The judiciary: importance, organisation, functions, independence and judicial review

1. Importance

The judiciary is the organ of government that interprets the law and applies it to particular cases. Bryce wrote that there is no better test of the excellence of a government than the efficiency of its judicial system, for nothing more nearly touches the welfare and security of the average citizen. Laws mean nothing unless there is an impartial body to declare what they mean and to enforce them against the strong as well as the weak. Hamilton (The Federalist, No. 78) called the judiciary the “least dangerous” branch, having neither the sword nor the purse but only judgment, and therefore the one most in need of protection.

2. Organisation

Courts are arranged in a hierarchy, with appeals going upward.

• India has an integrated judiciary: one Supreme Court, High Courts in the States, and subordinate civil and criminal courts below, all applying both Union and State law.
• USA has a dual system: federal courts (district courts, courts of appeals, the Supreme Court of nine justices) and a complete set of State courts for State law.
• Britain: magistrates' courts and the Crown Court for crime, county courts and the High Court for civil matters, the Court of Appeal, and since 2009 the Supreme Court of the United Kingdom, which took over the judicial functions of the House of Lords under the Constitutional Reform Act 2005.
• France separates ordinary courts, headed by the Court of Cassation, from administrative courts, headed by the Council of State, which hear cases against the administration. The Constitutional Council reviews the constitutionality of laws.

3. Functions

1. Deciding cases: settling disputes between individuals and between individuals and the State, and trying offences.
2. Interpreting law and the constitution.
3. Making law through precedent: in common-law countries judicial decisions are a source of law (Article 141 makes Supreme Court decisions binding on all courts in India).
4. Guardian of the constitution through judicial review.
5. Protector of fundamental rights through writs (Articles 32 and 226) and, in India, public interest litigation.
6. Arbiter of federal disputes between centre and units (Article 131).
7. Advisory function: the Indian President may refer questions to the Supreme Court (Article 143); the US Supreme Court refuses to give advisory opinions.
8. Administrative functions: supervision of subordinate courts, appointment of staff, framing rules.
9. Miscellaneous: appointing guardians and receivers, granting probate, registering marriages.

4. Independence of the judiciary: the need

Independence means that judges decide according to law and conscience, free from pressure by the executive, the legislature, parties or private interests. It is needed because:

• the State itself is a party in many cases, and a judge dependent on the government cannot decide fairly against it;
• rights mean nothing without an impartial court to enforce them against the government;
• in a federation the courts must hold the balance between centre and units;
• judicial review is impossible if the judges fear the organs whose acts they review;
• public confidence in the rule of law depends on it.

5. Methods of securing independence

1. Mode of appointment. Three methods are known. Election by the people (some American States) makes judges politicians. Election by the legislature (Switzerland's Federal Supreme Court is elected by the Federal Assembly) makes them party nominees. Appointment by the executive, ideally on the advice of judges or an independent commission, is the method most countries use. The US President nominates federal judges with the Senate's consent; in Britain an independent Judicial Appointments Commission selects judges. In India the collegium of senior judges recommends appointments, a system laid down in Supreme Court Advocates-on-Record Association v. Union of India, 1993 INSC 318, and retained when the National Judicial Appointments Commission was struck down in Supreme Court Advocates-on-Record Association v. Union of India, 2015 INSC 285.
2. High qualifications: legal learning and experience, not political service.
3. Security of tenure. English judges have held office “during good behaviour” since the Act of Settlement 1701, removable only on an address of both Houses. American federal judges hold office for life during good behaviour, removable only by impeachment. Indian judges serve until 65 (Supreme Court) or 62 (High Courts), and can be removed only by an address of both Houses passed by a special majority on proved misbehaviour or incapacity (Article 124(4)).
4. Adequate and secure salaries which cannot be reduced during tenure (Article 125; the American Constitution, Article III). In India they are charged on the Consolidated Fund and not voted on.
5. Separation of the judiciary from the executive (Article 50).
6. Bar on practice after retirement (Article 124(7)) to prevent judges currying favour with future employers.
7. Immunity from criticism of their conduct in the legislature (Article 121) and power to punish for contempt (Article 129).

6. Judicial review: a note

Judicial review is the power of the courts to examine the acts of the legislature and the executive and to declare them void if they are contrary to the constitution.

• USA: not stated in the Constitution, but asserted by Chief Justice John Marshall in Marbury v. Madison (1803): a written constitution is superior law, it is emphatically the duty of the judicial department to say what the law is, and an Act repugnant to the Constitution is void. The American courts read the due process clauses broadly, so review there is wide.
• Britain: no court can strike down an Act of Parliament, because Parliament is sovereign. The courts review executive and administrative action for illegality, irrationality and procedural impropriety, and under the Human Rights Act 1998 may issue a declaration that an Act is incompatible with Convention rights, leaving it to Parliament to act.
• France: the Constitutional Council reviews laws before promulgation and, since the 2008 revision (in force 2010), on a reference from the ordinary courts in pending cases (the priority question of constitutionality).
• India: express, through Articles 13, 32, 226 and 245. The scope extends even to constitutional amendments, which cannot damage the basic structure (Kesavananda Bharati v. State of Kerala, 1973 INSC 91). Judicial review is itself part of the basic structure (Minerva Mills Ltd. v. Union of India, 1980 INSC 142).

Merits: it keeps the constitution supreme, protects rights and the federal balance, and checks the abuse of power. Criticisms: unelected judges overrule elected legislatures (the “counter-majoritarian difficulty”); it can become judicial supremacy or “government by judiciary”; it delays reform (the American Court's resistance to New Deal legislation until 1937); and judicial activism can stray into policy.

How this is examined

“Explain the importance and functions of the judiciary” needs sections 1 to 3 and a paragraph on independence. A question on independence needs the reasons and the seven methods with British, American and Indian illustrations. The 6-mark note on judicial review is section 6; give Marbury v. Madison, the British contrast and the Indian basic structure position.