Long Questions with Answers (Part - 2) - Judiciary

Q. 3. Describe the composition, jurisdiction and powers of the High Court.
Ans. The Constitution of India provides for a High Court for each State. However, Parliament may by law provide a common High Court for two or more States. At present, Punjab and Haryana share a common High Court known as the Punjab and Haryana High Court. The States of Assam, Nagaland, Meghalaya, Manipur and Tripura also share a common High Court.
The High Court is the highest court of a State. All other courts and tribunals functioning in a State (except Military Tribunals) are subject to the authority and superintendence of the High Court.
Composition: Each High Court consists of a Chief Justice and such other judges as the President may from time to time deem it necessary to appoint.
There is no uniform or fixed number of judges across High Courts. The total strength of judges in a High Court is determined by the President. Additional judges may be appointed for a temporary period not exceeding two years to help clear arrears of work.
A duly qualified person may be appointed by the President as an acting judge when a permanent judge is unable to perform the duties of office or is acting as Chief Justice.
Appointment of the Judges: All judges of a High Court, including the Chief Justice, are appointed by the President of India. While making these appointments, the President is required to consult the Chief Justice of India and the Governor of the State. In a significant unanimous order delivered on 28 October 1998, a nine-judge Constitution Bench of the Supreme Court held that recommendations by the Chief Justice of India made without following the consultative process were not binding on the Government.
The Supreme Court has emphasised that merit should be the predominant factor in judicial appointments and that seniority alone should not be the deciding criterion. The Chief Justice of India is required to consult other senior judges of the Supreme Court when making recommendations.
Chief Justice from other States: Since a recommendation by the Supreme Court and commissions such as the Law Commission, it has become customary to appoint Chief Justices of High Courts from other States. This practice helps preserve impartiality and avoid local bias.
Appointment of Additional Judges: The President may appoint additional judges for a period not exceeding two years to deal with temporary increases in the court's workload and to clear arrears.
Appointment of Acting Judges: A duly qualified person may be appointed by the President as an Acting Judge when a permanent judge is absent or otherwise unable to perform duties.
Appointment of Acting Chief Justice: If the office of the Chief Justice of a High Court falls vacant temporarily, the President can appoint any judge of that High Court to act as Chief Justice.
Qualifications for Appointment: No person can be appointed a Judge of a High Court unless:
(1) he or she is a citizen of India; and
(2) he or she has held a judicial office in the territory of India for at least ten years; or
(3) he or she has been an advocate of one or more High Courts for at least ten years.
Terms of office: Judges of the High Courts retire at the age of 62. A judge may resign earlier by writing to the President. The President may remove a judge on grounds of proved misbehaviour or incapacity, following the procedure similar to that for the removal of a Supreme Court judge.
Jurisdiction of High Court.
Or 
Power and Functions of High Court.
A State High Court has a range of powers and functions. Besides administering justice, it performs important administrative duties because the subordinate courts within the State are subject to its authority. The powers and functions of a High Court may be broadly divided into two parts:
I.  Judicial Powers
II. Administrative Powers.
I. Judicial Powers. The principal function of a State High Court is to administer justice. The Constitution preserved the jurisdiction enjoyed by various High Courts before its commencement, subject to constitutional provisions and any future legislation. The judicial jurisdiction of a High Court is described below:
(1) Original Jurisdiction. The original jurisdiction of State High Courts is limited.
(a) Under Article 226, every High Court may issue writs (Habeas Corpus, Mandamus, Prohibition, Quo-Warranto and Certiorari) to any person or authority within its territory for the enforcement of Fundamental Rights and for other purposes.
(b) Original jurisdiction also extends to matters of admiralty, probate, matrimonial disputes, contempt of court and to cases transferred from subordinate courts that involve interpretation of the Constitution or substantial questions of law.
(c) Historically, the High Courts of Kolkata (Calcutta), Chennai (Madras) and Mumbai (Bombay) exercise certain original civil jurisdiction where the amount involved exceeds specified pecuniary limits; in criminal matters they have jurisdiction over cases committed by Presidency Magistrates.
(d) These High Courts also retained such original jurisdictions in certain matters involving specific communities (for example, in some personal law cases) as they had prior to the Constitution.
(e) Election disputes may, in certain circumstances, be taken to the High Courts.
(2) Appellate Jurisdiction. The appellate jurisdiction of High Courts extends to both civil and criminal matters.
(a) In civil cases, the High Court can hear appeals where the amount in dispute meets the prescribed threshold or where a substantial question of law is involved.
(b) In criminal cases, the High Court can hear appeals against sentences or convictions from subordinate courts, particularly where the sentence awarded by a Sessions Judge is four years imprisonment or more.
(c) A death sentence awarded by a Sessions Judge is subject to confirmation by the High Court.
(d) High Courts hear appeals in most revenue matters and other statutory appeals where so provided.
(e) Any case involving interpretation of the Constitution or central law may reach the High Court in appeal.
(f) Appeals in matters such as income tax and sales tax are also within the appellate jurisdiction of the High Court under relevant statutes.
(3) Judicial Review. Like the Supreme Court, State High Courts possess the power of judicial review. A High Court can strike down any State law or executive order if it violates the Constitution or infringes Fundamental Rights.
(4) Interpretation of the Constitution. If a High Court considers that a subordinate court's pending case raises an important question regarding interpretation of the Constitution, it may withdraw the case to itself, decide the constitutional question and either dispose of the case or send it back to the subordinate court with directions based on its interpretation.
(5) Court of Record. High Courts are courts of record. Their records have evidentiary value and cannot be questioned when produced before any court. A High Court has the power to punish for contempt of court, and neither the Supreme Court nor the Legislature can deprive a High Court of this power.
II. Administrative Powers. High Courts perform various administrative functions within their territorial jurisdiction. Important administrative powers are as follows:
(1) Except for Military Tribunals, all courts and tribunals within the jurisdiction of a High Court are subject to its superintendence and control.
(2) The High Court may make rules and prescribe forms to regulate the practice and procedure of subordinate courts.
(3) The High Court may prescribe the form in which books and accounts shall be kept by court officers.
(4) The High Court can call for returns and records from subordinate courts.
(5) The High Court ensures that inferior courts exercise their jurisdiction in accordance with the law.
(6) Under Article 228, if the High Court is satisfied that a case pending in a subordinate court involves a substantial question of law as to the interpretation of the Constitution, it may withdraw the case and either decide it or determine the constitutional question and return the case with a copy of its judgment.
(7) The High Court may transfer cases from one subordinate court to another in the interest of justice.
(8) The High Court can determine the salary, allowances and other conditions of service of staff of subordinate courts, as permitted by law.
(9) The High Court has the power to make rules for promotion, leave, pension and other allowances of subordinate court judges and staff, subject to law.
(10) The Governor consults the High Court when appointing and promoting district judges.
Position of the High Court. In the administration of justice, the High Court plays a role nearly as vital as that of the Supreme Court. It is the highest court in a State and exercises superintendence and control over subordinate courts. Though High Courts function within States, they are independent of State Governments in matters of composition, salaries, allowances, pensions and other conditions of service. Judges of High Courts are appointed by the President in consultation with the Chief Justice of India and the Governor of the State. High Courts are subject to the authority of the Supreme Court but otherwise enjoy institutional independence. Efforts have been made by the Constitution makers to make the judiciary independent and impartial, and High Courts have largely lived up to those expectations.

Q. 4. What do you mean by Judicial Activism ? Write down its main devices. 
Ans. In recent decades Judicial Activism has become a notable feature of the Indian judicial system. Judicial intervention has expanded through devices such as Public Interest Litigation (PIL) and the enforcement of human rights. Whereas earlier the judiciary principally tested the constitutionality of legislation, it now often gives directions on how laws or policies should be implemented, how environmental problems should be addressed, management of public resources such as river waters, the proper exercise of gubernatorial discretion, and other matters of public administration.
Judicial activism may be described as courts exceeding a narrow interpretative role by taking steps that have an impact on policy and administration. According to former Supreme Court judge Justice P.B. Sawant, it can mean "exceeding the constitutional brief of interpreting and applying the law as it is and taking over executive and legislative functions in violation of the constitutional scheme of the separation of powers."
Causes of the Origin of Judicial Activism. Judicial activism has often arisen in response to problems such as environmental degradation, misuse of natural resources, and other social issues that have not been given adequate priority by the executive or legislature. Failures of governance, non-governance and misgovernance have pushed citizens and activists to seek redress in courts. Former Chief Justice A.M. Ahmedi suggested that judicial activism may be a transient response to particular national needs. Former Justice Krishna Iyer observed that the judiciary often steps in where the government has failed or been indifferent. Atul Setalvad has argued that, in some cases, courts have been forced to act because the executive failed to enforce laws enacted by Parliament.
The first major case that exemplified social action litigation was the Bihar undertrials case. Since then, a series of public-interest and rights-based cases have illustrated how judicial activism can be used to secure social justice and protect rights when other branches of government do not act.
Devices of Judicial Activism 
Justice P.B. Sawant divided judicial activism into two categories: a largely acceptable category that involves evolving new principles, remedies and procedures within judicial competence, and a less permissible category that involves laying down priorities and policies that are discretionary executive functions.
According to S.P. Sathe, the Supreme Court's activist contributions fall into three broad patterns:
(I) Interpretative thrusts designed to extend judicial control over other state organs so as to ensure liberty, dignity, equality and justice and to promote greater accountability of governing institutions.
(II) Interpretative strategies aimed at facilitating social change and protecting minorities, weaker sections and dissenters.
(III) Innovation of new methods to increase access to justice (for example, Public Interest Litigation).
The principal devices of judicial activism are:
1. Judicial Review. Judicial review remains a core device. The Supreme Court and High Courts may declare legislative or executive acts void if they conflict with the Constitution. Landmark rulings such as those in cases like Gopalan, Golaknath and Kesavananda Bharati illustrate how courts have shaped the limits of parliamentary power and protected constitutional structure.
2. Interpretation of the Constitution. The Supreme Court is the final interpreter of the Constitution. Its interpretations bind the executive and legislature. The Court has prescribed consultative norms for judicial appointments and clarified the role of the Chief Justice of India and other judges in the process.
3. Protection of Fundamental Rights. High Courts and the Supreme Court act as guardians of Fundamental Rights. Numerous judgments have expanded protection for the accused, the undertrial, the poor and marginalised. For example, the courts have upheld the right to free legal aid in appropriate cases, recognised the right to health and clean drinking water as essential to life, and enforced the right to elementary education for children in specific judgments.
4. Public Interest Litigation. PIL is perhaps the most visible instrument of judicial activism. It allows concerned citizens or organisations to approach the courts on behalf of those who cannot approach them, often relaxing procedural strictures and court fees. Justices like P.N. Bhagwati and V.R. Krishna Iyer were instrumental in developing PIL as a tool to expand access to justice and to address broad social concerns. PILs have produced remedies and directions in areas such as environmental protection, prisoners' rights, and public distribution systems.

Q. 5. Discuss the powers and decline of the Indian Parliament.
Ans: Parliament is a central institution of Indian democracy and derives its powers from the Constitution. Under the constitutional framework, Parliament is supreme in law-making subject to the limits of the Constitution. The parliamentary system of government enhances Parliament's authority because the executive is responsible to it. Parliament represents the people and performs deliberative and legislative functions; it also shapes public opinion through debate and discussion.
Parliament exercises control over the executive by several methods:

• Deliberation and discussion on government policies
• Enactment or rejection of legislation
• Financial control, including approval of budgets and expenditures
• No-confidence motions and other means of political accountability

The executive is accountable to Parliament for its actions and omissions. Government expenditure requires Parliament's approval. Parliament has the constitutional power to impeach office-holders such as the President, Vice-President and judges in specified circumstances. Emergency proclamations by the executive require parliamentary approval within prescribed periods.

However, over the years concerns have been raised about a relative decline in the effectiveness and dignity of parliamentary proceedings. Problems include frequent disruptions and unruly behaviour, which reduce the time available for serious legislative work. Increasing criminalisation and commercialisation of politics have introduced members with dubious records into Parliament. Frequent adjournments, absence of quorum and opposition boycotts have hampered Parliament's ability to scrutinise the executive effectively. As a result, valuable legislative time is often wasted and the quality of debate and oversight has suffered. Restoring the authority and decorum of Parliament requires political will, institutional reform and a commitment by members to uphold the standards of public life.

Q. 6. Write the composition and role of the Supreme Court of India.
Ans: Judicial authority in India rests on an independent and integrated judiciary, with the Supreme Court at its apex. The Supreme Court occupies a position of dignity and prestige and exercises administrative and supervisory control over all subordinate courts.
Composition: The Supreme Court comprises the Chief Justice of India and other judges appointed by the President. The number of judges is determined by Parliament. Judges of the Supreme Court are appointed by the President after consultation with such judges of the Supreme Court and of the High Courts as the President may deem necessary. The Chief Justice of India plays a central role in the consultation process for the appointment of other judges. Supreme Court judges enjoy security of tenure and retire at the age of 65. They can be removed from office only by impeachment by Parliament on grounds of proved misbehaviour or incapacity.
Role and Jurisdiction: The Supreme Court performs multiple roles and exercises jurisdiction in several areas:

• Original Jurisdiction: In disputes between the Centre and States or between States, and in certain other cases expressly provided by the Constitution.
• Appellate Jurisdiction: Hearing appeals from High Courts and other courts and tribunals in civil, criminal and constitutional matters as provided by law.
• Advisory Jurisdiction: Giving advisory opinions to the President on questions of law or fact of public importance when referred to it.
• Miscellaneous jurisdiction: Including powers under Articles such as 32 (protection of Fundamental Rights) and supervisory powers over all courts.

The Supreme Court has assumed increased responsibilities over time, notably through doctrines such as judicial review and mechanisms like Public Interest Litigation (PIL). Under judicial review, the Court can invalidate legislation and executive action that violate constitutional provisions. PIL has opened access to justice for disadvantaged groups and enabled the Court to address matters of broad public concern. The Supreme Court has played a key role in checking executive excesses, defending democratic institutions, protecting Fundamental Rights and acting as the guardian of the Constitution. Its activism has expanded access to justice and promoted accountability of governing institutions.