Functions of the Judiciary

In modern times, the judiciary performs several functions, but there is no uniformity about them in various States. We shall enumerate here the most important of them.

Advertisement

Settlement of Disputes:

The primary function of the judiciary is to apply existing laws to the cases or legal disputes brought before the courts for settlement. These cases may be civil or criminal. When a case is brought before a court, its duty is first to find the facts, then to discover the law applicable to the case, and pass a judgment according to it. Thus the judiciary applies the laws, ascertains and decides rights, punishes crimes, administers justice and protects the innocent from injury and usurpation. Nevertheless, to a judge a law is as it is laid down by the legal sovereign, no matter if it is good or bad, just or unjust, moral or not moral.

Interpretation of Laws:

Sometimes the law is not clear, either because the law-makers did not foresee the circumstances of the case, or the wording of the statute is ambiguous or because two or more laws applicable to the case is in conflict. In deciding such cases, the judge has some discretion in interpreting the laws and deciding the case in the light of the principles of-justice, equity and commonsense. In this way he not merely applies a law but even makes it. Such decisions become precedents for other judges who have to decide similar cases later on. These precedents become the judge-made laws or case-laws. They play an important role in the legal systems of such countries as Britain, U.S.A., Pakistan, India and other countries which follow the English Common Law. In these countries, the judges may become the creators of new laws and thus supplement the work of the legislature.

Preventive Justice:

In modern times, the judiciary performs not only the function of punishing crimes, and settling disputes, but has also the duty of preventing the violation of rights or threatened infraction of the law. This is called preventive justice. It is performed by issuing writs and restraining orders or injunctions. Failure to obey an injunction or a writ constitutes contempt of court and is punishable by imprisonment or fine.

Judicial Review:

In a federal State, the judiciary has the power to declare the acts or statutes of the central or provincial legislatures or executive orders ultra vires or unconstitutional if they are outside their jurisdiction or powers as defined by the constitution. The constitutions of such federal States as the U.S.A., India and Pakistan have conferred the power of judicial review on their high and supreme courts.

Advisory Opinion:

In many countries, the judiciary performs the function of giving advisory opinions on questions of law when requested by the executive or the legislature. This function is usually performed by the High Court or the Supreme Court, as in Pakistan.

Non-judicial Functions:

Almost in all countries, the judiciary is called upon to perform certain miscellaneous functions of non-judicial nature. For instance, the judges may be empowered to grant licences, or act as receivers in bankruptcy cases, guardians of minors and administrators of estates, or to naturalise the aliens, etc.

Advertisement

No comments.

Leave a Reply

Advertisement