Crises in the Indian Judiciary | Polity for UPSC 2024 (Pre & Mains) PDF Download

 Page 1


Crises in the Indian Judiciary- Issues: 
Pendency: Former Supreme Court Judge Madan Lokur points out that that the biggest problem facing the 
judiciary is the number of pending cases—over three crores. The arrears in tribunals and commissions are 
staggering too and most cases directly impact the common ciAzen in everyday life. The 2017 economic 
survey of the ?nance ministry pointed out that the slow resoluAon of economic and commercial cases was 
one of the biggest stumbling blocks in reviving the investment cycle in the country. 
Vacancies: More importantly, even as the case burden has increased, court resources haven’t kept up. While 
India’s Supreme Court is now fully sta?ed (with 33 judges out of the sancAoned 34 currently), the remaining 
courts remain chronically understa?ed. The sancAoned strength of India’s High Courts is 1,049 but 
currently, there are only 680 judges in o?ce (a vacancy rate of 37%). Similarly, in the lower courts, the 
vacancy rates for judges is at 25%. In 2016, Chief JusAce T.S. Thakur esAmated that India needed 70,000 
more judges to clear the legal system’s backlog.  
Over the years, various commissions have laid out several recommendaAons to tackle the issue 
comprehensively. For instance, the 11th Finance commission in 2005 had recommended the formaAon of 
fast-track courts to expedite cases. More recently in 2014, the 245th Law Commission recommended 
se\ng up special courts adjudicated by recent law graduates to hear more trivial cases (such as tra?c 
o?ences) and raising the reArement age of judges in lower courts. Last year, the Law Minister, Ravi Shankar 
Prasad had suggested implemenAng a centralized recruitment system for lower courts along the lines of the 
Union Public Services Commission.  
Issue of Appointments: One of the important issues plaguing the Indian judiciary is that of appointments. 
The NJAC was over-ruled to bring back the Collegium system wherein appointment of Judes is done by the 
Collegium body consisAng of judges themselves leading to allegaAons of corrupAon and nepoAsm. 
However, JusAce Madan Lokur argues that while Judges recommend recommend judges for appointment—
www.YouTube.com/SleepyClasses 
www.SleepyClasses.com 
Page 2


Crises in the Indian Judiciary- Issues: 
Pendency: Former Supreme Court Judge Madan Lokur points out that that the biggest problem facing the 
judiciary is the number of pending cases—over three crores. The arrears in tribunals and commissions are 
staggering too and most cases directly impact the common ciAzen in everyday life. The 2017 economic 
survey of the ?nance ministry pointed out that the slow resoluAon of economic and commercial cases was 
one of the biggest stumbling blocks in reviving the investment cycle in the country. 
Vacancies: More importantly, even as the case burden has increased, court resources haven’t kept up. While 
India’s Supreme Court is now fully sta?ed (with 33 judges out of the sancAoned 34 currently), the remaining 
courts remain chronically understa?ed. The sancAoned strength of India’s High Courts is 1,049 but 
currently, there are only 680 judges in o?ce (a vacancy rate of 37%). Similarly, in the lower courts, the 
vacancy rates for judges is at 25%. In 2016, Chief JusAce T.S. Thakur esAmated that India needed 70,000 
more judges to clear the legal system’s backlog.  
Over the years, various commissions have laid out several recommendaAons to tackle the issue 
comprehensively. For instance, the 11th Finance commission in 2005 had recommended the formaAon of 
fast-track courts to expedite cases. More recently in 2014, the 245th Law Commission recommended 
se\ng up special courts adjudicated by recent law graduates to hear more trivial cases (such as tra?c 
o?ences) and raising the reArement age of judges in lower courts. Last year, the Law Minister, Ravi Shankar 
Prasad had suggested implemenAng a centralized recruitment system for lower courts along the lines of the 
Union Public Services Commission.  
Issue of Appointments: One of the important issues plaguing the Indian judiciary is that of appointments. 
The NJAC was over-ruled to bring back the Collegium system wherein appointment of Judes is done by the 
Collegium body consisAng of judges themselves leading to allegaAons of corrupAon and nepoAsm. 
However, JusAce Madan Lokur argues that while Judges recommend recommend judges for appointment—
www.YouTube.com/SleepyClasses 
www.SleepyClasses.com 
the process of appointment is sAll carried out by the poliAcal execuAve with the President signing the 
warrant of appointment. 
Overstepping its jurisdic>on: In the pendency of cases, another thing highlighted is the highly acAvist role 
adopted by the Indian higher judiciary. The increasing writ jurisdicAon has further increased the workload. 
Furthermore certain decisions of the Supreme Court have been seen as violaAng the separaAon of powers 
and stepping into the jurisdicAon of the ExecuAve and Legislature. Banning of alcohol along state and 
naAonal highways, naAonal anthem to be played in all cinemas were seen as examples of the same. Pratap 
Bhanu Mehta has been extremely criAcal of the populist stance oden adopted by a non democraAc 
insAtuAon like Judiciary.  
Rise of Personal, fall of the ins>tu>on: The increasing acAvism has also led to subjecAve opinions of the 
judges creeping into the realm of law which has led to rise of issues. It controversially outlawed gay sex, but 
also recognised transgender people as a third gender. It whimsically ruled that naAonal anthem should be 
played in cinema theatres, but, in a landmark judgement, also ruled that ci>zens have a fundamental right 
to privacy. 
Poli>cal Pressures and corrup>on: Judges, say many, are also vulnerable to poliAcal pressures because 
many take up presAgious government jobs ader reArement. One reason could be their relaAvely modest 
pay: salaries of judges have been hiked only four Ames in the past 67 years, and even then at a lower rate 
than the salaries of lawmakers. The appointment of judges and Chief JusAces as Governors and in other 
authoriAes has highlighted these issues. The press conference against former CJI Deepak Misra and 
allegaAons of sexual harassment against former CJI Gogoi also points to deepening mistrust even towards 
the higher judiciary.  
Allega>ons on Judiciary  
The bid to iniAate impeachment of former CJI JusAce Deepak Misra and the allegaAons of sexual 
misconduct on former CJI Ranjan Gogoi drew ahenAon to the Judges (Inquiry) Act, 1968. The Act is a 
procedural statute, which regulates “the procedure for the invesAgaAon and proof of the misbehaviour or 
incapacity of a judge of the Supreme Court or of a High Court and for the presentaAon of an address by 
Parliament to the President and for maher, connected therewith”. 
A procedure for removal of Judges of the High Court and Supreme Court by way of address of the Houses 
of Parliament to the President is contained in Art. 124(4) of the ConsAtuAon of India, read with proviso (b) 
to Art. 124(2) and proviso (b) to Art. 217(1), for ‘proved misbehaviour or incapacity’. The Judges (Inquiry) 
Act, 1968 contains details of the impeachment process:
• The mo>on is to be signed by 50 members of Rajya Sabha or 100 members of Lok Sabha.
• If it is admihed, an inquiry commiLee will probe the charges. 
• SecAon 3 describes the invesAgaAon into the charges by a commihee of three members, who would 
be selected by the Chairperson or Speaker. Once formed, the commihee will frame de?nite charges 
against the judge on the basis of which the invesAgaAon is proposed to be held.  
• The commihee has three members: a Supreme Court judge, a High Court Chief JusAce, and an eminent 
jurist.  
www.YouTube.com/SleepyClasses 
www.SleepyClasses.com 
Page 3


Crises in the Indian Judiciary- Issues: 
Pendency: Former Supreme Court Judge Madan Lokur points out that that the biggest problem facing the 
judiciary is the number of pending cases—over three crores. The arrears in tribunals and commissions are 
staggering too and most cases directly impact the common ciAzen in everyday life. The 2017 economic 
survey of the ?nance ministry pointed out that the slow resoluAon of economic and commercial cases was 
one of the biggest stumbling blocks in reviving the investment cycle in the country. 
Vacancies: More importantly, even as the case burden has increased, court resources haven’t kept up. While 
India’s Supreme Court is now fully sta?ed (with 33 judges out of the sancAoned 34 currently), the remaining 
courts remain chronically understa?ed. The sancAoned strength of India’s High Courts is 1,049 but 
currently, there are only 680 judges in o?ce (a vacancy rate of 37%). Similarly, in the lower courts, the 
vacancy rates for judges is at 25%. In 2016, Chief JusAce T.S. Thakur esAmated that India needed 70,000 
more judges to clear the legal system’s backlog.  
Over the years, various commissions have laid out several recommendaAons to tackle the issue 
comprehensively. For instance, the 11th Finance commission in 2005 had recommended the formaAon of 
fast-track courts to expedite cases. More recently in 2014, the 245th Law Commission recommended 
se\ng up special courts adjudicated by recent law graduates to hear more trivial cases (such as tra?c 
o?ences) and raising the reArement age of judges in lower courts. Last year, the Law Minister, Ravi Shankar 
Prasad had suggested implemenAng a centralized recruitment system for lower courts along the lines of the 
Union Public Services Commission.  
Issue of Appointments: One of the important issues plaguing the Indian judiciary is that of appointments. 
The NJAC was over-ruled to bring back the Collegium system wherein appointment of Judes is done by the 
Collegium body consisAng of judges themselves leading to allegaAons of corrupAon and nepoAsm. 
However, JusAce Madan Lokur argues that while Judges recommend recommend judges for appointment—
www.YouTube.com/SleepyClasses 
www.SleepyClasses.com 
the process of appointment is sAll carried out by the poliAcal execuAve with the President signing the 
warrant of appointment. 
Overstepping its jurisdic>on: In the pendency of cases, another thing highlighted is the highly acAvist role 
adopted by the Indian higher judiciary. The increasing writ jurisdicAon has further increased the workload. 
Furthermore certain decisions of the Supreme Court have been seen as violaAng the separaAon of powers 
and stepping into the jurisdicAon of the ExecuAve and Legislature. Banning of alcohol along state and 
naAonal highways, naAonal anthem to be played in all cinemas were seen as examples of the same. Pratap 
Bhanu Mehta has been extremely criAcal of the populist stance oden adopted by a non democraAc 
insAtuAon like Judiciary.  
Rise of Personal, fall of the ins>tu>on: The increasing acAvism has also led to subjecAve opinions of the 
judges creeping into the realm of law which has led to rise of issues. It controversially outlawed gay sex, but 
also recognised transgender people as a third gender. It whimsically ruled that naAonal anthem should be 
played in cinema theatres, but, in a landmark judgement, also ruled that ci>zens have a fundamental right 
to privacy. 
Poli>cal Pressures and corrup>on: Judges, say many, are also vulnerable to poliAcal pressures because 
many take up presAgious government jobs ader reArement. One reason could be their relaAvely modest 
pay: salaries of judges have been hiked only four Ames in the past 67 years, and even then at a lower rate 
than the salaries of lawmakers. The appointment of judges and Chief JusAces as Governors and in other 
authoriAes has highlighted these issues. The press conference against former CJI Deepak Misra and 
allegaAons of sexual harassment against former CJI Gogoi also points to deepening mistrust even towards 
the higher judiciary.  
Allega>ons on Judiciary  
The bid to iniAate impeachment of former CJI JusAce Deepak Misra and the allegaAons of sexual 
misconduct on former CJI Ranjan Gogoi drew ahenAon to the Judges (Inquiry) Act, 1968. The Act is a 
procedural statute, which regulates “the procedure for the invesAgaAon and proof of the misbehaviour or 
incapacity of a judge of the Supreme Court or of a High Court and for the presentaAon of an address by 
Parliament to the President and for maher, connected therewith”. 
A procedure for removal of Judges of the High Court and Supreme Court by way of address of the Houses 
of Parliament to the President is contained in Art. 124(4) of the ConsAtuAon of India, read with proviso (b) 
to Art. 124(2) and proviso (b) to Art. 217(1), for ‘proved misbehaviour or incapacity’. The Judges (Inquiry) 
Act, 1968 contains details of the impeachment process:
• The mo>on is to be signed by 50 members of Rajya Sabha or 100 members of Lok Sabha.
• If it is admihed, an inquiry commiLee will probe the charges. 
• SecAon 3 describes the invesAgaAon into the charges by a commihee of three members, who would 
be selected by the Chairperson or Speaker. Once formed, the commihee will frame de?nite charges 
against the judge on the basis of which the invesAgaAon is proposed to be held.  
• The commihee has three members: a Supreme Court judge, a High Court Chief JusAce, and an eminent 
jurist.  
www.YouTube.com/SleepyClasses 
www.SleepyClasses.com 
• Such charges, together with a statement of the grounds on which each such charge is based, shall be 
communicated to the judge.  
• The judge will then be given a reasonable opportunity to present a wrihen statement in his or her 
defence within the Ame speci?ed by the commihee.  
• The government, if required by the Speaker or the Chairperson, can appoint an advocate to conduct 
the case against the judge. The judge must also be given opportunity to cross-examine witnesses.  
• At the conclusion of the invesAgaAon, the commihee is to submit a detailed report to the Speaker or 
Chairperson. If the report has a ?nding that the judge is guilty of any misbehaviour or su?ers from an 
incapacity, then, the removal moAon shall, together with the report of the commihee, be taken up for 
consideraAon by the House or the Houses of Parliament in which it is pending.
• It has to be passed by a majority of the House and 2/3rds of those present and vo>ng in the same 
session.
• Finally, the President will issue the order removing the judge. 
JusAce Ramaswamy of the Supreme Court faced such a moAon.  The inquiry commihee found that the 
charges against him were valid.  However, the moAon to impeach him did not gather the required support in 
Lok Sabha. 
In case the judge denies that he or she is unable to discharge the duAes of o?ce “e?ciently” due to any 
physical or mental incapacity, the commihee will arrange for the medical examinaAon of the judge by such 
medical board as may be appointed for the purpose by the Speaker or Chairman.  
If the judge refuses to undergo the examinaAon considered necessary by the medical board, the board shall 
submit a report to the commihee staAng the case. The commihee may, on receipt of such report, presume 
that the judge su?ers from physical or mental incapacity as alleged in the removal moAon.  
The commihee may, ader considering the wrihen statement of the judge and the medical report, if any, 
amend the charges. In such a case, the judge would be given a reasonable opportunity of presenAng a fresh 
wrihen statement of defence. 
The process of impeachment has oden been criAcised. There is no mechanism for oversight of the judiciary 
or even feedback. This is unsaAsfactory at the best of Ames, but worked as an uneasy compromise when 
the execuAve played its consAtuAonally envisaged role in appoinAng judges. This role was done away with 
and the Judiciary acquired the unalloyed right of self-propagaAon, with its ruling in 1993 in the so-called 
Second Judges Case. Since then, the Judiciary has been accountable only to itself. 
It is against this background that the 195th Report of the Law Commission, the 2006 and 2008 Amendment 
bills to the Judges (Inquiry) Act, 1968 and the Judicial Standards and Accountability Council Bill 2010 were 
produced, to propose a provision for inquiring into complaints against judges and taking acAon on the 
?ndings, including stringent penalAes on mischievous complainants.  
A three-member in-house commihee headed by JusAce S.A. Bobde has been consAtuted to probe the 
allegaAons of sexual misconduct against the Chief JusAce of India (CJI) Ranjan Gogoi. However, it was 
criAcised as in-house commihee does not enjoy the legiAmacy, powers and stature of the Inquiry 
Commihee, to be set up by the speaker of the Lok Sabha or the chairman of the Rajya Sabha under the 
Judges Inquiry Act. 
www.YouTube.com/SleepyClasses 
www.SleepyClasses.com 
Page 4


Crises in the Indian Judiciary- Issues: 
Pendency: Former Supreme Court Judge Madan Lokur points out that that the biggest problem facing the 
judiciary is the number of pending cases—over three crores. The arrears in tribunals and commissions are 
staggering too and most cases directly impact the common ciAzen in everyday life. The 2017 economic 
survey of the ?nance ministry pointed out that the slow resoluAon of economic and commercial cases was 
one of the biggest stumbling blocks in reviving the investment cycle in the country. 
Vacancies: More importantly, even as the case burden has increased, court resources haven’t kept up. While 
India’s Supreme Court is now fully sta?ed (with 33 judges out of the sancAoned 34 currently), the remaining 
courts remain chronically understa?ed. The sancAoned strength of India’s High Courts is 1,049 but 
currently, there are only 680 judges in o?ce (a vacancy rate of 37%). Similarly, in the lower courts, the 
vacancy rates for judges is at 25%. In 2016, Chief JusAce T.S. Thakur esAmated that India needed 70,000 
more judges to clear the legal system’s backlog.  
Over the years, various commissions have laid out several recommendaAons to tackle the issue 
comprehensively. For instance, the 11th Finance commission in 2005 had recommended the formaAon of 
fast-track courts to expedite cases. More recently in 2014, the 245th Law Commission recommended 
se\ng up special courts adjudicated by recent law graduates to hear more trivial cases (such as tra?c 
o?ences) and raising the reArement age of judges in lower courts. Last year, the Law Minister, Ravi Shankar 
Prasad had suggested implemenAng a centralized recruitment system for lower courts along the lines of the 
Union Public Services Commission.  
Issue of Appointments: One of the important issues plaguing the Indian judiciary is that of appointments. 
The NJAC was over-ruled to bring back the Collegium system wherein appointment of Judes is done by the 
Collegium body consisAng of judges themselves leading to allegaAons of corrupAon and nepoAsm. 
However, JusAce Madan Lokur argues that while Judges recommend recommend judges for appointment—
www.YouTube.com/SleepyClasses 
www.SleepyClasses.com 
the process of appointment is sAll carried out by the poliAcal execuAve with the President signing the 
warrant of appointment. 
Overstepping its jurisdic>on: In the pendency of cases, another thing highlighted is the highly acAvist role 
adopted by the Indian higher judiciary. The increasing writ jurisdicAon has further increased the workload. 
Furthermore certain decisions of the Supreme Court have been seen as violaAng the separaAon of powers 
and stepping into the jurisdicAon of the ExecuAve and Legislature. Banning of alcohol along state and 
naAonal highways, naAonal anthem to be played in all cinemas were seen as examples of the same. Pratap 
Bhanu Mehta has been extremely criAcal of the populist stance oden adopted by a non democraAc 
insAtuAon like Judiciary.  
Rise of Personal, fall of the ins>tu>on: The increasing acAvism has also led to subjecAve opinions of the 
judges creeping into the realm of law which has led to rise of issues. It controversially outlawed gay sex, but 
also recognised transgender people as a third gender. It whimsically ruled that naAonal anthem should be 
played in cinema theatres, but, in a landmark judgement, also ruled that ci>zens have a fundamental right 
to privacy. 
Poli>cal Pressures and corrup>on: Judges, say many, are also vulnerable to poliAcal pressures because 
many take up presAgious government jobs ader reArement. One reason could be their relaAvely modest 
pay: salaries of judges have been hiked only four Ames in the past 67 years, and even then at a lower rate 
than the salaries of lawmakers. The appointment of judges and Chief JusAces as Governors and in other 
authoriAes has highlighted these issues. The press conference against former CJI Deepak Misra and 
allegaAons of sexual harassment against former CJI Gogoi also points to deepening mistrust even towards 
the higher judiciary.  
Allega>ons on Judiciary  
The bid to iniAate impeachment of former CJI JusAce Deepak Misra and the allegaAons of sexual 
misconduct on former CJI Ranjan Gogoi drew ahenAon to the Judges (Inquiry) Act, 1968. The Act is a 
procedural statute, which regulates “the procedure for the invesAgaAon and proof of the misbehaviour or 
incapacity of a judge of the Supreme Court or of a High Court and for the presentaAon of an address by 
Parliament to the President and for maher, connected therewith”. 
A procedure for removal of Judges of the High Court and Supreme Court by way of address of the Houses 
of Parliament to the President is contained in Art. 124(4) of the ConsAtuAon of India, read with proviso (b) 
to Art. 124(2) and proviso (b) to Art. 217(1), for ‘proved misbehaviour or incapacity’. The Judges (Inquiry) 
Act, 1968 contains details of the impeachment process:
• The mo>on is to be signed by 50 members of Rajya Sabha or 100 members of Lok Sabha.
• If it is admihed, an inquiry commiLee will probe the charges. 
• SecAon 3 describes the invesAgaAon into the charges by a commihee of three members, who would 
be selected by the Chairperson or Speaker. Once formed, the commihee will frame de?nite charges 
against the judge on the basis of which the invesAgaAon is proposed to be held.  
• The commihee has three members: a Supreme Court judge, a High Court Chief JusAce, and an eminent 
jurist.  
www.YouTube.com/SleepyClasses 
www.SleepyClasses.com 
• Such charges, together with a statement of the grounds on which each such charge is based, shall be 
communicated to the judge.  
• The judge will then be given a reasonable opportunity to present a wrihen statement in his or her 
defence within the Ame speci?ed by the commihee.  
• The government, if required by the Speaker or the Chairperson, can appoint an advocate to conduct 
the case against the judge. The judge must also be given opportunity to cross-examine witnesses.  
• At the conclusion of the invesAgaAon, the commihee is to submit a detailed report to the Speaker or 
Chairperson. If the report has a ?nding that the judge is guilty of any misbehaviour or su?ers from an 
incapacity, then, the removal moAon shall, together with the report of the commihee, be taken up for 
consideraAon by the House or the Houses of Parliament in which it is pending.
• It has to be passed by a majority of the House and 2/3rds of those present and vo>ng in the same 
session.
• Finally, the President will issue the order removing the judge. 
JusAce Ramaswamy of the Supreme Court faced such a moAon.  The inquiry commihee found that the 
charges against him were valid.  However, the moAon to impeach him did not gather the required support in 
Lok Sabha. 
In case the judge denies that he or she is unable to discharge the duAes of o?ce “e?ciently” due to any 
physical or mental incapacity, the commihee will arrange for the medical examinaAon of the judge by such 
medical board as may be appointed for the purpose by the Speaker or Chairman.  
If the judge refuses to undergo the examinaAon considered necessary by the medical board, the board shall 
submit a report to the commihee staAng the case. The commihee may, on receipt of such report, presume 
that the judge su?ers from physical or mental incapacity as alleged in the removal moAon.  
The commihee may, ader considering the wrihen statement of the judge and the medical report, if any, 
amend the charges. In such a case, the judge would be given a reasonable opportunity of presenAng a fresh 
wrihen statement of defence. 
The process of impeachment has oden been criAcised. There is no mechanism for oversight of the judiciary 
or even feedback. This is unsaAsfactory at the best of Ames, but worked as an uneasy compromise when 
the execuAve played its consAtuAonally envisaged role in appoinAng judges. This role was done away with 
and the Judiciary acquired the unalloyed right of self-propagaAon, with its ruling in 1993 in the so-called 
Second Judges Case. Since then, the Judiciary has been accountable only to itself. 
It is against this background that the 195th Report of the Law Commission, the 2006 and 2008 Amendment 
bills to the Judges (Inquiry) Act, 1968 and the Judicial Standards and Accountability Council Bill 2010 were 
produced, to propose a provision for inquiring into complaints against judges and taking acAon on the 
?ndings, including stringent penalAes on mischievous complainants.  
A three-member in-house commihee headed by JusAce S.A. Bobde has been consAtuted to probe the 
allegaAons of sexual misconduct against the Chief JusAce of India (CJI) Ranjan Gogoi. However, it was 
criAcised as in-house commihee does not enjoy the legiAmacy, powers and stature of the Inquiry 
Commihee, to be set up by the speaker of the Lok Sabha or the chairman of the Rajya Sabha under the 
Judges Inquiry Act. 
www.YouTube.com/SleepyClasses 
www.SleepyClasses.com 
However, there is nothing prevenAng the in-house commihee or the judge who is facing the allegaAons 
from following certain principles laid down in the context of the pendency of proceedings before the Inquiry 
Commihee, set up by the presiding o?cers of either of the Houses of parliament. 
Need for Na>onal Judicial Commission 
Growing dissaAsfacAon with the failure of in-house mechanism, it has been rightly felt that an independent 
mechanism like the NJC would help in achieving the much needed accountability. The suggesAon for a NJC 
has been made by the 80th Report of the Law Commission of India and the 121st Report of Law 
Commission of India. The body will consist of the following members: 
(i) One member nominated by a collegium of all the judges of Supreme Court. 
(ii) One member nominated by collegiums of all Chief JusAces of High Court 
(iii) One member nominated by the cabinet 
(iv) One member nominated by a collegium of the Speaker, Leader of the OpposiAon in the Lok Sabha and 
the leader of OpposiAon in the Rajya Sabha 
(v) One member nominated by a collegium of Chief Vigilance Commissioner of the Central Vigilance 
Commission (CVC), Comptroller and Auditor General (CAG) and the Chairperson of the NaAonal Human 
Rights Commission.  
(vi) They will work as full Ame members. They will have invesAgaAng machinery, where charges against 
judges will get invesAgated.  
According to the commihee on judicial accountability, this commission will also select judges for 
appointment to HC and SC, which will be noA?ed for public informaAon. The NaAonal Commission to 
review the Working of ConsAtuAon also recommended the se\ng up of a NaAonal Judicial Commission to 
perform both the tasks of appointment as well as looking into complaints of deviant behaviour of all kinds 
and complaints of misbehaviour and incapacity against judges of The Supreme Court and the High Courts. 
If the commihee ?nds that the maher is serious enough to call for a fuller invesAgaAon or inquiry, it shall 
refer the maher for a full inquiry to the commihee [consAtuted under the Judges’ (Inquiry) Act, 1968]. The 
commihee under the Judges Inquiry Act shall be a permanent commihee with a ?xed tenure with 
composiAon indicated in the said Act and not one consAtuted ad-hoc for a parAcular case or from case to 
case, as is the present posiAon under secAon 3(2) of the Act.  
Review Pe>>on 
A judgment of the Supreme Court becomes the law of the land, according to the ConsAtuAon. It is ?nal 
because it provides certainty for deciding future cases. However, the ConsAtuAon itself gives, under ArAcle 
137, the Supreme Court the power to review any of its judgments or orders. This departure from the 
Supreme Court’s ?nal authority is entertained under speci?c, narrow grounds. So, when a review takes 
place, the law is that it is allowed not to take fresh stock of the case but to correct grave errors that have 
resulted in the miscarriage of jusAce. 
www.YouTube.com/SleepyClasses 
www.SleepyClasses.com 
Page 5


Crises in the Indian Judiciary- Issues: 
Pendency: Former Supreme Court Judge Madan Lokur points out that that the biggest problem facing the 
judiciary is the number of pending cases—over three crores. The arrears in tribunals and commissions are 
staggering too and most cases directly impact the common ciAzen in everyday life. The 2017 economic 
survey of the ?nance ministry pointed out that the slow resoluAon of economic and commercial cases was 
one of the biggest stumbling blocks in reviving the investment cycle in the country. 
Vacancies: More importantly, even as the case burden has increased, court resources haven’t kept up. While 
India’s Supreme Court is now fully sta?ed (with 33 judges out of the sancAoned 34 currently), the remaining 
courts remain chronically understa?ed. The sancAoned strength of India’s High Courts is 1,049 but 
currently, there are only 680 judges in o?ce (a vacancy rate of 37%). Similarly, in the lower courts, the 
vacancy rates for judges is at 25%. In 2016, Chief JusAce T.S. Thakur esAmated that India needed 70,000 
more judges to clear the legal system’s backlog.  
Over the years, various commissions have laid out several recommendaAons to tackle the issue 
comprehensively. For instance, the 11th Finance commission in 2005 had recommended the formaAon of 
fast-track courts to expedite cases. More recently in 2014, the 245th Law Commission recommended 
se\ng up special courts adjudicated by recent law graduates to hear more trivial cases (such as tra?c 
o?ences) and raising the reArement age of judges in lower courts. Last year, the Law Minister, Ravi Shankar 
Prasad had suggested implemenAng a centralized recruitment system for lower courts along the lines of the 
Union Public Services Commission.  
Issue of Appointments: One of the important issues plaguing the Indian judiciary is that of appointments. 
The NJAC was over-ruled to bring back the Collegium system wherein appointment of Judes is done by the 
Collegium body consisAng of judges themselves leading to allegaAons of corrupAon and nepoAsm. 
However, JusAce Madan Lokur argues that while Judges recommend recommend judges for appointment—
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the process of appointment is sAll carried out by the poliAcal execuAve with the President signing the 
warrant of appointment. 
Overstepping its jurisdic>on: In the pendency of cases, another thing highlighted is the highly acAvist role 
adopted by the Indian higher judiciary. The increasing writ jurisdicAon has further increased the workload. 
Furthermore certain decisions of the Supreme Court have been seen as violaAng the separaAon of powers 
and stepping into the jurisdicAon of the ExecuAve and Legislature. Banning of alcohol along state and 
naAonal highways, naAonal anthem to be played in all cinemas were seen as examples of the same. Pratap 
Bhanu Mehta has been extremely criAcal of the populist stance oden adopted by a non democraAc 
insAtuAon like Judiciary.  
Rise of Personal, fall of the ins>tu>on: The increasing acAvism has also led to subjecAve opinions of the 
judges creeping into the realm of law which has led to rise of issues. It controversially outlawed gay sex, but 
also recognised transgender people as a third gender. It whimsically ruled that naAonal anthem should be 
played in cinema theatres, but, in a landmark judgement, also ruled that ci>zens have a fundamental right 
to privacy. 
Poli>cal Pressures and corrup>on: Judges, say many, are also vulnerable to poliAcal pressures because 
many take up presAgious government jobs ader reArement. One reason could be their relaAvely modest 
pay: salaries of judges have been hiked only four Ames in the past 67 years, and even then at a lower rate 
than the salaries of lawmakers. The appointment of judges and Chief JusAces as Governors and in other 
authoriAes has highlighted these issues. The press conference against former CJI Deepak Misra and 
allegaAons of sexual harassment against former CJI Gogoi also points to deepening mistrust even towards 
the higher judiciary.  
Allega>ons on Judiciary  
The bid to iniAate impeachment of former CJI JusAce Deepak Misra and the allegaAons of sexual 
misconduct on former CJI Ranjan Gogoi drew ahenAon to the Judges (Inquiry) Act, 1968. The Act is a 
procedural statute, which regulates “the procedure for the invesAgaAon and proof of the misbehaviour or 
incapacity of a judge of the Supreme Court or of a High Court and for the presentaAon of an address by 
Parliament to the President and for maher, connected therewith”. 
A procedure for removal of Judges of the High Court and Supreme Court by way of address of the Houses 
of Parliament to the President is contained in Art. 124(4) of the ConsAtuAon of India, read with proviso (b) 
to Art. 124(2) and proviso (b) to Art. 217(1), for ‘proved misbehaviour or incapacity’. The Judges (Inquiry) 
Act, 1968 contains details of the impeachment process:
• The mo>on is to be signed by 50 members of Rajya Sabha or 100 members of Lok Sabha.
• If it is admihed, an inquiry commiLee will probe the charges. 
• SecAon 3 describes the invesAgaAon into the charges by a commihee of three members, who would 
be selected by the Chairperson or Speaker. Once formed, the commihee will frame de?nite charges 
against the judge on the basis of which the invesAgaAon is proposed to be held.  
• The commihee has three members: a Supreme Court judge, a High Court Chief JusAce, and an eminent 
jurist.  
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• Such charges, together with a statement of the grounds on which each such charge is based, shall be 
communicated to the judge.  
• The judge will then be given a reasonable opportunity to present a wrihen statement in his or her 
defence within the Ame speci?ed by the commihee.  
• The government, if required by the Speaker or the Chairperson, can appoint an advocate to conduct 
the case against the judge. The judge must also be given opportunity to cross-examine witnesses.  
• At the conclusion of the invesAgaAon, the commihee is to submit a detailed report to the Speaker or 
Chairperson. If the report has a ?nding that the judge is guilty of any misbehaviour or su?ers from an 
incapacity, then, the removal moAon shall, together with the report of the commihee, be taken up for 
consideraAon by the House or the Houses of Parliament in which it is pending.
• It has to be passed by a majority of the House and 2/3rds of those present and vo>ng in the same 
session.
• Finally, the President will issue the order removing the judge. 
JusAce Ramaswamy of the Supreme Court faced such a moAon.  The inquiry commihee found that the 
charges against him were valid.  However, the moAon to impeach him did not gather the required support in 
Lok Sabha. 
In case the judge denies that he or she is unable to discharge the duAes of o?ce “e?ciently” due to any 
physical or mental incapacity, the commihee will arrange for the medical examinaAon of the judge by such 
medical board as may be appointed for the purpose by the Speaker or Chairman.  
If the judge refuses to undergo the examinaAon considered necessary by the medical board, the board shall 
submit a report to the commihee staAng the case. The commihee may, on receipt of such report, presume 
that the judge su?ers from physical or mental incapacity as alleged in the removal moAon.  
The commihee may, ader considering the wrihen statement of the judge and the medical report, if any, 
amend the charges. In such a case, the judge would be given a reasonable opportunity of presenAng a fresh 
wrihen statement of defence. 
The process of impeachment has oden been criAcised. There is no mechanism for oversight of the judiciary 
or even feedback. This is unsaAsfactory at the best of Ames, but worked as an uneasy compromise when 
the execuAve played its consAtuAonally envisaged role in appoinAng judges. This role was done away with 
and the Judiciary acquired the unalloyed right of self-propagaAon, with its ruling in 1993 in the so-called 
Second Judges Case. Since then, the Judiciary has been accountable only to itself. 
It is against this background that the 195th Report of the Law Commission, the 2006 and 2008 Amendment 
bills to the Judges (Inquiry) Act, 1968 and the Judicial Standards and Accountability Council Bill 2010 were 
produced, to propose a provision for inquiring into complaints against judges and taking acAon on the 
?ndings, including stringent penalAes on mischievous complainants.  
A three-member in-house commihee headed by JusAce S.A. Bobde has been consAtuted to probe the 
allegaAons of sexual misconduct against the Chief JusAce of India (CJI) Ranjan Gogoi. However, it was 
criAcised as in-house commihee does not enjoy the legiAmacy, powers and stature of the Inquiry 
Commihee, to be set up by the speaker of the Lok Sabha or the chairman of the Rajya Sabha under the 
Judges Inquiry Act. 
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However, there is nothing prevenAng the in-house commihee or the judge who is facing the allegaAons 
from following certain principles laid down in the context of the pendency of proceedings before the Inquiry 
Commihee, set up by the presiding o?cers of either of the Houses of parliament. 
Need for Na>onal Judicial Commission 
Growing dissaAsfacAon with the failure of in-house mechanism, it has been rightly felt that an independent 
mechanism like the NJC would help in achieving the much needed accountability. The suggesAon for a NJC 
has been made by the 80th Report of the Law Commission of India and the 121st Report of Law 
Commission of India. The body will consist of the following members: 
(i) One member nominated by a collegium of all the judges of Supreme Court. 
(ii) One member nominated by collegiums of all Chief JusAces of High Court 
(iii) One member nominated by the cabinet 
(iv) One member nominated by a collegium of the Speaker, Leader of the OpposiAon in the Lok Sabha and 
the leader of OpposiAon in the Rajya Sabha 
(v) One member nominated by a collegium of Chief Vigilance Commissioner of the Central Vigilance 
Commission (CVC), Comptroller and Auditor General (CAG) and the Chairperson of the NaAonal Human 
Rights Commission.  
(vi) They will work as full Ame members. They will have invesAgaAng machinery, where charges against 
judges will get invesAgated.  
According to the commihee on judicial accountability, this commission will also select judges for 
appointment to HC and SC, which will be noA?ed for public informaAon. The NaAonal Commission to 
review the Working of ConsAtuAon also recommended the se\ng up of a NaAonal Judicial Commission to 
perform both the tasks of appointment as well as looking into complaints of deviant behaviour of all kinds 
and complaints of misbehaviour and incapacity against judges of The Supreme Court and the High Courts. 
If the commihee ?nds that the maher is serious enough to call for a fuller invesAgaAon or inquiry, it shall 
refer the maher for a full inquiry to the commihee [consAtuted under the Judges’ (Inquiry) Act, 1968]. The 
commihee under the Judges Inquiry Act shall be a permanent commihee with a ?xed tenure with 
composiAon indicated in the said Act and not one consAtuted ad-hoc for a parAcular case or from case to 
case, as is the present posiAon under secAon 3(2) of the Act.  
Review Pe>>on 
A judgment of the Supreme Court becomes the law of the land, according to the ConsAtuAon. It is ?nal 
because it provides certainty for deciding future cases. However, the ConsAtuAon itself gives, under ArAcle 
137, the Supreme Court the power to review any of its judgments or orders. This departure from the 
Supreme Court’s ?nal authority is entertained under speci?c, narrow grounds. So, when a review takes 
place, the law is that it is allowed not to take fresh stock of the case but to correct grave errors that have 
resulted in the miscarriage of jusAce. 
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The court has the power to review its rulings to correct a “patent error” and not “minor mistakes of 
inconsequenAal import”. In a 1975 ruling, JusAce Krishna Iyer said a review can be accepted “only where a 
glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility”. ArAcle 137 of 
the ConsAtuAon provides that subject to provisions of any law and rule made under ArAcle 145 the 
Supreme Court of India has the power to review any judgement pronounced (or order made) by it. Under 
Supreme Court Rules, 1966 such a peAAon needs to be ?led within 30 days from the date of judgement or 
order. It is also recommended that the peAAon should be circulated without oral arguments to the same 
bench of judges that delivered the judgement (or order) sought to be reviewed.  
Grounds for Review: 
In a 2013 ruling, the Supreme Court itself laid down three grounds for seeking a review of a verdict it has 
delivered —  
1. the discovery of new and important maher or evidence which, ader the exercise of due diligence, was 
not within the knowledge of the peAAoner or could not be produced by him;  
2. mistake or error apparent on the face of the record;  
3. or any other su?cient reason. In subsequent rulings, the court speci?ed that “any su?cient reason” 
means a reason that is analogous to the other two grounds. 
In another 2013 ruling (Union of India v. Sandur Manganese & Iron Ores Ltd), the court laid down nine 
principles on when a review is maintainable. “A review is by no means an appeal in disguise whereby an 
erroneous decision is reheard and corrected but lies only for patent error,” the court said. It added that the 
mere possibility of two views on the subject cannot be a ground for review. 
It is not necessary that only parAes to a case can seek a review of the judgment on it. As per the Civil 
Procedure Code and the Supreme Court Rules, any person aggrieved by a ruling can seek a review. 
However, the court does not entertain every review peAAon ?led. It exercises its discreAon to allow a 
review peAAon only when it shows the grounds for seeking the review. 
Procedure: 
•
As per 1996 rules framed by the Supreme Court, a review peAAon must be ?led within 30 days of the 
date of judgment or order. While a judgment is the ?nal decision in a case, an order is an interim ruling 
that is subject to its ?nal verdict.  
•
In certain circumstances, the court can condone a delay in ?ling the review peAAon if the peAAoner can 
establish strong reasons that jusAfy the delay. 
•
The rules state that review peAAons would ordinarily be entertained without oral arguments by 
lawyers. It is heard “through circulaAon” by the judges in their chambers.  
•
Review peAAons are also heard, as far as pracAcable, by the same combinaAon of judges who delivered 
the order or judgment that is sought to be reviewed. If a judge has reAred or is unavailable, a 
replacement is made keeping in mind the seniority of judges.  
•
In excepAonal cases, the court allows an oral hearing. In a 2014 case, the Supreme Court held that 
review peAAons in all death penalty cases will be heard in open court by a Bench of three judges. 
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