary a powerful organ?
A4. Judiciary is a powerful organ:
Judicial activism
Judicial review
Writ power
JUDICIARY AND PARLIAMENT
Our constitution has provided a system of balance of power. no
organ of government can claim supremacy. Each organ has clear
functioning.
-Parliament is supreme in law making and amending the
constitution. And executive is supreme in implementing them.
-while judiciary is supreme in settling disputes and deciding
whether laws have been made in accordance with the principles
of constitution.
-Since executive has been careless in working for public welfare
, so judiciary has played an active role in working for the public
interest. It has made use of judicial review and
judicial activism to protect the rights of citizens.
-Also areas which were considered beyond the scope of judicial
review have now been brought under its purview. -- -
-Like the powers of President and Governor. SC involved itself
in the administration of justice by giving directions to executive
agencies. Thus, it gave directions to CBI to initiate
investigations against politicians and bureaucrats in the hawala
case, Narasimha Rao case. Illegal allotment of petrol pumps
case etc. many of these are the result of judicial activism. But
judicial review and judicial activism has led to fights between
executive and judiciary.
One of the most controversial case was over right to property
which became famous as keshavananda bharati case.
Q& A
Q1. How has our constitution maintained division of powers?
A1. Our constitution has provided a system of balance of power.
no organ of government can claim supremacy. Each organ has
clear functioning. Parliament is supreme in law making and
amending the constitution. And executive is supreme in
implementing them. while judiciary is supreme in settling
disputes and deciding whether laws have been made in
accordance with the principles of constitution.
Q2. Give few examples where judiciary has become active in
political cases?
A2. Judiciary has given directions to CBI to initiate
investigations against politicians and bureaucrats in the hawala
case, Narasimha Rao case, illegal allotment of petrol pumps case
Keshavananda bharati case
Immediately after the implementation of constitution began, a
controversy arose over parliament's power to limit or restrict the
right to property.
They wanted to acquire property for the public use. But court
intervened and said that this is unconstitutional and government
cannot restrict right over property. Because right to property is a
fundamental right and fundamental rights cannot be violated or
restricted. Parliament then tried amending the fundamental
rights in the constitution but court said that parliament cannot
amend fundamental rights.
During the period of 1967 and 1973, this fight between
executive and judiciary became very popular. in 1973, the court
gave decision which became very famous as keshavananda
bharati case. The court said that there is a basic structure of
constitution which cannot be amended or violated by the
executive. And it also said that right to property is not the basic
structure of constitution and therefore, right to property can be
amended to bring public welfare. And secondly it also said that
it is ONLY court that will decide what is the basic structure of
constitution. This is perhaps the best case which shows that how
courts uses its power to interpret the constitution.
Therefore right to property was taken away as fundamental right
in 1979 and this also changed the relation between legislature
and judiciary.
This was keshavananda bharati case.
Q&A
Q1. What is keshavananda bharati case? (v.imp)
A1. immediately after the implementation of constitution began,
a controversy arose over parliament's power to limit or restrict
the right to property. But court intervened and said that this is
unconstitutional and government cannot restrict right over
property. Parliament then tried amending the fundamental rights
in the constitution but court said that parliament cannot amend
fundamental rights.
During the period of 1967 and 1973, this fight between
executive and judiciary became very popular. in 1973, the court
gave decision which became very famous as keshavananda
bharati case. The court said that there is a basic structure of
constitution which cannot be amended or violated by the
executive. And it also said that right to property is not the basic
structure of constitution and therefore, right to property can be
amended to bring public welfare. secondly it also said that it is
ONLY court that will decide what is the basic structure of
constitution.
Q2. What are the problems which our judiciary is currently
facing?
A2. The problems which our judiciary is currently facing are:
1.Corruption
2. Delay in giving judgements
3. Witnesses turning hostile: that means witnesses not giving
true account of circumstances
4. Lack of staff
5. Overburdening of cases
6. No transparency among judges
7. Only wealthy and influential can approach courts
Non serious
Chapter 6
Judiciary
non serious chap6
we all know judiciary is important for settling the disputes
between individuals and private parties. but besides, sorting out
disputes it aso performs a very vital political function. that is to
protect rights of individuals. it interprets the provisions of
constitution and protects the rights of citizens.
To allow judiciary to carry out its functions effectively and
fearlessly, we need an independent judiciary. and to make our
judiciary independent , constitution has made certain provisions
for it.
Q&A
Q1. Why do we need an independence of judiciary?
a1. independence of judiciary is required:
a. to settle disputes according to the rule of law.
b. to protect rule of law
c. ensure supremacy of law
d. safeguards rights of individuals
e. ensure that democracy does not give way to individual or
group dictatorship
Q2.what is the meaning of rule of law?
A2. rule of law means that all individuals whether rich or poor,
men or women, forward or backward castes , they all are
subjected to the same law.
appointment of judges
supreme court has adopted principle of collegiality. it means that
CJI along with consultation of four senior most judges should
recommend names of persons to be appointed. therefore,
decision of judges of supreme court carries weight. In total, the
supreme court and council of ministers decide the appointment
of judges.
Removal of judge
Removing a judge is a very difficult process. A judge of high
court or supreme court can only be removed on proven
misbehaviour and incapacity. (Incapacity means that he is not
properlyable to discharge his responsibility). It requires a special
majority in both houses of parliament to remove a judge.
(special majority means two thirds of those present and voting
and simple majority of total membership of house). Therefore,
while making appointments, executive is important and while
removing legislature is important.
One unsuccessful attempt was made to remove a judge. Though
it was passed by two thirds of members who were present and
voting, it could not get one half of total strength of the house.
The name of the Justice was V.Ramaswamy.
Q&A
Q1. How are judges appointed?
A1. They are appointed by special majority.
Q2. On which justice was resolution Against his removal
passed?
A2. Justice V. ramaswamy
Q3. On what grounds can judge of supreme court or high
court be removed?
A3. Proven misbehaviour or incapacity.
Structure of Judiciary
Ours is a single integrated judicial system. That means we have
supreme court at the top, and high court below it , followed by
lower(subordinate) courts.
Original jurisdiction: it means cases that can be directly
considered by supreme court without going to lower courts
before that. And those are federal cases. Disputes arising
between union and states, and amongst states themselves
directly go to supreme court. The supreme court has the sole
power to resolve such cases. Neither high court nor lower court
can deal with such cases. It also interprets the powers of union
and state government as laid down in constitution.
b. Writ jurisdiction: any individual whose fundamental rights
has been violated he/she can directly approach supreme court.
The supreme court and high courts can order Writs. It is on the
individual, whether he wants to approach high court or supreme
court. Through such writs, court can order executive whether to
act or not to act.
c. Appellate jurisdiction: it means that the supreme court will
reconsider the case and legal issues involved in it. The supreme
court is the highest court of appeal. A person can appeal to
supreme court against the decisions of the High Court. But high
court has to certify that the case is fit for appeal. And in criminal
case, if death has been given by lower court, guilty can appeal to
supreme court. Supreme Court has the right to decide whether to
admit appeal even when it is not granted by high court.
d. Advisory jurisdiction: supreme court possesses advisory
functions. The president can ask supreme court for advice on
any matter that is of public importance or that which involves
interpretation of the constitution. But supreme court is not bound
to give advice and president is not bound to accept such
advice. The advantage of advisory function is that 1) it allows
government to seek legal opinion on important matter so that
later it does not lead to unnecessary legal hassles. 2) when the
supreme court gives advice the government can make changes in
its action or legislations.
e. Special powers: supreme court can grant special leave to an
appeal from any judgment or matter passed by any court in the
territory of india.
Besides this, decisions made by supreme court are binding on all
other courts within territory of india. It is enforceable across the
country. And supreme court can review its own decisions any
time.
Judicial Activism
In simple terms it means the activism shown by judiciary in
resolving cases. Initially, only people who have been aggrieved
or hurt or cheated can approach the court. But this restricted
entry of people who are not educated or donot have enough
finances. So the judiciary introduced PIL(public interest
litigation) where anybody from the public can file the case of
behalf of people who are being cheated or aggrieved.
And also judiciary has started picking up cases on its own from
newspaper or media when it sees that executive is not doing its
work. For example: recently supreme court scolded executive
for allowing food being wasted in godowns and ordered to
distribute it for free. So judiciary is also forcing executive
accountability.
Through PIL, courts has expanded idea of rights. Clean air,
unpolluted water and decent living are rights of the entire
society.
This has impacted the political system. It has democratised the
judicial system by giving groups also access to courts. Before
1980s, only individuals who were aggrieved could approach
court for justice.
It has also made attempts to make elections much more free and
fair. The court have asked candidates contesting elections to file
affidavits indicating their assets and income alongwith
educational qualifications so that people could elect their
representatives based on accurate knowledge.
But there is a negative side to PIL.
1) It has overburdened courts
2) Judicial activism has blurred the distinction between executive
and legislature on one hand and judiciary on the other hand. It
means that judiciary has started taking note of work of executive.
For example: In the case of food being wasted,it was the duty of
executive to prevent food wastage and also allow food storage.
But judiciary took note of food wastage and ordered executive to
take action for it. But this is not the work of judiciary.
Q&A
Q1. What is PIL?
A1. PIL is an instrument by which groups, organisations or
individuals can file a case in court on behalf of the aggrieved
person.
Q2. Why was PIL introduced?
A2. PIL was introduced for bringing justice to poor and needy.
Initially, poor couldnot approach the court because of less legal
knowledge and less financial resources. But, after 1980s, supreme
court came out with Public interest litigation in which the public
spirited individual or voluntary organisation can file a case on
behalf of aggrieved.
For example: in 1979, an advocate filed a petition after reading
about Bihar inmates spending long years in jail than their
punishment would have required. Supreme court took up the
matter and it became famous as one of the early PILs.
Q3. How has PIL impacted democratic system?
A3. PIL has made our political system much more democratic.
Now even poor and needy can get justice now. It has made our
executive system more accountable. It has also made attempts to
make elections much more free and fair. The court have asked
candidates contesting elections to file affidavits indicating their
assets and income alongwith educational qualifications so that
people could elect their representatives based on accurate
knowledge. Also , it has expanded the concept of rights by
including clean air, unpolluted water, and decent living as rights
of entire society.
Q4. What are the disadvantages of PIL?
A4. PIL has overburdened courts. It has also blurred the
distinction between executive and legislature on one hand and
judiciary on the other.
Judicial review
Supreme court has another important power besides judicial
activism and that is of judicial review. Under judicial review, SC
(supreme court) has the power to check whether the law made
by executive is within the provisions of constitution or not. If it
is unconstitutional, then the law is declared invalid.
For example: if executive comes out with law that free exchange
of ideas in not allowed in newspapers and all newspapers should
be shut down, then SC will intervene and declare this law as
invalid and non operational.
This power SC checks that executive does not make any
authoritarian or dictatorial law which takes away the rights of
people.
Q1. How does SC protects the rights of individual?
A1. The SC protects the rights of individual by:
a. It can restore fundamental rights by issuing writs (article32).
High courts can also issue writs(Article 226).
b. SC can declare the law as unconstitutional and non
operational (Article13). This power can also be termed as
judicial review. Where SC can delare a law unconstitutional if it
goes against the basic principles of constitution.
c. Judicial activism has also expanded the scope of rights. PIL is
an instrument through which judicial activism is brought into
effect.
Q2. What is judicial review?
A2. It means the power of supreme court (or high courts) to
examine the constitutionality of any law if the court arrives at
the conclusion that the law is inconsistent with the provisions of
the constitution , such a law is declared unconstitutional and
invalid.
Q4. How is judiciary a powerful organ?
A4. Judiciary is a powerful organ:
a. Judicial activism
b. Judicial review
c. Writ power
FAMOUS CASE OF FIGHT BETWEEN JUDICIARY AND
LEGISLATURE
keshavananda bharati case
immediately after the implementation of constitution began, a
controversy arose over parliament's power to limit or restrict the
right to property. They wanted to acquire property for the public
use. But court intervened and said that this is unconstitutional
and government cannot restrict right over property. Because
right to property is a fundamental right and fundamental rights
cannot be violated or restricted. Parliament then tried amending
the fundamental rights in the constitution but court said that
parliament cannot amend fundamental rights.
During the period of 1967 and 1973, this fight between
executive and judiciary became very popular. in 1973, the court
gave decision which became very famous as keshavananda
bharati case. The court said that there is a basic structure of
constitution which cannot be amended or violated by the
executive. And it also said that right to property is not the basic
structure of constitution and therefore, right to property can be
amended to bring public welfare. Nad secondly it also said that
it is ONLY court that will decide what is the basic structure of
constitution. This is perhaps the best case which shows that how
courts uses its power to interpret the constitution.
Therefore right to property was taken away as fundamental right
in 1979 and this also changed the relation between legislature
and judiciary.
This was keshavananda bharati case.
Q&A
Q1. What is Keshav Ananda Bharati case?
A1. immediately after the implementation of constitution began,
a controversy arose over parliament's power to limit or restrict
the right to property. But court intervened and said that this is
unconstitutional and government cannot restrict right over
property. Parliament then tried amending the fundamental rights
in the constitution but court said that parliament cannot amend
fundamental rights.
During the period of 1967 and 1973, this fight between
executive and judiciary became very popular. in 1973, the court
gave decision which became very famous as Keshav Ananda
Bharati case. The court said that there is a basic structure of
constitution which cannot be amended or violated by the
executive. And it also said that right to property is not the basic
structure of constitution and therefore, right to property can be
amended to bring public welfare. And secondly it also said that
it is ONLY court that will decide what is the basic structure of
constitution.

Unit- 5: Judiciary Sub-Unit: ‘Judicial Over reach’ When judiciary assumes the roles and functions of the
legislature and executive, thus diluting the concept of separation of powers, it becomes judicial
overreach. Unrestrained activism on the part of judiciary often leads to its overreach. We all know that
Article 142 and judicial review have been put to many constructive uses but some actions like declaring
the NJAC (National Judicial Appointment Commission) unconstitutional as it tried to apply checks on
judicial power highlight the need for judicial restraints in the exercise of judicial review.