Administration of justice is the primary function of the judiciary. However, the judiciary performs certain other function too. These functions may be judicial in character but some of these functions are non-judicial in nature. Following are some of the judicial and non-judicial functions performed by the judiciary.
(1) Judicial Functions:
Firstly, when a dispute is brought before a court, it is the responsibility of the court to ‘determine the facts’ involved. The usual manner in which the courts determine the facts is through evidence given by the contestants. Once the facts have been established, the court proceeds to decide what law is applicable to a particular controversy or circumstance. Herein the judiciary becomes the interpreter of laws, which is the prime function of the judiciary. So the major task of the judiciary is to ‘determine’ the facts of laws and to apply them to particular circumstance.
(2) Law-making Functions:
Secondly, the judiciary while interpreting the existing laws also performs the role of lawmaker. It may sound surprising, but ‘judge-made’ laws are common to all systems of jurisprudence. Such occasions arise when the provisions of the existing laws may be ambiguous, or sometimes two or more laws of a particular government appear to be in conflict under a given circumstance.
Herein the judiciary plays an important role in determining what the law is and when two laws apparently conflict, which shall prevail. For instance, the enunciation of the ‘Doctrine of Implied Powers’ by the U.S. Judiciary proved conducive to the growth of the federal government’s power. However, the phraseology of the original U.S. Constitution did not provide such enormous power of the Federal Government. In this context, we fully realize the prime importance of the judiciary.
(3) Guardianship of the Constitution:
Thirdly, in federal States like India, the U.S.A. and Switzerland, the judiciary is the guardian of the Constitution. Chief Justice Hughes of America once said, “We are under a union but the Constitution is what the judges say it is”.
In federal States conflict in jurisdiction and authority frequently occurs, as there are several law making and executive authorities, each showing its power to the Constitution. In the circumstances, the judiciary becomes the umpire and regulates the legal actions of the States and Central governments.
In case the laws made by any of these law-making bodies conflict with the constitutional provisions, the judiciary in the above mentioned States is empowered to declare the relevant legislation illegal. Indian courts on several occasions have declared laws of the Union as well as the State laws illegal.
(4) Advisory Jurisdiction:
Fourthly, some national judiciaries possess advisory jurisdiction. For instance, the President of India may seek the advice of the Supreme Court of India on any proposed legislation. However, there is no such provision in the U.S.A. The Canadian Supreme Court is also obliged under constitutional provisions to tender advice to the Governor General.
(5) Protector of the Fundamental Rights:
Fifthly, the judiciaries also act as the defenders of the individual’s right. Such role of the judiciary is important as it prevents the individual’s rights from being violated. An individual need not wait until harm is done to him. If he had, sufficient reasons to believe that attempts would be made to violate his ‘rights’ he could approach the courts for protection.
Then the courts would issue orders prohibiting such attempts until the rights of the parties were determined. Judiciary is the watchdog of rights and liberties of the people. In India, the Supreme Court is empowered to protect the Fundamental Rights of the citizens.
(6) Supervisory Function:
Sixthly, higher courts are often assigned the task of supervision over the lower courts. The Indian High Conn responsible for the supervision of their respective state judicial systems.
(7) Non-Judicial Function:
Lastly, the judiciary in some countries may perform a number of non-judicial functions. Courts may undertake the administration of property in cases where the ownership of property in question is in dispute. Courts also assume responsibility for handling the affairs of minor children or lunatics. Courts may be authorized to issue and cancel certain licenses. Courts also may be authorized to grant citizenship to aliens.
Selection or Method of Appointment of Judges:
There are certain methods by which judge are selected in various States. One method of selecting judges is through an election by the people. Such a system now prevails in certain Cantons of Switzerland. Although this method may sound highly democratic, such a method of selection of the judge is unsound. Ordinary voters are not qualified to consider the suitability of judges. Moreover, a popularly elected judge is likely to favor the party, which sponsored his election.
A second method of appointing judges is through elections by legislature. This method is in vogue in Switzerland and some other States. Such a mode of appointment violates the theory of the separation of powers.
Moreover, if judges are appointed in this manner, the judiciary cannot function as the guardian of the constitution. Judges elected by the legislature are not likely to declare acts of the same legislature unconstitutional. Thus, the independence and impartiality of the judges would be lost.
A third method of appointing judges is by executive nomination. In India, the President of India nominates the judges of the Supreme Court and the High Courts. This is a satisfactory mode appointing the judges. Such appointments are generally made from and among the senior practicing lawyers.
A fourth method of selecting Judges is through a competitive examination. In France, judges are selected on the basis of a competitive examination conducted try the Ministry of Justice. In India, too, judges of the lower courts such as Munsifs are selected on the basis of competitive examinations.
Of all these methods, the most popular is the last mentioned mode of choosing judges, for it ensures the independence of the judiciary. Garner is of the opinion that judges should be appointed by the executive. But once appointed, the judges should be independent of the influence of the executive would hold office for life.