The Judiciary: Supreme Court (Part -1) - Indian Polity and Governance Notes | Study Polity and Constitution (Prelims) by IAS Masters - UPSC

UPSC: The Judiciary: Supreme Court (Part -1) - Indian Polity and Governance Notes | Study Polity and Constitution (Prelims) by IAS Masters - UPSC

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The Judiciary: Supreme Court (Part -1)

 

The Supreme Court of India was constituted under Article 124 of the Constitution. It commenced its sittings on January 28, 1950.

The original Constitution of 1950 provided for a Supreme Court with a Chief Justice and 7 pu isne Judges -(" puisne judge " is a judge of the Supreme Court other than the Chief Justice). Parliament is given the power to increase this number.There was progressive increase in the total strength of the apex court to 26 in 1986. Supreme Court (Number of Judges) Amendment Act, 2008 increased the number of judges to 31 including the Chief Justice of India.They are appointed by the President of India.The proceedings of the Supreme Court are mainly in .English and the procedure is regulated by the Supreme Court Rules, 1966.

Qualifications

In order to be appointed as a Judge of the Supreme Court,a person’ must be a citizen of India and must have been:

  • For at least five years, a Judge of a High Court or of two or more such Courts in succession, or
  • An advocate of a High Court or of two or more such Courts in succession for at least 10 years, or
  • in the opinion of the President, a distinguished jurist.

Appointment of Judges to the Supreme Court: Details

Art. 124 of the Constitution of India deals with the appointment of Supreme Court Judges .

Art 124(2) says that every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary . In the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. However, the actual process of appointment has gone through changes due to apex court verdicts.

Collegium of Judges

In the SP Gupta case ( 1982) a seven-judge Constitution Bench held that the President is the final authority to appoint judges. He need not follow the advice of the judges whom he consults. In other words,'consultation’is not’concurrence’.

It is known as the First Judges case.

In 1993, a nine-judge Constitution Bench of the Supreme Court in the Advocates-on-Record Association case ,over-ruJed the decision given in S.P.Gupta. The Supreme Court observed lhat when the President consulted" the judges of the Supreme Court and the High Courts, the advice received by him is binding on him- ’consultation’’ is concurrence’. It held that the recommendation for appointment should be made by the Chief Justice of India in consultation with his two senior-most colleagues and that such recommendation should be followed by the President. In case of any divergence between the judicial advice and the Presidential opinion, the former will prevail. Art 50 is quoted to give substance to the verdict- divesting the executive of its judicial powers.

It is known as the Second Judges Case.

The 1993 decision was reaffirmed with minor modifications in 1998 , on a reference made by the President under Article 143 of the Constitution. It was held that the recommendation for appointment etc should be made by the Chief Justice of India and his four senior-most colleagues (instead of the Chief Justice of India and his two senior-most colleagues in the earlier verdict in 1993)- referred to as the ‘Collegium’ for the purpose of appointment of Judges to the Supreme Court.                                                                                  *

It is known as the Third Judges Case.                                                                    " ,

So far as the appointment of the Chief Justice of the Supreme Court of Iridia is concerned, both the 1993 decision and the 1998 opinion lay down that the senior-most judge should always be appointed as the Chief Justice of lndia.The Constitution also provides for the appointment of a Judge of a High Court as an ad-hoc Judge of the Supreme Court and for Retired Judges of the Supreme Court or High Courts to sit and act as Judges of that Court.

Retirement, resignation and removal

Supreme Court judge retires when he attains the age of 65 years. He may resign addressing the letter to the President of India. He may be removed by an order of the President based on parliamentary vote.

Removal of Supreme Court Judge

Supreme Court Judge may be removed from his office by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting on the ground of proved misbehaviour or incapacity. Article 124(5) specifically lays down that Parliament may by law regulate the procedure for the presentation of an address and for the investigation arid proof of the misbehaviour or incapacity. In pursuance of Article 124 (5), Parliament passed the Judges (Inquiry) Act, 1968. The Judges (Inquiry) Rules, 1969 lay down the details of procedure for investigation and inquiry into the allegations against a judge.

Judges (Inquiry) Act, 1968 regulates the procedure for the inquiry into an allegation of misbehaviour or incapacity of a Judge of the Supreme Court or High Court and for the presentation of an address by Parliament to the President for removing him from office , if charges have been proved.

The Act authorizes the constitution of a three-member committee once a motion for presenting an address to the President seeking the removal of a Judge is admitted in Parliament. The motion can be admitted only if 100 Lok Sabha or 50 Rajya Sabha members propose it to their respective Houses. The committee includes the Chief Justice or one of the Judges of the Supreme Court, Chief Justice of one of the High Courts, and one distinguished jurist.

The committee, after giving reasonable opportunity to the Judge concerned to defeitd himself/herself, has to submit its report to the Parliament. If the committee finds the Judge guilty- fully or partly, then its report, along with the motion, has to be considered by Parliament. The motion should be adopted by each House of Parliament by a majority of that House and by a majority of not less than two-thirds of the members of that House present and voting. The address shall be presented to the President during the same session of Parliament for the removal of the judge. The guilty Judge is removed from office by Presidential Order.

Justice Soumitra Sen of the Calcutta High Court tendered his^ resignation letter to the President to avoid being the first judge to be impeached by the Parliament. Justice Sen was due to face the impeachment proceedings in Lok Sabha in September 2011 after the Rajya Sabha passed the impeachment motion earlier successfully. -

Adhoc and Acting Judges

Art. 127 says that if there is no quorum of the Supreme Court judges to hold or continue any session of the Court , the CJ1 , with the previous consent of the President and in consultation with the Chief Justice of the High Court concerned can request in writing a judge of the high Court who is qualified to be a judge of the Supreme Court, to function as ad hoc judge of the Supreme Court. While, so attending as the judge of the Supreme Court he shall have all the jurisdiction, powers and privileges, and shall discharge the duties, of a Judge of the Supreme Court. -

Art. 128 says that retired High Court and Supreme Court judges may be requested by the CJI, with prior consent of the President to sit and function as the judge of the Supreme Court. Every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that Court. His consent is necessary for attendance as the acting judge.

Seat of Supreme Court

Art. 130 says that the Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.

Chief Justice of India

The Chief Justice of India is the highest-ranking judge in the Supreme Court of India, and thus holds the highest judicial position in India. As well as presiding in the Supreme Court, the Chief Justice also head its administrative functions.

The current Chief Justice is S. H. Kapadia, who has held the-office since May 2010.

According to Art. 124, in the case of appointment of a Judge other than the^Chief Justice, the Chief Justice of India shall always be consulted

As the chief judge,<the Chief Justice is responsible for the allocation of cases and appointment of constitutional benches which deal with important matters of Constitutional law and Presidential references under Art. 143. In accordance with Article 145 of the Constitution of India and the Supreme Court Rules of Procedure of 1966, the Chief Justice allocates work to the other judges, who are bound to refer the matter back to him or her in case they require the matter to be looked into by a bench of higher strength.

On the administrative side, the Chief Justice carries out the following functions:

  • appointment of court officials;
  • matters relating to the supervision and functioning of the Supreme Court.

Article 124 of the Constitution of India provides for the manner of appointing judges to the Supreme Court. However, no specific provision is made as to the appointment of the Chief Justice; as a result, the latter is appointed in the same manner as for the other judges to the Supreme Court.                               .      v

the Supreme Court declared (in the constitutional bench S.P. Gupta case) that the Government of India would be bound to nominate only the most senior judge of the Supreme Court for the position of Chief Justice, thereby removing a potential source for Government influence over the judiciary. In the appointment of the Chief Justice of the Supreme Court of India, both the 1993 decision and the 1998 opinion lay down that the senior-most judge should always be appointed.

In the 2nd Judges case 1993, it was said that the collegium headed by the CJ1 would recommend the names of judges for appointment to HCs and SC and also transfer and appointment of HC judges.      -

Once appointed, .the Chief Justice remains in office until his or her retirement or death, unless removed by impeachment.

CJI is administered oath by the President while the CJI administers oath to all other judges of the apex court.

Acting CJI

Art. 126 says that when the office of the Chief Justice of India is vacant or when he is not in a position to perform his duties, they are performed by such other judge of the Supreme Court that the President may appoint.

Benches of Supreme Court

To dispose of the cases before Supreme Court the matters are placed before various Benches of Supreme Court.

The Bail applications in appeals are heard by single-Judge (also known as Chamber Judge)

Most of the matters are decided by Division Benches of the Supreme Court- two judges. If the two judges disagree- which is rare- the view of the senior judge prevails.Or a third judge may be appointed by the CJI for the case.

Three-Judge Bench - Matters. placed before three-Judge Bench are considered priority matters.CVC case( 2011) and Vodafone case(2012).

All cases involving Constitutional Interpretation and Presidential references are placed before a five-Judge Bench, popularly known as a Constitution Bench.

The largest Bench so far was the 13-judge bench that delivered the Kesavananda Bharati case verdict in 1973. There has not been a 13 judge bench since then'or till then.

Another landmark verdict - Golaknath case( 1967) was determined by eleven-judge Bench .

Jurisdiction

The Supreme Court has original, appellate and advisory jurisdiction.

Orignal Jurisdiction

Original jurisdiction means that a case originates in the court. It may be exclusive or otherwise.

Under Art.l 31, exclusive original jurisdiction of the Supreme Court is one where no other court in the country enjoys the same power. It extends to all federal disputes- any dispute between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other dr between two or more States.

It also involves clarification as to whether a certain item is in the 'residuary!‘ category or not. To explain, the Constitution distributes legislative powers to the Union parliament and State Legislature in the VTT Schedule. Any item that comes upr subsequently and is not covered by the three Lists- Union, State and Concurrent is in the 'residuary ‘ category and belongs to the Union Parliament.

The writ jurisdiction of the Supreme Court is original but not exclusive as the power is also available to the High Courts(Art.226). Article 32 of the Constitution gives an extensive original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. It is empowered to issue writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them.

Appellate Jurisdiction

The appellate jurisdiction of the Supreme Court is given in Art. 132, 133 and 134 for Constitutional, civil and criminal cases respectively.While Constitutional cases involve deviation from the Constitution, civil and criminal cases are different in the following ways: Civil cases are generally brought by private individuals or corporations seeking to collect money owed or monetary damages. A criminal case is brought by the local, state or federal government in response to a suspected violation of law and seeks a fine cr a jail sentence or both. Criminal cases are generally initiated by the Government as crimes are a threat to the whole society and not only to a particular individual.

Constitutional Cases

Art. 132 of the Constitution provides for an appeal to the Supreme Court from any judgment of a High Court, whether in civil, criminal or other proceedings, if the High Court certifies that the case involves a substantial question of law^ as to the interpretation of the constitution.A substantial question of law means a question otTwhich two or more High Courts have differed.

For example, the Domestic Violence Act 2006 has been interpreted to have retrospective value for the aggrieved women some HCs and some others differed. Since retrospective laws of a criminal nature are not allowed under Art.20, it becomes a Constitutional case of substantial importance.

Civil cases

Appeals lie to the Supreme Court in civil matters (Art. 133)if the High Court concerned certifies

  1. that the case involves a substantial question of law of general importance, and
  2. that, in the opinion of the High Court, the said question needs to be decided by the Supreme Court.

The term 'general importance’ means that the case holds interest for a wider section of the society other than-the litigants. -

Criminal cases

According to Art. 134 and Criminal Procedure Code provisions, an appeal lies to the Supreme Court if the High Court

  1. has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or
  2. has withdrawn for trial before itself any case from any Court subordinate to its authority and has in such trial convicted the accused and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or
  3. certifies that the case is a fit one for appeal to the Supreme Court.

Earlier, life imprisonment meant an imprisonment of 14 to 20 years, but of late, the courts are interpreting it as 'imprisonment until the end of the natural life of the convict', unless remitted.

Parliament is authorised to confer on the Supreme Court any further powers in criminal jurisdiction, under Art. 134.

Difference between criminal and civil cases

In a criminal case, prosecution is by by the State of a person or organization, for committing a public wrong considered an offense against the State. Standard of proof for crimes is higher than for civil wrongs (torts) and, for major crimes such as a murder, guilt must be established beyond a reasonable doubt (see proof beyond a reasonable doubt). Civil cases on the other hand involve disputes between individuals or corporations and are settled by monetary payments and damages. Civil case is a lawsuit brought to redress a private wrong such as breach of contract, encroachment, or negligence; or -to enforce civil remedies such as compensation, damages etc.

Civil cases are generally brought by private individuals or corporations seeking to collect money owed or monetary damages. A criminal case is brought by the government in response to a suspected violation of law and seeks a fine, a jail sentence or both.

SLP                                  * .

The Supreme Court has a very wide appellate jurisdiction over all Courts and Tribunals in India as it may, in its discretion, grant special leave to appeal under Art. 136 of the Constitution from any judgment or order - interim or final-in any matte'r from any Court or Tribunal in the territory of India. However, SLP is not available against orders of military courts constituted under any law relating the Armed Forces.

Certain facets of SLP need to be noted: it is available against both interim and final orders; it is not a right of the aggrieved party; it is a discretionary power vested with the Supreme Court and needs to be used in cases where natural justice or others forms of justice are violated or substantive question of law is involved.

Art. 138

Art. 138 says that the powers of the Supreme Court can be enlarged by thd Parliament.

Art.139: Parliament may by law confer on the Supreme Court power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition,quo warranto and certiorari, or any of them, for any purposes other than those mentioned in clause (2) of article 32.

Power to transfer a case

Article 139A(1) of the Constitution provides that where cases involving the same or substantially the same question of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and Supreme Court is satisfied, on its own motion, or on an application made by the Attorney General of India or by a partyto any such case, that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases and dispose of all cases itself.

Article 139A(2) of the Constitution provides that the Supreme Court may, in pursuit of. justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court

Code of Civil Procedure and Code of Crirtiinal Procedure provide that Supreme Court may transfer any case from a High Court or other subordinate Court in one State to a High Court or other subordinate Court in any other State.

Art.140

It enables Parliament to confer ancillary powers on Supreme Court consistent with Constitution to make the Court more effectively discharge its Constitutional duties.

Art.141

It says that the law declared by Supreme Court is binding on all courts within the territory of India.

Art.142

It says that the Supreme Court , in the exercise of its jurisdiction, may pass such decree or make such order as is necessary for doing'complete justice in any caus.e pending before it, and it shall be enforceable throughout the territory of India

Advisory Jurisdiction Art 143

The Supreme Court has special advisory jurisdiction in matters which may specifically be referred to it by the President of Ind ia under Article 143 of the Constitution.

According to Art. 143, if it appears to the President that

  • a question of law or fact has arisen, or is likely to arise .
  • which is of publ ic importance and that
  • it is necessary to take the opinion and advice of the Supreme Court on it

the President of India may seek the advice of the Supreme Court on such,a matter. The Supreme Court may render its advice or it may decline to do so. But in one case such advice is to be mandatorily given: pre-Independence agreements and accords that India entered into.

If the apex courts accepts the reference, it sets up a Constitution bench and hears the arguments where the Government’s case is argued by the AG.

The Article is titled : Power of President to consult Supreme Court.

Under the Art.143, what the President seeks and what the court gives is opinion and therefore, it is not binding. But it has the value of a judgement for all courts and other bodies.

The power to reject a reference by the apex court is given as all references may not be amenable to judicial clarification- a reference made whether there was a temple in the place where the mosque was built five centuries back( 1993).

But if the SC answers the questions raised in a presidential reference, would its advice be binding? The question came up in the Cauvery Waters inter-state river water dispute of l991- a 5 judge bench held that ’the advisory opinion is entitled to due weight and respect and normally, it will be followed.’

The question that was raised in the 2G reference was whether it was correct to take the route of Art.143 while the route of appeal to a larger bench was open. The answer however is that the verdict raises certain fundamental questions that go beyond the verdict itself and so reference route is appropriate.

The advisory powers of the Supreme Court have been of enormous value so far in clarifying on various matters Constitutional and legal matters as can be seen from the list of references given below. There have been 14 references to the Supreme court so far including the 2G reference in 2012.

Presidential references in the last two decades

  • 2012 2G verdict of the Supreme Court
  • 2004 SYL canal and unilateral termination of all agreements by Punjab
  • 2002 Gujarat Assembly and Art. 174
  • 1998 Judges appointment
  • 1993 Rama Janma Bhoomi( declined)
  • 1991 Interim Order of Cauvery Water Disputes Tribunal

2G Reference 2012

The government in April 2012 moved the Supreme Court with a Presidential Reference for its opinion on issues arising out of its 2G spectrum judgment delivered earlier in 2012 , including whether auctioning of natural resources across all sectors is mandatory and the verdict be given retrospective effect for licenses granted since 1994.

Eight questions have been raised, including whether there could be judicial interference in policy matters, whether the court holds that within the permissible scope of judicial review that the policy is flawed, is the court not obliged to take into account investment made under the said policy including the investment made by foreign investors under the multi and bilateral agreements.

The apex court had observed that auction was best suited route for allocating natural resources like telecom spectrum because the policy of first-come-first-serve was flawed.

Art.144

Art. 144 says that it is the duty of every person and authority in the country to act in aid of and render necessary assistance for the enforcement of the orders of the Supreme Court.

Miscellaneous powers: Election disputes

Article 71 of the Constitution,,provides that all doubts and disputes relating to election of a President or Vice-resident are required to be enquired into and decided by'the Supreme Court.

Public service commission member’s removal

Article 317 of the Constitution, provides that the Chairman or any other member of a Public Service Commission can be removed from his office by order of the President, on the ground of misbehavior, after the Supreme Court on reference being made by the President, has on enquiry reported that he ought, on such ground, to be removed from his office.

Contempt powers

Contempt of Court Acts which wilfully seek to disrupt the normal judicial process constitute contempt of court, in India, Supreme Court and High Courts are given the power to punish contempt of court as shown below:

Article 129 : “The Supreme Court shall be a court ofrefcord and shall have all the powers of such a court including the power to punish for contempt of itself.”

Article 215: Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

Need for contempt of court powers

Effective discharge'of Constitutional and other legal duties demands that the majesty of law and the dignity and authority of the courts should be respected and protected. It in turn helps uphold the rule of law and Constitutional governance. Contempt powers are necessary for the higher courts to enforce rule of law and judicial orders, prevent corruption, insubordination and defiance. Contempt powers are a balance between the right of an individual to criticize the judiciary and the need of the judiciary to enforce respect for the law.

Civil and criminal contempt                                                          '

Contempt of court may be civil contempt or criminal contempt

"Civil contempt" means willful disobedience to any judgement, direction, order, writ etc of a court or willful breach of an undertaking given to a court. Civil Contempt normally attracts a tine and not imprisonment unless there are special circumstances.

"Criminal contempt" means saying or doing anything that

  •  scandalizes or lowers the authority of court, or
  • interferes with the due course of any judicial proceeding , or
  • obstructs the administration of justice in any other manner.

Will fulness is necessary to constitute contempt. Mere disobedience without a willful element is not sufficient to constitute contempt. Partial non-compliance of a court order also amounts to contempt. Supreme Court has inherent power under Article-129 of the constitution to take suo motu action to proceed against contempt

  • Of itself .
  • Of High Court and
  • of a subordinate court.

High Court being,a court of record has inherent power in respect of contempt

  • of itself as well as
  • of subordinate courts.

High Courts have power to punish for contempt of subordinate courts under Article-215 but that does not affect or abridge the inherent power of Supreme Court under Article-129. The Supreme Court and High Court both exercise concurrent jurisdiction under the constitutional scheme of punishing for contempt of any subordinate court and contempt of High Court. Generally, cases relating to contempt of subordinate courts are matters for High Courts. However, under rare circumstances affecting the entire judiciary, Supreme Court may directly take cognizance of contempt of subordinate courts.

Defence: Contemnor may defend himself on the basis of truth and public interest.

Under the contempt law, to protect principles of natural justice/ it is'necessary that the

  • procedure is fair
  • that the contemnor( one who commits contempt of court) is made aware of the charge against him and is
  • given a fair and reasonable opportunity to defend himself.

When a person defies the orders of a High Court in a place that is outside the Court’s normal jurisdiction, the High Court’s powers extend beyond the normal territorial,limits to punish for contempt.

Court of record

Under Art. 129 of the Constitution the Supreme Court is a court of record. It means it has the following attributes

  • its proceedings are recorded and can be quoted as evidence in any court in the country
  • it can punish for contempt of court including contempt of itself.

Curative petition

The concept of Curative petition was evolved by the Hon’ble Supreme court in the matter of Rupa Ashok Hurra vs.Ashok Hurra(2002) where the question was whether an aggreived person is entitled to any relief against the final judgement/order of the Supreme Court,after dismissal of a review petition.The Supreme Court in the said case held that in order to prevent abuse of its process and to cure gross miscarriage of justice,it may reconsider its judgements.in exercise of its inherent powers. For this purpose the Court has devised what has been termed as a "curative" petition. Curative petition has to be certified by a senior advocate.The Curative petition is then circulated to the three senior most judges and the judges who delivered the impugned judgement,if available.No time limit is given for filing Curative petition. The court could impose “exemplary costs” to the petitioner if his plea lacks merit.

Critical analysis of collegium model

Appointment of judges is a vital function in a democracy based on the rule of law and whose Constitution guarantee fundamental rights. Constitution originally provided for Presidential appointments based on consultation with the higher judiciary(High courts and the Supreme Court). In 1993, the system changed. Collegium model was instituted. In other words, collegium of the Chief Justice and four senior-most judges of the Supreme Court appointing supreme court judges has not been provided by the Constitution. Supreme court created the model on the basis of the word'’ consultation’ which is meant to be “concurrence” in the interpretation in the 1993 verdict, as you+iave studied earlier in the notes. The need for the collegiums model is felt to be the following

  1. Independence of the judiciary
  2. Art.50 wants the judicial powers’ of the Executive divested and given to the judiciary itself for the independence of the judiciary
  3. Coalition governments may be under pressure to dilute principles of integrity a competence in appointments
  4. Mrs.Gandhi in the 1970’s advocated a committed judiciary that supported the government programmes and policies which the judiciary found to be unconstitutional

However, the collegian model worked for 20 years by 2013 and its working has beeri found to be deficient on the following grounds                                                                                   ;

 

  1. it is not provided in the Constitution
  2. it is not transparent
  3. many vacancies are not filled.

At any given time there are two to three vacancies in the Supreme Court, and 200 in the 24 High Courts ( new ones to have come up in 2013 being in Tripura, Meghalaya and Manipur). If we add the issue of transfer ofHigh Court judges, an administrative task of high magnitude results to cope with which the apex court has necessarily to be detracted from their principal judicial work of hearing and deciding cases. The collegium neither has a secretariat to shoulder this burden nor an intelligence bureau to make appropriate inquiries of the competence, character and integrity of a proposed appointee.Lacking this infrastructural backup is a major problem with the collegiums.

 

Remedy

It is necessary that the appointment etc process has to be broad based. The power of the executive can not be restored as it stood pre-1993. T.R. Andhyarujina, Constitution expert says: In several countries of the Commonwealth, National Judicial Appointment Commissions have been establ ished to select judges. Such judicial commissions have worked with success in the U.K., South Africa and Canada. The advantage of judicial commissions-are that they are independent, broad based and they represent not only the views of the judiciary but also of the executive and other sections of society. They are transparent in their working even to the extent that applications are invited by public advertisement.ln India proposals for the establishment of a National Commission for Judicial Appointments have been made at various times. The Law Commission in 1987 recommended a broad based body of judges and other person to make recommendations for the appointments of judges. A Constitutional Amendment Bill was tabled in Parliament for the establishment of such a Commissions in 1990 but it lapsed. The National Commission to Review the Constitution 2002 set up by the Government of India favoured a ^ National Judicial Commission with a predominance of judicial members as an alternative to the collegium system. With the size of the Indian superior judiciary, it may be necessary to have two judicial commissions in India, one for the Supreme Court and another for the High Courts.

Before his recent demise, Justice J S Verma, the author of the Second Judges’ case which evolved the collegium system, had expressed his disappointment with its working. There is also a demand that the reasons for appointment of a particular judge and rejection of other judges should be briefly disclosed as that would impart transparency to the process.

The Constitution may have to be amended to set up the NJC.

Green benches

India is facing a growing backlog of environmental cases with rapid industrialization leading to disputes with traditional stakeholders.Land acquisition has become a huge problem with industries and mining interests facing increasing protests from farmers and fishermen.The may not be able to balance different interests.Recognizing this fact India’s Chief Justice has decided to restructure the “Green Bench” to expedite the cased before it.There will be 2 benches which will deal with environmental matters,one bench will deal with norms while the other will focus on their implementation.Adjournments are not allowed.The Bench would/hear only one case at a time.

All Women Judges Bench in the Apex Court

For the first time in the history of the Supreme Court, an all women bench heard cases in the top court in April 2013. Justice Gyan Sudha Misra headed the women bench with her colleague Justice Ranjana Prakash Desai.However, such a bench has not been institutionalized.

Independence of the Judiciary

An independent judiciary is essential for the strength of a federal democracy like ours. Our Constitution establishes it on the basis of the following

  • Appointment of judges of Supreme Court is kept above politics as the President appoints Supreme Court and High Court judges in consultation with the CJi and such other judges of the SC and HCs as he deems necessary
  • Removal is possible on grounds of proved misbehaviour or incapacity and the parliament should vote with special majority followed by Presidential Order of removal
  • Salaries etc are charged on the Consolidated Fund of India and are non-votable
  • Administrative expenses of the Supreme Court are charged on the Consolidated Fund of India
  • Conditions of service can not be varied to the disadvantage ofjudges after their appointment
  • After retirement, Supreme Court judge can not practise in any court in the country and a High Court judge can not practise in the High Court where he retires
  • Parliament can only enhance the powers of the Supreme Court and can not reduce the same
  • Art. 141 says that the SC judgements are binding on all courts in the country

 

All - India Judicial Service

The subordinate courts/subordinate judiciary is a State subject( an item in State List ( List II). The appointment of the members of the subordinate judiciary is made by the Governor. Such appointment is to be made in the case of district judge, in consultation with the High Court and in the case of other posts, in consultation with the Public Service Commission and the High Court. There has been a suggestion for many decades that an A1JS should be constituted to attract the best young talent that can improve the efficiency of the subordinate judiciary. Law Commission recommended that AIJS should be constituted, essentially for manning the higher services in the subordinate judiciary.The Supreme Court endorsed the recommendation .

Article 312 deals with the All-India Services. Constitution (Forty-second Amendment) Act, 1976 inserted All-India Judicial Service into the Article. The Amendment Act says that the All- India Judicial Service shall not include any post inferior to that of a district'judge as defined in article 236.

The process of creation of an All India Service needs to be noted. If the Council of States (Rajya Sabha) declares by resolution supported by not less than two-third of members present and voting that it is necessary or expedient in the national interest to do so, Parliament may by law provide for creation of an All-India Judicial Service (AIJS) common to the Union and the States and also to regulate the recruitment and conditions of service of persons appointed to such All-India service( Art.312). Law of the Parliament to create AIJS is not to be deemed to be an amendment of the Constitution within the meaning of Article 368.

The advantages with AIJS are that the best talent at a young age can be tapped. It helps to fill the strength in High Courts after the AIJS recruits become eligible and thus vacancies may not plague the higher judiciary. Near uniform standards prevail in the country injudicial matters. Finally, national integration is another benefit.

Three main objections are raised in this matter

  • inadequate knowledge of regional language would dampen judicial efficiency
  • promotional opportunities of the members of the State judiciary would be severely hurt
  • erosion of control of the High Court over subordinate judiciary would impair independence of the judiciary.  

The objections have been answered effectively by, among others, the Law Commission. Learning the regional language has never been a problem as seen in our experience with the IAS and IPS. It also furthers cultural integration.

With respect to the second objection, only a portion of the total vacancies are to be filled through the All India competitive examination while the remaining are open to be filled by promotion from the lower cadres.

Control of the High Court will refnain as , on allotment to a State, the allottees (members of AIJS) would become members of the State Judicial Service for all practical purposes.

At present, almost all states have a system of selecting members of the subordinate judiciary. But, there is no al I India judicial service.

National Judicial Commission

The process of appointment to the higher judiciary and transfer of High Court judges has been a point of national discussion in the last many years , particularly since the Second Judges case in 1993 when the primacy was given to the Collegium of judges in this matter. Power of the President was reduced to formalizing the recommendations of the collegiums. There is a large section of opinion that there should be NJC with members of the executive judiciary and distinguished jurists involved in the process for the process to be transparent and broad-based. Another issue related to higher judiciary is to ensure its accountability in matters of conduct.To address the twin issues, National Judicial Commission has been under consideration .Two attempts at passing a Bill were made- 1990 and 2003. Both failed.National Commission to Review the Working of the Constitution (NCRWC) ( 2002) recommended it.

Pendancy and Judicial Reforms

Supreme Court ruled that speedy trial is a part of right to Iife(Art.21).Judicial delays and huge backlog have the effect of emboldening anti-social elements ; common man loses faith in the judicial system; loss of important evidence is possible because of fading of memory or death of witnesses.

By 2012, over 25 million cases were pending in trial courts, while the number of cases pending in 21 High Courts stood at 3.7 million . Backlog is increasing for many reasons like

  • Increasing number of laws and increasing levels of literacy lead to mounting litigation
  • judicial impact assessment(J) A) is inadequate.That is, it is not estimated for every Bill passed as to the impact on caseload, judges/staff, infrastructure and financial needs.
  • Judge -population ratio is low at 11 judges per 1 million.Law Commission recommended to raise it 5-fold Approved strength of High Courts is 906(2013) but there are 276 vacancies( 2013).Similarly, against a sanctioned strength of 18,100 trial court judges, there are only 14,300 judges available (2013)
  • Judicial infrastructure is inadequate- both in terms of courts or adoption of new technology(lT etc)
  • Procedures permit unwarranted adjournments (postponements)

Chief Justice K G Balakrishnan suggested higher budgetary allocation to set up new courts like evening courts and special magistrate courts to combat pendancy of cases. 59 lakh petty cases are pending and they can be disposed off in a short time if special magistrates could be appointed. In Andhra Pradesh, morning courts are functioning before the normal office hours.In Gujarat, ‘evening courts’ are functioning. They have disposed off lakhs of cases.

Gram Nyayalayas Act is one solution.Pendency can also be reduced through alternative settlement of disputes- mediation and conciliation. Lok Adalats have proved to be useful in mass disposal of cases and quickly.

Stale governments should set up more family courts - one family court should be set up in every district as it means adoption of a conciliatory approach in such cases, giving preference to mutual settlement over adjudication by court. The country now has only 190 family courts. The judiciary has recently adopted some measures, including increase of the working hours of High Court judges.

The document The Judiciary: Supreme Court (Part -1) - Indian Polity and Governance Notes | Study Polity and Constitution (Prelims) by IAS Masters - UPSC is a part of the UPSC Course Polity and Constitution (Prelims) by IAS Masters.
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