THE JUDICIARY IN A DEMOCRACY

A successful democracy has always been based on a ‘linchpin’ concept called separation of powers. This idea envisages the clear demarcation of the power and functions of the three pillars in a democracy – the executive, the legislature and the judiciary.

In a democracy it is generally a written constitution or as in the case of England an unwritten one that lays down “the rules of engagement” between the three branches of democracy named above. The principles of the constitution are based on the rule of law and are the fountainhead of an accomplished democracy. It falls upon a free and independent judiciary to interpret and uphold the majesty of the law. Therefore it is often seen as a custodian of the constitution and a defender of freedom, the very elixir of democracy. The judiciary is a bulwark against tyranny and authoritarianism. The creeping threats to democracy that very often emanate from the portals of power havefound in the judiciary an indestructible barrier virtually impossible to breach.   

 

The Indian Judiciary is partly a continuation of the British legal system established by the English in the mid-19th century based on a typical hybrid legal system known as the Common Law System, in which customs, precedents and legislative are all components of the law. The Constitution of India is the supreme legal document of the country. There are various levels of judiciary in India – different types of courts, each with varying powers depending on the tier and jurisdiction bestowed upon them. They form a strict hierarchy of importance, in line with the order of the courts in which they sit, with the Supreme Court of India at the top, followed by High Courts of respective states with district judges sitting in District Courts and Magistrates of Second Class and Civil Judge (Junior Division) at the bottom. Courts hear criminal and civil cases, including disputes between individuals and the government. The Indian judiciary is independent of the executive andlegislative branches of government according to the Constitution.

1. Interpretation of Law:

The primary function of the judiciary I is to interpret law and apply them to specific cases that come before it. It I applies the principles of custom, statues and written constitutions to specific cases.

It determines the facts of a case brought before it, how the I legal rights of parties to the case are affected and what law is applicable.

Where the law is deficient it applies principles of justice, equity and morality. As Gettle remarks, "Constitution and laws are always rigid;! flexibility must be given to them by judges".

2. Custodian of the Constitution:

The judiciary acts as guardian of the constitution in federal government. Constitution in a federation is the supreme law of the land. The judiciary protects its spirit and character.

Federal judiciary enjoys the powers to declare a law passed by the legislature as unconstitutional if the same is inconsistent with the constitution. It not only protects the constitution but also develops it and adapts it to changing conditions.

The Supreme Courts of the U.S .A. and India are thus given the power of judicial review. The Supreme Court of Switzerland possesses this power against the legislation passed by the Cantonal legislatures. In U.S.A. the Supreme Court possesses the widest power of judicial review.

It has not only protected the constitution but has also expanded it and adapted it to the modern conditions through interpretation of its original provisions. The 'implied powers' of the U.S. federal government have therefore accrued out of judicial interpretations.

It de­clares many laws ultra vires on the basis of 'due process of law'. The Indian Supreme Court also declares laws ultra vires on the basis of 'process as established by law'.

3. Guardian of Civil Liberties:

The judiciary is the guardian! civil liberties of the people. It protects individual liberty by punishing those who encroach upon it. It also protects the people against an; arbitrary action of the government.

The Constitution of India uncle article 32 has made the Supreme Court guardian of fundamental right against their violation by the State. The courts issue injunctions to prevent commission of wrongs and issue writs of various kinds like writs of Habeas Corpus, mandamus, etc.

The writ of Habeas Corpus is issued" prevent wrongful imprisonment and that of mandamus to force V government officials to perform their legal duties.

the judiciary

4. Legislative Functions of the Judiciary:

(a)The judges not only interpret and apply law but also expand and make law. As Laski says, "The Court finds the law, but in finding it the court also makes it". Laws arc not so comprehensive as to cover all details of every case that comes before the courts for decision.

The courts thus find the exact meanings of the law, expand its details and apply general principles of justice and morality.

To that extent they make law. In England and U.S.A., the court judgements are treated as precedents and binding on lower courts. Such 'judge-made law' or 'case made law' forms a considerable part of the entire system of jurisprudence of these countries.

The Roman judges created a vast system of jurisprudence upon the few principles of the Twelve Tables. The British and American courts have created an exten­sive body of common laws.

In France, almost the whole body of administrative law has been built up by the decisions of the administra­tive courts. The principles of equity which form a vital part of every system of justice are the creation of courts.

(b) The judiciary also plays an important legislative role in other respects as well. The judges add flesh and blood to the dry bones of law by their interpretations and judgements.

The Supreme Court of America has done a lot in this respect. It has removed all the flaws and filled in the gaps of the original constitution.

So great is the law making role of the Supreme Court that it has been called the continuous Philadelphia Convention which framed the original constitution. Apart from USA the judge-made law forms a very important part of legal code in every country.

5. Advisory Functions:

The courts also give advisory opinions when requested to do so by the executive or by the legislature.

In England, the practice to request a court to give declaratory judgement is very common. The Crown sometimes asks the judicial committee of the Privy Council to give its advisory opinion upon questions of law.

In our country [he President may seek the advice of the Supreme Court on any question of constitutional law.

6. Administrative Functions:

The Supreme Court and High Courts arc also empowered to appoint their local officials and subordi­nate staff. This is an administrative function of the judiciary.

7. Miscellaneous Functions:

Judiciary performs miscellaneous functions like the granting of probate and appointment of receivers, guardians and trustees, adjudication, arbitration and conciliation. They act as courts of ward, courts of enquiry and investigation.