Judiciary - Polity and Constitution, UPSC, IAS. | Polity and Constitution (Prelims) by IAS Masters PDF Download

Judiciary

Chapter -17                       

THE SUPREME COURT

Article 124 says that Parliament has the power to make laws regulating the constitution, organization, powers and jurisdiction of the Supreme Court. Supreme Court consists of Chief Justice of India & not more than 25 judges (raised in 1986).

Article 128:  Chief Justice of India has power to request a retired judge of Supreme Court to act as a judge of the Supreme Court for a temporary period.

Article 127: A High court judge may be appointed ad- hoc judge of the Supreme Court for a temporary period if there is lack of quorum of the permanent judges.

APPOINTMENT OF JUDGES:-

Every judge of Supreme Court is appointed by President of India in consultation with Chief Justice of India.

Chief Justice of India is appointed by President in consultation with the judges of Supreme Court and High Court. A 9 judge bench of the Supreme Court has laid down that the senior most judge of Supreme Court considered fit to hold the office should be appointed to the office of Chief Justice of India.

            In matters of appointment of Supreme Court judges and the relevances of seniority in making such appointments, the 9 judge Bench opined:-

1. The appointment of Supreme Court judge shall be made by President in consultation with the collegium which will consist of Chief Justice of India and 4 senior most judge of the Supreme Court.
2. If two judges of Collegium give the advice opinion, the Chief Justice of India should not send the recommendation to the government.
3. As regards the appointment of High Court judges the President is required to consult a collegium consisting of Chief Justice of India and 2 senior most judges of Supreme Court. The President of India may also consult the Chief Justice of the concerned High Court.
4.  The consultation process requires the plurality of the judges and rhe sole opinion of the Chief Justice of India does not constitute the consultation.
5. Strong and cogent reason must exist and should be recorded in writing for not recommending the name of any person for appointment,
6. For transfer of judges from the High Court, the Chief Justice of India shall consult a collegium of 4 senior most judges of Supreme Court and 2 two Chief Justices of High Courts.
7. The transfer of High Court judges is judicially reviewable.

QUALIFICATION OF JUDGES OF SUPREME COURT ARTCLE 124 (3)

1. He should be a citizen of India.
2. He has at least 5 years experience as a judge of High court or  10 years experience as advocate of High Court.
3. He is in the opinion of the President any distinguished jurist.

TENURE OF JUDGES ARTICLE 124(4)

No minimum age of any fixed period of office is prescribed. Once appointed, a judge may cease to do so on following happening:-

1. on attaining the age of 65 years i.e. of retirement age.
2. on resigning by writing, addressed to the President .
3. on being removed by President.

REMOVAL OF JUDGES OF SUPREME COURT

Ground of removal: -

1. proved  misbehaviour or
2. Incapacity.

PROCESS OF REMOVAL

1. A motion addressed to the President signed by at least 100 members of Lok Sabha or 50 of Rajya Sabha is delivered to Speaker or Chairman.
2. The motion is investigated by a committee of 3 (2 judges of Supreme Court and a distinguished jurist).
3. If the committee find the judge guilty of misbehaviour or that he suffers from incapacity, the motion together with the report of the committee is taken up for consideration in the house where the motion is pending.
4. If the motion is passed in each house by special majority the judge will be removed after the President gives his order for removal on the said address.

SALARIES

The oath to judges of Supreme Court is administered by President.

POSITION OF SUPREME COURT UNDER THE CONSTITUTION

It is at once a federal court, a court of appeal and a guardian of the constitution and the law and a guardian of the constitution and the law declared by it is binding on all other courts within the territory of India [Article 141].

AS A FEDERAL COURT:-

In a federal constitution the powers are divided between the national and the state governments, so in our constitution. Therefore Article 131 of our constitution vests the Supreme Court with original and executive jurisdiction to determine disputes between the Union and the States.

AS ACOURT OF APPEAL:-

 Appeal from the decision of High Court in civil matters will lie to the Supreme Court only if High court certify under Article 134 A that the case involves a substantial question of law as to the interpretation of the court.

Supreme Court also has discretion under Article 136 to grant leave to any person to file petition in the court under SLP (Special Leave Petition).

AS A GUARDIAN OF THE CONSTITUTION:-

Our constitution imposed certain limitations upon the power of legislature. (a) FRS conferred by part III (b) legislative competence.(c) specific provisions of the constitution imposing limitations relating to particular matters.

It is for the court to decide whether any of the constitutional limitations has been transgressed or not, if so, then he declared any law as void or invalid.

                                JURISDICTION OF SUPREME COURT

1. ORIGINAL JURISDICTION [ARTICLE 131]

• When there is a dispute between Government of India versus one or more states.
• Government of India or more states versus one or more states.
• One or more states versus one or more states.
• Enforcement of FRs.

If any suit is brought either against state or Government of India by a private citizen, that will not lie within the original jurisdiction of the Supreme Court but will be brought in the ordinary courts under ordinary law.

The Original jurisdiction can also be excluded in the following matter:

• Parliament can exclude, by any law, water disputes
• Any matter referred to Finance Commission
• Readjustment of expenditure between Centre & State

(2)   APPELATE JURISDICTION:-

In case of constitutional matters the appeal from the High Court can be filled against any judgement decree of final order if the High Court gives a certificate under Article  134 A that the matters involves substantial question of law as to the interpretation of the constitution.

A. The appellate jurisdiction in case of civil matters (Article 133)

1. It is against final judgement decree or order of High Court in civil matters.
2. High Court gives a certificate under Article 134 A.
3. The case involves substantial question of law of general imposition.
4. In the opinion of the High court the matter needs to be decided by Supreme Court.
5. No appeal shall lie to Supreme Court from the order judgement of the single judge of High Court.

 B. Appeal in Criminal matters

      It can be filled with or without certificate.

• WITHOUT A CERTIFICATE (By High Court under Article 134)

1. Where the order of acquittal of accused has been reversed and he has been sentenced to death.( now for 10 years)
2. Where the High Court itself withdraws the case from trial court and sentence the accused with death sentence.
   • With certificate 
3. Whenever the High Court certifies that the case is fit for appeal in Supreme Court it can be filled in the Supreme Court.

SPECIAL LEAVE PETITION (Art 136)

1. It is a discretion vested with the Supreme Court to grant a leave to any person to file petition in the Supreme Court.
2. It can be filed even order of any court or tribunal.
3. It can be filed even against the interim order of any court or tribunal.

CURATIVE PETITION

Whenever the review petition of the person is also dismissed but there is a violation of principle of natural justice then a person can file a curative petition under Article 32 of the constitution.

(3)   REVIEW JURISDICTION (Art. 137)

Supreme Court review its own decision also

For exp: Rupa Ashokhurra v/s Ashokhurra, 2002, Supreme Court. Justice V.R.Krishna Aiyyar decided a case against a lady in matrimonial case, he reviews his decision just only after reading his criticism.

(4)   ADVISORY JURISDICTION (Art. 143)

To give its opinion on any question of law of fact of public importance as may be referred to it for consideration by the President. The Supreme Court is not bound to give the opinion. Similarly the advice of the Supreme Court is not binding on the President.

COLLEGIUM SYSTEM (124(2)) VS NJAC (124 A, 124 B, 124 C)

Collegium system is a system under which judges are transferred and appointedand that are decided by forum of Chief Justice of India and 4 senior judges of Supreme Court. Under Article 124(2) judges of Supreme Court are appointed and High Court judges are appointed under Clause (1) of Article 217 and ad-hoc judges and retired judges of Supreme Court are appointed under 127, and 128 clause(1) of the Constitution. Supreme Court Advocates-on-Record Association vs. Union of India on 6/10/1993 and in its advisory opinion in 1998 in Third Judges case interpreted Article 124 (1) and Article 217 of the constitution respectively.

Article 124 of the Constitution has been amended as in clause (2) which states about the recommendation of National Judicial Appointments Commission is substituted where first provision is omitted and has inserted new Article 124A, 124B an 124C.

Article 124 of our constitution deals with appointment of Supreme Court Judges which should be made by President in consultation with the judges of High Courts and the Supreme Court; and Chief Justice of India shall be consulted for all appointments. Appointment of High Court judges are dealt by Article 217 by the President after consultation with the CJI and Governor of state.

Article 124A states that a Commission known as National Judicial Appointments Commission is formed consisting of Chief Justice of India, 2 Senior Judges of Supreme Court, Union Minister in charge of Law and Justice, 2 persons nominated by committee of PM, CJI and Opposition leader and 1 person is nominated among SC, ST and OBC, Minorities or Women and such eminent person to be nominated for a period of 3 years cannot be re-nominated again. Actions of NJAC cannot be questioned on the ground of existence of error in the constitution of the Commission.

Article 124B states the duty of NJAC to recommend persons for appointment as CJI, Supreme Court Judges, CJ of High Court and other High Court Judges, to transfer of Chief Justices, to ensure that such person is able to perform duty.

Article 124 C states about the parliament’s power to make laws with regard to the appointments of these judges and manner of selection of persons for appointment. Article 127 and 128 is amended where Chief Justice of India is substitute by National Judicial Appointments Commission.

Under Article 217 where amendment has happened with regard to addition of on recommendation of NJAC with reference to Article 124A. Article 222 of Constitutions is also amended where after consultation with CJI is removed.

In Article 224 changes are made to words “President after consulting NJAC will appoint” has been added in Clause (1) and (2) of this Article. Article 224A also has been amended where some words have been amended where National Judicial Appointments Commission on reference to CJ of High Court for any state may with previous consent of President is added. Article 231 clause (2) sub-clause (a) has been omitted.

NJAC was formed after review and pronouncements of the Supreme Court and consultations with eminent Jurists.  This commission will provide a great role in judiciary, executive and eminent person which help in bringing transparency in the process. The said Bill provides for a composition and functions of proposed NJAC and it further provides that parliament will regulate the procedure of appointment of Judges.

The National Judicial Appointments Commission (NJAC) was struck down by the apex court on October 16, 2015. The Centre had brought in the NJAC with the aim of giving a greater say to the executive in the selection and appointment of judges. However, the top court held the new law was unconstitutional because it curtailed the Judiciary’s Independence.

                                                 HIGH COURT

Article 214 says that there shall be a High Court in each state. Article 231 empowers the Parliament to establish a common High Court for two or more states.

COMPOSITION

Every High Court shall consist of a Chief justice and other judges as President from time to time, appoints. President also has the power to appoint additional judges for a temporary period not exceeding two years and an acting judge when a permanent judge is absent temporarily. The acting judge holds office until the permanent judge resumes his office.

APPOINTMENT

They are appointed by the President of India in consultation with the Chief Justice of India and the Governor of the concerned state.

9-judge bench case decision:- same as that of Supreme Court

TERM OF OFFICE

1). until the age of 62 years.

2). He can resign in writing addressed to President

3). He can be removed by impeachment on the ground of proved misbehaviour or incapacity.

REMOVAL

 Same as that of Supreme Court judge i.e. by a resolution passed by special majority in both the Houses.

SALARIES [Art 221]

Chief justice of High Court          Rs. 90,000

Other judges of High court           Rs..80,000         +allowance

QUALIFICATION [ARTICLE 217]

1). He must be a citizen of India.

2). Held at least 10 years a judicial office in the territory of India.

3). Must have been an advocate of High Court for at least 10 years.

INDEPENDENCE OF JUDGES

1. (Article 218) by laying down that they will be removed as that of Supreme Court judges (rest passed by special majority).
2. Other expenditure will be CHARGED ON the Consolidated Fund of India.
3. Their salaries shall not be varied during their term of office except during Financial   Emergency.
4. They will not act in a court or before any authority of India except the Supreme Court and the High Court of Other state.

CONTROL OF THE UNION OVER HIGH COURTS IN FOLLOWING MATTERS

1. Appointment, transfer from one High court to another and removal.
2. Determination of disputes as to age of High court judges.
3. Power to establish a common High court for two or more states, or to excludes or extend its jurisdiction over UTs.

JURISDICTION OF HIGH COURTS:-

Appellate jurisdiction:-

Civil case – 

1. Appeal from decision of District judges and those from subordinate judges in cases of higher value, on questions of fact as well as of law.

1. A second appeal from the decision of a lower appellate court but only on question of law and procedure.

Criminal case:-

1. Appeal from the decision of a Session judge or an Additional Session Judge where the sentence exceeds 7 years imprisonment.
2. Appeal against the decision of an Assistant Session Judge Metropolitan Magistrate or other judicial Magistrate in certain areas other than petty cases.

HIGH COURTS’S POWERS OF SUPERINTENDENCE (ARTICLE 227)

Every High court has a power of superintendence over all courts and tribunals throughout the territory in relation to which it exercises its jurisdiction, except in case of military tribunals.

JURISDICTION OVER ADMINISTRATIVE TRIBUNALS

1. If the tribunal makes an order which infringes an FR of a person, he can obtain relief by applying for a writ of certiorari to quash that decision. This writ is also competent, if the tribunal either acts without jurisdiction or in excess of its jurisdiction as conferred by the statutes by which it is created.
2. Where the writ of certiorari is not available but an injustice has been committed, the High Court may interfere and quash the order of a tribunal under Article 227.
3. Supreme Court may grant S.L.P to appeal from any determination made by any tribunal in India under Article 136.
4. High Court can issue the writs not only in cases of FRs but also where an ordinary legal right has been infringed or for P.I.L (Public Interest Litigation).

PIL:- Where the public in general are interested in the vindication of some rights or enforcement of some public duty.

CONTROL OF HIGH COURT OVER SUBORDINATE COURTS IN FOLLOWING MATTERS:-

1.  The High Court is consulted by the Governor in matter of appointing, promoting District Judges (Article 233).
2. The High Court is consulted along with SPSC in appointing persons to judicial service (Article 234).
3. It also includes transfer, suspension, punishment and retirement of person belonging to judicial services and holding any post interior to the post of District Judge (Article 235).

ADMINISTRATIVE TRIBUNALS

Administrative tribunals are established under the Administrative Tribunal Act 1985.They are of 3 types CAT, SAT, JAT.

CAT: - Centre administrative tribunal – deals with disputes of centre government employee

SAT: - State administrative tribunal deals with state government employee

JAT: - Joint administrative tribunal deals with state government employee.

These Tribunals deal with only service disputes of the government employees and appeal from these tribunals go to the High Court. Constitutionally speaking article 323A, which was added by 42^nd Amendment, authorizes the President to establish administrative tribunals.

Ques.  Under which provisions other tribunals can be established?

Ans.  Article 323B authorizes the President (by 42^nd amendment) to establish tribunal for any special purpose e.g. I.T Tribunal, Labour Tribunal, Motor Accident Tribunal

High Courts in India

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