The Role and Importance of the Indian Judiciary: Protector of Constitutional Rights, Slides of Constitutional Law

Download The Role and Importance of the Indian Judiciary: Protector of Constitutional Rights and more Slides Constitutional Law in PDF only on Docsity! Indian Judiciary Why Judiciary is important? • Indian Constitution is a Federal Constitution. Federalism has Distribution of Powers between Centre & States. The disputes between Centre and States and two States are bound to arise and therefore an independent organ was required to resolve these disputes. • Supremacy of Constitution too requires independent and impartial judiciary which has been given the important function of interpreting Constitution. • Moreover Constitution guarantees certain Fundamental Rights. Only an independent organ can protect these rights and therefore judiciary was given the role of protecting people’s rights. • As a matter of fact, true federalism as per the Constitution was provided only in the judicial system as our High Courts are in no way subordinate to the Chief Justice of India. Supreme Court has no administrative control over the High Courts. • In fact CJI is not the boss of Supreme Court judges but just First amongst equals. What is Judicial Activism? • According to Black's Law Dictionary judicial activism is a philosophy of judicial decision- making whereby judges allow their personal views about public policy, among other factors, to guide their decisions. • Giving a new meaning to the provision to suit the changing social or economic conditions or expanding the horizons of the rights of the individual is termed as Judicial Activism. • Thus when courts start assuming even the functions of the Executive and Legislature, it is called Judicial Activism. • In the name of achieving Justice social, economic & political and other lofty goals mentioned in the Preamble, judges have been expanding their powers. They have been critical of inactions or wrong doings of the Executive. • One of the most important constitutional provisions giving extraordinary power to the Supreme Court is Article 142 of the Indian Constitution. This provision empowers the Supreme Court to pass suitable decree or order for doing complete justice. • Despite the fact that the law-making power in India lies primarily with the Parliament only, the Supreme Court is able to legislate under Article 142. This provision is responsible not only for the judicial activism but even judicial legislation in India. How Judicial Activism Has worked? • In Vishaka v. State of Rajasthan(2004) the Supreme Court held that in the “absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all workplaces or other institutions, until a legislation is enacted for the purpose. • The Law was eventually enacted by the Parliament ie Sexual Harassment at Workplace(Prevention, Prohibition & Redressal Act,2013. • Similarly Supreme Court in 2018 had laid down guidelines in cases of Honor Killings & mob-lynching. How Judicial Activism was used by the Courts? • For the first two decades of so of our constitution, our Supreme Court demonstrated Judicial Restraint and strictly operated within the constitutional limits. • Accordingly as we had discussed earlier in our lecture on Article 21, it gave a narrow and textual interpretation to the expression ‘procedure established by law’ in AK Gopalan(1951) and held if there is procedure established by law, it cannot do much. • Subsequently in Maneka Gandhi(1978), it said that such a law must be just, fair, reasonable and non-arbitrary. • The court therefore started widening the ambit of the Fundamental Rights.It expanded the definition of State under Article 12. • In fact several new rights like Right to Fair and Speedy trial, Right to Education, Right to Livelihood, Right to Health, Right to Environment etc. were made part of Article 21. • Several Directive Principles were elevated to the status of Fundamental Rights. • Through interpretation of the Constitution, Supreme Court has virtually given to itself final say in the appointment of Judges. We would discuss it in some details. How Supreme Court Judges are appointed? • Indian Supreme Court is the most powerful court in the world. It has 33+1 judges. • Originally Article 124 of the constitution had provided 7+1 but gave the power to the Parliament to prescribe a larger number. • Accordingly Parliament enacted the Supreme Court(Number of Judges)Act,1956 which provided for the maximum of 10 judges. • Article 124 says that judges of the Supreme Court would be appointed by the President after consultation with such of the judges of the Supreme Court and of the High Courts as President may deep necessary. But the Chief Justice of India shall always be consulted in the appointment of Judges.. How Collegium system came into being? • As per Article 124,President has to merely consult Chief Justice of India and such other judges he deems necessary. Supreme Court has itself held in S.P Gupta v. Union of India (1981) held that President is not bound by the advice of CJI and other judges. • Accordingly we had the primacy of the executive in the appointment of judges in the first four decades of our republic. • Most of the judges picked up under this system were independent, upright and fearless. How Collegium system has worked? • Ideally the Collegium system should have ensured timely appointment of more competent , independent and fearless judges. • But a closer scrutiny of their decisions reveals that at times their decisions are as unpredictable as the English weather. There is neither transparency nor any accountability. • Thus, the Constitution favors what may be called a “wider consultative process” in the appointment of judges. There is great merit in this provision. Wisdom is not the monopoly of a few chosen ones in the apex court. • A large number of judges were superseded during the last two decades. Several senior-most Chief Justices of various High Courts were not elevated. • Some of the finest judges were brought in late to ensure they did not become CJI. • Accordingly in 2014 National Judicial Appointment Commission Act was passed and the Constitution was amended. • But in 2016, Supreme Court struck them down as unconstitutional as primacy of the opinion of Chief Justice of India was held to be the basic structure of the Constitution.