Get complete information on the meaning and function of Judiciary

The judiciary (also known as the judicial system or judicature) is the “system of courts which interprets and applies the law in the name of the sovereign or state. The judiciary also provides a mechanism for the resolution of disputes. Under the doctrine of the separation of powers, the judiciary generally does not make law or enforce law, but rather interprets law and applies it to the facts of each case.

This branch of government is often tasked with ensuring equal justice under law. It usually consists of a court of final appeal (called the “supreme court” or “constitutional court”), together with lower courts. The term “judiciary” is also used to refer collectively to the personnel, such as judges, magistrates and other adjudicators, who form the core of a judiciary (sometimes referred to as a “bench”), as well as the staffs who keeps the system running smoothly.

Function:

This is one of the fundamental functions of the State, performed by the magistrates forming the “judicial order”. Its function is the application of legal rules to the facts of particular cases. The administration of justice is divided between ordinary and special judicial functions. The ordinary judicial function

is exercised by ordinary judges and is concerned with those areas of law not reserved to the jurisdiction of special courts or judges. The Ordinary Courts and the Court of Cassation are bodies forming part of the ordinary judicial system. The areas of special legal jurisdiction are those areas reserved by the law to special courts and judges.

Regional Administrative Courts and the Council of State are thus examples of bodies with special jurisdiction. Following a categorisation based on the ambit of powers and different areas of jurisdiction, the administration of justice in Italy is divided into constitutional, civil, criminal, administrative, accounting, tax and Military law.

The principal element in judicial activity is the trial. Through the trial, the Court seeks to arrive at the making of an order following the opposing submissions and arguments presented by both parties which may take the form for example, of a judgement by which the law is applied and interpreted to the facts of a particular case.

Judicial Review and Judicial Activism:

The Encyclopedia Britannica defines judicial review as “the power exerted by the courts of a country to examine the actions of the legislative, executive and administrative arms of the government and to ensure that such actions conform to the provisions of the nation’s constitution.” Ferguson and McHenry defined judicial review as “the power of a court to hold unconstitutional any law or official action that it deems to be in conflict with the basic law, or the constitution.” Judicial review is a power in the hands of the courts to look into the constitutional validity of a legislative or administrative measure and then give a judgement in regard to its being intra vires or ultra vires of the constitution.

The study of judicial review virtually relates to the two democratic countries of the world, i.e. United States and India, both having written constitution and a federal system of government. Both the American Supreme Court and the Indian Supreme Court recognize judicial supremacy. The American judiciary can also declare an Act unconstitutional, if it fails to satisfy the requirements of the “due process of law”.

The “due process” clause and “judicial supremacy” has turned the American Supreme Court into a kind of super legislature. In communist countries there is no place for judicial review where judges are elected by the legislatures and they are required to honour the ‘will of the people’. In Britain too, the English courts can not look into the constitutional validity of a legislative measure made by the sovereign Parliament.

However, they may exercise the power of judicial review over delegated legislation. If an executive action contravenes the law of the Parliament, in letter or in spirit, the courts may strike it down. The Federal Tribunal of Switzerland has the power of judicial review that it may exercise in relation to the laws made by the Cantonal legislatures only. Article 81 of the Japanese constitution also empowers the Supreme Court to exercise the power of judicial review.

This power of judicial review in the hands of courts has led to what has recently been called as judicial activism. In recent years, at times there has been a vacuum in the executive, and the judiciary has on many occasions filled that space. In India the first push came after the Emergency phase when the Supreme Court came up with the device of public-interest litigation (PIL), a tool meant to ensure justice for the under-privileged and the marginalised.

The recent regulations of the Indian Supreme Court and High Courts, like making helmet compulsory for 2-wheeler drivers, no felling of trees bar on vehicles more than 15 or 20 years old or ban on hoardings on the roadside in Delhi are a few.

Independence of the Judiciary:

The enormous powers and functions of the judiciary make the courts responsible for the well-being and protection of the rights of the nation on the whole. Thus, to perform these functions effectively, it is necessary that it should be independent and impartial. Even though in some countries (e.g.. Switzerland and the U.S.) Judges are elected, in most others they are appointed by the executive.

However, once appointed they cannot be easily removed except by the process of impeachment on the grounds of proven misbehaviour and incapacity. Their salary and service conditions are placed beyond the control of the executive or legislature. While making an appointment, the President is not guided by party considerations, but merits and capability of the persons concerned.

The salaries and allowances of the judges are placed beyond the control of the executive or legislature so that it cannot be altered to their disadvantage. In many countries like India, an oath is administered so that the judges can perform their duties to the best of their ability without fear favour, affection or ill-will.

In the words of Shri Aiyar the Supreme Court of India “has more power than any other Supreme Court in the world.” A comparison of the Supreme Court of India and America shows that if the former has wider jurisdiction with regard to appeals from the lower courts, the latter has advantage over the former with regard to original jurisdiction which extends to all cases relating to ambassadors consuls ministers, treaties. Naval forces and maritime matters.

On the appellate side, the Indian Supreme Court enjoys wider powers than its counter-part which does not deal with appeals in civil and criminal cases except the constitutional ones. The Indian Supreme Court has advisory functions also which the American Supreme Court does not have. Above all, the Indian Supreme Court is a court of record. The American Supreme Court is deprived of these privileges.

Thus, the courts have a very important share in the political process of a country, though this varies with the nature of the political system and the culture of the people. Cooperation and conflict between the real administrators and the honest adjudicators should go hand in hand so that the political system develops further and is not decayed. It is rightly observed: “The courts are the part of the political process and one should stress cooperation as much as conflict. They interact with other parts of the political system not as illegitimate outsiders but as part of the stable ruling political alliance.”