Let us return, one final time, to the story of Office Memorandum that we started with. This time let us not recall the story, but imagine how different the story could have been. Remember, the story came to a satisfactory end because the Supreme Court gave a verdict that was accepted by everyone. Imagine what would have happened in the following situations:
• If there was nothing like a Supreme Court in the country.
• Even if there was a Supreme Court, if it had no power to judge actions of the government.
• Even if it had the power, if no one trusted the Supreme Court to give a fair verdict.
• Even if it gave a fair judgement, if those who appealed against the Government Order did not accept the judgement.
This is why an independent and powerful judiciary is considered essential for democracies. All the courts at different levels in a country put together are called the judiciary. The Indian judiciary consists of a Supreme Court for the entire nation, High Courts in the states, District Courts and the courts at local level. India has an integrated judiciary. It means the Supreme Court controls the judicial administration in the country. Its decisions are binding on all other courts of the country. It can take up any dispute
• Between citizens of the country;
• Between citizens and government;
• Between two or more state governments; and
• Between governments at the union and state level.
It is the highest court of appeal in civil and criminal cases. It can hear appeals against the decisions of the High Courts.
Independence of the judiciary means that it is not under the control of the legislature or the executive. The judges do not act on the direction of the government or according to the wishes of the party in power. That is why all modern democracies have courts that are independent of the legislature and the executive. India has achieved this. The judges of the Supreme Court and the High Courts are appointed by the President on the advice of the Prime Minister and in consultation with the Chief Justice of the Supreme Court. In practice it now means that the senior judges of the Supreme Court select the new judges of the Supreme Court and the High Courts. There is very little scope for interference by the political executive. The senior most judge of the Supreme Court is usually appointed the Chief Justice. Once a person is appointed as judge of the Supreme Court or the High Court it is nearly impossible to remove him or her from that position. It is as difficult as removing the President of India. A judge can be removed only by an impeachment motion passed separately by two-thirds members of the two Houses of the Parliament. It has never happened in the history of Indian democracy.
The judiciary in India is also one of the most powerful in the world. The Supreme Court and the High Courts have the power to interpret the Constitution of the country. They can declare invalid any law of the legislature or the actions of the executive, whether at the Union level or at the state level, if they find such a law or action is against the Constitution. Thus they can determine the Constitutional validity of any legislation or action of the executive in the country, when it is challenged before them. This is known as the judicial review. The Supreme Court of India has also ruled that the core or basic principles of the Constitution cannot be changed by the Parliament.
The powers and the independence of the Indian judiciary allow it to act as the guardian of the Fundamental Rights. We shall see in the next chapter that the citizens have a right to approach the courts to seek remedy in case of any violation of their rights. In recent years the Courts have given several judgments and directives to protect public interest and human rights. Any one can approach the courts if public interest is hurt by the actions of government. This is called public interest litigation. The courts intervene to prevent the misuse of the government’s power to make decisions. They check malpractices on the part of public officials. That is why the judiciary enjoys a high level of confidence among the people.
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