Module 5
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The document discusses the following topics: 1. The powers and functions of the Supreme Court of India including its original, appellate and advisory jurisdictions. 2. The appointment of the Chief Justice of India. 3. The concept of judicial review which allows courts to review and invalidate legislative and executive actions that are incompatible with the constitution. 4. The concept of public interest litigation in India which allows litigation to be introduced by the court itself or by private parties for the protection of public interest rather than requiring the aggrieved party to directly approach the court.
Module 5
- 1. Module 5- Judiciary 1. Supreme Court- Powers and Functions, Jurisdiction of Supreme Court- Original, Appellate & Advisory 2. Chief Justice of India- Appointment 3. Judicial Review- Judicial review is the doctrine under which legislative and executive actions are subject to review, and possible invalidation, by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority, such as the terms of a written constitution. Judicial review is an example of the functioning ofseparation of powers in a modern governmental system (where the judiciary is one of three branches of government). This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms. As a result, the procedure and scope of judicial review differs from country to country and state to state. Also refer to Case Studies of Judicial Review Public Interest Litigation In Indian law, public interest litigation means litigation for the protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party. It is not necessary, for the exercise of the court's jurisdiction, that the person who is the victim of the violation of his or her right should personally approach the court. Public interest litigation is the power given to the public by courts through judicial activism. However, the person filing the petition must prove to the satisfaction of the court that the petition is being filed for a public interest and not just as a frivilous litigation by a busy body. Such cases may occur when the victim does not have the necessary resources to commence litigation or his freedom to move court has been suppressed or encroached upon. The court can itself take cognisance of the matter and proceed suo motu or cases can commence on the petition of any public-spirited individual.
- 2. Prior to the 1980s, only the aggrieved party could approach the courts for justice. However, post 1980s and after the emergency era, the apex court decided to reach out to the people and hence it devised an innovative way wherein a person or a civil society group could approach the supreme court seeking legal remedies in cases where public interest is at stake.Justice P. N. Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit PIL's in the court. Filing a PIL is not as cumbersome as any other legal case and there have been instances when even letters and telegrams addressed to the court have been taken up as PIL's and heard by the court. Examples of PIL The Bombay High Court on 31 August 2006 directed the broadcasters to give an undertaking that they will abide by the Cable Television Network Act 1995 as well as the court's orders by tomorrow, in view of larger public interest. A division bench comprising Justices R M Lodha and S A Bubbey were hearing a Public Interest Litigation (PIL) filed by Professor Pratibha Nathani of St Xavier's College alleging that films without certification by the Censor Board for Film Certification (CBFC) allowing 'free public exhibition', were being shown on cable channels, which have a bad impact on children. Hence, such films should not be shown and action be taken against those still running such content on their channels. The court on 23 August had allowed the cable operators and channels to screen only 'U' and 'U/A' certified films. However, before that order, the police had taken action against the Multi- system operators and seized their decoders due to which they could not telecast certain channels. Assistant Commissioner of Police Sanjay Apranti told the court that they did not have a problem if the channels provided the cable operators with new decoders. Also, Zee Television and Star Television networks applied for the declaration in writing that they would abide by the said Act and court orders. The court also directed seven channels—Star Movies, Star One, Star Gold, HBO, ZEE Movies, AXN and Sony Max—to furnish a list of all the films that they were to screen to the police.
- 3. Writ Petition- In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writsand subpoenas are common types of writs but there are many others. Indian Law- Under the Indian legal system, jurisdiction to issue 'prerogative writs' is given to the Supreme Court, and to the High Courts of Judicature of all Indian states. Parts of the law relating to writs are set forth in the Constitution of India. The Supreme Court, the highest in the country, may issue writs under Article 32 of the Constitution for enforcement of Fundamental Rights and under Articles 139 for enforcement of rights other than Fundamental Rights, while High Courts, the superior courts of the States, may issue writs under Articles 226. The Constitution broadly provides for five kinds of "prerogative" writs: Habeas Corpus, Certiorari, Mandamus, Quo Warranto and Prohibition. The writ of prohibition is issued by a higher court to a lower court prohibiting it from taking up a case because it falls outside the jurisdiction of the lower court. Thus, the higher court transfers the case to itself. The writ of habeas corpus is issued to a detaining authority, ordering the detainer to produce the detained person in the issuing court, along with the cause of his or her detention. If the detention is found to be illegal, the court issues an order to set the person free. The writ of certiorari is issued to a lower court directing that the record of a case be sent up for review, together with all supporting files, evidence and documents, usually with the intention of overruling the judgement of the lower court. It is one of the mechanisms by which the fundamental rights of the citizens are upheld. The writ of mandamus is issued to a subordinate court, an officer of government, or a corporation or other institution commanding the performance of certain acts or duties. The writ of quo warranto is issued against a person who claims or usurps a public office. Through this writ the court inquires 'by what authority' the person supports his or her claim.