Supreet Kaur
Judiciary is an indispensable organ of the government of a sovereign state. The institution of judiciary resolves disputes and render justice. Judiciary keeps a watch on other organs of government, that is, Legislature and Executive. Judiciary is the protector of law and guardian of rights of citizens.
To ensure that the judiciary performs its functions effectively, the judiciary must be powerful and independent. In democratic nations, the powers of judiciary are well defined in the constitution itself like in India and U.S.A. Besides constitution, the legislature of these two nations have affected the power given to the judiciary.
Moreover, active judicial system in these two nations has made the judiciary a powerful and potential organ in these nations. To answer the question that whether Indian judiciary is more powerful than the judiciary in U.S., various aspects of judicial system of these two nations must be compared.
Judicial system
In United States, there is dual court system, that is, Federal judiciary and state judiciary. The Federal Judiciary consists of district courts, circuit courts, and the Supreme Court of U.S. whereas the state judiciary comprises of trial court, appellate courts, and the Supreme Court of respective state. The reason behind this is that the States of U.S. are separate unit. The states are not integrated as we have in India.
In India, we have district courts or session courts, high courts for each state and one Supreme Court which is the apex court and final court of appeal in India.
Mode of appointment of judges
The judges of federal court of U.S. are appointed by the president with advice and consent of the Senate. There is no qualification as such defined in the constitution. But the judges of state courts are chosen by elections or by appointment by the governor. Each state has its own procedure to select the judges. The qualification required is different for different state.
In India too, the judges of Supreme court and high courts are appointed by president after consulting judges of Supreme Court and High courts. For appointment, collegium system is followed in India, which consists of judges and the decision of majority of members of collegium is sent to the president. Moreover, the constitution itself provides the qualification required to be appointed as a judge.
Tenure
The judges of federal courts of U.S are appointed for lifetime. They serve the office as long as they show good behaviour, otherwise they can be impeached. The judges of state courts are not appointed for lifetime since the states prescribe the age of retirement which is usually 70.
In India, the judges of Supreme Court hold the office till they attain the age of 65 years. For judges of High Court, age of retirement is 62 years. The judges can be removed before the expiry of this period.
Removal
In United States, the judges may be removed by impeachment during their tenure. For federal judges, the procedure of removal is impeachment by House of Representatives and subsequent conviction by the Senate. Till now, 66 federal judges were subject to investigation for impeachment, 15 of them were impeached and only 8 of them were convicted by the Senate. The impeachment by the House of Representatives can be done by simple majority.
For conviction, two third majority of Senate is required. The Constitution of U.S. provides only one ground of impeachment that is, when the judge no longer shows good behaviour. Practically, judges have been impeached on account of criminal misconduct like for sexual assault charges, bribery etc.
The judges of states are impeached as per as rules of different states for impeachment. The common rule is that the approval of impeachment by lower house by simple majority and two third majority in the Upper House. But it varies from state to state.
In India, the judges can be removed on account of proved misbehaviour and incapacity by the president but this order of president to remove a judge requires special majority of both the houses. Impeachment motions were initiated against few judges. Either the impeachment proceedings were defeated[1] or they resigned before the decision.[2]
Powers
Jurisdiction
Since there exists dual court system in U.S., the powers of federal courts are limited to as defined in the constitution. The jurisdiction of state courts is limited to the respective state law. The U.S constitution itself empowers the Congress to interfere with the jurisdiction of Supreme Court[3].
In India, the jurisdiction is well defined in the constitution itself. The legislature cannot interfere with the powers given to courts except when the constitution expressly declares so. [4]Supreme Court enjoys more powers than High Courts. But in certain aspects High Court enjoys wide powers like writ jurisdiction.
Appellate Jurisdiction
The Supreme Court of U.S. has the power to entertain only cases involving constitutional matters in an appeal filed against the decision of lower courts. But the Supreme Court of India has appellate jurisdiction in all civil, criminal, and constitutional matters.
Special Leave Petition
Indian Constitution empowers the Supreme Court to admit special leave petition in all matters even if the court does not have appellate power in that matter. It is an extraordinary power given to Supreme Court[5]. So, the court may hear any matter decided by any court within the Indian territory. But the Supreme Court of U.S. does not have such power.
Advisory Jurisdiction
Article 143 confers Advisory jurisdiction on Supreme Court of India. It means the president can ask the Supreme Court for advice on any matter involving legal question, matter of public importance etc. This power is not available to U.S. courts.
Judicial review
Judicial review means the power of the court to check constitutionality of the Acts, orders, laws etc. This concept was developed by the Supreme Court of United States in 1803 in case of Marbury v. Madison. The scope of judicial review is much wider in U.S. The U.S. courts may reject a law if it is bad from philosophical point of view or not liked by judges.
The court may make a new law in its place. American courts work on the principle of due process of law, so they check the validity of laws both on substantive and procedural grounds. The American courts have more liberal powers to interpret the constitution as no limitation is prescribed in the constitution.
The power of Indian courts as regards judicial review are restricted since our courts work on the principle of procedure established by the law. The courts check the validity of the laws only on basis of constitutionality of that law irrespective of the fact that whether the law is bad or not.
Our constitution is detailed one, it itself lay down limitation, so no extra judicial intervention is needed. The task to make a new law in place of a void law is left to legislature. Courts’ power to interfere in some matters is expressly barred by the constitution itself.[6]
Conclusion:
In matters of appointment, removal, it can be inferred that Indian judiciary is more independent. Since we work on horizontal distribution of power, different organs of government do not interfere with each other. The conduct of judges is barred from being discussed in the parliamentary proceedings. There have been very few impeachment motions.
Though the power of judicial review is limited but courts have power of writ jurisdiction, power to entertain PIL which encourages judicial activism, special leave petition and the Supreme Court can make law by virtue of Article 141.
The U.S. courts enjoy wider power of judicial review since no limitation are provided under the constitution. But the jurisdiction of American courts is somewhat under the control of legislature which is not so in India. It would not be wrong to say that Indian Courts are more powerful than Courts in U.S.
- Justice V. Ramaswami: He was first S.C. judge against whom impeachment motion was initiated. ↑
- Justice Soumitra Sen of Calcutta High Court. He resigned before conclusion. ↑
- Section 2 of Article 3 uses the words- with such exceptions and regulations as the Congress shall make. ↑
- Proviso to Article131 , Article 262. ↑
- Arunavhalam v. P.S.R. Sadhanathan 1979 SCR 482 ↑
- Article 329; Article 243- O; Article 31 B which saves certain Acts from being declared void by adding them in 9th Schedule over the constitution. ↑