JUDICIARY

Very Short Q & A

What a short note on the functions of the high court.

The functions of High Court are as follows:

 It hears appeal from lower court.

 It can issue writs for restoration of Fundamental Rights.

 It can deal with cases within the jurisdiction of the state.

 It exercises superintendence and control over courts below it.

How the judges can be removed?

Once appointed the judges can hold office until they complete 65

years. They cannot be removed during their tenure except on

proved misbehaviour or incapacity. The judges can only be

removed through impeachment. The procedure for their removal

is very difficult. The motion has to be passed by a majority of the

total members of both houses of the Parliament.

Who appoints the judges of the Supreme Court?

The judges of the Supreme Court are appointed by the President

and their qualifications are prescribed in the Constitution.

Differentiate between the writs of “Prohibition” and

“Certiorari”.

The difference between the writs of prohibition and certiorari is

that the former (Prohibition)is issued when a case is still pending

in the court and it has not been decided yet, while the latter

(Certiorari) is issued when judicial proceedings in a case are

complete and the final judgment has been delivered by the

subordinate court.

What action is taken by the court against a person who has

unlawfully occupied a post for which he is not eligible?

The Writ of Quo Warranto is issued by the Supreme Court or the

High Court against a person who has unlawfully occupied a

public post for which he is not eligible. If the Court decides that

the concerned person is not eligible to occupy a post for which he

is not entitled then the Court may issue an order to vacate the post.

Write a short note on the importance of Judiciary.

The principle of Separation of Powers ensures independence of

judiciary, which plays an important role in the governance.

 Judiciary interprets the constitution and the laws passed by

the legislature.

 It safeguards the freedom of the citizens by protecting their

Fundamental Rights against the undue interference by the

legislature and executive.

 It plays an important role in keeping the union and state

governments within their respective jurisdictional spheres.

Mention Dicey's view on the Rule of Law.

The concept of Rule of Law was given by the British political

thinker A.V. Dicey. Rule of Law implies that all individuals- rich

or poor, men or women, are subject to the same law and no one is

above law.

Mention the role of judiciary in a democracy.

The role of judiciary is to protect rule of law and ensure

supremacy of law. It safeguards rights of the individual, settles

disputes in accordance with the law and ensures that democracy

does not give way to individual or group dictatorship.

What is the purpose of Judicial Review?

The purpose of Judicial Review is to act as a constitutionally

mandated check on the legislative and executive powers whenever

they out-reach the constitutional limitations.

When was the first Amendment Act of 1951 challenged before

the Supreme Court?

The first Amendment Act of 1951 challenged before the Supreme

Court in Shankari Prasad Vs Union of India (1951) on the ground

that the said Act abridged the right to property and under Article

13 (2) Fundamental Rights could not be amended.

What a short note on the jurisdictions of the District Courts.

The District Courts

 Deals with the cases that originate in the districts.

 Considers appeals on decisions given by lower courts.

 Decides cases involving serious criminal offences.

Write short note on the Writ Jurisdiction.

Any individual whose Fundamental Right has been violated can

directly move to the court for remedy. The Supreme Court can

give special orders in the form of writs. The High Court can also

issue writs. The citizens whose rights are violated have the choice

of either approaching the high court or the Supreme Court

directly. Through such writs, the court can give orders to the

executive to act or not to act in a particular way.

Are the decisions made by the Supreme Court binding on all the

courts including the Supreme Court?

Decisions made by the Supreme Court are binding on all other

courts within the territory of India. Orders passed by it are

enforceable throughout the country. The Supreme Court itself is

not bound by its decision and can review it.

“The doctrine of judicial review is a contribution of the

American constitutional system”. Comment

The doctrine of judicial review is a contribution of the American

constitutional system. This was acquired by the American

constitutional system. This was acquired by the Supreme Court of

the USA in Marbury Vs Madison case of 1803 when Chief Justice

Marshall announcing the verdict remarked that any law violating

the Constitutional provisions is null and void. Since then this was

increasingly being used by the US Supreme Court and the concept

of judicial supremacy was established.

What does the term '' Judicial Review '' imply?

The power exerted by the Courts to examine the actions of the

legislative, executive and administrative institutions of the

government and to ensure that such actions are in conformity with

written provisions of the national constitution is termed as the

power of judicial review.

Under which article of the Indian Constitution the Supreme

Court has been power to review its own judgements?

The Supreme Court under Article 137 has been power to review its

own judgements.

What does the term “Mandamus” imply?

Mandamus means “command”. It is a Latin word that refers to the

order of Supreme Court or High Court commanding a person or a

body to do its duty. This writ is issued not only against individual

officials but also against government and subordinate courts.

“The Supreme Court has an exclusive jurisdiction on cases that

originate in the Court”. Comment

Article 131 of the Indian Constitution explains the original

jurisdiction of the Supreme Court, i.e. cases that directly originate

in the Court. The Supreme Court has an exclusive jurisdiction on

disputes between the

 Union of India and one or more states or

 Two or more states

However the cases related to the violation of Fundamental Rights

also belong to original jurisdiction as they may be initiated in

Supreme Court itself. However the original jurisdiction of

Supreme Court does not extend to disputes it arises out of any

provision of a treaty, agreement, covenant etc. entered upon

before 26th January 1950.

 Short Q & A

What is the co-relation between the Public Interest Litigation

and Judicial Activism?

Public Interest Litigation (PIL) refers to the power of judicial

activism which has seen the emergence of judicial initiatives in

new fields traditionally marked out as legislative and executive

territory. The entry of the Court into the development areas has

changed the dynamics of governance. The methodology adopted

by the Supreme Court for PIL evolved from the unusual nature of

the cases brought before the Court since the eighties. The

traditional rule of '' locus standi '' was based on the fact that

judicial remedy can be sought only by those who have suffered an

injury due to violation of a legal right by some public authority.

The PIL chose, to liberalize this rule by holding that for any person

to espouse a public cause, individual need not be directly affected.

Class and public actions thus became free from the restrictive rules

of locus standi which still stifle public law in many jurisdictions.

“Powers are divided among the different organs of the

government”. Comment with special reference to the

independence of judiciary.
The principle of '' Separation of Powers '' was adopted by the

framers of the Indian Constitution, through which power was

divided among the three organs of the government, i.e. executive,

legislature and judiciary. Subsequently all the three organs were

made independent of each other. Independence of Judiciary

means:

 The other organs of the government like the executive and

legislature must not restrain the functioning of the judiciary in

such a way that it is unable to do justice.

 The other organs of government should not interfere with

the decision of the judiciary.

 Judges must be able to perform their functions without fear

or favour.

“Indian constitution has ensured the independence of

judiciary”. Comment

Indian constitution has ensured the independence of judiciary

through a number of ways:

 The legislature is not involved in the process of appointment

of judges. Thus, party politics would not play a role in the process

of appointments.

 Judges have a fixed tenure but they can be removed through

impeachment.
 Judiciary is not financially dependent on either the executive

or legislature. The salaries and allowance of judges are not

subjected to the approval of legislature.

“The Supreme Court under Article 137 has been given

the special powers”. Comment

The Supreme Court under Article 137 has been given the special

powers to review its own judgements. The normal principle is that

judgements pronounced are binding unless substantial and

compelling reasons make it necessary to review and revise its

decisions. The court can also override its decisions for compelling

reasons due to errors of omission or commission or as a result of

the changing perception of society on particular issues with

changes in time and circumstances.

“The Supreme Court is vested with the power of reviewing and

revising the orders of lower courts”. Comment

'The power of reviewing and revising the orders of lower courts

and tribunals by the Supreme Court is called its appellate

jurisdiction. The appellate jurisdiction of the Supreme Court may

be divided under three heads:

 Cases involving interpretation of the constitution civil,

criminal or otherwise.
 Civil cases, irrespective of any Constitutional question and

 Criminal cases irrespective of any constitutional question.

Article 132 provides that all appeals from High Court will lie with

the Supreme Court if it involves a substantial question of law as to

the interpretation of the constitution and also if the Court certifies

that substantial question of law is involved.

Mention how Judicial Activism has influenced Indian political

system.

Judicial Activism has influenced our political system in many

ways:

1. It has democratised the judicial system by ensuring that

courts are accessible not only to individuals but to the groups as

well.

2. It has forced executive accountability.

3. It has also tried to make the electoral system much freer and

fairer.

The contesting candidates are asked to file affidavits by indicating

their assets and income along with educational qualifications, so

that the accurate information is provided to the people.

“The framers of the Indian Constitution provided for an

independent and strong judiciary”. Comment

In the Constituent Assembly, the framing of draft provisions

establishing the Supreme Court was done by the committee of five

members: B.N. Rau, K.M. Munshi, M.L. Mitter, Varada Charian

and Alladi Krishnaswamy Ayyar. The framers of the Indian

Constitution provided for an independent and strong judiciary,

which would work within the framework of the Supremacy of the

Constitution and a parliamentary form of democracy in India.

However, unlike other federal states, India has a single judicial

system. It is in the shape of a pyramid and the Supreme Court of

India stands at the apex of this single integrated judicial system.

 Long Q & A

“Supreme Court acts as a guardian of the Fundamental Rights”.

Comment

The essence of democracy is found in the part III of the Indian

Constitution, which lays down the Fundamental Rights. These

rights are justiciable in the courts of law. Supreme Court acts as

guardian of the Fundamental Rights. A citizen can move to

Supreme Court directly by presenting a petition to it. In order to

safeguard the rights of the citizens the Supreme Court can issue

orders, directions and writs like Habeas Corpus, Mandamus.

Article 13(2) of Indian Constitution prohibits the state from

making any laws which takes away or abridges the rights granted

to the citizens by Part III of the Indian constitution. Any law which

curtails the Fundamental Rights of the citizens can be declared null

and void by the Supreme Court. The right to constitutional

remedies authorises the citizens to move to the Supreme Court for

the enforcement of Fundamental Rights. In order to protect the

Fundamental Rights of citizens Supreme Court has given some

judgements. Constitution has given Parliament the right to impose

restriction on the rights of people but it is up to Supreme Court to

see whether these restrictions are reasonable or not. The

introduction of PIL has safeguarded the rights and interests of the

poor and needy. So along with safeguarding the rights of the

citizens, Supreme Court also interprets the Constitution.

Therefore, it is often said that “the Constitution is not what is

found in the books but it is how the judges interprets it”.