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• OpenStax - Introduction to Political Science - What Is the Judiciary?

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judiciary , branch of government whose task is the authoritative adjudication of controversies over the application of laws in specific situations.

Conflicts brought before the judiciary are embodied in cases involving litigants, who may be individuals, groups, legal entities (e.g., corporations), or governments and their agencies. See also constitutional law , court , and procedural law .

Conflicts that allege personal or financial harm resulting from violations of law or binding legal agreements between litigants—other than violations legally defined as crimes—produce civil cases. Judicial decisions in civil cases often require the losing or offending party to pay financial compensation to the winner. Crimes produce criminal cases, which are officially defined as conflicts between the state or its citizens and the accused (defendant) rather than as conflicts between the victim of the crime and the defendant. Judicial decisions in criminal cases determine whether the accused is guilty or not guilty. A defendant found guilty is sentenced to punishments, which may involve the payment of a fine, a term of imprisonment, or, in the most serious cases in some legal systems, state-imposed physical mutilation or even death ( see capital punishment ).

Judiciaries also frequently resolve administrative cases, disputes between individuals, groups, or legal entities and government agencies over the application of laws or the implementation of government programs. Most legal systems have incorporated the principle of state sovereignty , whereby governments may not be sued by nonstate litigants without their consent . This principle limits the right of litigants to pursue remedies against government actions. Nevertheless, the right of citizens to be free from the arbitrary, improper, abusive application of laws and government regulations has long been recognized and is the focus of administrative cases.

Legal systems differ in the extent to which their judiciaries handle civil, criminal, and administrative cases. In some, courts hear all three kinds of disputes. In others there are specialized civil, criminal, and administrative courts. Still others have some general and some specialized courts.

In many cases the conflicts that are nominally brought to courts for resolution are uncontested. The majority of civil cases—such as those involving divorce , child custody, or the interpretation of contracts —are settled out of court and never go to trial . The same is true for criminal cases in the United States , where the practice of extrajudicial plea bargaining is used extensively. The different criminal process that characterizes the United Kingdom and civil-law countries makes plea bargaining of the sort practiced in the United States less likely—or even officially impossible. Nevertheless, there is evidence that analogous practices for generating and accepting guilty pleas are common in the United Kingdom and are not unknown in Germany. In cases of plea bargaining the court’s function is administrative, limited to officially ratifying and recording the agreement the parties have reached out of court.

When the judiciary does decide a controversy, a body of regulations governs what parties are allowed before the court, what evidence will be admitted, what trial procedure will be followed, and what types of judgments may be rendered. Judicial proceedings involve the participation of a number of people. Although the judge is the central figure, along with the parties to the controversy and the lawyers who represent them, there are other individuals involved, including witnesses , clerks, bailiffs, administrators, and jurors when the proceeding involves a jury .

The stated function of the courts is the authoritative adjudication of controversies over the application of laws in specific situations. However, it is unavoidable that courts also make law and public policy, because judges must exercise at least some measure of discretion in deciding which litigant claims are legally correct or otherwise most appropriate. Lawmaking and policy making by courts are most evident when powerful national supreme courts (e.g., those in the United States, Germany, and India) exercise their power of judicial review to hold laws or major government actions unconstitutional. They also can occur, however, when judiciaries are behaving as administrators, even when they are merely ratifying agreements reached out of court. Patterns of settlement for suits between employers and employees may be more favourable to employees than formal law would seem to require, because they are influenced by de facto changes in the law that may result from the decisions by juries or trial judges who may regularly be more sympathetic to workers. Formal laws regulating child custody or financial settlements in divorce cases can similarly be altered over time as juries process the claims of the litigants before them in persistent ways.

After a court decision has been made, it may or may not require enforcement. In many cases the parties accept the judgment of the court and conform their behaviour to it. In other cases a court must order a party to cease a particular activity. The enforcement of such orders is carried out by the executive branch and may require funding from the legislative branch. The judiciary has been described as the least-dangerous branch of government because it has “neither the purse nor the sword,” but, in reality, enforcement of the orders of any government institution depends on the enforcing institution’s acceptance of the issuing institution’s right to make the ruling and to have it enforced.

11.1 What Is the Judiciary?

Learning outcomes.

By the end of this section, you will be able to:

• Distinguish between rule of law and rule by law.
• Identify the responsibilities of a judicial system.
• Compare and contrast the different methods states and countries use to select judicial officers.
• Discuss major criticisms of each method of judicial selection.

In Chapter 4: Civil Liberties , you learned that law is a body of rules of conduct, with binding legal force and effect, that is prescribed, recognized, and enforced by a controlling authority. In the world today, that authority is usually the government of a particular area. However, multiple levels of government may have authority in a given place. The power of a governmental body to exercise the highest authority in an area is called sovereignty . If a government has sovereignty over a particular region, that government can create and impose rules on people within the region.

Chapter 4: Civil Liberties also introduced the rule of law , the principle that the government is beholden to its laws, not to any individual or group. Throughout history, many individuals and small groups have become dictators with the sole power to create laws and punish people as they wished, thus employing rule by law . There are still some dictators in the world today, as in North Korea . Dictatorships are oppressive, and dictatorial regimes are prone to corruption. By following the rule of law, robust democracies try to avoid these injustices.

Court Shorts: Rule of Law

In this brief video, United States judges who preside over different types and levels of courts discuss the meaning of the rule of law and the role it plays in our everyday lives.

Recall the four principles of the rule of law:

• Accountability: The government and private actors are accountable under the law. No one is above the law.
• Just laws: The laws are clear, publicized, stable, and applied evenly, and they protect fundamental rights, including the security of persons and property and certain core human rights.
• Open government: The processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient.
• Accessible and impartial dispute resolution: Justice is delivered in a timely manner by competent, ethical, independent, and neutral decision-makers who have adequate resources and reflect the communities they serve.

These principles demonstrate that the government and the people are in a social contract , a voluntary agreement whereby the people consent to abide by specific rules while living in the territory and the government consents to limit itself to acting in accordance with certain standards. This creates a symbiotic relationship between the government and the people, rather than a system based on fear and oppression.

In each democratic country, a constitution sets up the framework for government operations that adhere to these four principles. The constitution formalizes how the country’s government will wield authority and implement powers under that authority. The constitution may be written or unwritten, in one document or several, and titled constitution or basic laws . Whatever its form or title, a constitution establishes the basic government structure for the government’s sovereign territory. It usually creates branches with differing powers that have the ability to check each other in the exercise of those powers. One of the branches that carries out the rule of law in a country is the judicial branch.

The judicial system or judicial branch is the court system that interprets, defends, and applies the law in the government’s name. It is the mechanism for peacefully resolving disputes between individuals. Sometimes people refer to this branch of government as the judiciary, but that can be confusing because the judiciary also refers to the people who work in the judicial branch. Therefore, this chapter will consistently refer to the branch of government as the judicial branch and the people who work in that branch as the judiciary.

The judicial branch serves different purposes in different political systems. For example, in a political system that prioritizes civil rights and liberties, the judiciary working within the judicial branch checks government action and protects individual rights and liberties. In a system in which there is a separation of powers between the branches of government, the judiciary has judicial independence . In these systems, often the courts can perform a judicial review to check government actions. In judicial review , a judge interprets and implements the constitution to ensure that the other branches of government do not violate what it says. Judicial review will be explored later in this chapter.

In contrast, some political systems rely on adherence to strict religious or political standards, creating authoritarian law regimes. In these systems, the judicial branch and the judiciary help impose the government’s approved viewpoint on the citizens through rule by law . In these systems, the judiciary has little independence. The judicial system acts as a source of government control over individual citizens. 3 Tom Ginsburg and Tamir Moustafa identify five primary functions of courts in these authoritarian rule-by-law regimes:

• To establish social control and sideline political opponents
• To bolster a regime’s claim to legal legitimacy
• To strengthen administrative compliance within the state’s own bureaucratic machinery and solve coordination problems among competing factions within the regime
• To facilitate trade and investment
• To implement controversial policies so as to allow political distance from core elements of the regime 4

Justice Handed Over to Dictatorship from the Film Judgment at Nuremberg

The 1961 film Judgment at Nuremberg portrays the military tribunal at which four German judges who served while the Nazis were in power face charges of crimes against humanity. In this clip, the former minister of justice explains changes in the judiciary under the dictatorship of the Third Reich.

In rule-by-law authoritarian regimes, the government suppresses opposition and imposes a specific viewpoint on any part of the government or the population to the extent that human rights violations occur. 5 Iran and North Korea are examples of rule-by-law authoritarian regimes. The dictatorial leader of North Korea is selected to a lifetime appointment on a state-approved ballot where only one candidate is listed. This leader has control over the judiciary, and all must adhere to the leader’s will or face retribution. 6

Other countries have come to have an authoritarian-populist judiciary . This means that, through changes instituted by one ruling person or political party, they have transitioned from a rule-of-law system to a rule-by-law authoritarian subsystem. In Turkey, longtime president Recep Tayyip Erdoğan and his ruling party replaced the governmental system in 2017 and have enacted laws to keep themselves in power. Changes in 2007, 2010, and 2017 gave Erdoğan and his ruling party the ability to appoint and dismiss prosecutors and judges, thus calling into question the independence of the judiciary. 7 A European Commission report in 2020 found that the continued centralization of power in the president was blurring the lines of separation of powers in the branches of government such that few checks and balances remain: “Under these conditions, the serious backsliding of the respect for democratic standards, the rule of law, and fundamental freedoms continued.” 8 The report identified significant issues with the Turkish judicial system and its slide into rule by law, not the rule of law:

“Turkey’s judicial system is at an early stage of preparation and serious backsliding continued during the reporting period. Concerns remained, in particular over the systemic lack of independence of the judiciary. The president announced the Judicial Reform Strategy for 2019–2023 in May 2019. However, it falls short of addressing key shortcomings regarding the independence of the judiciary. No measures were announced to remedy the concerns identified by the Council of Europe’s Venice Commission and in the European Commission’s annual country reports. There are concerns that dismissals in the absence of respect for due procedures caused self-censorship and intimidation within the judiciary. No measures were taken to change the structure of, and process for, the selection of members of the Council of Judges and Prosecutors to strengthen its independence. Concerns regarding the lack of objective, merit-based, uniform and pre-established criteria for recruiting and promoting judges and prosecutors persisted. No changes were made to the institution of criminal judges of peace so that concerns regarding their jurisdiction and practice remained.” 9

One can thus see the difference between the rule of law and rule by law. Each judicial system can be assessed on the basis of how well it meets the rule-of-law criteria for protecting the rights of the people from government overreach, manipulation, and the rise of dictatorships.

How the Judicial Branch Differs from the Other Branches of Government

Judicial branches differ from the executive and legislative branches because, unlike in those branches, the judicial system restricts how the courts may act and how the people may express their opinions to the courts. A good description of this restriction appears in Federalist no. 78, wherein Alexander Hamilton wrote about the judicial branch as it is described in the US Constitution:

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but also holds the sword of the community. The legislature not only commands the purse, but also prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatsoever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” 10

In rule-of-law systems, the judicial branch depends on the other branches and the population’s respect for the rule of law to carry out its decisions. An example helps illustrate the differences between the branches and their powers. In the United States, a president alarmed at the number of gun shootings occurring in the country can create a commission to review the problem and make recommendations to Congress to enact new laws. The president (the executive) can implement some of these recommendations by executive order , a particular type of binding law that only the chief executive can create. The people can express their views on the subject to the president at any time. Congress (the legislature) may also be alarmed about the number of gun killings. They can open an investigation and create a statute to limit some access to guns. Again, the people can express their views on this subject to Congress at any time. In both examples, government officials decide what they want to investigate and what actions they want to take, and the people can freely voice their opinions on the subject. Courts, however, cannot take action on their own in the ways the executive and legislative branches can, and people cannot express their opinion in court unless they meet particular criteria. A court can only take action if it has jurisdiction over a specific case. Jurisdiction is the written authority, stated in a constitution or a statute, that authorizes a court to hear a case. Jurisdiction includes both the geographical region and the topics of the court’s authority.

What Can I Do?

Critical thinking and the courts.

Every functioning government must have a functioning judicial system. As you study the different forms of judicial systems, how they operate, and elements such as the standards of evidence across different judicial systems, as well as different types of law, you are sharpening your critical thinking skills. Being able to understand and explain why someone is found innocent of a particular crime, for example, requires the ability to analyze, evaluate, and synthesize various pieces of information coming from the defense attorney, the prosecutor, the facts of the case, and the components of the law in question. This is the core of critical thinking, and it is a fundamental skill that is utilized in virtually any career. Critical thinking skills are highly valued, and they take work and practice to develop. Studying topics such as courts and judiciary systems is a good way not only to prepare for a career within the legal world—as an attorney, for example—but also to hone general critical thinking skills that are invaluable regardless of what direction your professional path in life takes.

Selecting Judicial Officers

There are as many ways to select judicial officers as there are countries in the world. The particulars of the selection process vary widely by country. The selection process can also differ for different levels or types of courts within a country. All of the selection processes can be sorted into four broad categories:

• Appointment for life
• Appointment for a specified number of years
• Hybrid, or a combination of these methods (e.g., appointment followed by retention election)

Lifetime Appointments

The US Constitution establishes a Supreme Court of the United States (SCOTUS) and authorizes Congress to create other Article III courts . 11 The judges for these courts are nominated by the president and confirmed by the US Senate. These Article III judges serve for life, as long as they remain on “good behavior.” There is no mandatory retirement age. These courts have the power of judicial review and, once appointed, are independent of the other branches of government.

Congress can change any court’s jurisdiction except SCOTUS’s original jurisdiction . Still, neither Congress nor the president can fire a judge nor stop the judge’s salary if they disagree with a decision the judge makes. Thus, the judiciary in the United States has some measure of independence, but judges are often subject to political pressure during the appointment process.

Article III courts include the United States Supreme Court, US circuit courts of appeals , and US district courts . There is only one SCOTUS, but there are 13 circuit courts of appeals and about 100 district courts. All have multiple judges, so the power to appoint judges is a substantial one. Moreover, because these judges are appointed for life, a president can influence the interpretation of the law and the Constitution well beyond that president’s term of office. As noted by legal scholar Alexander Bickel , “You shoot an arrow into a far distant future when you appoint a [US federal] justice, and not the man himself can tell you what he will think about some of the problems that he will face.” 12

THE CHANGING POLITICAL LANDSCAPE

Women on high courts around the world.

While gender representation on high court benches across the globe skews toward men, studies suggest that the rate of women on judiciaries in countries around the world rose by about 29 percent between 2011 and 2019. Research suggests that a high court judge’s gender may be a better predictor of how they will decide a case than their political leanings and that the gender composition of a court can influence how individual judges view a case. 13

Ethiopia’s First Female Supreme Court Chief Justice: Meaza Ashenafi

In this clip, Meaza Ashenafi, the first ever female Chief Justice on Ethiopia's Supreme Court, talks about how she worked to define sexual harassment and violence against women in the Amharic language, the official language of Ethiopia. She goes on to discuss the importance of the impartiality of the courts and the role courts play in serving their communities.

The lifetime appointment of judges outside the United States is rare. Even in countries that say they appoint certain judges to lifetime terms, these judges are held to a mandatory retirement age. 14 For example, in the United Kingdom, Supreme Court justices are not subject to term limits , but they must retire by age 70. 15 Additionally, in the United Kingdom, there are minimum requirements for nomination, and a nominating commission reviews applicants. Finally, this type of appointment applies only to a particular court, not to all courts in a broad category, as in the United States.

In Belgium, the monarch appoints constitutional court judges from a list of candidates submitted by Parliament. 16 As in the UK, these judges are appointed for life with mandatory retirement at age 70. The monarch selects judges for the supreme court, the Court of Cassation, from candidates submitted by the High Council of Justice, an independent 44-member body consisting of both judicial and nonjudicial members. Like constitutional court judges, Court of Cassation judges are appointed for life with a mandatory retirement age of 70. 17

Recent discussions in the United States have debated instating a mandatory retirement age or setting a term limit for Article III judges. 18

Appointment for a Term of Years

There is a second type of US federal judge: those appointed for a term of years. Congress, in creating these courts, specifies the qualifications of the judge and the term of service. 19 Potential judges apply for the office as one would apply for any other job. A hiring committee selects the judge. Several US states also appoint some of their judges for a term of years. The process for an appointment varies by state. 20

Many countries appoint some of their judges for a term of years, though the processes by which they do so differ. 21 For example, in Albania, the president alone makes some nine-year appointments. 22 On the other hand, the Chinese legislature, the People’s National Congress, appoints the chief justice of their national supreme court for a limit of two consecutive five-year terms. 23 To be considered for most judicial appointments in France, an attorney must pass a series of entrance examinations. 24 They must then attend special classes and pass a series of difficult examinations to be eligible for an appointment as a judge. The Ministry of Justice oversees this process without any executive input.

Appointment by Election

A few US states use a rare process, election, to select some judges. In a 1988 speech, Hans Linde , a former justice of the Oregon Supreme Court, said “To the rest of the world, American adherence to judicial elections is as incomprehensible as our rejection of the metric system.” 25

When judges are directly elected, the judiciary is an agent of the government with limited independence. The voters use their votes to pass judgment on judicial decisions in the same way that they use their votes to weigh in on the actions of the executive and legislative branches. Thus, one of the criticisms of judicial elections is that they incentivize judges to make politically popular decisions that are not necessarily correct interpretations of the law.

Different US states employ different types of judicial elections. A candidate’s political party is listed on the ballot in partisan elections , while the candidate’s political affiliation is not listed in nonpartisan elections . Many states have moved away from direct elections and toward retention elections. In a retention election , a judge is appointed for a term of years, and at the end of that term, an election is held to determine if the judge should be retained for another term or replaced. 26

Texas is one of the few states that still holds partisan elections for almost all judgeships in the state. 27 As a result, candidates run for office just like all other elected officials. They align with a political party, receive the majority vote in the party’s primary election, and campaign showing their affiliation to the party. Most other states have moved away from this selection style because of issues with partisanship, such as the appearance of impropriety when someone makes a large campaign contribution before appearing before the court and the instability of a process that selects candidates based on political popularity rather than legal expertise. 28 Texas has been the object of scrutiny for allegations of favoritism to campaign donors and political party influence on judges. 29 As a result, there is pressure from a number of corners, including former and current judges, to change this system. 30 About 13 states still hold nonpartisan elections for some of their judgeships. These states assert that this enables people to have a say in the judiciary while removing political partisanship from the selection process. 31

Former Chief Justice of the Texas Supreme Court Wallace Jefferson on Electing Judges in Texas

In this clip, former Chief Justice of the Texas Supreme Court Wallace Jefferson weighs in on how he believes the state of Texas should select judges.

Switzerland also holds judicial elections in which the Federal Assembly, their legislative branch, elects judges to six-year terms. 32 A few other countries also hold some judicial elections.

Hybrid or Mixed Selection

Many countries have a hybrid system , with a mix of appointments for term and appointments for life depending on the type of court. 33 A couple of countries and a few US states have both appointments and elections. One common hybrid selection system used in several countries is an appointment with review after one term. In Japan, the chief justice of the Supreme Court is designated by the Cabinet and appointed by the monarch, while associate justices are appointed by the Cabinet and confirmed by the monarch. All justices are subject to a popular referendum at the first general election after their appointment and every 10 years thereafter. 34

Several US states use a hybrid system known as retention or the Missouri Plan . This system has gained popularity in the United States over the last 50 years. 35 In a retention system, the executive initially appoints a judge, with legislative approval, similar to the federal appointment process. The appointed person serves for a term of years. After this initial term, if a judge wants to remain in office, they must run in a retention election. There is no opposing candidate in a retention election; people vote on whether to keep or replace the judge. The judge runs on their record, and their party affiliation typically is not listed on the ballot. A retained judge remains in office for another term. In some states, there is a limit to the number of retention terms a judge may serve. If the judge is not retained, then the process starts again with new nominees and appointments. This style appeals to many Americans because it limits campaigning and political party influence over the judiciary while allowing the people some say over the judicial officers.

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The Judicial Branch

Students will learn about the federal and state courts and what they do. They will explore the courts’ role in fairly settling disputes and administering justice, and the unique role of the U.S. Supreme Court in interpreting the U.S. Constitution.

View our  Constitution Explained  video series  for short-form videos to share with students about the judicial and other branches of government.

Explore resources in this unit

• 6-8 | Middle
• 9-12 | High

Judicial Branch in a Flash!

Need to teach the judicial branch in a hurry? In this lesson, students learn the basics of our judicial system, including the functions of the trial court, the Court of Appeals,…

The Courts in a Nutshell

In this WebQuest, students look at all levels of both the state and federal court systems. They learn about jurisdiction, look up the courts in their own state, find out what…

Marbury v. Madison (1803)

This mini-lesson covers the basics of the Supreme Court’s decision that affirmed the Court’s power of judicial review. Students learn how Congress tried to add to the Supreme…

Trial and Appeal (Infographic)

Most cases start and end in trial court, but what if there's an error? Show students how a case works its way up in this printable poster for your classroom! iCivics en español! A…

In the Courts

Our Judicial Branch has a big job! Do you think you have what it takes to be a judge and get the job done? 

Branches of Power

Learn to control all three branches of the U.S. government!

Judges: Playing Fair

This mini-lesson takes a look at the role of fair and impartial courts in American life. Students learn about how judges are selected and held accountable. It also looks at how…

Supreme Interpreters

What does it mean to interpret the Constitution? Why is interpretation necessary? Who gets to do it? In this WebQuest, students explore the answers to these questions and more.…

Argument Wars Extension Pack

Transform your students’ gameplay into meaningful and memorable learning. You can now download and assign extension pack materials directly from the Argument Wars game page. The…

Appellate Courts: Let's Take It Up

Students learn the purpose of appellate-level courts and how those courts operate differently from the trial courts most people are familiar with from watching television. By…

Court Quest Extension Pack

Transform your students’ gameplay into meaningful and memorable learning. You can now download and assign extension pack materials directly from the Court Quest game page. The…

Supreme Court Nominations

This lesson plan teaches the fundamentals of Supreme Court Justice nominations and helps students understand the politics behind the nominations. It challenges students to cut…

Double Take: The Dual Court System

Does your state court system feel oddly similar to our federal one? Chances are it does, but there may still be some differences. In this lesson, students learn how our…

Stipulating Speech

What does the phrase “freedom of speech” really mean? This lesson outlines the types of speech the First Amendment does and does not protect. Students also examine the Supreme…

Use the Scope & Sequence to help you plan your iCivics classroom experience!

Whether you enjoy finding opportunities within a well-structured sequence of resources or prefer looking around for pieces and bits that can be jigsawed together, our Scope & Sequence documents are a perfect reference point for planning. Scope & Sequence documents are available for elementary, middle, and high school classrooms and list all of our resources in one place.

Article III: The Judicial Branch

16 resources available

What Are the Challenges to Judicial Independence?

This discussion guide is for use with the video “What Are the Challenges to Judicial Independence?” which features a lecture by Charles Geyh, professor at the Indiana University Maurer School of Law, at the Fair and Impartial Judiciary Symposium on October 26, 2019, at the University of Pennsylvania Law School.

Summary: Professor Geyh traces the development of the notion of judicial independence from the founding of our republic to the present. His discussion references how the sparse language of Article III of the U.S. Constitution has been amended over time by various conventions to promote the independence of a fair and impartial judiciary. He also examines how threats to such independence have arisen over time.

Download the discussion guide.

State vs. Federal Courts

This discussion guide is for use with the video “State vs. Federal Courts,” which features a conversation with the Hon. Renée Cohn Jubelirer of the Commonwealth Court of Pennsylvania, Robert Heim, Esq., and the Hon. Theodore McKee of the U.S. Court of Appeals for the Third Circuit. Lynn A. Marks, Esq., moderates the panel discussion, which took place at the Fair and Impartial Judiciary Symposium on October 26, 2019, at the University of Pennsylvania Law School.

Summary: Beginning with the Founders, the assumption has been that a fair and impartial judiciary requires judicial independence. Article III of the U.S. Constitution sought to ensure this independence through a system that provided for the appointment of judges who would serve during “good behavior” (i.e., life tenure). Initially, most of the states copied this system, but later many changed it, influenced by a different view of democracy developed during what is generally known as the Jacksonian era. The result: These states now provided for the popular election of judges based on fixed terms of service. In 1940, Missouri adopted a system that intended to take politics out of the process of choosing judges. Subsequently, this plan was adopted by many states. Learn more from a discussion about state and federal courts.

Download the discussion guide .

The Nature of Judicial Independence

This discussion guide is for use with the video “The Nature of Judicial Independence,” which features remarks and conversation with Justice Anthony Kennedy, the Hon. Stephanos Bibas, U.S. Court of Appeals for the Third Circuit, and David F. Levi, former dean of Duke University School of Law, on October 26, 2019, at the University of Pennsylvania Law School.

After Justice Anthony Kennedy retired in 2018, President Donald Trump was given his second appointment to the U.S. Supreme Court. This opening was widely seen as giving the president the chance to dramatically shift the balance of the U.S. Supreme Court to a more solid, conservative majority, even more so than the vacancy created by the death of Justice Antonin Scalia. Unlike Scalia, who was generally a reliable conservative vote, Kennedy had emerged as the “swing justice.” Indeed, Kennedy played a key role in some of the Supreme Court’s most recent controversial decisions, particularly those involving, among other matters, abortion, homosexuality, and prayer in public schools.

Is the Supreme Court Different?

This discussion guide is for use with the video “Is the Supreme Court Different?” which features a conversation with Linda Greenhouse, the Knight Distinguished Journalist in Residence and Joseph M. Goldstein Lecturer in Law at Yale Law School, who is interviewed by Theodore W. Ruger, dean of the University of Pennsylvania Law School, at the Fair and Impartial Judiciary Symposium on October 26, 2019, at the Penn Law School.

Summary: For many years, Linda Greenhouse was a New York Times reporter covering the U.S. Supreme Court. Her widely read and respected newspaper columns provided the nation with a clear view of the role the Court played in American society. Unlike many other courts, the public sessions of the Supreme Court are not televised, and not that long ago even the audio tapes of the oral arguments before the Court were not readily available.

How Do Judges Decide Cases?

This discussion guide is for use with the video “How Do Judges Decide Cases?” which features the Hon. Anthony J. Scirica of the U.S. Court of Appeals for the Third Circuit and Stephen Burbank, professor at the University of Pennsylvania Law School, at the Fair and Impartial Judiciary Symposium on October 26, 2019, at the University of Pennsylvania Law School.

Summary: Judge Anthony J. Scirica and Stephen Burbank regularly team up to teach a law school course on the judicial process. Their discussion at the symposium focuses on how judges arrive at decisions.

Deciding Difficult Cases

This discussion guide is for use with the video “Deciding Difficult Cases,” which features Jeffrey Rosen, president and CEO of the National Constitution Center, interviewing the Hon. Emmet G. Sullivan, U.S. District Court for the District of Columbia, at the Fair and Impartial Judiciary Symposium on October 26, 2019, at the University of Pennsylvania Law School.

Summary: Jeffrey Rosen and Judge Emmet G. Sullivan discuss the 2008 public corruption trial of longtime Republican Sen. Ted Stevens of Alaska. Stevens’ prosecution cost him reelection, and his defeat deprived the GOP of its narrow majority in the U.S. Senate at the time. Sullivan, who presided over the trial, chastised the prosecutors and the U.S. Justice Department, in general, for their mishandling of evidence and misconduct in the case. Sullivan’s role in these developments are a testament to the importance of judicial independence.

Fair and Impartial Judiciary Symposium

The Fair and Impartial Judiciary Symposium convened lawyers, scholars, judges and thought leaders at the University of Pennsylvania Law School to address the meaning and impact of an independent judiciary. The topics included the meaning of “fair and impartial judiciary”; the difference between state and federal courts; the challenges to judicial independence; deciding difficult cases; and the Supreme Court. Justice Anthony M. Kennedy gave the closing talk on “The Nature of Judicial Independence.” The symposium was organized by the Rendell Center for Civics and Civic Education in partnership with the Annenberg Public Policy Center of the University of Pennsylvania.

A Conversation on the Constitution with Justice Stephen Breyer: The Nature of Dissent in the Supreme Court

Justice Stephen G. Breyer talks with high school students about the role and importance of dissenting opinions when the U.S. Supreme Court decides cases.

A Conversation on the Constitution with Chief Justice John Roberts Jr.: The Origin, Nature and Importance of the Supreme Court

Chief Justice John G. Roberts Jr. and a group of students discuss the U.S. Supreme Court: its history and evolution; how the justices select, hear and decide cases; and the role of an independent judiciary and other issues crucial to a healthy democracy today.

An Independent Judiciary: Cherokee Nation v. Georgia and Cooper v. Aaron

This lesson explores the role of the judiciary in relation to the legislative and executive branches and how judicial independence has evolved since the founding of the nation.

Judicial Independence: Essential, Limited, Controversial

In this lesson, students learn about the role of an independent judiciary in the United States. Through a cooperative learning jigsaw activity, they focus on operational differences, essential functions, limited powers, and controversial issues.

A Conversation on the Nature, Origin and Importance of the Supreme Court

This lesson explains the structure and function of the judicial branch. Students will learn how the Supreme Court originated, how cases are selected, and why it is an important institution.

The Role of the Courts

In these five videos, judges explain separation of powers and the roles of the three branches of government as well as landmark cases related to separation of powers.

A Conversation on the Constitution with Justices Stephen Breyer, Anthony Kennedy and Sandra Day O’Connor: Judicial Independence

High school students join Justices Stephen G. Breyer, Anthony M. Kennedy and Sandra Day O’Connor to discuss why an independent judiciary is necessary.

This documentary, featuring Justice Stephen G. Breyer and leading constitutional scholars, chronicles two key moments that defined our understanding of the role of the judiciary: Cherokee Nation v. Georgia and Cooper v. Aaron.

Court Quest

In this new version of Court Quest, jump on the Justice Express and help guide ordinary citizens who are looking for justice through local, state and federal court systems.

Judicial System: the Role of Judges Essay

• To find inspiration for your paper and overcome writer’s block
• As a source of information (ensure proper referencing)
• As a template for you assignment

Introduction

The role of judges.

Judges are very important people in the society since they solve cases that determine the next phase of a person’s life. Thus, they require various people who they can trust and work within the judicial system. The judiciary is an independent entity, but as is always the case, each entity needs help from other sources (Boyea, 2013).

The judiciary has to build its internal relationships to ensure smooth running of the judicial system. These internal relationships are important and relevant to each of the courts. The level of its independence and interdependence on other systems determine whether the judge’s work is effective or not.

A judge refers to an individual who is authorized and qualified to make a decision. A judge is a public officer to the court making judgments on the legal lawsuits based on either the substantive or procedural bylaws. In the U.S court system, a magistrate presides over the proceedings taking place in the courtrooms. In fact, judges have no authority to carry out investigations, but they can authorize an investigation to be carried out.

The commonly known kinds of magistrates in the U.S court system are the appellate as well as the trial law-court juries. A trial court judge often controls the trials from the beginning to the end (Stephenson, 2013). They take part in all details of the case including but not limited to setting the trial schedule, giving advice to the jury, and sentencing a guilty defendant.

The appellate judge hears appeals from the trial courts, reviews them, and decides whether there was injustice or not. Judges work in different courtrooms and listen to cases of diverse types and are either elected or appointed. Judges have to be of good behavior at all times since they must adhere to ethical rules.

The juries may only hold office when these ethical rules are followed to the latter. A jury may be removed from office through impeachment, and this only occurs when there is a violation of ethical or legal rules. The judges have to be impartial (Swanson, 2011). They have to make their ruling without being biased.

The judge has various roles both inside and outside the courtroom. The juries play a significant role in controlling public morality. In the U.S court system, judges rule on issues that affect each citizen. Judges listen to allegations brought by the prosecutors, the attorney defenders, and the testimony of the witnesses and rule whether the evidence is valid or not.

Judges then give instructions to the jury on how to apply both the procedural and substantive laws and standards in the case (Boyea, 2013). Judges also have the task of asking the witnesses questions and finally rule on the cases presented. Magistrates are mandated to make decisions regarding the crime and issue verdicts on the case based on the available evidence.

In most cases, the law is interpreted with the aid of judges. They find out various laws, regulations, and explain them to the public. Judges also see that other court staffs do their work according to the U.S court system. Besides, judges set meetings with attorneys of the opposing parties to discuss various cases and find a way out probably by encouraging a settlement.

Finally, judges are mandated to set up the rules and procedures of the court (Swanson, 2011). They control how the court proceedings take place and ensure that there is order during the court session by both parties and the witnesses. Often, this is to make sure that there is a fair trial in the court.

An independent judiciary is important in a democratic government. It creates a sense of trust for the citizens knowing that they will get justice fairly. Thus, as is the case in the U.S court system, judges have to be independent of the government. Judges should be free to make their decisions without facing pressure or interference from other sources. Though independent, the juries use information from other personnel to ensure that the court proceedings run smoothly, and cases are ruled fairly.

The courthouse personnel include the legal officer, the suspect’s defense advocate, and the prosecuting attorney. These three personnel have a great relationship given that they use other personnel to offer effective court proceedings. These interdependent relationships ensure that the external relationships are maintained, and there is peace in the criminal justice system (Stephenson, 2013). The personnel also help judges by doing what the judges cannot do for themselves.

The prosecutors help by investigating and finding evidence of the suspected crimes. If the prosecutors do not do their job well, impunity is bound to take place in the society. The other personnel include court representative or steward, court administrator, the correspondent and the suspect. The law court representative offers security to the courthouse while the administrator is the office worker when courtroom procedures happen.

The court correspondent archives what happens throughout the hearing sessions. All these people have their area of expertise with different bases of powers. They all do their work with a common goal of administering justice.

Hence, this helps maintain group togetherness and reduce irregularities when applying both the procedural and substantive laws (Boyea, 2013). These relationships lead to good working relationships, which consequently lead to better negotiations. It determines how the courtroom personnel relate with each other during court proceedings.

In conclusion, the ethical and legal standards applicable in the criminal judicial systems help in upholding the relationships that are important for the judges to offer fair trials. During court sessions, the juries need to concentrate on the cases at hand and delegate some duties to others. Therefore, they need each personnel of the courtroom.

Boyea, B. (2013). Reflecting on the role of state judges. Judicature , 97 (3): 153-155.

Stephenson, D. (2013). The judicial bookshelf. Journal of Supreme Court History , 38 (3): 438-454.

Swanson, R. (2011). Judicial roles in state high courts. Judicature , 94 (4): 150-168.

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• Judicial system

Judicial system in India

This article is written by Gautam Badlani , a student of Chanakya National Law University, Patna. This article analyses the Judicial System in India and the hierarchy of courts. Furthermore, it also examines the provisions which safeguard the independence of judiciary and the hurdles that the judiciary faces in contemporary times.

This article has been published by Sneha Mahawar .

Table of Contents

Introduction

In India, the three branches of the Government are the legislature, the executive and the judiciary. India’s Constitution envisages a division of powers and a system of checks and balances. The judiciary plays a critical role in ensuring that the legislature and the executive do not exceed their Constitutional boundaries and prevents them from the arbitrary exercise of powers. The Constitution of India ensures that the judiciary remains independent of the influence of the legislature and the executive. 

This article analyzes the hierarchy of courts in India and the jurisdiction, powers and functions of the different courts. The article also highlights the various hurdles that are presently faced by the judicial system.

History of Judicial System in India

In ancient India, the lowest court was the family court starting from the family arbitrator and the judge at the highest pedestal was the king. One of the primary duties of the sovereign was the dispensation of justice, and in this process, the King was aided by his counsellors and ministers. As the civilization advanced and the duties of the King were delegated to the judges who had knowledge of the Vedas. Justice was administered on the basis of ‘dharma’ or a structure of rules specifying the responsibilities that an individual must fulfil in his life. Customs served as a source of law. This system continued till the Mughal period.

During the Mughal period, the office of Qazi was responsible for the dispensation of justice. Every provincial capital and every large town had a Qazi. The Qazis held the trial in the presence of the parties and were expected to write their legal documents very carefully. The King was the highest court of appeal. This system of justice was replaced by the British.

The British introduced the common law system in India and established the Sadar Diwani Adalat. They were later followed by the establishment of high courts. The first high court was established at Calcutta in 1862. The high courts were also established in Madras and Bombay. Subsequently, the federal court was established by the Government of India Act, 1935 which had a wider jurisdiction than the high courts. Thus, the present judicial system of India is based largely on the common law system.   

Functions of the Indian Judiciary

• Upholding and interpreting the Constitution : The judiciary is responsible for protecting and upholding the Constitution and its ideals. The courts interpret the Constitution and strike down any law, ordinance, rule, or regulation which violates or infringes the Constitutional provisions. 
• Resolving inter-state disputes : The Constitution of India lays down a federal structure of governance. Thus, disputes between the states and the Union and the States are inevitable. The judiciary, particularly the Supreme Court, plays a key role in resolving such disputes. 
• Protection of Fundamental Rights : Part III of the Constitution confers certain fundamental rights on citizens as well as non-citizens and legal as well as natural persons. The judiciary ensures that these fundamental rights are not violated. If any act of the legislature or the executive abridges these rights, then the Constitutional courts have the power to issue writs.
• Assistance in law-making: In several cases, the courts lay down guidelines which are later incorporated in the statutes by the legislature. The courts often make suggestions to the legislature to draft a new law or to modify or amend existing law in order to meet the problems of contemporary society. The judiciary also provides an advisory opinion to the President and resolves any doubts relating to the Constitutional provisions.  

Hierarchy of courts in India

The judicial system in India is hierarchical in nature. There are primarily four layers of hierarchy:

• The Supreme Court of India,
• The high court of various states,
• The subordinate courts,
• Nyay Panchayats, 
• Lok Adalat. 

Pictorial representation of the hierarchy of Indian courts 

Image source: Indian Judiciary – Supreme Court, High Court, District & Subordinate Courts – Indian Polity Notes  

The Supreme Court

India has a federal structure of governance and the Supreme Court of India is the federal court. Articles 124 to 147 of the Constitution (Part V) deal with the functions, powers and jurisdiction of the Apex Court.

Historical perspective

The Regulating Act of 1773 established the Supreme Court of judicature at Calcutta. Similar courts were established at Madras and Bombay in 1800 and 1823 respectively. 

The Supreme Court of India is based on the Federal Court of India which was established by virtue of the Government of India Act, 1935. However, it differs from the Federal Court in the sense that appeals from the Federal Court could be made to the Privy Council, whereas the Supreme Court of India is the highest court of appeal and no appeal can be made against its order before any other court. 

The Supreme Court has been conferred with the jurisdiction as well as powers of both the Federal Court as well as Privy Council. The court started functioning on 28th January, 1950. 

Appointment of Judges of the Supreme Court

Article 124(2) of the Constitution lays down the procedure for the appointment of the judges of the Supreme Court. The judges of the Supreme Court are appointed by the President of India in consultation with the Chief Justice of India. The President may consult such judges of the Supreme Court and the high courts as he considers necessary. The Law Minister also advises the President in the matters of appointment of Supreme Court Judges.

In Supreme Court of India (In Re: Appointment & Transfer of Judges v. Civil Advisory Jurisdiction) (1998), the court held that while the President has the power to appoint the judges of the Apex Court, the opinion of the Chief Justice of India will have primary importance in such appointments. The Court held that a collegium consisting of the Chief Justice of India and four more senior-most judges would recommend names to the President and such recommendations would be appointed by the President as judges. The Court observed that the collegium would make recommendations after considering the view of the Supreme Court justices and other judges of the high courts and the members of the Bar. Thus, the collegium would make the most appropriate recommendations to the President. The collegium would make the recommendations to the President in writing. 

Jurisdiction of the Supreme Court

The Supreme Court has original, appellate as well as advisory jurisdiction.

• Original Jurisdiction: Article 131 provides the original jurisdiction of the Supreme Court. The original jurisdiction of the court extends to the disputes between the Union and the States and disputes between two or more States.

The original jurisdiction of the Indian Supreme Court is not as wide as the American Supreme Court. The American Supreme Court has original jurisdiction in matters concerning ambassadors and ministers. The original jurisdiction of the Indian Supreme Court, on the other hand, extends to only legal and not private persons. The only instance where a private person can directly approach the Apex Court is for enforcing any of the fundamental rights of the individual. 

In the landmark case of State of Karnataka v. Union of India (1977), the Notification of the Central Government established the Commission of Inquiry to inquire into charges of corruption against the Chief Minister of Karnataka and it was challenged by the State Government under Article 131. The Court had to determine whether the said notification could be challenged under Article 131. The Central Government contended that since no legal rights of the State were affected, the petition was not maintainable. The Court held that where the Members of Parliament and the members of State Legislature differently interpret any provision of the Constitution, the dispute can be raised before the Court under Article 131. 

• Appellate Jurisdiction: The Supreme Court has very wide appellate jurisdiction. Appeals can be made before the Apex Court where the matter involves a substantial question of law. Such matters may be referred either by the sanction of the high court or under a Special Leave Petition [ Article 136(1) ].

The Constitutional Bench of the Supreme Court, in the case of Sir Chunilal V. Mehta and sons Ltd. v. Century Spinning and Manufacturing Co. (1962) , laid down what would constitute a substantial question of law. The court held that if the question is regarded to be of public importance or is deemed to affect the parties’ rights in a substantial manner and if neither the question nor the principles to be applied for its determination have been settled finally by the court, then it would be considered to be a substantial question of law. 

Article 132(1) empowers the Supreme Court to allow appeals against any judgment, order or decree from the high court if the matter is certified to involve a substantial question of law by the high court under Article 134A .

Similarly, in criminal cases, an appeal can be made before the Apex Court with the prior certification of the high court or where the accused is sentenced to death by the high court in the reversal of his acquittal or where the high court sentences a person to death after withdrawing the case from a subordinate court.

In civil cases, appeals can be made before the Apex Court under Article 133(1) subsequent to the high court’s sanction.

• Advisory Jurisdiction : The Supreme Court is also empowered to give its advisory opinion on any matter referred by the President under Article 143(1) . The President can seek the advisory opinion on any question of law or of public importance or where the matter is concerned with any treaty or agreement relating to pre-constitutional times.

The advisory opinion of the court is not binding on the government. In the case of In Re: The Special Courts Bill (1978), a private member Bill was introduced in the Parliament for setting up Special Courts for the purpose of deciding cases involving offences committed by public officers during emergencies. The President sought the opinion of the court regarding the constitutionality of the Bill. The court held that the Parliament was empowered to establish such courts. However, the court held that the opinion was not binding on the parties. The opinion of the court has significant judicial importance and will not bind the parties. 

• Review Jurisdiction: Under Article 137 , the Supreme Court is empowered to review any of its previous judgments.

It is pertinent to note that Article 262 empowers the Parliament to confer or deprive, by law, the Apex Court of the jurisdiction in respect of matters relating to control, operation or distribution of inter-state river waters. The jurisdiction of the Supreme Court can be extended by the Parliament by virtue of Article 138 .

Functions of the Supreme Court

The Supreme Court has the following functions:

• It is responsible for interpreting the provisions of the Constitution. If any Central or State law is found to be contravening or violating any of the Constitutional provisions or if any law infringes the fundamental rights conferred by the Constitution, then the Supreme Court can strike down such law and declare it to be unconstitutional. 
• The Supreme Court frames guidelines and rules and lays down the procedure for its own functioning. 
• The Supreme Court is responsible for protecting and upholding the fundamental rights of the citizens. The court can issue writs under Article 32 for enforcing the rights of the citizens.
• The Supreme court is responsible for the protection and upholding of the integrity of the entire judicial system and can punish those for contempt who make derogatory comments against the judiciary. 
• It resolves the disputes between the Union and the States as well as between two or more states. 
• It is the highest court of appeal. It hears appeals against the judgments of the subordinate courts and tribunals and gives final judgments on the matters. 

Article 141 provides that the subordinate courts would be bound by the law laid down by the Apex Court. 

High Courts

The Constitution provides for a High Court in each State under Article 214 . However, the Parliament is empowered to establish a common high court, by law, for two or more states. For example, the high court of Punjab and Haryana has jurisdiction over both Punjab as well as Haryana.

Appointment of judges of High Courts

The judges of High Court are appointed by the President. In the case of the Chief Justice of the high court, the appointment is made by the President after consulting the Chief Justice of India and the Governor of the concerned State. With respect to other judges of the high court, the President is required to consult the Chief Justice of the concerned high court. 

In the landmark case of S.P. Gupta and Others v. Union of India (1981), it was held by the Apex Court that the opinion of all the three authorities, that is, the Chief Justice of India, the concerned high courts respectively, and the Governor of the State are equally important and the opinion of one does not have primacy over the other. Furthermore, the court, while noting the examples of Australia and New Zealand, recommended the constitution of a Judicial Commission for the recommendation of the appointment of judges to the high courts.  

The Constitution (Ninety-Ninth Amendment) Act, 2014 provided for the appointment of judges on the recommendation National Judicial Appointments Commission and attempted to do away with the requirement of consulting the Chief Justice, However, in the case of Supreme Court Advocate on Record Association v. Union of India (1993), the Amendment was declared to be unconstitutional. 

Functions of a High Court

• It controls the functioning of the subordinate courts and issues rules and guidelines for their functioning.
• The high court hears appeals against the judgment and orders of the subordinate courts. 
• The high court is empowered to issue writs to safeguard the fundamental rights of individuals. 
• The high courts have the power of judicial review and can declare a law to be void if it is found to be in contravention of the provisions of the Constitution. 
• If a matter before the subordinate court involves a substantial question of law, then the high court is empowered to withdraw the matter and hear the matter. 

Jurisdiction of a High Court

The high court exercises jurisdiction over the territorial limits of the concerned State.

• Original jurisdiction : The high court has original jurisdiction in matters relating to the enforcement of fundamental rights, certain revenue matters and election to the State Legislature. The high court has the power to punish for its contempt under Article 215 .
• Appellate jurisdiction : The high courts have appellate jurisdiction with reference to both civil and criminal matters. Where the accused is sentenced to 7 years of imprisonment or more or to the death penalty by the sessions court, an appeal can be made before the high court. Furthermore, cases involving substantial questions of law can be appealed before the high courts.
• Writ jurisdiction : Article 226 of the Constitution empowers the high courts to issue writs for the enforcement of the rights of individuals. It is pertinent to note that the high court can issue writs for the enforcement of fundamental as well as legal rights. 
• Supervisory jurisdiction: Article 227 of the Constitution confers supervisory jurisdiction on the high courts. The high court exercises superintendence over all such courts and tribunals that are established within its territorial jurisdiction. 
• Review jurisdiction : Article 226 confers the review jurisdiction on the high courts and empowers them to review their own judgments and orders. The high courts entertain a review petition when there has been material error resulting in miscarriage of justice or where there has been a flagrant procedural error. 

An appeal can be made before the high court against the order of the Sessions Judge to sentence the accused for a term exceeding 7 years. An appeal can also be made before the high court in certain cases from the order of the metropolitan or other judicial magistrates.

However, it is pertinent to note that no appeal can be made before the high court in relation to petty cases. 

Subordinate Courts

The district courts are established by the State Government. They may be established for an individual district or a group of districts. The high court is responsible for supervising the administration of the District courts. There are primarily two types of District courts:

• Criminal courts, and
• Civil courts.

The civil courts adjudicate disputes relating to matters such as agreements, rent and divorce. These cases are decided on the basis of the procedure laid down by the Code of Civil Procedure, 1908 .

The criminal courts decide cases concerning the violation of law and which are filed by the state. These cases include dacoity, murder, etc. The working of the criminal codes is governed by the procedure laid down by the Code of Criminal Procedure, 1973 . 

It is pertinent to note that the district courts while dealing with criminal matters, are referred to as session courts. 

Any person aggrieved by the order of the district court can prefer an appeal before the high court. Below the district court, there are various other subordinate courts such as the Court of Additional District Judge, Court of Judicial Magistrate of Ist Class, Court of Judicial Magistrate of IInd Class, etc. The largest number of cases are disposed of at this level. The trial and recording of evidence also take place at this level.

The land revenue matters in the state are decided by the revenue courts. The revenue courts include the courts of Tehsildar, Collector, etc. The Board of Revenue constitutes the highest revenue court.

Appointments and composition

The district courts are presided over by a district judge who is appointed by the Governor of the State. The Governor appoints the district judge after consulting the concerned high court. The Additional District Judge may also be appointed subject to the workload.

Other judicial officers are appointed by the State Public Service Commission.

Various special tribunals are set up by the government for dealing with specific matters such as taxes, land disputes, etc. Tribunals may be judicial or quasi-judicial. The Tribunals provide expeditious justice and are usually established when there are several pending matters relating to a particular subject matter pending before the traditional courts. Thus, these tribunals help in reducing the burden of the traditional courts.

Article 323A of the Constitution empowers the Parliament to establish Central as well as State-level administrative tribunals which adjudicate on matters relating to the recruitment and service of public servants.

Article 323B provides a list of subject matters for which the Tribunals may be established by the Union Parliament or the State Legislatures. It includes tax, labour disputes, elections, land reforms, etc. In the landmark case of Union of India v. R. Gandhi and Ors. (2010), it was held that the list of matters provided in Section 323B is not intended to restrict the legislature from establishing tribunals for adjudicating any other matters. The list is not exhaustive and the legislature can establish Tribunals pertaining to any matter provided in the Seventh Schedule.

Nyay Panchayats 

The Nyay Panchayats are established at the village level and are aimed at providing cheap and expeditious justice. They are based on the direction provided by Article 40 which states that the State must take steps to empower the panchayats. The 73rd Constitutional Amendment conferred Constitutional status on the panchayats. These Nyay Panchayats adjudicate on minor offences such as wrongful restraint or theft. While these Panchayats enjoy both civil as well as criminal jurisdiction, the pecuniary jurisdiction of these judicial constituents is very low.

The Panches are appointed by the adult people of the village itself. Furthermore, since the posts are honorary, the members do not receive any salary. The minimum age of the members of Nyay Panchayat is 30 years. 

The Ashok Mehta Committee which was constituted in 1977 made certain recommendations for the reformation of the Nyay Panchayats. It suggested that the government should form a special cadre for judges of the Nyay Panchayat. The civil jurisdiction of the Nyay Panchayats should be broadened and their criminal jurisdiction should be equivalent to a judicial magistrate of 1st class. The provisions of the Code of Civil Procedure, 1908 as well as the provision of the Indian Evidence Act, 1872 should not apply to the proceedings of a Nyay Panchayat. However, the recommendations of the Committee have not been implemented. 

Lok Adalat 

Unlike the Nyay Panchayat, the Lok Adalats do not adjudicate disputes, rather, they aim at resolving disputes through mediation and arbitration. The Lok Adalats are also known as the ‘ People’s Court ’. The Lok Adalats consist of judicial officers, retired and serving, and such other persons as prescribed by the Central Government.  

A statutory status was conferred on the Lok Adalats by the Legal Services Authorities Act, 1987 . Chapter VI of the Act expressly deals with the organization of Lok Adalats. Section 21 of the Act provides that the award made by a Lok Adalat is deemed to be a decree of a civil court. Furthermore, such an award is binding on the parties to the dispute. 

The Lok Adalat has jurisdiction over such cases which are pending before the court for which the Adalat is convened. The parties may either agree to refer the matter to the Lok Adalat or one of the parties may apply before the Lok Adalat or the matter may be referred to the Lok Adalat by the court. Section 20 provides that a Lok Adalat while discharging its duties, must observe the principles of “ justice, equity, fair play and other legal principles “.

Judicial independence and constitutional provisions

In India, there is an independent judiciary. The legislature and the executive are prevented from interfering with the judicial functions. This ensures that the judges are able to discharge their duties without any fear. 

There are several constitutional provisions which secure the judiciary’s independence. It is pertinent to note that Article 50 , a Directive Principle, provides that the State shall take steps to ensure that the judiciary operates separately from the executive. There are various other constitutional safeguards which ensure the Independence of the judiciary

• The Supreme Court has the power to appoint the judges of the Supreme Court as well as the various high courts. Article 124(2) provides that the judges of the Supreme Court are to be appointed by the President in consultation with the judges of the Supreme Court and the high court.
• The judges of the Supreme Court, once appointed, enjoy the office until they attain the age of 65 years. Similarly, the judges of the high court enjoy the offices until they attain the age of 62 years.
• Article 124(4) provides for the procedure of the removal of the judges of the Supreme Court. The judges of the Supreme Court can be removed only by Presidential order. The removal must be supported by a special majority of at least 2/3rd of the members present and voting. The President has to address both the Houses of Parliament and the resolution for removal must be presented to him in the same session. A judge of the Apex Court can only be removed on the grounds of incapacity or misbehaviour. 
• So far, no judge of the Supreme Court has been impeached. Veeraswami Ramaswami was the first judge against whom the proceedings were initiated but the motion could not sail through the Lok Sabha. 
• Furthermore, the salaries and allowances of the judges of the Supreme Court as well as the high courts cannot be reduced except when a financial emergency has been declared under Article 360 . 
• The salaries and allowances of the Judges of the constitutional courts are charged under the consolidated fund of India.
• The legislature cannot deliberate upon the conduct of a judge while discharging his official duties. 
• The Parliament as well as the State Legislatures are further barred from curtailing the jurisdiction of the court and can only extend it. 
• Despite the aforementioned safeguards, if anyone undermines the authority of the court, then the Supreme Court, as well as the high courts, have the power to punish for contempt under Article 129 and Article 215 respectively.

Hurdles in the judicial system 

The judicial system in India is currently facing several hurdles. Some of them are:

• The constitutional courts, that is, the Supreme Court and the high courts are overburdened with the caseload. This results in enormous delays in justice and sometimes, litigation continues for decades.
• Litigation is a costly affair and in several instances, the common people are forced to forgo their rights and claims as they are unable to afford the legal proceedings. 
• The judiciary lacks the infrastructure to properly deal with the huge caseload. The judicial complexes are overcrowded and several Courts have a shortage of digital infrastructure. 
• Several British-era laws have become obsolete and need to be amended and modified or repealed. 
• The caseload before the subordinate courts is also huge and resultantly frequent adjournments are granted by the courts which results in delays. 
• The undertrial prisoners languish in jails for years while their cases are pending. 
• There are about 21 judges in India for 1 million people. The ratio of judges to people is very low and the need to improve this ratio was highlighted by the Law Commission in the 245th Report . The Report stated that the shortage of judges was leading to a huge backlog of cases and the issue required urgent and immediate attention. 

A vibrant and independent judiciary is essential for any democracy to thrive. The judiciary in India ensures that there is a rule of law and that the rights of the citizens are not violated. It also keeps a check on the other two organs of the government, that is, the legislature and the executive. 

However, the judicial system in India is facing several challenges which need to be addressed on a priority basis. There is an urgent need to address the shortage of judges and to ensure that the cases are disposed of in a timely manner. Furthermore, the judicial infrastructure and the working conditions of the trial court must be improved so as to attract talent to the judicial profession. 

Frequently Asked Questions

How many judges are there in the supreme court of india.

The Supreme Court consists of 31 Judges including the Chief Justice.

Which High Court is the oldest High Court in India

The Calcutta High Court which was established in 1862 is the oldest high court in India. 

When was the Supreme Court established

The Supreme Court was established on 28th January 1950.

What are three judges’ cases

The three judges’ cases are three judgments in which the court elaborated on the procedure to be followed for the appointment of the Supreme Court judges. 

The first judges’ case or S.P. Gupta v. President Of India (1981) was decided in 1981 and in this case, the court held that the President has the ultimate authority to appoint the judges while giving proper consideration to the Chief Justice of India’s opinion. 

The second judges’ case or Supreme Court v. Union Of India (1993) was decided in 1993 by a 9-judge Constitutional Bench of the Supreme Court. In this case, the court held that the CJI has a key role to play in the appointment of judges and that the CJI’s concurrence is essential in the process of appointment.

In the third judges’ case, the collegium system was laid down and it was held that the President must appoint the judges on the basis of the recommendation of the collegium.

Who has been conferred with the power to remove Supreme Court judges

Under Article 124, a Supreme Court judge can be impeached by the President, provided the resolution for impeachment is approved by two-thirds of the members present and voting. 

• https://www.jstor.org/stable/41854044    
• http://www.legalservicesindia.com/article/500/Judiciary-system-in-India.html  
• https://nios.ac.in/media/documents/SrSec338New/338_Introduction_To_Law_Eng/338_Introduction_To_Law_Eng_L13.pdf  
• https://www.thehindu.com/news/national/how-are-sc-judges-appointed-in-india/article65399076.ece  
• https://www.allahabadhighcourt.in/event/TheIndianJudicialSystem_SSDhavan.pdf  

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Indian Judiciary - Indian Polity Notes

Indian administration is guided by three pillars – Legislature, Executives, and Judiciary. Indian Judiciary. In India, we have an independent judiciary. The other organs of the government cannot interfere with the functioning of the judiciary. It is an important topic for the IAS Exam  for the Indian Polity subject (UPSC GS -II).

This article will provide you with relevant facts about Indian judiciary, what is the role of the judiciary, its structure, organisation, and functioning. 

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Introduction to Indian Judiciary

The judiciary is that branch of the government that interprets the law, settles disputes and administers justice to all citizens. The judiciary is considered the watchdog of democracy, and also the guardian of the Constitution. For democracy to function effectively, it is imperative to have an impartial and independent judiciary.

Independent Indian Judiciary

• It means that the other branches of the government, namely, the executive and the legislature, does not interfere with the judiciary’s functioning.
• The judiciary’s decision is respected and not interfered with by the other organs.
• It also means that judges can perform their duties without fear or favour.

Independence of the judiciary also does not mean that the judiciary functions arbitrarily and without any accountability. It is accountable to the Constitution of the country.

How Indian Judiciary is granted its independence?

The Constitution provides for a number of provisions that ensure that the independence of the judiciary is maintained and protected. For more on this, you can check the below links.

Indian Judiciary – Structure

India has a single integrated judicial system. The judiciary in India has a pyramidal structure with the Supreme Court (SC) at the top. High Courts are below the SC, and below them are the district and subordinate courts. The lower courts function under the direct superintendence of the higher courts.

The diagram below gives the structure and organisation of the judicial system in the country.

Apart from the above structure, there are also two branches of the legal system , which are:

• Criminal Law: These deal with the committing of a crime by any citizen/entity. A criminal case starts when the local police file a crime report. The court finally decides on the matter.
• Civil Law: These deal with disputes over the violation of the Fundamental Rights of a citizen.

Supreme Court has three types of jurisdictions. They are original, appellate and advisory. The jurisdiction of the Supreme Court is mentioned in Articles 131, 133, 136 and 143 of the Constitution.

Functions of Indian Judiciary – What is the role of the Judiciary?

The functions of the judiciary in India are:

• Administration of justice: The chief function of the judiciary is to apply the law to specific cases or in settling disputes. When a dispute is brought before the courts it ‘determines the facts’ involved through evidence presented by the contestants. The law then proceeds to decide what law is applicable to the case and applies it. If someone is found guilty of violating the law in the course of the trial, the court will impose a penalty on the guilty person.
• Creation of judge-case law: In many cases, the judges are not able to, or find it difficult to select the appropriate law for application. In such cases, the judges decide what the appropriate law is on the basis of their wisdom and common sense. In doing so, judges have built up a great body of ‘judge-made law’ or ‘case law.’ As per the doctrine of ‘stare decisis’, the previous decisions of judges are generally regarded as binding on later judges in similar cases.
• Guardian of the Constitution: The highest court in India, the SC, acts as the guardian of the Constitution. The conflicts of jurisdiction between the central government and the state governments or between the legislature and the executive are decided by the court. Any law or executive order which violates any provision of the constitution is declared unconstitutional or null and void by the judiciary. This is called ‘judicial review.’ Judicial review has the merit of guaranteeing the fundamental rights of individuals and ensuring a balance between the union and the units in a federal state.
• Protector of Fundamental Rights: The judiciary ensures that people’s rights are not trampled upon by the State or any other agency. The superior courts enforce Fundamental Rights by issuing writs.
• Supervisory functions: The higher courts also perform the function of supervising the subordinate courts in India.
• Advisory functions: The SC in India performs an advisory function as well. It can give its advisory opinions on constitutional questions. This is done in the absence of disputes and when the executive so desires.
• Administrative functions: Some functions of the courts are non-judicial or administrative in nature. The courts may grant certain licenses, administer the estates (property) of deceased persons and appoint receivers. They register marriages, appoint guardians of minor children and lunatics.
• Special role in a federation: In a federal system like India’s, the judiciary also performs the important task of settling disputes between the centre and states. It also acts as an arbiter of disputes between states.
• Conducting judicial enquiries: Judges normally are called to head commissions that enquire into cases of errors or omissions on the part of public servants.

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Indian Judiciary – Civil Courts

Civil courts deal with civil cases. Civil law is referred to in almost all cases other than criminal cases. Criminal law applies when a crime such as a robbery, murder, arson, etc. is perpetrated.

• Civil law is applied in disputes when one person sues another person or entity. Examples of civil cases include divorce, eviction, consumer problems, debt or bankruptcy, etc.
• Judges in civil courts and criminal courts have different powers. While a judge in a criminal court can punish the convicted person by sending him/her to jail, a judge in a civil court can make the guilty pay fines, etc.
• District Judges sitting in District Courts and Magistrates of Second Class and Civil Judge (Junior Division) are at the bottom of the judicial hierarchy in India.

• The court of the district judges is the highest civil court in a district.
• It has both administrative and judicial powers.
• The court of the District Judge is in the district HQ.
• It can try criminal and civil cases and hence, the judge is called District and Sessions Judge.
• Under the district courts, there are courts of the Sub-Judge, Additional Sub-Judge and Munsif Courts.
• Most civil cases are filed in the Munsif’s court.

Civil courts have four types of jurisdiction:

• Subject Matter Jurisdiction: It can try cases of a particular type and relate to a particular subject.
• Territorial Jurisdiction: It can try cases within its geographical limit, and not beyond the territory.
• Pecuniary Jurisdiction: Cases related to money matters, suits of monetary value.
• Appellate Jurisdiction: This is the authority of a court to hear appeals or review a case that has already been decided by a lower court. The Supreme Court and the High Courts have appellate jurisdiction to hear cases that were decided by a lower court.

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UPSC Questions related to Judiciary in India

What is article 124 a of indian constitution.

This article talks about the establishment and constitution of the Supreme Court.

What is the structure of Indian judiciary?

Judiciary in India has a pyramidal structure with the Supreme Court at the top.

What is obiter dictum in law?

Obiter dictum is an opinion or a remark made by a judge which does not form a necessary part of the court’s decision.

What is the main function of the Indian judiciary?

The main function of the judiciary is to interpret and apply laws to cases.

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Judicial Process – Week 2 Assignment

Federal Judiciary v. Your State's Judiciary

For this assignment:

1.     Compare and contrast the organization of your state's court system with that of the federal judiciary.  

2.     Explain the jurisdictional limitations of each state court.

Your submission should adhere to the following guidelines:

·          The total length of your paper should be a minimum of 3 full pages in length.

·          Use APA style for general formatting, including margins, font type and font size, spacing, and cover page.

·          Include Bluebook formatted citations within the body of the paper and on the References page.

View your assignment rubric.

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Essay on Role of Judiciary in the Country for Students and Children

500 words essay on role of judiciary in the country today.

Any judiciary is an integral part of a country, especially democracy . As India is the largest democracy, we have a big judiciary which makes sure it safeguards the interests of its citizens. Similarly, our Supreme Court is at the top of our judiciary system. It is then followed by our high courts which operate at the state level. Further, there are district courts operating at the district level. There are also many more courts below this order. A judiciary has many roles to play.

Role of Judiciary in India

As a judiciary is independent of the executive, it can easily safeguard the rights of the citizen to ensure peace and harmony. However, its role is not just limited to this. It plays different roles to make sure there is smooth functioning in the country.

Firstly, it plays a great role in making new laws. Judiciary is the rightful interpreter of our constitution as well as the current laws. It has the power to create new laws as well as overrule policies that might violate our constitution.

Furthermore, the judiciary also prevents any form of violation of the law. Similarly, it files a lawsuit against the person found guilty of doing the same. After that, a judge passes his verdict after listening to both parties closely and announces the judgment accordingly.

Moreover, it also acts as an advisory body. It happens more than often that the executive or legislature seeks help from the judiciary to clarify issues regarding the constitution.

Moreover, the judiciary decides upon the constitutional questions. For instance, if there is a dispute between states, they are brought to the Supreme Court where it decides how to interpret the constitution on the basis of the on-going dispute. In addition, it also looks after the administrating bit. Like it is responsible for appointing officers, maintaining records, administrating staff and more.

Most importantly, the judiciary is the protector of fundamental rights of the citizens. Everyone has the right to fundamental rights; however, sometimes people try to take them away. Thus, the judiciary ensures no such thing happens and lets every citizen live with harmony.

Get the huge list of more than 500 Essay Topics and Ideas

Importance in Today’s Scenario

A judiciary is very crucial in upholding a democracy like ours. As we all know, cases of injustice against people have risen nowadays. There is unjust discrimination happening and the judiciary must step in to stop all this.

Therefore, it becomes important more than ever to help people feel safe within their own country and homes. Judiciary checks and balances the ones who have power. This helps in preventing people from misusing that power.

In short, in today’s scenario of our country where crimes are happening rapidly, people turn to the judiciary for justice . Thus, we see how it is so very important that judiciary remains just and empowered in the times of darkness. Sometimes, it remains the single ray of hope for people, which is why it is needed more than ever now.

FAQs on Role of Judiciary in the Country Today

Q.1 What is the role of the judiciary in the country today?

A.1 The judiciary plays a major role in a democracy. It safeguards the fundamental rights of the people. Further, it makes new laws and ensures to punish anyone violating these laws. It also administers and appoints officers.

Q.2 Why is the judiciary important in the country today?

A.2 The judiciary is more important than ever now because injustice against people has risen to a great extent in our country. We need it to monitor the people and punish them for their crimes so everyone feels safe and included.

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Essay on Judiciary in India and its working

October 18, 2019 by Sandeep

600+ Words Essay on Judiciary in India

The Indian constitution consists of the legislature, executive and the judiciary. The legislature department is involved in preparing policies and law-making concerns. The executive is involved in implementing the laws created by the legislature body.

The judiciary is an independent department not attached with the legislature or the executive. It is an independent judicial body that is vested with judicial powers and can carry on its judicial activities without direct interference from the government.

Judicial activism in Indian democracy

The judiciary in many ways is closest to the citizens or the nation. The many functions of the judiciary ensure legal protection to the citizens of the country.

If we were to settle a family dispute and go to court seeking relief, we would be advised to apply a case and the proceedings of the court would be held at the respective family courts. Thus, the judiciary ensures fair legal protection to every citizen of this nation.

The judiciary carries out many functions under its umbrella. Every citizen is provided with equal and fair justice under law. Whenever a citizen seeks protection under law, he is ensured such protection under relevant laws of the Indian judicial system. Laws are created by the legislature, executed by the executive and applied by the judiciary.

It is like the father creating the rules of the house, the mother creating suitable environment for its execution and the children applying the rules in their lives. Any country needs a legal framework within which it can operate and make decisions for the country. This legal framework and binding is actually curated by the judiciary to uphold the legal decorum of any nation.

Any violation of the fundamental rights of citizens of the country is acted upon seriously by the judicial system. Every citizen is entitled to certain basic rights termed the fundamental rights under our constitution. The constitution needs protection under law and this is taken care of, by our judicial system. Legal decisions pertaining to every single case is taken by respective judges of courts.

Every such legal decision is brought into enforcement by our judiciary. There are numerous times when we find disputes arising between states, termed inter-state conflicts. The judiciary resolves such inter-state disputes and comes up with an amicable resolution to put an end to such conflicts before they take on political colors.

The water dispute arising every year between Karnataka and Tamil Nadu regarding the sharing of Cauvery waters is a good example in this regard. The case is pending in the Supreme Court and the judiciary is trusted to solve such issues amicably to bring in peace and harmony between the two warring states.

Not just interstate disputes, any conflict that may arise between the centre and the state is also solved by the judiciary. Whenever there is any problem in the country where the legal framework gets violated or people act against the legal system of the country, it attracts punishment under various sections of the constitution.

Any such crimes or anti social elements acting against the dignity of our judicial system and the country as a whole is treated as offence and tried under law. Enquiry commissions headed by expert panels of senior lawmakers and judges are usually formed in cases of dispute resolutions.

The enquiry commissions submit a relevant report to the government to let them know of the impending situation and the previous activities thus ensued, thus revoking further action by the government.

Collegium system

This system is also called the judges’ selection system by a panel of judges. The collegium system actually has no mention or place in the Indian constitution. It was not even placed under any amended section of our constitution. This system came into force, thanks to a judgment pronounced by the Supreme Court in the year 1993.

The functions of the collegiums system include identifying most eligible members for posting them as suitable judges of the Supreme Court. This selection and scrutinizing is carried out by the so called ‘collegium system’. It comprises of a body of five senior judges of the Apex court, who are instructed and directed by the CJI to carry on the task successfully.

Many chief justices of high courts are handpicked in a similar manner to be promoted to the Supreme Court after the above explained scrutiny process.

Famous controversies associated with our judiciary

‘master of roster’ controversy.

Suppose there lies a family dispute between two parties ‘A’ and ‘B’ that has not reached the court doors as yet. Let us also assume that both the parties trust a mutual friend ‘C’ who will now be entrusted with the task of solving the matter between A and B. C is like a neutral friend to both A and B. In case C newly discovers that he is a close relative of A, then he might choose to act more favorably towards A.

He might also not blame A in any way in the controversy between A and B and hold B responsible for the dispute and create an imbalanced decision holding B at fault. This selection of the culprit was not at all fair and does not warranty fair execution of laws under our system either. The master of roster controversy can be understood in a similar light.

In April 2018, Shanti Bhushan who happens to be a former law minister questioned the current practice in our legal system where the Chief Justice decides the allocation of various cases available. He extended a PIL in this respect and spoke against the wholesome powers resting with the chief Justice when he decided to allocate a particular case to a particular judge / bench of judges.

It was not to be seen as a personal attack against any particular Chief Justice of India (CJI), either in the past or the present, but he only questioned the arbitrary power associated with the CJI in deciding the allocation. Any bench comprising of judges chosen by the CJI could be politically influenced or could take on personal interests and thus may not uphold the sanctity of justice as laid down in the constitution.

The CJI could actually consult top brass and senior judges of the Supreme court and then decide on the allocation was the argument that could be understood from this controversy.

Differences between Chief Justice and senior Supreme Court judges

There have been numerous times when the selection of judges for higher courts have become a matter of controversy for the judiciary. The recent one in January 2018 that comprised CJI Dipak Misra and four senior most judges of the Supreme Court is a good example.

The four senior judges raised the issue of assigning cases to supreme courts, among many other issues against the CJI. This matter was discussed between the Supreme Court and the judges in the court for more than fifteen minutes and the CJI led body failed to come up with a resolution stating that it would entertain the issue only when the apex court registry comes up with a suitable petition for the same.

The judiciary of our nation works to provide citizens the much needed civil liberty and highest protection under law. It is the legal framework of the nation, applied by the judiciary that provides every citizen of the country his right to live with dignity.

Be it property disputes, disputes of succession, registration of will, marriage and divorce issues, higher level cases that affect a larger part of the nation etc, the judiciary is the legal umbrella of the nation.

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Chapter 4, § 440: Assignment of Cases

Guide to Judiciary Policy, Vol 7 Defender Services, Part A Guidelines for Administering the CJA and Related Statutes, Chapter 4: Defender Organizations

§ 440 Assignment of Cases To ensure the effective supervision and management of the organization, federal public defenders and community defenders should be responsible for the assignment of cases within their own offices. Accordingly, appointments by the court or U.S. magistrate judge should be made in the name of the organization (i.e., the federal public defender or community defender), rather than in the name of an individual staff attorney within the organization.

Chapter Appendices

Appendix 4A: Community Defender Organization: Grant and Conditions ( pdf )( word ) Appendix 4B: Model Code of Conduct for Federal Community Defender Employees ( pdf )( word )

Last revised ( Transmittal 07-015 ) July 25, 2023