Judiciary (Part -2) UPSC Notes | EduRev

Indian Polity for UPSC CSE

UPSC : Judiciary (Part -2) UPSC Notes | EduRev

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Importance of an independent judiciary 

The separation of powers is essential in a democracy. A strong, independent and well-organised judiciary is charged with the duty of preventing arbitrary use of governmental authority and safeguarding the rights and liberties of citizens in a democracy.

Under a federal form of government, the judiciary plays an additional role as guardian of the Constitution. Disputes may occur if a particular branch of government oversteps the limits of its authority.

Only a powerful and impartial judiciary can settle such disputes and keep the different levels and organs of government within the spheres prescribed for them. If the judiciary is not dependent on any other power, its judgement will be free of fear and bias.

The Constitution has secured the independence of the judges in a number of ways:

(i) According to Article 125, the salaries of the Judges are fixed and cannot be varied to their disadvantage during their term (except during a Financial Emergency). These salaries are, furthermore, charged on the Consolidated Fund of India and hence not votable.
(ii) Security of service is assured to the judges; though the appointing authority is the President, the process of removing the judges from office is difficult, and they can be removed only on grounds of proved misbehaviour and incapacity.
(iii) The conduct of a judge of the Supreme Court is not to be discussed in Parliament, except upon a motion for an address to the President for the removal of the judge.
(iv) The jurisdiction of the Court cannot be curtailed by Parliament.
(v) After retirement, a judge of the Supreme Court shall not plead or act in any court or before any authority within the territory of India.
(vi) The Court has the right to punish any person for its contempt.
(vii) The Court is free to recruit its staff and determine their service conditions without any interference from any other authority.

Writ jurisdiction

The jurisdiction of the Supreme Court to consider an application under Art. 32 for the issue of a constitutional writ for the enforcement of Fundamental Rights is called wr it jurisdiction. However, sometimes it is also referred to as an ‘original’ jurisdiction of the Supreme Court. It is in a sense original, for the aggrieved party has the right to directly move the Supreme Court by presenting a petition, instead of coming through a High Court by way of appeal.

However, it should be treated as a separate jurisdiction since the dispute in such cases is not between the units of the Union but an aggrieved individual and the Government or any of its agencies. Hence the jurisdiction under Art. 32 is not really like jurisdiction under Art. 131, namely original jurisdiction.

The functions of the Supreme Court under Art. 131 are purely of a federal character and are limited to disputes between the Government of India and any of the States of the Union, the Government of India and any State on one side and any other State or States on the other side, or between two or more States.

The changes brought in the jurisdiction of the Supreme Court by the 42nd, 43rd and 44th amendments 

The jurisdiction of the Supreme Court was curtailed by the 42nd Amendment of the Constitution (1976), in several ways. But some of these changes have been recoiled by the Janata Government passing the 43rd Amendment Act, 1977 and 44th Amendment Act, 1978.

Article 32A was inserted to provide that the Supreme Court, so long as this Article is not repealed, shall have no jurisdiction, in a proceeding under Art. 32, to invalidate a state law, unless, in that proceeding a central law, too, has not been challenged. Art. 32 A has been repealed, and the pre-1976 position restored, by the 43rd Amendment Act, 1977.

The jurisdiction of the Supreme Court to invalidate any Central law or a State law (in its appellate jurisdiction) was subjected to a sever procedural restrictions by inserting Art. 144 A. But it has been repealed by the 43rd Amendment Act, 1977.

The procedure for obtaining from the High Court a certificate of fitness for appeal to the Supreme Court, under Art. 132 (1), 133 (1) and 134 (1) (c), has been simplified by the 44th Amendment Act, 1978, by inserting Art. 134 A which provides that an oral application by the party aggrieved immediately after the passing of the judgement or order or sentence will suffice for this purpose and that if such an application is made, the High Court shall have to determine the question instantly and either grant or refuse the certificate.

The intent of the two new Articles 323 A-B was to take away the jurisdiction of the Supreme Court under Art. 32 over orders and decisions of Administrative Tribunals. These Articles could, however, be implemented only by legislation which Mrs.
 Gandhi’s Government had no time to undertake. Janata Government failed to dislodge these two articles owing to Congress opposition to the 45th Amendment Bill in the Rajya Sabha.

Two clauses 368 (4)-(5) were inserted in Art. 368 with a view to preventing the Supreme Court to invalidate any Constitution Amendment Act on the theory of “basic features of the Constitution” or anything of that nature. Janata Government failed to repeal these two provisions as well, for the reason just stated, under Art. 323 A-B.

Set-up and composition of High Court 

The Constitution provides for a High Court for every State. It is the highest body of justice and judicial administration in the State. Parliament can, by law, establish a common High Court for two or more States.

High Courts enjoy the following types of jurisdiction:

(a) General,
(b) Supervisory, and
(c) Writ

Every High Court is also a Court of Record and has the power to punish for its contempt.

Every High Court shall consist of a Chief Justice and such other judges as the President may appoint from time to time. In other words, the strength of the High Courts has not been determined by the Constitution. The strength of a High Court Bench varies from court to court.

Every Judge of a High Court is appointed by the President. The President  consults the Chief Justice of India, the Governor of the State and (in the matter of appointment of a Judge other than the Chief Justice) also the Chief justice of the concerned High Court.

The qualifications prescribed in the Constitution for being eligible for appointment as a judge of the High Court are: 

(a) He must be a citizen of India,
(b) He must not be over 62 years,
(c) He must have held a judicial office, or
(d) He must be an Advocate of High Court of ten years standing.

An eminent jurist can be straightaway appointed as a Judge of the Supreme Court but, paradoxically, such a jurist cannot be appointed as a High Court Judge.

As, in the case of Supreme Court Judges, the Constitution has sought to maintain, by a number of provisions, the independence of the High Court Judges.

While ensuring the independence of the Judiciary, the Constitution has placed the High Courts under the control of the Union in certain vital matters. The underlying idea is to keep them outside the pale of ‘provincial politics’.

As the head of the Judiciary in the State, the High Court wields administrative control over the subordinate judiciary in the State.

Control of the Union over High Courts 

While ensuring the independence of the Judiciary, the Constitution placed the High Court under the control of the Union in certain important matters, in order to keep them outside the range of ‘provincial politics’. Thus, even though the High Court stands at the head of the State Judiciary, it is not so sharply separated from the federal Government as the highest Court of an American State (called the State Supreme Court) is. The control of the Union over a High Court in India is exercised in the following matters:

Appointment [Art. 217], transfer from one High Court to another [Art. 222] and removal [Art. 217 (1), Prov. (b)] of Judges of High Courts.

The constitution and organisation of High Courts and the power to establish a common High Court for two or more States and to extend the jurisdiction of a High Court to, or to exclude its jurisdiction from, a Union Territory, are all exclusive powers of the Union Parliament.

There are some provisions introduced into the original Constitution by subsequent amendments, which affect the independence of High Court Judges, as compared with Supreme Court Judges:

Art. 224 was introduced by substitution, in 1956, to provide for the appointment of additional Judges to meet ‘any temporary increase in the business of a High Court’. An additional Judge, so appointed, holds office for two years, but he may be made permanent at the end of that term. There is no such corresponding provision for the Supreme Court.
 It was introduced in the case of the High Courts because of the problem of arrears of work, which was expected to disappear in the near future. Now that the problem of arrears has become a standing problem which is being met by the addition of numerous Judges, there is no particular reason why the makeshift device of additional appointment should continue.

The inherent vice of this latter device is that it keeps an additional Judge on probation and under the tutelage of the Chief Justice as well as the Government as to whether he would get a permanent appointment at the end of two years. So far as the judicial power of a High Court Judge is concerned, he ranks as an equal to every other member of a Bench and is not expected, according to any principle relating to the administration of justice, to ‘agree’ with the Chief Justice or any other senior member of a Bench where his learning, conscience or wisdom dictates otherwise, or to stay his hands where the merits of a case require a judgement against the Government. The fear of losing his job on the expiry of 2 years obviously acts as an inarticulate obsession upon an additional Judge.

Similarly, Cl. (3) was inserted in Art. 217 in 1963, giving the President, in consultation with the Chief Justice of India, the final power to determine the age of a High Court Judge, if any question is raised by anybody in that behalf. By the same amendment of 1963 (15th Amendment), Cl. (2A) was inserted in Art. 124, laying down that a similar question as to the age of a Supreme Court Judge shall be determined in such manner as Parliament may by law provide. A High Court Judge’s position has thus become not only unnecessarily inferior to that of a Supreme Court Judge but even to that of a subordinate Judicial Officer, because any administrative determination of the latter’s age is open to challenge in a Court of law, but in the case of a High Court Judge, it is made ‘final’ by the Constitution itself. There is, apparently, no impelling reason why a provision similar to Cl. (2A) to Art. shall not be introduced in Art. 217, in place of Cl. (3), in question.

Anti-defection Act of 1985

  • The 52nd Amendment Act provides for disqualification of a member of a legislature, if he defects from his party to any other. ­
  • The Act provides for final decision by the Speaker/Chairman of the House.
     Exceptions
  • (a) No member of a legislature can be disqualified, if a group of one-third of the total membership of the party decides in favour of a split; or
  • (b) a group of two-third decides in favour of merger with some other party.
     Weaknesses of the Act
  • ­ Freedom of ‘Conscience’ of the legislators is violated and the right of dissent crushed. ­
  • The provision to dub a person as defector and expel him for the membership of the House has been made beyond judicial scrutiny. This is a highly objectionable provision.
  • ­ The punishment meted out to a ‘defector’ is too drastic and is bound to lead to party tyranny, thereby marring the effective functioning of democracy.
     (i) The better expedient would be to arrest the scope for material temptations before legislators; the potential ‘defectors’ should be deprived of any lucrative assignment.
     (ii) The parties admitting them should be de-recognised by the Election Commission for a fixed duration. ­
  • These steps would act as a deterrent in curbing defections.
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