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Module 5 Module 5 Document Transcript

  • 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 ReviewPublic Interest LitigationIn Indian law, public interest litigation means litigation for the protection ofthe public interest. It is litigation introduced in a court of law, not by theaggrieved party but by the court itself or by any other private party. It is notnecessary, for the exercise of the courts jurisdiction, that the person who isthe victim of the violation of his or her right should personally approach thecourt. Public interest litigation is the power given to the public by courtsthrough judicial activism. However, the person filing the petition must prove tothe satisfaction of the court that the petition is being filed for a public interestand not just as a frivilous litigation by a busy body.Such cases may occur when the victim does not have the necessary resourcesto commence litigation or his freedom to move court has been suppressed orencroached upon. The court can itself take cognisance of the matter andproceed suo motu or cases can commence on the petition of any public-spiritedindividual.
  • Prior to the 1980s, only the aggrieved party could approach the courts forjustice. However, post 1980s and after the emergency era, the apex courtdecided to reach out to the people and hence it devised an innovative waywherein a person or a civil society group could approach the supreme courtseeking 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 admitPILs in the court. Filing a PIL is not as cumbersome as any other legal caseand there have been instances when even letters and telegrams addressed tothe court have been taken up as PILs and heard by the court.Examples of PILThe Bombay High Court on 31 August 2006 directed the broadcasters to givean undertaking that they will abide by the Cable Television Network Act 1995as well as the courts orders by tomorrow, in view of larger public interest.A division bench comprising Justices R M Lodha and S A Bubbey were hearinga Public Interest Litigation (PIL) filed by Professor Pratibha Nathani of StXaviers College alleging that films without certification by the Censor Board forFilm Certification (CBFC) allowing free public exhibition, were being shown oncable channels, which have a bad impact on children. Hence, such filmsshould not be shown and action be taken against those still running suchcontent on their channels.The court on 23 August had allowed the cable operators and channels toscreen 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 nottelecast certain channels. Assistant Commissioner of Police Sanjay Apranti toldthe court that they did not have a problem if the channels provided the cableoperators with new decoders.Also, Zee Television and Star Television networks applied for the declaration inwriting 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 thatthey were to screen to the police.
  • Writ Petition-In common law, a writ is a formal written order issued by a body withadministrative or judicial jurisdiction; in modern usage, this body is generallya court. Warrants, prerogative writsand subpoenas are common types of writsbut there are many others.Indian Law-Under the Indian legal system, jurisdiction to issue prerogative writs is givento the Supreme Court, and to the High Courts of Judicature of all Indianstates. Parts of the law relating to writs are set forth in the Constitution ofIndia. The Supreme Court, the highest in the country, may issue writs underArticle 32 of the Constitution for enforcement of Fundamental Rights andunder Articles 139 for enforcement of rights other than Fundamental Rights,while High Courts, the superior courts of the States, may issue writs underArticles 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.
  • HIGH COURTS- Functioning