JUDICIARY

JUDICIARY

Judiciary is the check to the legislative and executive bodies

SUPREME COURT

PART V – CHAPTER IV (ART 124 – 147)

SUPREME COURT

NUMBER OF JUDGES

Parliament by law to prescribe the number.

originally– C and 7 Supreme court judges

Currently–Chief justice of india and 33 Supreme court judges

Note: In HCs, the number is decided by the President.

APPOINTMENT

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 for the purpose and shall hold office until
he attains the age of sixty five years………………..in constitution.

Important Cases

1. S.P. Gupta Case -1982
   (1st Judges case)
2. SC Advocates on record Association Case – 1993
   (2nd Judges case)
3. Presidential Reference under Art 143 – 1998
   (3rd Judges case)

THE COLLEGIUM SYSTEM

1. The senior most supreme court judge become the Chief justice of india.
2. The selection comission consists of CJI and 4 supreme court judges
3. The president on the recommendation of the commision will select the persons to supreme court judge

NOTE: the CJI has veto power and out of 5, four should accept him has a judge

CRITIQUE

• Process is opaque.
• Allegations of favoritism and
  bias.
• Results in huge vacancies
• Affects federalism
• Amounts to rewriting the
  Constitution
• Judicial monopoly over
  appointments not seen in
  any democracy.

99th Constitutional Amendment, 2014 (National Judicial Appointments Commission)

• Art 124A: Creation of NJAC
  -Members:
  -Chief Justice of India, Chairperson
  -2 other senior-most SC Judges
  -Law Minister
  -2 eminent persons (Chosen by PM, CJI, LOP(LS))
• Art 124B: Functions of NJAC: Recommend
  -Persons for appointment as CJI, CJ (HCs),
  Judges (SC, HCs)
  -Transfer of HC Judges

SC Advocates on Record Case, 2015

• 99th Amendment Act’14 struck down
• Reasons:
  -Violation of Basic Structure (Independence of judiciary)
  -No Veto for CJI
  -Inclusion of Executive
  -No criteria for eminent persons

By Ambedkar In Constitutional Assembly

“With regard to the question of the
concurrence of the Chief Justice, it seems
to me that those who advocate that
proposition seem to rely implicitly both on
the impartiality of the Chief Justice and the
soundness of his judgment. I personally feel no doubt that the Chief Justice is a very
eminent, person. But after all the Chief
Justice is a man with all the failings, all the
sentiments and all the prejudices which we
as common people have; and I think, to
allow the Chief Justice practically a veto
upon the appointment of judges is really to
transfer the authority to the Chief Justice
which we are not prepared to vest in the
President or the Government of the day. I
therefore, think that is also a dangerous
proposition.”

PROCESS OF REMOVAL

• GROUND: Misbehaviour/Incapacity
• MANNER: Judges (Inquiry) Act’1968
• Parliament can remove the Judges of SC & HC
  through special majority.

JUDGES (INQUIRY) ACT’68

1. 100 MPs (LS) or 50 MPs (RS) may submit the notice to
   Presiding Officer for removal.
2. Presiding Officer may accept or reject the notice.
3. If accepted, a committee is constituted consisting of 3
   members (judges of SC, CJs of HC, distinguished jurist).
4. If the committee finds the judge guilty, the report is sent
   to the presiding officer.
5. Voting takes place in both the houses separately.
6. If approved by majority of the members (2/3rd present &
   voting + more than 50% of the total strength), the judge
   shall stand removed after the assent of the President.

Salary & Oath

• Salary – Schedule II
• Oath – Schedule III

Note: No person who has held office as a
Judge of the Supreme Court shall plead or
act in any court or before any authority
within the territory of India.

Retired Judges & Ad hoc judges

Ad hoc judges

• If Quorum in SC is not met,
  CJI can order HC judges to
  attend the SC
• Conditions:
  -Prior permission of President
  -Consultation with CJ(HC)
  -Judge should be qualified to be
  appointed as SC judge

Retired Judges

• CJI can order retired SC/HC
  judges to attend the SC
• Conditions:
  -Prior permission of President
  -Retired HC Judge should be
  qualified to be appointed as
  SC judge

Court of Records

• Verdicts have evidentiary value
• Judgments are used as precedents by lower courts.
• 
  Special Features of CoRs:
• Power to review one’s own decisions
• Power to punish for contempt.

Seat of SC

• Supreme Court shall sit in Delhi.
• Can sit in other place(s) – Chief Justice of India may
  decide (with President’s approval)

Jurisdiction of SC

1.Case involves interpretation of the Constitution.

2. Case involves a substantial question of law of general importance.

3. HC reversed lower court’s judgement and gave a punishment of not less than 10 years.

Special Leave Petition

• Supreme Court may grant special leave to appeal from
  any judgment, order etc. in any cause or matter passed
  or made by any court or tribunal in the territory of India.

Revisory jurisdiction

• Supreme Court shall have power to review any judgment
  pronounced or order made by it.

Other Important Provisions

• Art 138: SC’s jurisdiction can be
  enlarged by the Parliament
• Art 139A: SC can transfer cases from
  one HC to another or to itself.
• Art 141: The law declared by the
  Supreme Court shall be binding on all
  courts within the territory of India.

Absolute Powers of SC

Art 142
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 cause or matter pending
before it, and any decree so passed or order so made shall
be enforceable throughout the territory of India

Art 145: Rules of Supreme Court

• With the approval of the President, SC can make
  rules for regulating generally the practice and
  procedure of the Court.
• Minimum number of judges to decide on matters
  of interpretation of the Constitution or matters
  under Art 143 shall be 5.
• All decision to be given by a majority judgement.

HIGH COURTS

ESTABLISHMENT & CREATION

• Presently – 25
• High Court for each state
• Common HC for two or more States (7th A/A 1956)

HIGH COURT	STATES/UTs
BOMBAY	Goa, Dadra and Nagar Haveli and Daman and Diu, Maharashtra
CALCUTTA	Andaman and Nicobar Islands, West Bengal
GAUHATI	Arunachal Pradesh, Assam, Mizoram, Nagaland
J&K & LADAK	Jammu and Kashmir, Ladakh
KERALA	Kerala, Lakshadweep
TAMIL NADU	Tamil Nadu, Puducherry
PUNJAB & HARYANA	Chandigarh, Haryana, Punjab

APPOINTMENT

Art 217 (1): Every Judge of a High Court shall be appointed
by the President by warrant under his hand and seal after
consultation with the Chief Justice of India, the Governor
of the State, and, in the case of appointment of a Judge
other than the chief Justice, the chief Justice of the High
court, and shall hold office, until he attains the age of
sixty-two years

Jurisdiction

Original Jurisdiction

• Electoral disputes (Parliament & State Legislatures)
• Admiralty (Involving law of seas)
• 
  Appellate Jurisdiction
• Largely all civil and criminal matters come under this.

Subordinate Courts

Appointment

• District Judge: Appointed by Governor on
the advice of HC. (Art 233)
-Advocate or a pleader of seven years’ standing
or more, or
-An officer in judicial service of the Union or
the State
• Lower Judge: SPSC conducts exam and
interview conducted by HC. (Art 234)

NATIONAL LEGAL SERVICES AUTHORITY

• Established -1987 (Legal Services Authorities Act)
• Came in force – 9th November 1995
• Purpose: To establish a nationwide uniform
  network for providing free and competent legal
  services to the weaker sections of the society on
  the basis of equal opportunity.

FREE LEGAL SERVICES

• Court Fees: Involves paying necessary fees for court
  processes.
• Legal Representation: Provides the service of lawyers
  for legal cases.
• Access to Documents: Assists in getting certified copies
  of legal orders and documents.
• Appeal Preparation: Helps in preparing appeal
  documents, including printing and translating them for
  legal proceedings

ELIGIBILITY

• Women and children
• Members of SC/ST
• Transgender whose annual income does not exceed ₹2,00,000
• Industrial workmen
• Victims of mass disaster, violence, flood, drought, earthquake,
  industrial disaster
• Disabled persons
• Persons in custody
• Persons whose annual income less than ₹ 1 lakh
• Victims of trafficking in human beings or begar.

JUDICIAL INDEPENDENCE

• Principle of separation of powers & checks & balances
• More than 50% cases, Executive = litigant
• Rule of law
• To protect democratic rights of people
• To preserve federalism

ENSURING INDEPENDENCE

• Appointment
• Removal
• Conduct cannot be discussed in the Legislatures
• Debarred from practice in future
• Salaries/allowance = Charged expenditure
• Power to make its own rules
• Contempt powers

LOK ADALAT

Legal Services Authorities Act, 1987 was amended
in 2002 to provide for the establishment of the
Permanent Lok Adalats to deal with cases
pertaining to the public utility services.
Idea = amicable settlement through compromise

Permanent Lok Adalat shall consist of a
Chairman (Former/serving district judge or
additional district judge or a judge having held
judicial office higher in rank than that of the
district judge
2 Members having adequate experience in public
utility services.

Available for
-Civil & compoundable criminal offences.
-Pre and post litigative stage.
Award is binding and cannot be challenged.
Jurisdiction – Up to ₹1 crore.

Purpose

• Providing access to justice to the citizens at their
  doorsteps
• To ensure that justice is not denied due to social,
  economic or other disabilities.

ISSUES CONCERNING JUDICIARY I

ADVERSE
IMPLICATIONS
Justice delayed = justice denied.
Increasing tendency to employ extra
legal means.
Erosion of image and credibility of
judiciary.