[Polity] What are the main functions of the Judiciary?
Administration of justice is the primary function of the
judiciary. However, the judiciary performs
certain other function too. These functions may be judicial
in character but some of these functions are non-judicial in nature. Following
are some of the judicial and non-judicial functions performed by the judiciary.
(1) Judicial Functions:
Firstly, when a dispute is brought before a court, it is the
responsibility of the court to 'determine the facts' involved. The usual manner
in which the courts determine the facts is through evidence given by the
contestants. Once the facts have been established, the court proceeds to decide
what law is applicable to a particular controversy or circumstance. Herein the
judiciary becomes the interpreter of laws, which is the prime function of the
judiciary. So the major task of the judiciary is to 'determine' the facts of
laws and to apply them to particular circumstance.
(2) Law-making Functions:
Secondly, the judiciary while interpreting the existing laws
also performs the role of lawmaker. It may sound surprising, but 'judge-made'
laws are common to all systems of jurisprudence. Such occasions arise when the
provisions of the existing laws may be ambiguous, or sometimes two or more laws
of a particular government appear to be in conflict under a given circumstance.
Herein the judiciary plays an important role in determining
what the law is and when two laws apparently conflict, which shall prevail. For
instance, the enunciation of the 'Doctrine of Implied Powers' by the U.S.
Judiciary proved conducive to the growth of the federal government's power.
However, the phraseology of the original U.S. Constitution did not provide such
enormous power of the Federal Government. In this context, we fully realize the
prime importance of the judiciary.
(3) Guardianship of the Constitution:
Thirdly, in federal States like India, the U.S.A. and
Switzerland, the judiciary is the guardian of the Constitution. Chief Justice
Hughes of America once said, "We are under a union but the Constitution is
what the judges say it is".
In federal States conflict in jurisdiction and authority
frequently occurs, as there are several law making and executive authorities,
each showing its power to the Constitution. In the circumstances, the judiciary
becomes the umpire and regulates the legal actions of the States and Central
In case the laws made by any of these law-making bodies
conflict with the constitutional provisions, the judiciary in the above
mentioned States is empowered to declare the relevant legislation illegal.
Indian courts on several occasions have declared laws of the Union as well as
the State laws illegal.
(4) Advisory Jurisdiction:
Fourthly, some national judiciaries possess advisory
jurisdiction. For instance, the President of India may seek the advice of the
Supreme Court of India on any proposed legislation. However, there is no such
provision in the U.S.A. The Canadian Supreme Court is also obliged under
constitutional provisions to tender advice to the Governor General.
(5) Protector of the Fundamental Rights:
Fifthly, the judiciaries also act as the defenders of the
individual's right. Such role of the judiciary is important as it prevents the
individual's rights from being violated. An individual need not wait until harm
is done to him. If he had, sufficient reasons to believe that attempts would be
made to violate his 'rights' he could approach the courts for protection.
Then the courts would issue orders prohibiting such attempts
until the rights of the parties were determined. Judiciary is the watchdog of
rights and liberties of the people. In India, the Supreme Court is empowered to
protect the Fundamental Rights of the citizens.
(6) Supervisory Function:
Sixthly, higher courts are often assigned the task of
supervision over the lower courts. The Indian High Conn responsible for the
supervision of their respective state judicial systems.
(7) Non-Judicial Function:
Lastly, the judiciary in some countries may perform a number
of non-judicial functions. Courts may undertake the administration of property
in cases where the ownership of property in question is in dispute. Courts also
assume responsibility for handling the affairs of minor children or lunatics.
Courts may be authorized to issue and cancel certain licenses. Courts also may
be authorized to grant citizenship to aliens.
Selection or Method of Appointment of Judges:
There are certain methods by which judge are selected in
various States. One method of selecting judges is through an election by the
people. Such a system now prevails in certain Cantons of Switzerland. Although
this method may sound highly democratic, such a method of selection of the
judge is unsound. Ordinary voters are not qualified to consider the suitability
of judges. Moreover, a popularly elected judge is likely to favor the party,
which sponsored his election.
A second method of appointing judges is through elections by
legislature. This method is in vogue in Switzerland and some other States. Such
a mode of appointment violates the theory of the separation of powers.
Moreover, if judges are appointed in this manner, the
judiciary cannot function as the guardian of the constitution. Judges elected
by the legislature are notlikely to declare acts of the same
legislature unconstitutional. Thus, the independence and impartiality of the
judges would be lost.
A third method of appointing judges is by executive
nomination. In India, the President of India nominates the judges of the
Supreme Court and the High Courts. This is a satisfactory mode appointing the
judges. Such appointments are generally made from and among the senior
A fourth method of selecting Judges is through a competitive
examination. In France, judges are selected on the basis of a competitive
examination conducted try the Ministry of Justice. In India, too, judges of the
lower courts such as Munsifs are selected on the basis of competitive
Of all these methods, the most popular is the last mentioned
mode of choosing judges, for it ensures the independence of the judiciary.
Garner is of the opinion that judges should be appointed by the executive. But
once appointed, the judges should be independent of the influence of the
executive would hold office for life.