Polity is one of the four core subjects of the UPSC Exam preparation. The subject is important for both, the Preliminary as well as the mains examination. ‘Judiciary’ is an important topic for the UPSC Exam. This article gives an introduction to Judiciary.
This unit has been covered under the following segments-
Description of the above segments has been laid down below.
Judiciary is that branch of government which interprets the law, settles disputes and administers justice. Laws are like dead letters without courts to explain and expound their meaning. Judiciary is the watchdog of democracy, guardian of the constitution as well as the champion of liberty. Bryce, while extolling the role of the judiciary, observed: “If the lamp of justice goes out in darkness, how great is that darkness”. An impartial and independent judiciary is the most important condition of a civilized government. Bryce has stated that the test of excellence of a good government is the efficiency of its judicial system. Emphasizing the need of impartial judiciary, Willoughby said; “It has been truly said that no tyranny is so great as that of a majority. One of the great problems confronting a people … is … that of providing means by which this danger may be avoided. Experience has shown that this can be done by entrusting to the courts the duty of seeing that no branch of government nor all the branches combined shall take any action contrary to law or in violation of the rights guaranteed to individuals. ” The judiciary, !n order to be fair and uniform, is structurally hierarchically organized. In India, the structure of the judiciary is like a pyramid. The Supreme Court is at the apex, below it, there are High Courts, the next step in the hierarchy are the district courts and at the bottom of the judicial pyramid are the subordinate courts. In the states, having the federal form of government, the judicial structure is arranged in either one or two hierarchies of courts. Where there is a single, integrated hierarchy, as in India, the courts from top to bottom deal with the disputes arising under the laws enacted by the Union Parliament as well as by state legislatures. On the other hand, where there are two hierarchies, as in the USA, the state courts try cases arising out of state laws, while the federal courts try cases arising out of federal laws. Needless to say that a single judicial hierarchy secures unity and integration of the judicial system and uniformity in its administration.
Independence Of Judiciary
Administration of justice is the key task of the judiciary. Justice, which is the soul of the state, must be administered without fear or favour. The judicial branch should remain outside the influence of politics. While interpreting laws and deciding cases, the judges must be impartial and honest. Without independence, impartiality and integrity of the judges are endanged. The first condition for an efficient and impartial judiciary is independence. This independence broadly means the freedom of the judiciary from the control and influence of the executive, the legislature and the people at large. Secondly, impartiality in the administration of justice is as important as independence. Justice should be administered without fear or favour, affection or ill-will. Besides being independent and impartial, the judges should be wise, learned and skilled in their profession. It follows that the judiciary should have certain qualities if it has to perform its functions properly. The following factors/ conditions are indispensable for the efficiency and independence of the judiciary.
1.Proper Method of Appointment: The independence of the judges depends, to a large extent, upon the mode of appointment. There are various methods of selecting judges. Election by the people is followed in certain states of the USA and cantons of Switzerland. Election by the legislature is followed in Switzerland. Elected judges cannot be free from influence of party politics. The best method is nomination by the Chief Executive which is in vogue in most of the states. The executive is a better judge of the merits and suitability of those appointed than that of the legislature or the people. But once appointed, the judges should remain outside the influence of the executive. Again, the rules relating to the nomination of judges may be so framed that persons only of high efficiency and integrity will enter the judgeship. To the lower ranks of the judiciary, appointments are made through open competition by an independent agency like Public Service Commissions in India.
2. Security of Tenure : Long and secure tenure is essential for ensuring judicial independence. In most of the states judges, once appointed, continue in office, till they attain a specific age and hold office during good behaviour. Long tenure enables judges to gather experience. Security of tenure enables them to dispense justice without fear or favour. Fair salary, comfortable retirement benefits and security of tenure during good behaviour are excellent principles.
3. Method of Removal: Judges should not be removed on the whims and caprices of either the executive or the legislature. They should continue in office during good behavior. In most of the countries judges are removed by the executive upon an address made by the legislature. In the U. K., judges are removed by the Crown upon an address of both houses of Parliament. In the U. S. A., judges are removed by the difficult process of impeachment. In India, the judges of the Supreme Court or of High Courts can be removed only on the ground of ‘proved misbehaviour’ or ‘incapacity’. Each House has to pass a resolution by a special majority. The resolution is addressed to the President who then issues the order of removal.
4. Attractive Salary and Service Conditions: Judiciary requires talented men of law. If the salary of judges will not be attractive, talented men of law will not be attracted to the judiciary. Again, good salary keeps judges above corruption and abuse of power. So salary, retirement benefit and other conditions of service ought to be lucrative. In no case is a judge to face any reduction in pay and other benefits during his tenure.
5. High Qualification: Judicial function requires technical competence. Judges must possess proper qualification to be worthy of their vocation. The usual practice in almost all the countries is to appoint judges from among distinguished and experienced members of the legal profession.
6. Separation of the Judiciary from the Executive : Judiciary should be free from the influence of the executive so that it could promote the ends of justice. If the government is one of the parties to a dispute the judges should protect the citizens against executive encroachment. No executive authority should interfere in or exercise control over the working of law courts.
7. Other conditions – The salary of the judges and the cost of establishment of the court shall form non-votable items of the state’s budget so that there will not be any adverse criticism in the legislature. The matters / issues which are pending in the court are not to be discussed in the legislature or in the public. To prevent judges from misbehaving, some restrictions upon them are imposed: (a) The judges are not to be appointed in other works after their retirement (b) They are not to practise after retirement in any court of the same rank or below the rank of the court from where he retires.
Functions Of The Judiciary
The excellence of the judiciary is a measure of the excellence of the government. Judiciary comprises all the law courts in the country, both superior and subordinate. The following are the functions performed by the judiciary in a modem state. 1. Administration of Justice: The primary function of the judiciary is to apply the law to specific cases or disputes. When a dispute is brought before the courts it ‘determines the facts’ involved. The court determines facts through evidence given by the contestants. The court proceeds to decide what law is applicable to the controversy or case in question. By applying the appropriate law to the dispute or case, the court awards judgement. If it finds a person or party guilty of violating laws and rules, it has to impose a penalty on the guilty. Thus, holding a trial and giving judgement is an important aspect of the function of the judge.
2. Creation of Judge-made Law : There are many cases where the judges find it difficult to select the appropriate law for application. The law may not be clear or two laws might appear to conflict under a given circumstance. Here the judges decide what the appropriate law is on the basis of their wisdom and common sense. In doing so judges have built up a great body of ‘judge-made law’ or ‘case law.’ Under the doctrine of ‘stare decisis’, the previous decisions of judges are generally regarded as binding on later judges in similar cases.
3. Guardian of the Constitution: In federal states like the USA, India, Australia, the highest court acts as the guardian of the constitution. The conflicts of jurisdiction between the central government and the state governments or between the legislature and the executive are decided by the court. Any law or executive order which violates any provision of the constitution is declared unconstitutional or null and void by the judiciary. This is known as the power of ‘judicial review.’ Judicial review has the merit of guaranteeing the fundamental rights of individuals and ensuring balance between the union and the units in a federal state. It has the disadvantages of the judiciary becoming a super legislature acting irresponsibly in which case the principle of the separation of powers is violated.
4. Protector of Fundamental Rights: The judiciary protects the rights of people against the encroachment of the government or any other association or individual. The superior courts enforce the fundamental rights of the people through the appropriate writs Judicial order) in the nature of Habeas Corpus, Mandamus, Certiorari, Quo-Warranto etc.
5. Advisory Function: In Canada and India the Supreme Court, the highest court of law, may give the advisory opinion on constitutional questions. Such advice is given even in the absence of an actual dispute when the chief executive so desires.
6. Supervisory Function: Higher courts, in most cases, are assigned the task of supervising the work of the lower courts. The High Courts supervise the work of the subordinate courts in India.
7. Non-judicial or Administrative Functions: Courts perform certain other miscellaneous functions of a non-judicial nature. The courts may grant certain licenses, administer the estates (property) of deceased persons and appoint receivers. They register marriages, appoint guardians of minor children and lunatics. In some states, they are authorized to confer citizenship on aliens. Superior courts are given the power to exercise control over their officers and servants.
Relation Between Judiciary And Legislature
Judiciary cannot be completely separated from the other two organs. Even where there is separation of powers, judiciary is connected with the legislature and the executive in the interest of effective government. The legislature makes the laws and the judiciary interprets them. The legislature sanctions money for maintaining the judicial branch. It determines the conditions of service of the judge. It also in some cases, takes part in the impeachment of judges. The appointment of the judges in some cases, is to be ratified by the legislature as by the Senate in the U. S. A. The Senate sits as a court of impeachment when the president and judges of Supreme Court are to be impeached. In U. K., the House of Lords is the highest court of appeal. In some countries, the judges are elected by the legislature. The judges of the Federal Tribunal of Switzerland, are elected by their respective legislatures. Judiciary, on the other hand, in some states enjoys the right to declare laws made by the legislature ultravires. Where there is separation of powers, the judiciary serves as a check upon the legislature. Besides, judges not only interpret laws but also make laws which are known as the judge made laws or case laws.