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Unit 9: Constitutional Structure: Judiciary

judiciary can declare a law as unconstitutional if it is convinced that a right, privilege or immunity Notes
guarantee by the constitution or laws is being denied to the citizens. This power of determining the
constitutionality or otherwise of any act is enjoyed by the judiciary in almost all the federations. But
in England, where the Parliament is supreme, the judiciary has not been given the authority to
pronounce upon the validity of the laws, because in England the constitution is what the Pariament
says it is.
Another important function of the judiciary in a modern state is to act as the guardian of individual
liberty. In all democratic countries it is the duty of the judiciary to protect the individual against all
possible encroachments by the state. It may be noted here that earlier the courts could take action
only after an individual had been denied some freedom or liberty in violation of an existing law. But
now the parties have not to wait unil their rights are actually violated. They can appeal to the courts
if they have sufficient reasons to believe that attempts whould be made to violate their rights. The
Courts can then issue orders prohibiting such attempts through its ’injunctions’or ’restraining orders’.
If the authority to whom such orders are issued, disobeys them, the courts possess the right to punish
such an authority for its contempt.
In countries like England the Courts also enjoy the power of making declarations regarding the
actual requirements of law; on the request of the interested parties. In such cases there is no need of
going through the legal formalities of a trial. It may be noted that this power is not enjoyed by the
courts in U.S.A.
Sometimes the judiciary is also vested with certain advisory powers. The legislature or the executive
may request the judiciary to give its opinion on any question of law. In India the Supreme Court has
been given this function. The President of India can refer any case to the Supreme Court for its
advisory opinion regarding the constitutionality of an act. Some time back the President of India
referred the case regarding the conflict to jurisdiction between the legislature and the judiciary of the
Supreme Court for its opinion. However, the Supreme Court of U.S.A. does not enjoy any such powers.
It gives its opinion on the constitutionality of a law only when it comes in the form of a specific case.
Apart from the powers enumerated above, the modern judiciary also performs a number of other
functions, which are not strictly judicial in character. Thus, sometimes the courts have to take up the
administration of a property pending the final settlement. In such cases the court appoints a receiver
or administrator to take over the property and administer it subject to its orders.
In India sometimes the judiciary is called upon to decide cases of election. Under Article 71 of the
constitution the Supreme Court can function as an election tribunal to decide all disputes arising out
of the election of the President or the Vice-President.
The judiciary also performs other miscellaneous functions like granting of licences, nationalisation of
aliens, performance of marriage ceremonies etc.
Thus we find that the judiciary in modern times performs numerous functions apart from its judicial
functions.
9.1 US Supreme Court and Judicial Review

Supreme Court

It is quite clear from the language of the American Constitution that the Founding Fathers, while
endeavouring to implement the system of separation of powers associated with the arrangement of
checks and balances considered the Supreme Court sitting at the apex of the federal judiciary as the
‘third member of governmental trinity, no less important than the other two members.’ Apart from
setting up three separate departments acting as a check upon one another, equally more compelling
reason was the federal pattern which informed the framers to install an independent and impartial
judiciary for the sake of interpreting the words and phrases of the fundamental law of the land and
acting as a referee in matters of constitutional dispute between the national and state governments.
However, many important changes took place in the American political system as a result of which
the original design of checks and balances could not survive as the judiciary assumed most powerful

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