This article is written by Sambit Rath, a B.A. LL.B. student of Dr. Ram Manohar Lohiya National Law University, Lucknow. In this article, author aims to discuss the functions of the judiciary.
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
Disputes are inevitable when people of two opposite ideas are in the same room. Every human is different, and that’s what makes us unique. However, these differences are the root of every dispute. But do all disputes have a negative consequence? Certainly not. Disputes are necessary for the intellectual growth of society as differing views on a subject matter ultimately allow people to look at things from a fresh perspective. As we all know, not all disputes are civil disputes. If parties are left alone without any restrictions, they might end up hurting each other. Thus, effective dispute resolution requires the existence of a third person with greater authority. Since ancient times, courts have played the role of the third person. These courts could be headed by the king or intellectually prominent people performing the role of an adjudicator. In modern democratic societies, these courts form one of the most essential organs of the state, the judiciary. It provides a platform for parties to raise their concerns and argue in a civilised manner, after which it makes decisions based on justice, equity, and good conscience. But dispute resolution is not the only function of the judiciary. Being one of the most essential organs, it has powers and functions that go beyond just resolving disputes. In this article, we shall take a look at all the functions performed by the judiciary.
Meaning of judiciary
According to the Cambridge English Dictionary, the judiciary is that organ of the government that is responsible for the legal system, which includes all the judges in the country’s courts. In other words, it is that branch of the government that interprets the law and administers justice to all citizens. It is the third organ of the government after the legislature and the executive, which is based on the doctrine of separation of powers. According to this doctrine, the power of the government is divided into multiple branches, among which the judiciary is one. Thus, it has independent powers and responsibilities vested upon it by the sovereign.
Functions of judiciary
The functions of the judiciary are as follows:
Administration of justice
The primary function of the judiciary is to ensure justice for the people. The courts play a huge role in deciding the fate of parties in a dispute. It also punishes people for committing crimes. When a case goes to court, the judge is responsible for ensuring justice for the parties by applying relevant laws present at that time.
Interpretation and application of laws
Laws are made by the sovereign of the country. These laws are made to regulate specific acts, and their ultimate goal is to maintain law and order in society. The role of the judiciary is to apply these laws to the cases that come before it to reach the correct decision. Throughout the years, the courts have developed ways to apply laws more effectively, which include the rules of interpretation. According to these rules, the courts may use the literal rule, golden rule, mischief rule, or any other rules of interpretation based on the requirement. Since there are cases of varying degrees, no matter how extensive the provisions of a statute are, they may not be adequate to cover all the issues of a case effectively. Thus, rules of interpretation help the courts to interpret the appropriate meaning of the terms of a statute so that it can remove the absurdity caused by the literal interpretation and do justice to the case at hand.
Protection of rights
The judicial system is empowered to strike a balance between the rights and obligations of citizens in the administration of justice. Since both the judiciary and the government have the power to alter the rights of people, there has to be someone to play the role of a protector. The judiciary protects the rights of citizens whenever there is an overreach on the part of the government. For example, when the UPA government introduced biometric data collection for Aadhaar ID, the Supreme Court upheld citizens’ right to privacy, which prevented the government from making it compulsory to possess an aadhaar ID. In a democratic system, there ought to be a balance between the legislature and the judiciary. But when the legislature tries to go beyond its limits and take away people’s rights, the judiciary makes sure that such action is declared unconstitutional or illegal. The judiciary also makes sure that the legislature doesn’t modify the constitution to its liking in the garb of amendments. It is, thus, the guardian of the constitution.
Judicial review
Since the judiciary is the protector of rights and the guardian of the Constitution, it goes out of its way to ensure the legislature is not making laws that restrict the rights of the people. Judicial review is the proactive measure used by the judiciary to review the actions of the legislature and the executive. There are three kinds of reviews, review of legislative actions, review of decisions, and review of administrative action. A review of legislative actions means the power of the court to determine the constitutionality of Acts made by the legislature. Judicial review of decisions includes determining the lawfulness of a particular decision or action made by a public authority. Administrative actions, although do not decide a right, they have the capability of affecting the rights of people. Thus, a review of administrative action includes determining the constitutionality of a particular action.
Arbitration
The judiciary also performs the function of an arbitrator when there are disputes between the different state governments or between the central and state governments. For example, there are issues on which either the central or the state government can make laws, and in some, both can make laws. Sometimes these issues become a battle between the authorities of different governments. In such cases, the judiciary plays the role of an umpire, making sure both parties come to a reasonable agreement.
Advisory function
The courts, especially the higher ones, have the responsibility of advising the government or the equivalent head of state in legal matters. Since the judiciary consists of great legal minds in the country, the head of state can seek advice from the judges of the highest court in the country. This advice is not binding on the party seeking it and is thus advisory in nature. The party seeking advice may, if it so desires, choose not to follow the advice at all. Issues that involve matters of public importance are the ones that are mostly referred to the highest court for advice.
Selection of judges
The judiciary also has the responsibility of selecting, transferring, or elevating judges. There are several methods followed in different countries for the selection of judges. In some parts of Switzerland, the judges are elected by the people, and in others, elections are conducted by the legislature. These methods are questionable as the reliability of the judge comes into question. This is because the judge might show partiality towards the party that sponsored his election. The theory of separation of powers is also violated due to the interference of the legislature in the domain of the judiciary. It hinders the independence of the institution.
Miscellaneous functions
Other than the above-mentioned functions, the judiciary also performs other miscellaneous functions. These include legal work like granting licences, patents, copyrights, the admission of wills, settling issues of the succession of property, administering estates of the deceased, dealing with marriages and divorces, etc.
Functions of the judiciary in India
To understand the functions of the judiciary specific to India, it is essential for us to know the judicial structure of the country.
Structure of judiciary in India
The judicial structure of India is pyramidal and consists of the Supreme Court, High Court, District Court, and subordinate courts.
The Supreme Court
The Supreme Court of India replaced the Federal Court of India and the Judicial Committee of the Privy Council on 28th January 1950. It is the highest court in the country and the final court of appeal. It has 31 judges, including one Chief Justice. Precedents set by the court and its decisions are binding on all lower courts of the country. Articles 124 to 147 of the Constitution of India deal with the constitution, powers, and jurisdiction of the Supreme Court.
The High Courts
All the High Courts of all the States in India are on the same level and have the same powers. There are 25 high courts in total, and each has at least one state under its jurisdiction. The decisions of the High Courts can be overturned by the Supreme Court. Articles 214 to 231 deal with the jurisdiction and powers of the High Courts.
The District Courts
The District Courts are subordinate to the High Courts. These are present at the district level and they deal with both criminal and civil cases. When dealing with a criminal case, the District Court assumes the name of the Sessions Courts. The District Court and other subordinate courts derive their powers from Articles 233 to 237.
Administration of justice
The judiciary in India plays a huge role in administering justice to the people. All the legal disputes end up in the hands of the courts, and the judges ensure that the aggrieved party gets justice. The constitution allows citizens to approach the Supreme Court under Article 32 and the High Courts under Article 226 when their fundamental rights are violated. This shows the intention of the judicial system to provide justice and weed out injustice of any kind expeditiously. Time and again, the courts have prioritised the need for justice and have stood for what’s right, even if it means going against the majority in order to provide justice to minorities. For example: in the Sabarimala case, it was decided that women cannot be prohibited from entering the temple even after massive opposition from the majority.
Interpretation and application of laws
The judiciary applies laws that have been enacted by the Parliament. The Parliament creates a substantive and procedural law dealing with a particular area, and the judiciary is expected to interpret and apply the law appropriately. Sometimes the case in hand would be subjected to injustice if the words in the statute were interpreted in their literal sense. In these circumstances, the courts are empowered to modify the meaning of the statute to make it appropriate for the case at hand. For example: In the case of the State of Madhya Pradesh v. Azad Bharat Financial Company (1967), the High Court modified the meaning of the provision in the Opium Act, 1950 to prevent injustice from being caused to the owner of the vehicle.
Law-making
The Parliament is the institution that primarily makes laws in India. Bills are introduced in Parliament and they are enacted after a long process that includes voting by both Houses and the assent of the President. But it is not the sole law-making body, although it is responsible for the majority of laws that exist today. The judiciary in India has the authority to make laws too. The Supreme Court does this through the pronouncement of judgments, and these are binding on all the lower courts. The lower courts have to follow the precedents set by the Supreme Court while dealing with cases.
Supervision of lower courts
High Courts have been given supervisory powers under Article 227 of the Indian constitution. As per this, the High Courts can supervise the functioning of all courts and tribunals which are under their jurisdiction, except courts and tribunals constituted by law relating to the armed forces. Apart from administrative supervision, the High Courts can, at the instance of any aggrieved person or suo motu, exercise the power of judicial superintendence over their subordinate courts. It can transfer cases from the subordinate courts to itself when the need arises.
Judicial review
The judiciary in India is very active when it comes to restricting Parliament from enacting laws that affect the fundamental rights of citizens. Any law that is infringing on the rights of people is declared unconstitutional by the Supreme Court, and that law ceases to exist. This power would have been limited had it only been applicable when a case comes to court. But fortunately, it is not restricted as the Court can take suo motu cognizance and review the rules and legislation made by Parliament. For example, in the case of Mithu v. State of Punjab (1983), the Supreme Court held Section 303 of the Indian Penal Code, 1860 unconstitutional. Thus, the judiciary guards the constitution and the fundamental rights of the citizens.
Arbitrator
The Supreme Court acts as an arbitrator when there are disputes between states or between a state and the central government, as per Article 131. For example, in the case of the State of Karnataka v. Union of India (1977), it was held that the Centre under Article 256 can issue directions to a state as a legal entity and not as a geographical unit.
Advisory
As per Article 143 of the Constitution of India, the judiciary has advisory jurisdiction. The President of India can refer cases to the Supreme Court for cases where there is a substantial question of law or a matter of public importance. This advice is not binding on the President.
Judicial inquiries
The judiciary in India has the power to set up inquiry commissions to look into matters of concern that need expert-level intervention. This power is exercised when it is evident that the government or the executive has failed to take due care while acting on a serious matter. For example, to investigate the matter of an encounter of arrested individuals by the police in Hyderabad, the Supreme Court constituted an enquiry commission. The commission submitted its report to the Supreme Court and it was made public in May 2022.
Selection of judges
The selection, elevation or transfer of judges in India is done by the Collegium system. The Collegium system has evolved through judgments of the Supreme Court like the ‘Four Judges’ Case’. It is headed by the Chief Justice of India (CJI) and it consists of four other senior judges of the High Courts. Similarly, a collegium of High Court judges follows the same combination. The recommendations of the Supreme Court Collegium are sent to the government for an appointment, and the High Court Collegium’s recommendations are sent to the CJI and the SC Collegium for approval, which is then forwarded to the government for the appointment.
This system evolved through three cases that arose within a span of 34 years. These later came to be known as the “Four Judges’ Cases”. The first of these cases was decided in the year 1981. In this case, it was decided that the Chief Justice of India’s (CJI) recommendation on the appointment and transfer of judges could be refused by the Executive. This meant that the executive had greater power in deciding the transfer and appointment of judges. The second case was decided in 1993, in which the Collegium system was introduced by the Supreme Court. It observed that the CJI’s opinion was not formed entirely by his own judgment but rather was the collective opinion of the CJI and two other senior-most judges of the Supreme Court. The third case relating to this issue was decided in the year 1998 when the SC expanded the Collegium to a five-member body from a three-member body. It comprised the CJI and four of the senior-most judges of the SC. The fourth and final case was decided in the year 2015, which involved the striking down of the 99th Constitutional Amendment for being unconstitutional.
Criticism of the judicial system
Even though it is one of the most essential organs of the government and its role in protecting the rights of citizens, the judiciary is not immune from criticism. Many personalities have criticised it for various reasons that we shall discuss.
Lack of transparency in the appointment of judges
The judiciary, being a public institution, should not shy away from being transparent. The right to know is a fundamental right enshrined under Article 19 of the Constitution of India. But the judiciary doesn’t seem to be interested in bringing the institution under the purview of the right to information. Transparency is crucial because the public needs to be sure before placing their trust in an institution that has the responsibility of protecting their rights.
The proposed creation of The National Judicial Appointments Commission (NJAC) was a step toward this goal. It aimed to replace the highly criticised collegium system of appointing judges. According to this system, senior judges are responsible for the appointment and transfer of judges. It should also be noted that this system has evolved through judicial pronouncements, which means the judges themselves regulate the judiciary. Such a system is prone to nepotism and favouritism, and the public has no say in it. The objective of NJAC was to bring reform to the appointment of judges. It included government officials in the appointment committee along with senior judges. But the Supreme Court in 2016 declared NJAC unconstitutional as it would affect the independence of the judiciary. Although the NJAC system was imperfect, it should have been an indication for the judiciary to modify and improve the existing system of appointment. This has not been done even after 4 years of the judgement, showing a lack of intention by the judiciary to usher in more transparency to the Collegium system.
Internationally, the judiciary of the United States of America has been criticised for its method of appointment of judges to the state Supreme Courts. In the USA, judges are elected by the public, and just like politicians, the judges campaign for the elections. They are permitted to receive donations to help them in their campaigns. Many policymakers and legal observers have raised concerns that judicial decisions may be affected by donations to judges’ election campaigns.
Pendency of cases
“Justice delayed is justice denied.” This line was written by William Ewart Gladstone in 1868. But has this been adopted by the judiciary, which is the sole institution responsible for ensuring justice? As per data from PRS Legislative Research, as of September 2021, over 4.5 crore cases were pending across all the courts in India. The courts have taken notice of this issue for years but have failed to do much in this regard. In the case of Anil Rai v. State of Bihar (2001), the Supreme Court observed that delay in reasoned judgment amounts to a violation of the “right to life” guaranteed under Article 21 of the constitution. This issue is brought up in every farewell speech of Chief Justices throughout the years, and vacancies in courts are often blamed for it. This backlog is increasing day by day. Even though this issue is clearly evident to the judges and the public alike, it is frustrating to see high-profile cases getting priority hearings which leads to further delay in cases involving parties that do not have this luxury.
Globally, there have been lakhs of cases pending before the courts. In the USA, by the year 2015, more than 330,000 cases were pending. In the United Kingdom, by the year 2021, there were 60,000 cases pending before the Crown Court.
Under trials rotting in prisons
This problem is an offshoot of the above-mentioned issue. Due to the high pendency of cases, a lot of innocent people are being imprisoned for crimes they did not commit. Even worse is the fact that prisons all over the country have a high percentage of undertrials rotting in jail, waiting for their fates to be decided. This problem has also been recognized by the judges. But the problem is, that they serve their time till retirement and then leave the system, making space for another judge, and this process continues. On the other hand, those undertrial prisoners spend the majority part of their lives waiting for justice. As per data published in The Hindu, 70% of prisoners in India were under trial as of 2020.
Lack of representation in higher courts
The lack of female representation in the judiciary is clearly evident. Just like the pendency of cases being a mandatory point in the farewell speeches of judges, the representation of females in the judiciary is also a point that is raised without fail. But these are just lip service on the part of retiring judges, and nothing has been done substantially to elevate female judges from the lower courts to the High Courts. It is no surprise that the prevalent problem of patriarchy has a lot to do with this. One may argue that there are female judges in the lower courts which means with time they will get elevated to the higher courts, but that is far from the truth. Recently, the Supreme Court Collegium recommended 68 names for elevation, and only 10 were female candidates. There is no reservation for women in higher courts, and this gives the collegium the chance to avoid elevating female judges altogether. In the 72 years since the establishment of the Supreme Court, there has not been a single female Chief Justice of India.
As per a report by American Progress, there is less racial and gender diversity in America’s courts. It is believed that representation is necessary for fairer decisions and the lack of it leads to decision-making being affected negatively. As per an article published in The Guardian, the courts of the UK do not adequately represent the ethnic, gender, and social composition. Just like India, the UK did not have a female as their Chief Justice equivalent for a long time, and only recently, Brenda Hale, Lady Hale of Richmond, became the first female president of the UK Supreme Court.
Corruption
Even the judiciary may not be immune from corruption. Countless accusations against influential people getting the desired day in court or bribery have been made over the years. Former Chief Justice of India, S. P. Bharucha, has said that 20% of the higher judiciary might be corrupt. Even if the accusations are true, it is very difficult to get a High Court judge impeached because, according to the Judges Inquiry Act, 1968, the support of at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha is required. To maintain the sanctity of the institution, one cannot register a case against a judge without the assent of the Chief Justice of India. Examples of judicial corruption include the cases of Justice V Ramaswami, who was found guilty of abusing his financial and administrative powers and for criminal misappropriation of property, and Justice Soumitra Sen, who was found guilty of misappropriating large sums of money and misrepresenting facts related to this act before the High Court of Calcutta.
As per a report by Reuters, thousands of judges who had once broken oaths remained in power. 9 out of 10 such judges kept their jobs. There have been cases of judges forcing defendants to languish in jail without lawyers and no state agencies overseeing their conduct have rebuked these actions. Judges of the UK courts too have been accused of corrupt practices. Many courts in various African nations have also been accused of corruption. It goes to show that these practices are widespread and that both underdeveloped and developed nations face such hurdles.
Shield of contempt of court
The judiciary has been made to look like a perfect institution with perfect human beings. Anything that affects public trust in the judiciary is quickly asked to be taken off the media. In various cases, it has been seen that the Supreme Court has issued notices against individuals who have criticised its decisions on social media, and they’ve been asked to issue a public apology. According to the Contempt of Courts Act, 1971, fair criticism is permitted, and the truth can be used as a defence only if it is in the public interest. But what constitutes the public interest is determined by the judge, thereby giving them complete discretion. Thus, a judge may protect himself against criticism by using this power.
Judicial overreach
As the term suggests, it involves an overreach of authority or jurisdiction by the judiciary. It is also called ‘judicial adventurism’ by some. Overreach usually happens when, under the garb of judicial activism, the judiciary starts interfering with the authority or powers of the legislature or the executive. Thus, it violates the principle of separation of powers. There have been several instances of judicial overreach in the past. One of the highlighted issues was when the Supreme Court banned firecrackers during Diwali in November 2020. It was criticised by a lot of people, and the Vice President of India termed this action of the Supreme Court as judicial overreach. Another instance was the proactive censorship of the movie Jolly LLB 2. In this matter, the Bombay High Court had directed the removal of four scenes after a recommendation from a committee that was set up for this purpose. This action was in violation of the Cinematograph Act, 1952 and Article 19(2) of the Indian Constitution.
Conclusion
In a democratic society, the existence of an active judiciary is essential. The functions it performs are crucial for the working of a democratic society. Along with the legislature, it formulates rules by setting precedents that affect future cases. But the decisions taken by the judiciary can be overturned by the legislature if it is determined to go against them. Apart from these, the non-essential or miscellaneous functions performed by the judicial system, like granting licences, patents, copyrights, dealing with marriages and divorces, etc., are all done to assist citizens in various aspects of life. India is blessed with a strong and active judiciary that has maintained a balance between the sectors of government to ensure that India remains the world’s largest democracy. Therefore, the judiciary, as an organ of the government, plays an active and important role in the administration of the country.
Frequently Asked Questions (FAQs)
Is the power of the judiciary unlimited?
No, the power of the judiciary is not unlimited. It cannot take away the powers of the other two organs namely, the legislator and the executive. It can only stop them from breaching the rights of the citizens but other than that, without any good reason, it cannot interfere with the functioning of the other two organs.
Why is it important to have an independent judiciary?
The functions of the judiciary are such that in order to be performed effectively, it would require a significant amount of independence. This is the reason why the judiciary is always a separate organ that is independent enough to regulate everything that comes under it. Had the judiciary not been independent, it wouldn’t have taken time for the legislature to oust it and overtake its place in the country. Thanks to the independent judiciary, we have a functioning democracy and our rights are protected.
What would happen if there was no judicial system?
If there was no judicial system, the power would be concentrated in the hands of the legislature. In this case, people would be bound by the enactments of the legislature, and have nowhere to go with their concerns seeking redressal. The fundamental rights would be just words on paper and nothing more. Therefore, the existence of the judiciary is important in a democratic society.
References
- Supreme Court Collegium recommends 68 names for elevation as High Court judges – Law News (indiatoday.in)
- Data | 70% prisoners in India are undertrials – The Hindu
- Harish Salve highlights relevance of judges in democracy, speaks on criticism of judiciary (republicworld.com)
- Can I criticize the judiciary without contempt of court – iPleaders
- Criticism, the judiciary and a word of advice – The Hindu
- Judiciary-Functions,-Importance-and-an-Essential-Quality-of-Judiciary.pdf (niu.edu.in)
- chap6judiciary.pmd (ncert.nic.in)
- https://www.researchgate.net/publication/336083737_Global_Failure_of_Justice_Systems_-_Causes_and_Consequences
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