Judiciary: Independence, Supreme Court and Judicial Review, Class 11 Political Science

What Judiciary is about

Weightage: Indian Constitution at Work carries 40 of the 80 theory marks in the school annual exam, shared among its chapters; project work carries the other 20 marks.Source: CBSE Political Science (028) syllabus 2026-27, Class XI course structure

Key concepts

Why an independent judiciary is needed

NCERT section Why Do We Need an Independent Judiciary?

• Disputes arise between individuals, between groups, and between individuals or groups and the government; an independent body must settle them by the rule of law.
• Rule of law: all persons, rich and poor, men and women, forward and backward castes, are subject to the same law.
• Principal role of the judiciary: protect the rule of law and ensure the supremacy of law; safeguard individual rights; settle disputes lawfully; prevent democracy turning into individual or group dictatorship.

What independence means:
1. The executive and legislature must not restrain the judiciary so that it cannot do justice.
2. They must not interfere with its decisions.
3. Judges must work without fear or favour.

What it does not mean: independence is not arbitrariness or freedom from accountability. The judiciary is part of the democratic structure and answers to the Constitution, democratic traditions and the people.

Worked example

Angered by a ruling, members of the ruling party propose to cut judges' salaries in the next budget. Why can they not do this, and does this protection mean judges answer to no one? (2 marks)

Try it first, then show the solutionSolution

1. Judges' salaries and allowances are not subject to the legislature's approval, so financial pressure cannot be used to punish a ruling; judges can decide without fear or favour.
2. Independence is not freedom from accountability: the judiciary answers to the Constitution, democratic traditions and the people, and a judge can be removed for proven misbehaviour or incapacity by a special majority in both Houses.

Answer: Salaries are outside the legislature's vote, so they cannot be cut to punish judges; yet judges remain accountable and removable for proven misbehaviour or incapacity.

How the Constitution protects judicial independence

NCERT section Independence of Judiciary

1. Appointments without the legislature: the legislature plays no part in appointing judges, so that party politics stays out; candidates need experience as lawyers and/or expertise in law, and political loyalty should not be a criterion.
2. Fixed tenure: judges serve until retirement age; removal only in exceptional cases. Security of tenure lets them act without fear or favour.
3. Difficult removal procedure: designed by the framers to give security of office.
4. Financial independence: judges' salaries and allowances do not need the legislature's approval.
5. Protection from personal criticism: the judiciary can punish contempt of court.
6. No discussion in Parliament of a judge's conduct, except during proceedings to remove that judge.

Constraints on judges (the chapter's debate activity): the Constitution, precedents, laws, traditions of law, opinions of other courts, public opinion, media, time and staff limits. Students are asked which of these are justified.

Worked example

A reform proposal says judges should be chosen by a committee of Lok Sabha members, serve five-year renewable terms and be removable by a simple majority of the House. Explain which safeguards of judicial independence each part would weaken. (4 marks)

Try it first, then show the solutionSolution

1. Selection by MPs would bring the legislature, and so party politics and political loyalty, into appointments, which the Constitution deliberately keeps out.
2. Renewable five-year terms would replace security of tenure until retirement: judges seeking reappointment might rule to please those who reappoint them.
3. Removal by a simple majority would let a ruling party remove an inconvenient judge; the Constitution requires proven misbehaviour or incapacity and a special majority in both Houses, so wide consensus is needed (the Ramaswami motion failed for want of it).
4. Together the changes would end the ability of judges to act without fear or favour and endanger the rule of law and protection of rights.

Answer: It would weaken all three safeguards: legislature-free appointment, security of tenure and the difficult removal procedure, leaving judges open to political pressure.

Appointment of judges and the collegium

NCERT section Appointment of Judges

• Appointment is part of the political process: who sits on the Supreme Court and High Courts affects how the Constitution is interpreted. Judges' philosophy (an active and assertive judiciary or a controlled and committed one) affects the fate of laws. The Council of Ministers, Governors, Chief Ministers and the CJI all influence appointments.

Chief Justice of India: a convention developed that the senior-most Supreme Court judge becomes CJI. It was broken twice: A. N. Ray (1973) superseded three senior judges; M. H. Beg later superseded H. R. Khanna.

Other judges: the President appoints Supreme Court and High Court judges after 'consulting' the CJI, which in effect left the final say with the Council of Ministers.

How the meaning of 'consultation' changed (1982-1998):
1. First the Court treated the CJI's role as purely consultative.
2. Then it held that the CJI's opinion must be followed by the President.
3. Finally it laid down that the CJI should recommend names in consultation with the four senior-most judges: the principle of collegiality.

Result: the view of the group of senior judges now carries greater weight, so both the Supreme Court and the Council of Ministers play important roles.

Worked example

Trace how the Supreme Court changed the meaning of 'consultation' with the Chief Justice in appointing judges. (4 marks)

Try it first, then show the solutionSolution

1. The Constitution says the President appoints judges after consulting the CJI; in practice this left the final decision with the Council of Ministers.
2. Between 1982 and 1998 the question repeatedly reached the Court; at first it held that the CJI's role was only consultative.
3. Later it held that the President must follow the CJI's opinion.
4. Finally it required the CJI to recommend names after consulting the four senior-most judges, establishing collegiality, so the senior judges' collective view now carries greater weight.

Answer: From purely consultative, to binding opinion of the CJI, to a collegium of the CJI and four senior-most judges whose recommendation carries greater weight.

Removal of judges and the Ramaswami case

NCERT section Removal of Judges

• The only grounds for removing a Supreme Court or High Court judge are proven misbehaviour or incapacity.
• A motion with the charges must be approved by a special majority in both Houses of Parliament (a majority of the total membership of the House and two-thirds of members present and voting). Unless there is broad consensus among MPs, a judge cannot be removed.
• Balance: the executive plays the crucial role in appointment; the legislature holds the power of removal. This secures both balance of power and independence.

Unsuccessful attempt (Justice V. Ramaswami):

• In 1991 the first-ever motion to remove a Supreme Court judge was signed by 108 MPs. He was accused of misappropriating funds while Chief Justice of the Punjab and Haryana High Court.
• In 1992 an inquiry committee of Supreme Court judges found him guilty of wilful and gross misuse of office.
• The motion won two-thirds of those present and voting, but the Congress party abstained, so it failed to secure half of the total strength of the House; the judge was not removed.

Worked example

Why did the motion to remove Justice V. Ramaswami fail even though it won two-thirds of the votes cast? (2 marks)

Try it first, then show the solutionSolution

1. Removal needs a special majority: two-thirds of members present and voting and also a majority of the total strength of the House.
2. Because the Congress party abstained, the votes in favour did not reach half of the House's total strength, so the second condition failed.

Answer: It met the two-thirds condition but not the majority of total membership, because a large party abstained.

Structure of the judiciary

NCERT section Structure of the Judiciary

• India has a single integrated judicial system: unlike some federal countries, there are no separate State courts.
• The structure is pyramidal, and lower courts work under the direct superintendence of higher courts.

Level	Powers given in the chapter
Supreme Court	Decisions bind all courts; can transfer High Court judges; can move cases from any court to itself; can transfer cases between High Courts
High Court	Hears appeals from lower courts; issues writs to restore Fundamental Rights; deals with cases within the State; superintendence over courts below
District Court	Cases arising in the district; appeals from lower courts; serious criminal offences
Subordinate Courts	Civil and criminal cases

Worked example

What is meant by a single integrated judicial system? Give two features. (2 marks)

Try it first, then show the solutionSolution

1. India has one hierarchy of courts for the whole country rather than separate State and federal court systems.
2. Supreme Court decisions bind all courts, and higher courts supervise lower courts (the Supreme Court can also transfer cases and High Court judges).

Answer: One pyramid of courts with the Supreme Court at the top, binding decisions and superintendence of lower courts.

Jurisdiction of the Supreme Court

NCERT section Jurisdiction of Supreme Court

The Supreme Court is very powerful, but works within the limits of the Constitution, which defines its jurisdiction.

1. Original jurisdiction: cases that go directly to the Supreme Court, namely disputes between the Union and States and among States. Only the Supreme Court can hear them; it acts as the umpire in federal disputes and interprets the powers of each government (Article 131).
2. Writ jurisdiction: a person whose Fundamental Right is violated can go straight to the Supreme Court, which can issue habeas corpus, mandamus, prohibition, certiorari and quo warranto (Article 32). High Courts can also issue writs (Article 226); the person may choose either.
3. Appellate jurisdiction: the highest court of appeal in civil, criminal and constitutional cases. An appeal from a High Court generally needs the High Court's certificate that the case involves a serious question of interpreting law or the Constitution; in criminal cases where a lower court has passed a death sentence, an appeal may go to the High Court or Supreme Court. The Court may change the ruling and give a new interpretation.
4. Advisory jurisdiction: the President may refer a matter of public importance or constitutional interpretation for advice (Article 143). The Court need not give advice and the President need not accept it. Utility: legal opinion before acting avoids unnecessary litigation, and the government can adjust its actions or laws.
5. Special leave: the Court can grant special leave to appeal against any judgement or matter of any court in India (Article 136).

Article 137: the Supreme Court may review its own judgements. Article 144: all civil and judicial authorities must act in aid of the Supreme Court. Its decisions bind every court and its orders are enforceable across India; it decides contempt of itself.

Worked example

Name the jurisdiction of the Supreme Court used in each case: (i) a State claims that a new Union law deals with a State List subject and sues the Union; (ii) a person detained without being produced before a magistrate petitions the Supreme Court directly for habeas corpus; (iii) the President asks the Court whether a proposed law would be constitutional; (iv) a person convicted of murder appeals against the High Court's judgement. (4 marks)

Try it first, then show the solutionSolution

1. (i) A dispute between the Union and a State goes directly and only to the Supreme Court: original jurisdiction (the Court acts as umpire of the federal division of powers).
2. (ii) A person whose Fundamental Right is violated can go straight to the Supreme Court for a writ: writ jurisdiction (Article 32).
3. (iii) A reference by the President on a question of law or public importance: advisory jurisdiction (Article 143); the advice is not binding.
4. (iv) A challenge to a lower court's decision: appellate jurisdiction.

Answer: (i) Original, (ii) writ, (iii) advisory, (iv) appellate.

Judicial activism and Public Interest Litigation

NCERT section Judicial Activism

• PIL (also called Social Action Litigation, SAL) is the chief instrument of judicial activism in India.
• Old rule: only a person personally aggrieved could approach a court. Around 1979 this changed: the Court heard a case filed on behalf of others because it raised an issue of public interest.
• The Court also began acting on newspaper reports and postal complaints, hence the label 'judicial activism'.

Early PILs:

• Hussainara Khatoon vs. Bihar (1979): newspaper reports of undertrials in Bihar jails who had been held longer than any sentence they could have received; an advocate filed the petition.
• Sunil Batra vs. Delhi Administration (1980): a Tihar prisoner's scribbled note to Justice Krishna Iyer about torture was turned into a petition (the Court later stopped treating letters as petitions).

How PIL expanded rights: clean air, unpolluted water and decent living are rights of the whole society; public-spirited citizens, organisations and lawyers may petition for the poor and deprived. Justice Bhagwati in Bandhua Mukti Morcha vs. Union of India (1984) said the problems of the poor need a different, non-adversarial judicial approach.

Positive effects: democratised access to courts (groups, not just individuals); forced executive accountability; made elections freer and fairer (candidates must file affidavits on assets, income and education).

Criticisms: overburdened courts; blurred the line between the judiciary and the executive/legislature (pollution control, corruption investigations and electoral reform are really administrative tasks); strain on the principle that each organ respects the others' powers.

Worked example

Evaluate the impact of judicial activism on India's political system. (6 marks)

Try it first, then show the solutionSolution

1. Meaning: through PIL since about 1979, courts hear cases filed on behalf of others and even act on newspaper reports or letters.
2. Positive: it has democratised the judiciary, giving groups and the poor access to courts (undertrials in Hussainara Khatoon, prisoners in Sunil Batra).
3. Positive: it has forced executive accountability and expanded rights such as clean air, unpolluted water and decent living.
4. Positive: it has made elections fairer by requiring candidates to declare assets, income and educational qualifications in affidavits.
5. Negative: it has overburdened courts and blurred the distinction between the judiciary and the executive and legislature, as in pollution control or investigating corruption.
6. Conclusion: activism has made rights meaningful for the disadvantaged, but democracy needs each organ to respect the others' jurisdiction, so the balance is delicate.

Answer: Judicial activism has widened access to justice and accountability but has strained the separation of functions between the organs of government.

Judiciary and rights: writs and judicial review

NCERT section Judiciary and Rights

Two ways the Supreme Court remedies violation of rights:
1. Restoring Fundamental Rights by issuing writs (Article 32); High Courts have the same power (Article 226).
2. Declaring a law unconstitutional and hence non-operational (Article 13).

Together these make the Supreme Court the protector of Fundamental Rights and the interpreter of the Constitution.

Judicial review: the power of the Supreme Court (or High Courts) to examine whether a law is consistent with the Constitution and, if not, declare it unconstitutional and inapplicable. The term is not mentioned in the Constitution; the power is implied by a written constitution and the Court's power to strike down laws violating Fundamental Rights.

Grounds of review:

• Violation of Fundamental Rights.
• Violation of the federal distribution of powers (e.g. a Union law on a State List subject, challenged by States).
• It extends to State laws too.

Expanding rights for the poor: through PIL the Court took up the blinding of jail inmates by police, stone-quarry working conditions and sexual exploitation of children, making the right against exploitation meaningful. South Africa has written PIL into its bill of rights: citizens may bring other persons' rights violations before the Constitutional Court.

Worked example

Distinguish between a writ and judicial review. (2 marks)

Try it first, then show the solutionSolution

1. A writ is an order (habeas corpus, mandamus, etc.) to restore a specific person's Fundamental Right, usually directing the executive to act or not act (Articles 32 and 226).
2. Judicial review is the power to examine a law itself and strike it down if it violates Fundamental Rights or the federal division of powers (Article 13).

Answer: A writ remedies a particular violation; judicial review tests and can invalidate the law itself.

Judiciary and Parliament: the basic structure

NCERT section Judiciary and Parliament

• The Court has also tried to prevent subversion of the Constitution through political practice: powers of the President and Governor, once thought beyond review, were brought under it. It directed the CBI to investigate in the hawala case, the Narasimha Rao case and the illegal petrol pump allotment case.
• The Constitution rests on limited separation of powers and checks and balances: Parliament is supreme in making laws and amending the Constitution, the executive in implementing them, and the judiciary in settling disputes and testing laws. Yet conflict has recurred.

Property and amendment conflict:

• Soon after 1950 Parliament restricted the right to property for land reforms; the Court said fundamental rights could not be restricted, even by amendment.
• Issues: scope of the right to property; Parliament's power to curtail fundamental rights; scope of the amending power; laws abridging rights to implement Directive Principles.
• 1967-1973 was the most serious phase (land reform, preventive detention, reservations, acquisition of property and compensation).

Kesavananda Bharati (1973): there is a basic structure which no one, not even Parliament through amendment, can violate. Also: (i) the right to property is not part of the basic structure and could be abridged; (ii) the Court reserved to itself the right to decide what the basic structure includes. The right to property was removed from the Fundamental Rights in 1979.

Remaining friction: whether courts can intervene when a legislature punishes breach of privilege or disciplines a member; legislatures commenting on judges; courts instructing legislatures, which legislatures see as violating parliamentary sovereignty.

Alladi Krishnaswami Ayyar (Constituent Assembly, 1949) warned that independence must not become a dogma turning the judiciary into a super-legislature or super-executive.

Worked example

Why is the Kesavananda Bharati case important for relations between Parliament and the judiciary? (4 marks)

Try it first, then show the solutionSolution

1. It ended the long conflict (especially 1967-1973) over whether Parliament could amend Fundamental Rights such as the right to property.
2. The Court held that Parliament can amend the Constitution but cannot violate its basic structure.
3. It held that the right to property was not part of the basic structure and could be abridged, accommodating Parliament's land reform aims.
4. It reserved to the Court the power to decide what forms part of the basic structure, the clearest example of the judiciary interpreting the Constitution.

Answer: It fixed a limit (basic structure) on Parliament's amending power while allowing property to be curtailed, and made the Court the judge of that limit.

Judiciary in real life

Each concept, met in an everyday situation. Read the situation, answer the question in your own words, then compare with the model answer. The one-line hook is what to remember.

Topics in this chapter

• Independence of the Judiciary, Appointment and Removal of Judges and the Structure of Courts
• Supreme Court Jurisdiction, Public Interest Litigation, Judicial Review and the Basic Structure

Judiciary: key facts

Independence of the judiciary

• •No legislature in appointment
• •fixed tenure
• •hard removal
• •salaries not voted
• •contempt power
• •no discussion of conduct in Parliament

Independence is not the absence of accountability.

Appointment of judges

1. 1.President appoints after consulting CJI
2. 2.Court: consultative
3. 3.binding
4. 4.CJI + 4 senior-most judges (collegium)

CJI seniority convention broken in 1973 (A. N. Ray) and 1975 (M. H. Beg).

Removal of judges

Proven misbehaviour or incapacity + motion passed by special majority in both Houses

V. Ramaswami (1991): two-thirds of those voting but not half of total strength, so not removed.

Supreme Court jurisdiction

Original (Union-State, State-State; Art. 131) + Writ (Art. 32) + Appellate + Advisory (Art. 143) + Special leave (Art. 136)

Art. 137: review of own judgements; Art. 144: all authorities act in aid of the Court.

Remedies for rights

Writs (Art. 32 SC, Art. 226 HC) + declaring laws unconstitutional (Art. 13) = protector of rights and interpreter of the Constitution

Judicial review is implied, not named in the Constitution.

PIL timeline

1. 1.1979 Hussainara Khatoon (undertrials)
2. 2.1980 Sunil Batra (Tihar letter)
3. 3.1984 Bandhua Mukti Morcha

PIL = Social Action Litigation; chief vehicle of judicial activism.

Basic structure

Kesavananda Bharati 1973: Parliament cannot amend the basic structure; property not basic; Court decides what is basic

Right to property removed from Fundamental Rights in 1979.

How the school exam asks Judiciary

The question patterns to expect, and the method that works for each.

Tricks to remember Judiciary

Short memory aids. Say each one aloud once, then use it on a question the same day.

• Jurisdiction: O-W-A-A + S

  'Our Wise Apex Adviser Speaks': Original, Writ, Appellate, Advisory, Special leave.

  Use it when: Listing the Supreme Court's jurisdiction.

• Article ladder 13-32-226-137-144

  13 strikes laws, 32 and 226 issue writs, 137 reviews itself, 144 makes everyone help.

  Use it when: Article-number MCQs.

• Independence: A-T-R-S-C-D

  Appointment free of legislature, Tenure, Removal hard, Salaries not voted, Contempt power, no Discussion of conduct.

  Use it when: Provisions for independence.

• PIL years 79-80-84

  Hussainara 1979 (undertrials), Sunil Batra 1980 (letter), Bandhua Mukti Morcha 1984 (the poor).

  Use it when: Early PIL cases.

• Kesavananda 3-in-1

  'Basic is fixed, property is not, Court decides what's what.'

  Use it when: Basic structure answers.

Judiciary: exam-level solved questions

Ordered from exam level to HOTS. Cover the solution, write your own, then compare step by step.

Case-study practice (Section E style)

Read the situation, then answer every part. In a school exam set on the board pattern this is a 4-mark question split into 1 + 1 + 1 + 1 marks.

Where the marks are

How a typical answer is split into step marks. Show every step: a right final answer alone rarely earns full marks.

Where students lose marks in Judiciary

The slips examiners see most often, and what to write instead.

• ✗Mistake: Writing that Parliament appoints judges

  Parliament removes judges, so students assume it appoints them too.

  Wrong working

  Judges are appointed by Parliament on the Prime Minister's advice.

  Right working

  The President appoints judges; the legislature has no role; the collegium's recommendation carries greater weight.

  ✓Do this: Appoint: executive and judges; remove: Parliament.

  Usually costs: 1-2 marks.

• ✗Mistake: Treating independence as freedom from all accountability

  The word 'independent' suggests answerable to no one.

  Wrong working

  An independent judiciary is answerable to nobody.

  Right working

  It is accountable to the Constitution, democratic traditions and the people.

  ✓Do this: Independence ≠ arbitrariness.

  Usually costs: 1 mark in a 2-mark answer.

• ✗Mistake: Mixing up original and appellate jurisdiction

  Both involve the Supreme Court hearing cases.

  Wrong working

  An appeal from a district court of Haryana goes to the Supreme Court under original jurisdiction.

  Right working

  That appeal goes first to the High Court; original jurisdiction covers only Union-State and inter-State disputes.

  ✓Do this: Original = federal disputes, first and only in the Supreme Court.

  Usually costs: 1 mark per item.

• ✗Mistake: Saying advisory opinions are binding

  Courts' decisions are normally binding.

  Wrong working

  The President must follow the Supreme Court's advice.

  Right working

  The Court need not give advice and the President need not accept it.

  ✓Do this: Advisory = optional both ways.

  Usually costs: 1 mark.

• ✗Mistake: Getting the Kesavananda Bharati ruling wrong

  Students remember only that the Court limited Parliament.

  Wrong working

  The Court held that the right to property is part of the basic structure.

  Right working

  It held that property was not part of the basic structure and could be abridged; Parliament cannot violate the basic structure; the Court decides what it is.

  ✓Do this: Three findings: basic structure, property not basic, Court decides.

  Usually costs: 2-3 marks in a long answer.

• ✗Mistake: Giving only praise for PIL in an 'evaluate' question

  PIL is presented as people-friendly.

  Wrong working

  Judicial activism has only improved democracy.

  Right working

  Add the chapter's criticisms: overburdened courts and blurred separation between organs.

  ✓Do this: Evaluate = both sides plus judgement.

  Usually costs: Up to 2 marks in a 6-mark answer.

NCERT exercise guide: Judiciary

What each exercise in the NCERT chapter tests, how to approach it, and a question of the same kind solved step by step. Questions here are written in our own words.

Practice questions on Judiciary

Write each answer on paper first. Open the hint only if you are stuck, and the answer only when you have finished.

1. Q1 · 1 mark · MCQExam level

   The writ jurisdiction of High Courts comes from:
   (a) Article 13
   (b) Article 32
   (c) Article 137
   (d) Article 226

   Hint

   Article 32 is for the Supreme Court.

   Answer

   (d) Article 226.

2. Q2 · 1 mark · MCQExam level

   The convention that the senior-most judge becomes Chief Justice of India was broken in 1973 when the following judge was appointed:
   (a) M. H. Beg
   (b) A. N. Ray
   (c) H. R. Khanna
   (d) Krishna Iyer

   Hint

   Three senior judges were superseded.

   Answer

   (b) A. N. Ray.

3. Q3 · 1 mark · MCQHarder exam level

   Consider the statements:
   1. Disputes between two States go directly to the Supreme Court.
   2. The President must accept the Supreme Court's advice on a reference.
   3. The Supreme Court can review its own judgements.
   Which are correct?
   (a) 1 and 2
   (b) 1 and 3
   (c) 2 and 3
   (d) 1, 2 and 3

   Hint

   Advice is optional on both sides.

   Answer

   (b) 1 and 3.

4. Q4 · 1 mark · MCQHarder exam level

   Match:
   A. Hussainara Khatoon 1. Basic structure
   B. Sunil Batra 2. Undertrials in Bihar jails
   C. Kesavananda Bharati 3. Bonded labour and the poor
   D. Bandhua Mukti Morcha 4. Letter from a Tihar prisoner
   (a) A-2, B-4, C-1, D-3
   (b) A-4, B-2, C-1, D-3
   (c) A-2, B-4, C-3, D-1
   (d) A-3, B-4, C-1, D-2

   Hint

   1979, 1980, 1973, 1984.

   Answer

   (a).

5. Q5 · 1 mark · Assertion-reasonHarder exam level

   Assertion (A): The Supreme Court of India exercises the power of judicial review although the term does not appear in the Constitution.
   Reason (R): The Constitution is a written document, and the Court may invalidate any law that violates a Fundamental Right.
   (a) Both A and R are true and R is the correct explanation of A.
   (b) Both A and R are true but R is not the correct explanation of A.
   (c) A is true but R is false.
   (d) A is false but R is true.

   Hint

   Implied power.

   Answer

   (a). The power is implied by the written constitution and the Court's power to strike down laws violating Fundamental Rights.

6. Q6 · 1 mark · MCQExam level

   Which of these did the Supreme Court require of election candidates through its activism?
   (a) Minimum age of 30
   (b) Affidavits on assets, income and educational qualifications
   (c) Membership of a recognised party
   (d) Approval of the Election Commission's manifesto

   Hint

   Informed voting.

   Answer

   (b).

7. Q7 · 2 marks · Short answerExam level

   What is the utility of the Supreme Court's advisory jurisdiction? (2 marks)

   Hint

   Before acting; after advice.

   Answer

   It lets the government obtain legal opinion on an important matter before acting, which may prevent unnecessary litigation later; and in the light of the advice the government can change its proposed action or law.

8. Q8 · 2 marks · Short answerHarder exam level

   Explain the original jurisdiction of the Supreme Court and why it makes the Court the 'umpire' of Indian federalism. (2 marks)

   Hint

   Who can hear these cases?

   Answer

   Disputes between the Union and States and among States go directly and only to the Supreme Court. In deciding them it interprets the powers of each level of government under the Constitution, so it acts as the umpire in federal disputes.

9. Q9 · 4 marks · Short answerHOTS / competency

   In South Africa, bringing cases of violation of other persons' rights before the Constitutional Court is a fundamental right of the citizen. Compare this with the way PIL developed in India and say what the comparison suggests. (4 marks)

   Hint

   Written right versus judicial practice.

   Answer

   South Africa wrote public interest litigation into its bill of rights, so citizens' standing to raise others' rights is guaranteed by the constitution itself. In India PIL grew from the courts' own practice from about 1979, when the Supreme Court began hearing petitions filed on behalf of others and acting on newspaper reports and letters (Hussainara Khatoon, Sunil Batra). Both widen access to justice for those who cannot approach courts. The comparison suggests that India's PIL rests on judicial creativity, so its scope depends on how the courts choose to use it; this is why the chapter discusses both its benefits and the criticism that it overburdens courts and blurs the separation of functions.

10. Q10 · 4 marks · Short answerHarder exam level

    'In appointments the executive is crucial, in removal the legislature is crucial.' Explain how this arrangement protects the judiciary. (4 marks)

    Hint

    Balance of power.

    Answer

    The legislature plays no part in appointment, keeping party politics out, and the collegium of senior judges now carries greater weight with the executive. Removal needs proven misbehaviour or incapacity and a special majority in both Houses, so no single party or government can remove a judge without wide consensus (the Ramaswami motion failed). Dividing the powers between organs creates a balance of power and gives judges security of tenure to decide without fear or favour.

11. Q11 · 6 marks · Long answerHarder exam level

    Describe the conflict between Parliament and the judiciary from 1950 to 1973 and how it was resolved. (6 marks)

    Hint

    Property, amendment, basic structure.

    Answer

    Soon after 1950, Parliament restricted the right to property to implement land reforms; the Court held that Fundamental Rights could not be restricted. Parliament amended the Constitution, but the Court held that even an amendment could not abridge a Fundamental Right. The questions were the scope of property rights, Parliament's power to curtail rights and to amend, and whether laws implementing Directive Principles could abridge rights. Between 1967 and 1973 the conflict sharpened over land reform, preventive detention, reservations and compensation for acquired property. In Kesavananda Bharati (1973) the Court held that Parliament may amend but cannot violate the basic structure; property was not part of it; and the Court would decide what the basic structure contains. The right to property was removed from Fundamental Rights in 1979, changing the nature of the conflict.

12. Q12 · 4 marks · Short answerHOTS / competency

    List the unresolved issues that remain potential areas of conflict between legislatures and courts. (4 marks)

    Hint

    Privilege, discipline, criticism, instructions.

    Answer

    Whether a person punished by a legislature for breach of privilege can seek the court's protection; whether a legislator disciplined by the House can get relief from courts; legislatures casting aspersions on judges even though the Constitution bars discussion of judges' conduct; and courts criticising legislatures and issuing instructions on legislative business, which legislatures see as violating parliamentary sovereignty.

Test your recall

Answer in your head or on paper first, then open the card. Pulling an answer out of memory makes it stick far better than re-reading.

1. 1.What does the rule of law mean?Show answer

   All individuals, whatever their wealth, gender or caste, are subject to the same law.

2. 2.On what grounds can a Supreme Court judge be removed?Show answer

   Proven misbehaviour or incapacity.

3. 3.Which senior judge was superseded when Justice M. H. Beg was appointed CJI?Show answer

   Justice H. R. Khanna.

4. 4.With how many senior-most judges does the CJI consult in recommending appointments?Show answer

   Four.

5. 5.What is another name for PIL?Show answer

   Social Action Litigation (SAL).

6. 6.Which country has written public interest litigation into its bill of rights?Show answer

   South Africa.

7. 7.What does Article 144 provide?Show answer

   All civil and judicial authorities in India must act in aid of the Supreme Court.

8. 8.In which year was the right to property removed from the Fundamental Rights?Show answer

   1979.

9. 9.Who warned against the judiciary becoming a 'super-legislature'?Show answer

   Alladi Krishnaswami Ayyar in the Constituent Assembly (1949).

Quick revision checklist

The night before the exam: can you do each of these without looking?

• ☐Judiciary protects the rule of law, rights and democracy; needs independence from political pressure.
• ☐Independence: no legislature in appointment, tenure, hard removal, salaries not voted, contempt power, no discussion of conduct.
• ☐CJI convention broken twice: A. N. Ray (1973, over three senior judges) and M. H. Beg (over H. R. Khanna); collegium of CJI + four senior judges.
• ☐Removal: proven misbehaviour or incapacity; special majority in both Houses; the Ramaswami motion (begun 1991) failed.
• ☐Single integrated, pyramidal judiciary: Supreme Court, High Courts, District Courts, subordinate courts.
• ☐Jurisdiction: original (federal disputes), writ (Art. 32), appellate, advisory (non-binding), special leave.
• ☐Art. 137 review of own judgements; Art. 144 all authorities aid the Court; SC decisions bind all courts.
• ☐PIL since 1979: Hussainara Khatoon, Sunil Batra; benefits: access, accountability, fair elections; costs: overload, blurred separation.
• ☐Judicial review: implied power to strike down laws violating rights or federal division (Art. 13); extends to State laws.
• ☐Kesavananda Bharati 1973: basic structure unamendable; property not basic; Court decides what is basic.

Judiciary: frequently asked questions