Complete solutions to all ten exercise questions from the NCERT textbook Indian Constitution at Work, Chapter 6 “Judiciary”, in the English edition’s own wording. Try answering each question yourself first, then check your answer here. Answers to the questions the chapter asks along the way (margin questions, “Check your progress” boxes, cartoons and activities) are given at the end.
1 Measures Ensuring Independence: Choose the Odd One Out
Q. What are the different ways in which the independence of the judiciary is ensured? Choose the odd ones out.
(i) Chief Justice of the Supreme Court is consulted in the appointment of other judges of the Supreme Court.
(ii) Judges are generally not removed before the age of retirement.
(iii) Judge of a High Court cannot be transferred to another High Court.
(iv) Parliament has no say in the appointment of judges.
Answer: (iii) is the odd one out. This statement is factually wrong, the Supreme Court has the power to transfer High Court judges from one High Court to another, so this is not a measure ensuring independence, it is simply an incorrect statement. The other three, (i), (ii) and (iv), are genuine measures that help ensure judicial independence.
2 Does Independence Mean No Accountability?
Q. Does independence of the judiciary mean that the judiciary is not accountable to anyone? Write your answer in not more than 100 words.
Answer: No, independence of the judiciary does not mean an absence of accountability. It only means that the other organs of government must not restrain the judiciary’s functioning or interfere with its decisions, and that judges must be able to act without fear or favour. The judiciary is itself part of the country’s democratic political structure, so it remains accountable to the Constitution, to democratic traditions, and to the people. There is also a (though difficult) constitutional procedure for removing judges, which shows that independence and accountability exist together, independence never means arbitrariness.
3 Provisions to Maintain the Independence of the Judiciary
Q. What are the different provisions in the Constitution in order to maintain the independence of the judiciary?
Answer:
1. The legislature is not involved in the appointment of judges, keeping party politics out of the process.
2. Judges have a fixed tenure and security of tenure, holding office until the retirement age, removable only in exceptional cases.
3. Judges’ salaries and allowances are not subject to the legislature’s approval, ensuring financial independence.
4. Judges’ actions and decisions cannot be personally criticised, the contempt-of-court power protects this, and Parliament cannot discuss a judge’s conduct except during removal proceedings.
4 Read the News Report: The Dahanu Farmers Case
Q. Read the news report below and identify: What is the case about? Who has been the beneficiary in the case? Who is the petitioner in the case? Visualise the different arguments the company would have put forward. What arguments would the farmers have put forward?
(News report, in brief: “Supreme Court orders REL to pay Rs 300 crore to Dahanu farmers”, Our Corporate Bureau, 24 March 2005. The Supreme Court ordered Reliance Energy to pay Rs. 300 crore to chikoo-growing farmers of Dahanu, 150 km from Mumbai, after they petitioned the court against pollution from Reliance’s thermal power plant. Dahanu was a self-sustaining agricultural and horticultural economy, known for its fisheries and forests, until the plant began operating in 1989; the next year saw the first crop failure, and 70 per cent of the crop of this “fruit bowl of Maharashtra” is now gone. Fly ash is said to have polluted the groundwater and the eco-system. The Dahanu Taluka Environment Protection Authority had ordered a pollution control unit, backed by a Supreme Court order, but it was not set up even by 2002; Reliance acquired the station in 2003, and the Authority then asked it for a bank guarantee of Rs. 300 crore.)
Answer:
The case: This case is about the environmental pollution caused by Reliance Energy’s thermal power plant and the compensation owed to the chikoo-growing farmers of the Dahanu area for their economic losses.
Beneficiary: The chikoo-growing farmers of the Dahanu area.
Petitioner: The chikoo growers, who petitioned the court against the pollution caused by the thermal power plant.
The company’s likely arguments: the plant provides employment and contributes to power generation; setting up pollution-control measures takes time and heavy investment; crop failure cannot be blamed on the plant alone.
The farmers’ likely arguments: the region was a self-sustaining agricultural and fishing economy before the plant arrived; the first crop failure came the very next year after the plant started operating; fly ash from the plant polluted groundwater and the entire ecosystem; despite an order to install pollution-control equipment, years passed with no action taken.
5 Read the News Report: The Delhi CNG Issue
Q. Read the following news report and identify the governments at different levels, the role of the Supreme Court, the elements of the working of the judiciary and executive, and the policy, legislation, implementation and interpretation issues involved.
(News report, in brief: “Centre, Delhi join hands on CNG issue”, The Hindu, 23 September 2001. The Centre and the Delhi Government agreed to jointly approach the Supreme Court about phasing out non-CNG commercial vehicles, to seek a dual fuel policy instead of a single-fuel (CNG only) transport system, to discourage CNG for private vehicles, to press for allowing 0.05 per cent low-sulphur diesel for running buses, and to plead before the Court that commercial vehicles meeting Euro-II standards be allowed to ply in the city. Delhi Chief Minister Sheila Dikshit and Union Petroleum Minister Ram Naik said the deadline should be extended because the 10,000-odd bus fleet could not be converted in time and the Mashelkar Committee was preparing an “Auto Fuel Policy”. The Supreme Court had refused to relax the CNG-only norm for buses, but said it had never insisted on CNG for taxis and auto rickshaws.)
Answer:
Governments at different levels: the Union government (Ministry of Petroleum and Natural Gas) and the State government of Delhi, working jointly.
Role of the Supreme Court: enforcing its own earlier order requiring CNG for pollution control, and now considering the governments’ request for some flexibility (allowing low-sulphur diesel too), meaning the Court is reviewing and possibly modifying its own earlier ruling.
Judiciary-executive overlap: the Court’s binding CNG order on one hand, and the executive explaining the practical difficulty and time needed to implement it fully, this back-and-forth is itself a good example of the ongoing dialogue between the judiciary and the executive.
Policy, legislation, implementation and interpretation issues: setting up an expert committee (the Mashelkar Committee) to suggest an Auto Fuel Policy is policy-making; the deadline for converting the entire bus fleet to CNG is an implementation issue; and the Court deciding how much relaxation to allow in its own order is a matter of interpretation.
6 Comparison with Ecuador
Q. The following is a statement about Ecuador. What similarities or differences do you find between this example and the judicial system in India?
“It would be helpful if a body of common law, or judicial precedent, existed that could clarify a journalist’s rights. Unfortunately, Ecuador’s courts don’t work that way. Judges are not forced to respect the rulings of higher courts in previous cases. Unlike the US, an appellate judge in Ecuador (or elsewhere in South America, for that matter) need not provide a written decision explaining the legal basis of a ruling. A judge may rule one way today and the opposite way, in a similar case, tomorrow, without explaining why.”
Answer:
Difference: India’s judicial system is built on the principle of precedent, lower courts are bound to follow the rulings of higher courts, especially the Supreme Court. This gives India legal certainty and predictability, which the passage says is missing in Ecuador.
Similarity: in India too, the Supreme Court can review its own earlier judgments (Article 137), so some flexibility exists in India as well, though this is the exception, not the rule, unlike Ecuador where every case seems to work this way.
Conclusion: India’s system balances stability with flexibility, while the Ecuador example described here shows an almost complete absence of stability.
7 Match with the Kind of Jurisdiction
Q. Read the following statements and match them with the different jurisdictions the Supreme Court can exercise, Original, Appellate, and Advisory.
(a) The government wanted to know if it can pass a law about the citizenship status of residents of Pakistan-occupied areas of Jammu and Kashmir.
(b) In order to resolve the dispute about river Cauvery, the government of Tamil Nadu wants to approach the court.
(c) Court rejected the appeal by people against the eviction from the dam site.
Answer:
(a) Advisory jurisdiction. The government is seeking the Supreme Court’s advice before making a law, this is precisely what advisory jurisdiction is for.
(b) Original jurisdiction. This is a dispute between two States (Tamil Nadu and Karnataka), heard directly by the Supreme Court.
(c) Appellate jurisdiction. Here, the Court is deciding an appeal made in an ongoing case.
8 How PIL Can Help the Poor
Q. In what way can public interest litigation help the poor?
Answer:
1. Before PIL, only the personally aggrieved person could approach the courts, now someone else (a lawyer, an organisation, a concerned citizen) can file on their behalf.
2. Poor and deprived groups, like undertrials or bonded labourers, often cannot approach the courts themselves, PIL opened this path for them.
3. Cases like Hussainara Khatoon and Sunil Batra showed that even a newspaper report or a prisoner’s note could set a case in motion.
4. It also helped establish rights like clean environment and decent living as rights of society, especially benefiting weaker sections.
9 Can Judicial Activism Cause Conflict?
Q. Do you think that judicial activism can lead to a conflict between the judiciary and the executive? Why?
Answer: Yes, there is potential for conflict.
1. Under judicial activism, courts have given direct orders on matters like reducing pollution, initiating corruption investigations, or bringing about electoral reform, matters traditionally seen as the executive’s job.
2. This blurs the line between the executive’s and the judiciary’s work, and the executive may feel the court is intruding into its domain.
3. On the other hand, if the executive fails to perform its duty properly (for instance, not enforcing pollution control), judicial intervention may be seen as necessary in the public interest.
4. Balance is therefore essential, each organ must respect the other’s jurisdiction, or tensions in the democratic structure can grow.
10 Judicial Activism and Fundamental Rights
Q. How is judicial activism related to the protection of fundamental rights? Has it helped in expanding the scope of fundamental rights?
Answer: Yes, judicial activism has significantly expanded the scope of fundamental rights.
1. Through PIL, groups that could not previously access the courts on issues like the right against exploitation (bonded labour, hazardous child labour) gained a route to justice.
2. The courts took up cases involving the blinding of jail inmates by police, inhuman conditions in stone quarries, and sexual exploitation of children.
3. Rights like clean air, unpolluted water and decent living gained recognition as rights of society as a whole.
4. In this way, judicial activism has made fundamental rights genuinely meaningful for the poor and disadvantaged, well beyond simply existing on paper.
11 In-text Questions (asked within the chapter)
The chapter also asks questions in its margins, in its “Check your progress” boxes, under its cartoons, in a “You are the judge” box and in two class activities. They are not part of the exercise list, but they test the same ideas, so an answer to each is given here in the order the book prints them.
Q. Hold a debate in class on the following topic. Which of the following factors do you think, work as constraints over the judges in giving their rulings? Do you think these are justified? Constitution; Precedents; Opinion of other courts; Public opinion; Media; Traditions of law; Laws; Time and staff constraints; Fear of public criticism; Fear of action by executive.
Points for the debate:
Justified constraints: the Constitution, the laws, precedents and the traditions of law. A judge settles disputes “in accordance with the law”, and following the Constitution, the laws and earlier rulings of higher courts is what makes judgments predictable and fair. The opinion of other courts can fairly guide a judge, though it does not bind a higher court.
A practical but unwelcome constraint: time and staff constraints. They are real (the chapter notes that PILs have overburdened the courts), but they should be removed by more judges and staff, not accepted.
Unjustified constraints: public opinion, the media, fear of public criticism and fear of action by the executive. Independence of the judiciary means that judges must be able to perform their functions without fear or favour, and that other organs must not interfere with their decisions. That is why judges have security of tenure, their salaries do not need the legislature’s approval, and they are protected from unfair criticism by the power to punish contempt of court.
Q. I remember the case of Machal mentioned in chapter two. Don’t they say, ‘justice delayed is justice denied’? Somebody should do something about this.
Answer: Machal Lalung, arrested at 23, spent 54 years in “judicial custody” without his case ever coming up for hearing, and was freed only in 2005, at 77, after a team appointed by the National Human Rights Commission intervened. A trial that never takes place is exactly what “justice delayed is justice denied” means: the right to life and liberty includes the right to a fair and speedy trial. This is why an independent, accessible judiciary matters. Through public interest litigation, any public-spirited person can approach the courts on behalf of undertrial prisoners who cannot do so themselves, as happened in the Hussainara Khatoon case of 1979.
Q. I am afraid, I am getting confused. In a democracy, you can criticise the Prime Minister or even the President, but not the judges! And what is this contempt of court? But am I being guilty of contempt if I asked about these matters?
Answer: Contempt of court is an act that disobeys a court’s order or unfairly attacks a court so as to lower its authority. The Constitution makes the actions and decisions of judges immune from personal criticism, and the judiciary has the power to penalise those found guilty of contempt of court, because judges must be able to decide without fear of being criticised by powerful parties to a case. This does not stop you from asking about these matters. Asking questions, discussing how courts work or fairly analysing a judgment is not contempt. What the law protects judges from is unfair, personal attack on the judge or on the court’s authority.
Q. But I think, finally the Council of Ministers would have greater say in appointing judges. Or is it that the judiciary is a self-appointing body?
Answer: Both have a role. Judges are appointed by the President after “consulting” the Chief Justice of India, and for a long time this meant that the final decision rested with the Council of Ministers. Between 1982 and 1998 the Supreme Court changed this: it now recommends names through the Chief Justice in consultation with the four senior-most judges, and at the moment the decision of this group of senior judges carries greater weight. So the judiciary has a large say in choosing its own members, but appointments are still made by the President on the advice of the Council of Ministers. The chapter’s conclusion is that in matters of appointment, the Supreme Court and the Council of Ministers both play an important role.
Q. Do you remember what special majority means?
Answer: A special majority has two conditions together: the motion must be supported by a majority of the total strength of the House, and by at least two-thirds of the members present and voting. A motion to remove a judge needs a special majority in both Houses. This is exactly why the motion against Justice V. Ramaswami failed: it got two-thirds of those present and voting, but not the support of one-half of the total strength of the House.
Q. (i) Why is independence of the judiciary important?
(ii) Do you think that executive should have the power to appoint judges?
(iii) If you were asked to make suggestions for changing the procedure of appointing judges, what changes would you suggest?
Answer:
(i) Disputes arise between individuals, between groups, and between individuals or groups and the government, and they must be settled by an independent body in accordance with the rule of law. Only an independent judiciary can protect the rule of law, safeguard the rights of the individual, settle disputes impartially and ensure that democracy does not give way to individual or group dictatorship. A court that feared the government could not rule against it.
(ii) Not alone. If the executive alone appointed judges, it could choose judges who would favour it, and since the government is itself a party in many cases, this would weaken independence. The present arrangement, in which appointment is made by the President but on the recommendation of the senior-most judges, shares the power so that neither side can control it fully.
(iii) Suggestions: appointments should be made on clear, published criteria of merit and integrity; the process of recommendation should be more transparent; the views of both the senior judges and the government should be recorded; and political opinion or loyalty should never be a criterion, as the chapter itself says.
Q. Isn’t it funny that giving advice is optional and accepting that advice is also optional? I thought that the Courts gave decisions that were binding!
Answer: It looks odd, but advice is different from a decision. In its original and appellate jurisdiction the Supreme Court decides a real dispute, and its decision is binding on all courts in India. Under advisory jurisdiction, there is no dispute yet: the President only asks for the Court’s legal opinion on a matter of public importance or of interpretation of the Constitution. So the Court is not bound to give advice and the President is not bound to accept it. It is still useful in two ways: the government can seek legal opinion before acting, which may prevent unnecessary litigation later, and it can make suitable changes in its action or legislation in the light of the advice.
Q. Why is the Supreme Court allowed to change its own ruling? Is it because courts can also make mistakes? Is it possible that the same judge is part of the ‘Bench’ that revises the ruling and was also on the Bench that gave the ruling in the first place?
Answer: Yes, partly because courts too can make mistakes, and partly because the meaning of the law has to keep pace with changing times. Article 137 gives the Supreme Court the power to review any judgment pronounced or order made by it, and the chapter notes that the Supreme Court itself is not bound by its decision and can at any time review it. A review petition is often heard by the same judges who gave the judgment, while a later case that overrules an earlier ruling is usually decided by a different and larger Bench. Either way, the power to review keeps the highest court from being stuck with an error, because there is no higher court above it to correct it.
Q. Match the following.
Left column: (a) Dispute between State of Bihar and Union of India will be heard by; (b) Appeal from District court of Haryana will go to; (c) Single Integrated Judiciary; (d) Declaring a law unconstitutional.
Right column: High Court; Advisory Jurisdiction; Judicial review; Original Jurisdiction; Supreme Court; Single Constitution.
Answer:
(a) Dispute between the State of Bihar and the Union of India: Supreme Court, under its Original Jurisdiction, since only the Supreme Court can hear disputes between the Union and the States.
(b) Appeal from a District court of Haryana: High Court.
(c) Single Integrated Judiciary: Single Constitution, because one Constitution sets up one integrated court system for the whole country, unlike federal countries with separate State courts.
(d) Declaring a law unconstitutional: Judicial review.
Advisory Jurisdiction is left unmatched.
Q. Do you know that in recent times the judiciary has ruled that bandhs and hartals are illegal?
Answer: This cartoon is an example of judicial activism. A bandh or hartal forcibly stops the movement, work and trade of ordinary citizens who have not agreed to it, so courts have treated enforced bandhs as a violation of other people’s rights. Rulings like this show the court stepping into questions of public life that were earlier left to the executive and political parties, which is exactly the kind of activity the chapter calls judicial activism.
Q. I have heard someone say that PIL means ‘private interest litigation’. Why would that be so?
Answer: Because PIL can be misused. Since anyone can now file a petition on behalf of others, some petitions are filed not for the public but for publicity, for a business rival’s benefit or to settle a personal or political score, while being presented as public interest. Such cases also add to the burden on courts, which the chapter names as a negative side of the large number of PILs. That is why courts examine whether a petition genuinely involves public interest before hearing it, and can reject frivolous ones.
Q. Find out the details about at least one case involving a PIL and study the way in which that case helped in serving public interest.
How to do it: Choose one case and note: who filed the petition and on whose behalf, which right was involved, what the court ordered, and what changed afterwards. You can start from the cases the chapter itself names: Hussainara Khatoon vs. Bihar (1979), which arose from newspaper reports about undertrials in Bihar’s jails who had spent longer in jail than they would have if they had been punished; Sunil Batra vs. Delhi Administration (1980), which began from a Tihar jail inmate’s scribbled note to Justice Krishna Iyer about torture of prisoners; or Bandhua Mukti Morcha vs. Union of India (1984), on bonded labour. End by stating how the case protected people who could not easily approach the court themselves.
Q. I think judicial activism is more about telling the legislature and the executive what they should do. What will happen if the legislature and executive started giving justice?
Answer: If the legislature and the executive started giving justice, they would be judges in their own cases, since the government is itself a party in many disputes, and the rule of law and the rights of citizens would no longer be safe. That is the reason for separation of powers: democratic government is based on each organ respecting the powers and jurisdiction of the others. The chapter accepts that judicial activism has blurred the line between the judiciary and the other two organs and made the balance among them very delicate. So the answer works both ways: courts should not take over executive work, and the executive and legislature should not take over the work of courts.
Q. A group of citizens from a city have approached the court through a PIL asking for an order to the city municipal authorities to remove slums and beautify the city in order to attract investors to the city. They argue that this is in the ‘public interest.’ The residents of the slum localities have responded by saying that this will encroach on their right to life. They argue that right to life is more central to ‘public interest’ than the right to a clean city. Imagine that you are the judge. Write a judgement deciding if the PIL involves ‘public interest’.
Model judgement: The court accepts that a clean and well-planned city is a legitimate public goal. But public interest litigation exists mainly to protect the rights of those who cannot easily protect themselves, the poor and the deprived. The slum residents are the very people for whom this form of litigation was opened up, and the right to life of thousands of people is more central to public interest than the attraction of investors. A petition that seeks to remove them without any arrangement for their shelter and livelihood is not in the public interest as presented. The court therefore declines to order the removal of the slums. It directs the municipal authorities to improve sanitation and civic services in these localities, and states that any future relocation may be made only after the residents are consulted and provided with alternative housing.
Q. (i) When does the Court use the review powers?
(ii) What is the difference between judicial review and writ?
Answer:
(i) The Court uses its review power when a law is inconsistent with the provisions of the Constitution: when a law violates fundamental rights, or when it violates the federal distribution of powers (for example, a central law on a State List subject). The power extends to laws passed by State legislatures too.
(ii) A writ (such as habeas corpus or mandamus, under Article 32 for the Supreme Court and Article 226 for the High Courts) is an order to the executive to act or not to act in a particular way, to restore the fundamental right of a particular person. Judicial review examines a law itself and, if it is found unconstitutional, declares it non-operational for everyone.
Q. Why can’t the Court tell us once and for all what are those aspects that are ‘basic structure’ of the Constitution?
Answer: Because the basic structure is decided case by case. In the Kesavananda Bharati case (1973) the Court ruled that there is a basic structure which nobody, not even Parliament, can violate, and it reserved to itself the right to decide whether various matters are part of it. A court decides the dispute before it and does not lay down a complete list in advance; a fixed list could also not anticipate every future amendment. Keeping this power with itself lets the Court protect the core of the Constitution as new situations arise, which is also why the issue remains a point of tension between the judiciary and Parliament.
Q. The main issues in the conflict between the judiciary and the Parliament have been: Appointment of judges; Salaries and allowances of judges; Scope of Parliament’s power to amend the Constitution; Interference by the Parliament in the functioning of the judiciary.
Answer: The main issue among these is the scope of Parliament’s power to amend the Constitution: from the dispute over the right to property to the Kesavananda Bharati case and the basic structure, this has been the centre of the conflict. Interference by Parliament in the functioning of the judiciary is also an issue the chapter names: legislatures have cast aspersions on the conduct of judges although the Constitution says it cannot be discussed in Parliament, and the judiciary in turn has issued instructions to legislatures. Salaries and allowances have not been a main issue, since they are not subject to the legislature’s approval. The appointment of judges has been a matter mainly between the Supreme Court and the executive (the Council of Ministers), not Parliament.
Q. How active is the judiciary in trying to curb corruption in public life?
Answer: Quite active, but with limits. The chapter notes that the Supreme Court gave directions to the CBI to start investigations against politicians and bureaucrats in the hawala case, the Narasimha Rao case and the illegal allotment of petrol pumps case, and it required election candidates to file affidavits about their assets, income and educational qualifications. At the same time, the conclusion admits that ordinary citizens wonder how many people get easy acquittals and how witnesses change their testimonies to suit the wealthy and the mighty, issues about which the judiciary itself is concerned. The cartoon makes this point: an accused who walks free and promises never to be corrupt again shows that a court can act only on the evidence that reaches it.