Judiciary- 2 | Indian Polity for UPSC CSE PDF Download

Importance of an independent judiciary 

• The separation of powers is a fundamental principle in a democratic system. It ensures that the different branches of government—executive, legislative, and judicial—operate independently and check each other's powers. A strong and independent judiciary is crucial in this framework, as it prevents the arbitrary use of governmental authority and protects the rights and liberties of citizens.
• In a federal system, the judiciary also acts as the guardian of the Constitution. It resolves disputes that may arise when one branch of government exceeds its authority. Only a powerful and impartial judiciary can effectively manage these conflicts and ensure that each branch of government operates within its designated limits.
• An independent judiciary, free from the influence of other powers, can deliver judgments without fear or bias. This independence is vital for maintaining the rule of law and upholding democratic principles. By safeguarding citizens' rights and ensuring that government actions remain within constitutional boundaries, a strong judiciary plays a pivotal role in the health and stability of a democracy.

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

• Salaries of Judges: The salaries of Supreme Court Judges are fixed and cannot be decreased during their term, except in cases of Financial Emergency. These salaries are charged on the Consolidated Fund of India, making them non-votable.
• Security of Service: Judges have job security as their removal process is stringent. Although the President appoints them, judges can only be removed on proven grounds of misbehavior or incapacity.
• Conduct of Judges: The conduct of a Supreme Court judge cannot be discussed in Parliament unless it is part of a motion for their removal addressed to the President.
• Jurisdiction: Parliament cannot limit the jurisdiction of the Supreme Court.
• Post-Retirement Restrictions: After retirement, a Supreme Court judge is prohibited from pleading or acting in any court or before any authority within India.
• Contempt Power: The Supreme Court has the authority to punish individuals for contempt.
• Staff Recruitment: The Court can recruit its staff and determine their service conditions without external interference.

Writ jurisdiction

• The Supreme Court has the power to consider applications under Article 32 of the Constitution for the issuance of constitutional writs aimed at enforcing Fundamental Rights.
• This power is known as writ jurisdiction.
• Sometimes, it is also referred to as the 'original' jurisdiction of the Supreme Court.
• It is considered original because the aggrieved party has the right to directly approach the Supreme Court.
• The process involves filing a petition rather than going through the High Court by way of appeal.
• Writ jurisdiction should be viewed as a distinct form of jurisdiction.
• In cases involving Article 32, the dispute is between an aggrieved individual and the Government or its agencies.
• Therefore, writ jurisdiction under Article 32 is not the same as the original jurisdiction under Article 131.
• Article 131 of the Constitution grants the Supreme Court original jurisdiction in federal matters.
• This jurisdiction is limited to disputes between the Government of India and one or more States of the Union.
• It also covers disputes between the Government of India and a State or States on one side and another State or States on the other side.
• Additionally, it includes disputes between two or more States.
• The functions of the Supreme Court under Article 131 are purely of a federal nature.
• These functions deal with intergovernmental disputes rather than individual grievances.

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

The jurisdiction of the Supreme Court was limited by the 42nd Amendment of the Constitution in 1976. However, some of these changes were reversed by the Janata Government through the 43rd Amendment Act in 1977 and the 44th Amendment Act in 1978.

• Article 32A: This article was added to restrict the Supreme Court's power to invalidate state laws under Article 32 unless a central law was also being challenged. Article 32A was later repealed by the 43rd Amendment, restoring the pre-1976 position.
• Article 144A: This article imposed strict procedural restrictions on the Supreme Court's jurisdiction to invalidate central or state laws. It was also repealed by the 43rd Amendment.
• Certificate of Fitness for Appeal: The process for obtaining a certificate of fitness for appeal to the Supreme Court from the High Court under Articles 132(1), 133(1), and 134(1)(c) was simplified by the 44th Amendment. Article 134A was added, allowing an oral application by the aggrieved party immediately after the judgment, with the High Court required to decide the matter instantaneously.
• Articles 323A-B: These articles aimed to remove the Supreme Court's jurisdiction under Article 32 over decisions of Administrative Tribunals. However, they could only be implemented through legislation, which was not completed by Mrs. Gandhi's Government. The Janata Government could not repeal these articles due to Congress opposition to the 45th Amendment Bill in the Rajya Sabha.
• Clauses 368(4)-(5): These clauses were added to Article 368 to prevent the Supreme Court from invalidating any Constitution Amendment Act based on the concept of "basic features of the Constitution." The Janata Government was unable to repeal these provisions for the same reasons as mentioned above regarding Articles 323A-B.

In summary, the initial limitations imposed on the Supreme Court's jurisdiction by the 42nd Amendment were partially reversed by subsequent amendments, restoring certain powers and simplifying procedures for appeals.

High Court in Each State

The Constitution mandates the establishment of a High Court for every State, serving as the highest authority for justice and judicial administration within the State. Parliament has the power to create a common High Court for two or more States through legislation.

Types of Jurisdiction

High Courts possess the following types of jurisdiction:

• General Jurisdiction
• Supervisory Jurisdiction
• Writ Jurisdiction

Court of Record:

Every High Court is designated as a Court of Record, with the authority to punish for contempt of court.

Composition of High Courts:

A High Court is comprised of a Chief Justice and other judges appointed by the President of India. The Constitution does not specify the number of judges in each High Court, allowing for variation in the strength of High Court Benches across different courts.

Appointment of Judges:

Judges of a High Court are appointed by the President, who consults the following individuals:

• Chief Justice of India
• Governor of the State
• Chief Justice of the concerned High Court (when appointing a judge other than the Chief Justice)

Qualifications for High Court Judges:

The Constitution outlines the following qualifications for appointment as a High Court judge:

• The candidate must be a citizen of India.
• The candidate must not exceed 62 years of age.
• The candidate must have held a judicial office, or
• The candidate must be an Advocate of the High Court with at least ten years of standing.

Independence of High Court Judges:

• Similar to Supreme Court Judges, the Constitution includes various provisions to ensure the independence of High Court Judges. However, High Courts are subject to certain controls by the Union to keep them insulated from "provincial politics."

Administrative Control:

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

Control of the Union over High Courts 

The Constitution of India, while ensuring the independence of the judiciary, places the High Courts under the control of the Union Government in certain important matters. This arrangement is intended to keep the judiciary out of the realm of provincial politics. Although the High Court is at the head of the State Judiciary, its relationship with the federal government is not as sharply defined as that of the State Supreme Court in the United States.

Union Control Over High Courts:

The Union Government exercises control over High Courts in India in the following matters:

• Appointment of Judges: The President appoints judges to the High Courts based on the advice of the Prime Minister, after consulting the Chief Justice of India and other senior judges.
• Transfer of Judges: Judges can be transferred from one High Court to another by the President, in consultation with the Chief Justice of India.
• Removal of Judges: Judges can be removed from office through a process of impeachment, which requires a two-thirds majority in both Houses of Parliament.

Constitution and Organisation of High Courts:

• The Constitution and organization of High Courts, including the power to establish a common High Court for two or more states or to extend or exclude the jurisdiction of a High Court in a Union Territory, are exclusive powers of the Union Parliament.

Provisions Affecting Independence of High Court Judges:

• Article 224, introduced in 1956, allows for the appointment of additional Judges to a High Court to address temporary increases in workload. An additional Judge serves for two years but may be made permanent afterward. There is no similar provision for the Supreme Court.
• This provision was introduced to address the issue of arrears in High Courts, which was expected to be a temporary problem. However, as arrears have become a persistent issue, the need for additional appointments on a temporary basis remains.
• The drawback of this system is that additional Judges are kept on probation and under the oversight of the Chief Justice and the Government regarding their permanent appointment. In terms of judicial power, an additional Judge is equal to other members of the Bench but may feel pressured to conform to the views of senior judges due to the fear of not being reappointed.

Power to Determine the Age of High Court Judges:

• Clause (3) was added to Article 217 in 1963, giving the President, in consultation with the Chief Justice of India, the final authority to determine the age of a High Court Judge if any questions arise regarding it.
• At the same time, Clause (2A) was added to Article 124, stating that questions regarding the age of a Supreme Court Judge would be determined in a manner prescribed by law by Parliament.
• This distinction has made the position of a High Court Judge inferior not only to that of a Supreme Court Judge but also to that of a subordinate Judicial Officer. The age determination of a subordinate Judicial Officer can be challenged in court, while that of a High Court Judge is made final by the Constitution.
• There seems to be no compelling reason why a provision similar to Clause (2A) of Article 124 should not be introduced in Article 217, replacing Clause (3) regarding the age determination of High Court Judges.

Anti-defection Act of 1985

The 52nd Amendment Act stipulates that a member of a legislature can be disqualified if they defect from their political party to another. The final decision regarding disqualification is made by the Speaker or Chairman of the House.

Exceptions:

• A member of a legislature cannot be disqualified if a group representing one-third of the total membership of the party decides in favor of a split.
• A member cannot be disqualified if a group representing two-thirds of the party decides to merge with another party.

Weaknesses of the Act:

• The Act violates the freedom of conscience of legislators and suppresses their right to dissent.
• The provision to label a person as a defector and expel them from membership of the House is beyond judicial scrutiny, which is highly objectionable.
• The punishment for a defector is too harsh and can lead to party tyranny, undermining the effective functioning of democracy.

Recommendations:

• To prevent defections, it is better to reduce material temptations for legislators. Potential defectors should be denied lucrative assignments.
• Political parties admitting defectors should be de-recognized by the Election Commission for a fixed duration.

• These measures would serve as a deterrent against defections.