Law and order within the state is maintained through the administration of justice, which is considered as one of the greatest pillars of any government. The securities of the citizens depend on the prompt, efficient and impartial administration of justice. It is the judiciary which acts as the guardian of every private, civil right and the judiciary consists of the magistrates and judges charged with the function of administration of justice.
In early times, the function of the administration of justice was done by some social associations like church, guild and panchayat or by influential landlords etc. In modern times the administration of justice became an exclusive function of the state. The chief functions of the judiciary are, to ascertain and decide upon rights, to punish criminals and protect the innocent from injury and usurpation. Thus the nature of judicial function demands that the judges ought to possess great legal acumen, faithfulness to the Constitution, firmness of character and above all honesty and independence.
In the judicial system of every country there are generally two sets of courts namely civil and criminal. The civil courts have a Supreme Court at the head and also criminal courts. Below the highest court there are lower courts with definite jurisdiction.
1. The first and foremost function of the courts is administration of justice. The judiciary is to hear and decide cases- civil, criminal and constitutional- in which the parties involved in dispute present their arguments. In accordance with the recognised procedure, namely, production of evidence, examination of witnesses etc. the courts determine the facts of a case. Once the facts are ascertained the courts are simply to apply the appropriate law and give a decision.
2. Though legislation is the work of the legislatures, the- courts also legislate in a different way. Very often the judges find it difficult to select the appropriate law for application to a particular case. Owing to the ambiguity of language, the meaning of law may not be very clear. The judges are then called upon to decide what was the original intention of the legislature. More importantly, a new situation may arise which is not covered by existing laws. In such an event it is the duty of the judges to call for a judicial legislation. Such judicial legislation is characteristic of common law in states like Great Britain. They are called as case-laws in other countries.
3. In a federation the courts play the role of an independent and impartial umpire between the central and state (regional) governments. As a federation involves division of powers between a central government and number of state governments each of which is supreme within its own sphere, the courts are charged with the work of interpreting the provisions of the Constitution wherever there arises a dispute between the two governments. The courts are to see that the governments work within their constitutional limits and respect them.
4. The Judiciary in some countries also takes part in the administration of law as it is called upon to give an authoritative interpretation of the law in the absence of any actual dispute. Thus, in India and Canada, the Supreme Court may give advisory opinions on constitutional questions which would enable the executive to settle constitutional issues before administrative enforcement of a legislation starts
5. The courts are also found to perform certain miscellaneous functions which are strictly speaking non-judicial in character. Thus for instance the courts sometimes grant licenses of deceased persons and appoint receivers.
6. The most controversial functions of the courts lies in their power of judicial review. It refers to judicial competence to review executive orders and of legislative enactments. This unique power of the courts originates in the United States of America and has its best form there. It is also found in lesser forms in countries like India, West Germany, Italy, Australia and South Africa.
A constitution may embody the institution of judicial review either explicitly or implicitly. In the U.S., the principle of judicial review is inherent in judicial powers, leading to the development of judicial supremacy. In India, the Constitution is supreme and all the governments operate under the authority of the Constitution. Therefore if any institution transgresses the limits set by the Constitution, the courts would have the power to examine such acts. Any action either by the legislature or by the executive in contravention of the provisions of the chapter on fundamental rights can be declared void. The scope of judicial review in India is, however, limited. The Supreme Court of India while interpreting a law will not itself legislate. It will not question the reasonableness of any law except where the constitution has expressly authorised the court to exercise the power. Normally, it works according to procedure established by law.
No doctrine of judicial review has been subjected to serious criticism. It tends to elevate the judiciary to the rank of super-legislature or the “third chamber” of the legislature. It sometimes leads to a hostile confrontation between the executive and judicial departments. Strangely, the Supreme Court of the United States sometimes, through a simple majority of five to four judges, sets aside a measure law passed by an overwhelming majority of the elected representatives of the people. The Supreme Court has also obstructed the passage of progressive social legislation in the US.
Viewed differently, judicial review looks like an essential instrument in the hands of the judges to work as the protectors of a democratic system. It is by virtue of this power that the judiciary can save the people from the onslaughts of the executive and legislative despotism. In a federal system, judiciary keeps both the national and state governments within their constitutional spheres, and tries to resolve conflicts between them and settle disputes.