Concepts
In India we have the rule of law. Laws are applied equally to all persons and that a certain set of fixed procedures need to be followed when a law is violated. To enforce this rule of law, we have a judicial system that consists of the mechanism of courts that a citizen can approach when a law is violated. As an organ of the State, the judiciary plays a crucial role in the functioning of India’s democracy. It can play this role only because it is independent.
Role of the Judiciary
Courts take decisions on a very large number of issues. Broadly speaking, the work that the judiciary does can be divided into the following:
Dispute Resolution: The judicial system provides a mechanism for resolving disputes between citizens, between citizens and the government, between two state governments and between the centre and state governments.
Judicial Review: As the final interpreter of the Constitution, the judiciary also has the power to strike down particular laws passed by the Parliament if it believes that these are a violation of the basic structure of the Constitution. This is called judicial review.
Upholding the Law and Enforcing Fundamental Rights: Every citizen of India can approach the Supreme Court or the High Court if they believe that their Fundamental Rights have been violated.
Independent Judiciary
The control that the politician holds over the judge does not allow for the judge to take an independent decision. This lack of independence would force the judge to make all judgments in favour of the politician. Although we often hear of rich and powerful people in India trying to influence the judicial process, the Indian Constitution protects against this kind of situation by providing for the independence of the judiciary.
One aspect of this independence is the separation of powers. This is a key feature of the Constitution. What this means here is that other branches of the State-like the legislature and the executive – cannot interfere in the work of the judiciary. The courts are not under the government and do not act on their behalf.
For the above separation to work well, it is also crucial that all judges in the High Court as well as the Supreme Court are appointed with very little interference from these other branches of government. Once appointed to this office, it is also very difficult to remove a judge.
It is the independence of the judiciary that allows the courts to play a central role in ensuring that there is no misuse of power by the legislature and the executive. It also plays a crucial role in protecting the Fundamental Rights of citizens because anyone can approach the courts if they believe that their rights have been violated.
Structure of Courts in India
There are three different levels of courts in our country. There are several courts at the lower level while there is only one at the apex level. The courts that most people interact with are what are called subordinate or district courts. These are usually at the district or Tehsil level or in towns and they hear many kinds of cases. Each state is divided into districts that are presided over by a District Judge. Each state has a High Court which is the highest court of that state. At the top is the Supreme Court that is located in New Delhi and is presided over by the Chief Justice of India. The decisions made by the Supreme Court are binding on all other courts in India.
Different Branches of the Legal System
In addition to criminal law, the legal system also deals with civil law cases. Following table signifies the differences between criminal and civil law.
| Criminal Law | Civil Law |
|---|---|
| Deals with conduct or acts that the law defines as offences. For example: theft, harassing a woman to bring more dowry, murder. | Deals with any harm or injury to rights of individuals. For example: disputes relating to sale of land purchase of goods, rent matters, divorce cases. |
| It usually begins with the lodging of a First Information Report (FIR) with the police who investigate the crime after which a case if filed in the court. | A petition has to be filed before the relevant court by the affected party only. In a rent matter, either the landlord or tenant can file a case. |
| If found guilty, the accused can be sent to jail and also fined. | The court gives the specific relief asked for. For instance, in a case between a landlord and a tenant, the court can order the flat to be vacated and pending rent to be paid. |
Access to the Courts
In principle, all citizens of India can access the courts in this country. This implies that every citizen has a right to justice through the courts. The courts play a very significant role in protecting our Fundamental Rights. If any citizen believes that their rights are being violated, then they can approach the court for justice to be done. While the courts are available for all, in reality access to courts has always been difficult for a vast majority of the poor in India. Legal procedures involve a lot of money and paperwork as well as take up a lot of time. For a poor person who cannot read and whose family depends on a daily wage, the idea of going to court to get justice often seems remote.
For the common person, access to courts is access to justice. The courts exercise a crucial role in interpreting the Fundamental Rights of citizens.
However, there are also court judgments that people believe work against the best interests of the common person. For example, activists who work on issues concerning the right to shelter and housing for the poor believe that the recent judgments on evictions are a far cry from earlier judgments. While recent judgments tend to view the slum dweller as an encroacher in the city, earlier judgments (like the 1985 Olga Tellis vs. Bombay Municipal Corporation) had tried to protect the livelihoods of slum dwellers.
Questions & Answers
Question 1.You read that one of the main functions of the judiciary is ‘upholding the law and Enforcing Fundamental Rights’. Why do you think an independent judiciary is necessary to carry out this important function?
Solution:The independent judiciary is necessary to carry out this function because of the following reasons:
- The Independent judiciary does not work under any pressure from the legislature or the executive. It can protect the Fundamental Rights.
- It works independently to give every citizen, whether rich or poor, equal rights and he/she cannot be discriminated against any other considerations.
- In a situation where a politician or the executive has the power to appoint the judges, the judiciary will not be able to take independent decisions. For example, a judge appointed by a politician will not be able to judge a case against that person on its merit. Rich and powerful might try to influence the judiciary. To prevent such a situation Constitution provides for an independent Judiciary.
Question 2.Re-read the list of Fundamental Rights provided in Chapter 1. How do you think the Right to Constitutional Remedies connects to the idea of judicial review?
Solution: Judicial review of court decisions is carried out when the judgment given by a court violates any constitutional provision. In the Constitution, every citizen has equal rights and none can be discriminated against. If there is any violation, the judiciary is free to review the earlier judgments even by’ the Supreme Court.
Question 3. In the following illustration, fill in each tier with the judgment given by the various courts in the Sudha Goel case. Check our responses with others in the class.
Solution:
- Lower court: The Lower Court convicted Sudha’s husband, his mother and his brother-in-law and sentenced all three of them to death.
- High Court: The High Court passed the judgment stating that Sudha’s husband and the others were innocent and set them free.
- Supreme Court: The Supreme Court passed a judgment stating that Sudha’s husband and his mother were guilty and sentenced them to prison for life. The court freed the brother-in-law.
Question 4.If they do not like the Supreme Court verdict, the accused can go back again to the Trial Court.
Solution:
(a) True
(b) False: They went to the Supreme court after the High court had given its decision
(c) False: The verdict of the Supreme Court is final.
Question 5: Why do you think the introduction of Public Interest Litigation (PIL) in the 1980s is a significant step in ensuring access to justice for all?
Solution:
- Before the 1980s filing of litigation into the courts was very costly.
- The poor could not afford to go to courts.
- Since the 1980s, the people can file their case through a letter or a telegram addressed to the Supreme Court or the High Courts without spending any money. The Courts take it as PIL (Public Interest Litigation).
- Thus, it is a significant step in ensuring access to justice to all the citizens.
Question 6: Re-read excerpts from the judgment on the Olga Tellis vs Bombay Municipal Corporation case. Now write in your own words what the judges meant when they said that the Right to Livelihood was part of the Right to Life.
Solution: Olga Tellis vs Bombay Municipal Corporation case portrays the plight of lakhs of persons who live on pavements and in slums in the city of Bombay. They constitute nearly half the population of the city. These men and women came to Court to ask for a judgment that they cannot be evicted from their shelters without being offered alternative accommodation. They rely for their rights on Article 21 of the Constitution which guarantees that no person shall be deprived of his life except according to the procedure established by law.
They do not contend that they have a right to live on the pavements. Their contention is that they have a right to live, a right which cannot be exercised without the means of livelihood. They have no option but to flock to big cities like Bombay, which provide the means of bare subsistence. They only choose a pavement or a slum which is nearest to their place of work. Their plea is that the right to life is misleading without a right to the protection of the means by which alone life can be lived.