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Supreme Court/High Court/District Court

The Judiciary Stucture in India High Courts District Judiciary

Supreme Court

• Judiciary is that branch of government which interprets law, settles disputes and administers justice. Laws are like dead letters without courts to explain and expound their meaning.
• Judiciary is the watchdog of democracy, guardian of the constitution as well as champion of liberty.
• In India the structure of judiciary is like a pyramid. The Supreme Court is at the apex, below it, there are High Courts, the next step in the hierarchy are the district courts and at the bottom of the judicial pyramid are the subordinate courts.
• In India, the courts from top to bottom deal with the disputes arising under the laws enacted by the Union Parliament as well as by state legislatures.

THE FUNCTIONS OF THE JUDICIARY

SUPREME COURT

• Independent Judiciary : Sine – Qua – Non of Democracy (Absolutely needed)
• Exist to see that laws made by legislature are intra vires (with the constitution)
• At the apex lie SC : Custodian & interpreter of constitution
• Originally 1 CJ & 7 judges, but At present 1 CJ & 30 Judges

Seat:
SC normally seats at New Delhi. However it can be hold its meeting anywhere in India. The decision I this regard is taken by the CJI in consultation with the President.

Appointment of the Chief Justice of India:
• There is no procedure laid down for the appointment of the Chief Justice of India.
• A convention was followed to appoint the senior most judge as the Chief Justice until it was broken by Mrs. Indira Gandhi who appointed justice A. N. Ray as the chief justice superseding three senior justices of the Supreme Court.
• The Supreme Court has laid down in a judgment that only the senior most judge of the Supreme Court is eligible to become the Chief Justice.
• At present the convention of appointing the senior most judge as the chief justice prevails.

Appointment of Judges (Art. 124)
• Every judge of the Supreme Court shall be appointed by the President after consultation with such judges of the Supreme Court and of the High Court as the President may deem necessary.
• In case of the appointment of a judge other than the chief justice, the chief justice of India shall always be consulted.
• The consultation process has been made systematic, elaborate and effective by the Supreme Court in various cases known as Supreme Court Judges case.
• The Supreme Court has held that the Chief Justice must consult the four senior most judges of the Supreme Court and if two judges give an adverse opinion, the Chief Justice should not send the recommendation to the government.
• Thus, the word consultation with the judiciary while appointing the Supreme Court judges has been practically converted into concurrence.

Qualification for appointment as a Judge (Art. 124):
No person shall be qualified for appointment as a judge of the Supreme Court unless he is:-
• a citizen of India; and
• has been for at least 5 year a judge of a High Court; or
• has been for at least 10 years an advocate of High Court; or
• is in the opinion of the President, a distinguished jurisdictions. (a highly qualified academia / law professor)

Tenure:
• A judge of the Supreme Court holds office until he attains the age of 65 years. No minimum age for appointment is fixed. A judge may at any time resign his office by writing addressed to the President.
• 3 years more than that of High court Judge
• He may be removed by the President by an order issued after being presented an address by each House of Parliament passed by special (also known as double majority) majority.
• Such removal can be on the ground of (a) proved misbehaviour or (b) incapacity.

Salary of Supreme Court Judges:
• Chief Justice -1 lakh
• Other Judges -90,000 (From consolidated fund of India)

Appointment of acting Chief Justice (Art. 126)
• In case of absence of the Chief Justice of the Supreme Court by any reason, the President may appoint a judge of the Supreme Court as the acting Chief Justice during such absence.

Ad-hoc Judges (Art. 127)
• The Chief Justice with the previous consent of the President can ask a High Court judge after consulting the chief justice of that High Court to attend at the sittings of the Supreme Court as an ad hoc judge.
• The ad hoc judge will have all the jurisdiction, powers and privileges of a judge of the Supreme Court.

Attendance of retired Judges (Art. 128)
• The chief justice may with the prior consent of the President request a retired judge of the Supreme Court or a High Court who is qualified to be judge of the Supreme Court to and act as a judge of the Supreme Court.
• The President may determine his allowances. He shall have all the jurisdiction, powers and privileges of the Supreme Court. But he shall not be deemed to be a judge of the Supreme Court.

Removal of Supreme Court judges Art. 124(4):
The manner of removal of a Supreme Court judge which is an impeachment like process. A judge may be removed from his office on the ground of (a) misbehavior or (b) incapacity. The removal involves the following steps:
• A motion for presenting an address to the President praying for the removal of a judge must be signed by at least 100 members of the Lok Sabha (if notice is given in the Lok Sabha).
• The Chairman or the Speaker (as the case may be) may consult such persons as he thinks fit and consider such material as may be available and may admit the motion or refuse to admit it.
• If the motion is admitted, a committee consisting of 3 persons will be constituted of whom,
– One shall be from among the Chief Justice and judges of the Supreme Court.
– One shall be from among the Chief Justice and the judges of the High Court.
– One shall be a person who is a distinguished jurist.
• If the committee arrives at a finding that the judge is guilty of misbehaviour or suffers from an incapacity, then the motion for removal of the judge together with the report of the committee will be taken up for consideration in the House in which it is pending.
• The motion must be passed by each House by a majority of the total membership of that House and by a majority of not less than two-third of the members of that House present and voting. After being so passed, the address is presented to the President.
• The President passes an order removing the judge.
• By order of President, after an address in each house of parliament, supported by a majority of total membership of the house & passed by a resolution supported by not less than 2/3rd of the members present & voting.
Lok Sabha: A motion can be preferred before the house if signed by 100 members
Rajya Sabha: A motion can be preferred before the house if signed by 50 members
o Only on grounds of proven misbehavior or incapacity
o Only after giving 14 days prior notice to said Judge against whom the motion is passed
o A 3 persons judicial committee is formed headed by serving judge of SC and 2 others from (SC or HC or eminent jurists)
o Report of same must be passed by both the houses & President

Acting CJ & Ad Hoc Judges
Appointment of Acting CJ – By President if CJ is ill or incapable to serve
Appointment of Ad-hoc Judges – IF there is lack of quorum of Judges of SC to hold or continue any session in court, CJ of India with previous consent of President & after consultation with CJ of HC concerned, request in writing the attendance of judges to sit in SC as ad-hoc judges for certain period (Judges shall be qualified to be judges of SC)
Retired judges of SC can sit in SC as Ad-hoc Judges on request of CJ after consent of President, provided they fulfill the criteria of SC’
• Criminal proceedings initiation against a judge of SC or HC requires CJs consent
• After retirement, a Judge of SC is prohibited from practising or acting as a judge in any court.

Independence of Supreme Court:
The Constitution secures the independence of the judges of the Supreme Court by the following provisions:
• The appointments are made by the President in consultation with the Chief Justice of India.
• The judges are to be removed by Parliament through a tough impeachment process. They cannot be removed by the executive.
• Salaries, allowances and pensions of Supreme Court judges are charged on the Consolidated Fund of India (CFI) and shall not be varied to their disadvantage.
• The conduct of a judge cannot be discussed in the parliament or any legislature (Art.121 and 211).
• A retired judge of the Supreme Court is prohibited from pleading or acting in any Court or authority in India.

Supreme Court to be a court record:
The Supreme Court is a Court of record (Art. 129). It means that its record has evidentiary value and cannot be questioned when produced in a Court. It also means that it has the power to punish for contempt.

JURISDICTION AND POWER OF SUPREME COURT:
A. Original Jurisdiction
• Original jurisdiction of SC is power to hear a case for the 1st time unlike Appellate jurisdiction
• Purely federal in character i.e. have exclusive authority to decide any dispute involving a question of law between:
– GOI (Union) v/s state or states
– GOI & any state / states on one side & state / states on the other
– Two or more states
However, according to 7th amendment, 1956, original jurisdiction of SC does not extends to disputes, arising out of provisions of a treaty, agreement etc. which was executed before 26th Jan 1950 & is in operation ever since.
As per article 71, all disputes regarding election of President & vice President are handled by SC

Exclusion to original jurisdiction of states (Art.131)
• In disputes between center & state due to disputes arising out of provisions of a treaty, agreement etc. which was executed before 26th Jan 1950 & is in operation ever since
• Parliament may by law exclude SC’s jurisdiction in disputes with respect to use, distribution & control of water in any interstate river

Exclusive jurisdiction in following cases:
• Between the government of India and one or more states.
• Between the government of India and one or more states on one side, and one or more states on the other.
• Between two or more states.
– The dispute must involve any question of law or fact on which the existence or extent of a legal right depends.
– A legal right is one which is capable of enforcement by a Court law. It must be based on a rule of positive law and not be a matter of political considerations.

Writ Jurisdiction (Art.32)
• A type of original jurisdiction of Supreme court
• Jurisdiction of SC to enforce FRs – Every individual has a right to move to SC directly by appropriate proceedings for the enforcement of his FR, without coming via HC, by means of writs.

B. Appellate Jurisdiction:
Constitutional Matters (Art.132):
• Appeal lies to SC if HC certifies that the case involves a substantial question of law as to interpret the constitution
• If HC refuses to give certificate, SC may grant a special leave for appeal if it is satisfied that case does involve such question

Civil Matters:
An appeal lies to SC from any any judgement in civil proceeding of HC if it certifies :
• that the case involves a substantial question of law of general importance
• that in opinion of HC, the said question needs to be decided by SC
Thus, No appeal in case of civil matters lies to SC as a matter of right as it lies only when HC issues a certificate on above 2 conditions

Criminal Matters (Art.134):
Constitution provides the following provisions as to appeal in criminal matters:
• If HC has sentenced someone to death
• If HC has withdrawn for trial before itself a case from the lower court & in such trial, lower court has sentenced the accused to death
• If HC certifies that the case is fit for appeal to SC, even if HC on appeal has reversed an order of acquittal of accused & sentenced him to death or life imprisonment or for period not less than 10 years
(Appellate Jurisdiction is not Applicable in cases of Court Martial)

Grant of special leave to appeal – Article 136
Articles 131, and 133 provide for appeals to the Supreme Court from constitutional, civil and criminal matters respectively.
• Under Article 136, the Supreme Court has the power to grant special leave to appeal from any judgement, decree, determination, sentence or order of a Court or tribunal except military tribunals. In the earlier articles, the appeals flow only from the determinations of a High Court.
• Article 136 puts no such restrictions. Under this article, the Supreme Court may hear an appeal even from a subordinate court or tribunal. Even where the law does not provide for any appeal, e.g., from Industrial Tribunals, Election Tribunals, the Central Board of Revenue, the Central Government, the Railway Rates Tribunal, etc.

Advisory Jurisdiction (Only consultative Role):
• President can refer to court either on a question of law or on a question of fact provided it is of public importance. However, it is not compulsory for court to give its advice.
• Further, President is empowered to refer to SC for its opinion regarding disputes, arising out of provisions of a treaty, agreement etc. which was executed before 26th Jan 1950 & is in operation ever since. In such case, it is obligatory for the court to give its opinion to President
(In this cases, opinion expresses by SC is only advisory in nature & not binding on President)

C. Revisory Jurisdiction:
• Empowered to review any judgment or order made by it with a view to remove any mistake or error that might have crept in judgment
• Even though, judgment have been passed by SC has a binding effect on all the courts of India, but not on SC itself.

D. Supreme Court as Court of Record:
• Records & judicial proceedings are of evidentiary value before any court
• Has power to determine its own jurisdiction

Review of judgements for orders by the Supreme Court (Article 137)
Under this provision the Supreme Court has the power to review its own judgement. Since there is no court above Supreme Court, its judgement can be reviewed by no court but by itself. A review will lie on the following grounds:
– Discovery of new and important matters or evidence;
– Mistake or error apparent on the face of the record; and
– Any other sufficient reason.

Transfer of certain cases (Article 139 A):
In cases involving the same questions of law having general importance, the Supreme Court may withdraw such cases and dispose them itself.

Advisory jurisdiction (Article 143):
• The power of consulting the Supreme Court by the President on a matter affecting the nation is known as advisory jurisdiction of the Supreme Court.
• If the President at any time feels that a question of law or fact of public importance has arisen which requires the opinion of the Supreme Court, he may refer the matter to the Supreme Court to seek its advice.
• However, the President is not bound by the advice given by the Supreme Court nor Supreme Court is bound to tender its advice always.

Transfer of Certain Cases to High Court (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, the High Court will withdraw the case and either determine the question of law and return the case to the court from where it was withdrawn or dispose of the case itself.
Contempt of court:
(Supreme Court has power to punish its own contempt)
Civil – Willful disobedience to any judge or other processes of the court
Criminal – Publication of any matter or doing any act whatsoever which scandalizes or tend to scandalize authority of the court or tend to interfere course of any judicial proceedings

Curative Petition:
• A review petition may be filed in SC after delivery of its judgment; Court may review the case under its inherent power but on very restricted grounds
• The petition 1st has to circulate to a bench of 3 senior most judges & judges who passed the judgment complained of.

Others Powers of SC:
• Make rules regarding procedure & practice of court
• Can recommend removal of members of UPSC to the President
• Power to review the laws passed by the legislature & orders issued by executives & to declare them ultra vires if they contravene any of the provisions of the constitution
• It must be noted that SC can not pronounce upon the constitutionality of any law or executive’s action on its own. It can only pronounce judgment, when said law or executive action is actually challenged by someone
• The ultimate authority to interpret the constitution also rest with SC , which has been described as mouth piece of Indian constitution.

APPOINTMENT & TRANSFER OF JUDGES – BY NATIONAL JUDICIAL APPOINTMENTS COMMISSION

Composition of the NJAC – 6 members:
• Chief Justice of India (Chairperson, ex officio)
• Two other senior judges of the Supreme Court next to the Chief Justice of India – ex officio
• The Union Minister of Law and Justice, ex-officio
• Two eminent persons (one of which would be from the SC or ST or OBC or Minority communities or a woman ), for 3 yrs, not eligible for re-nomination, to be nominated by a committee consisting of :
– Chief Justice of India
– Prime Minister of India
– Leader of opposition in the Lok Sabha ( where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in Lok Sabha)

Functions of the Commission:
• Recommending persons to president for appointment as:
– Chief Justice of India,
– Judges of the Supreme Court,
– Chief Justices of High Courts and other Judges of High Courts.
• Recommending transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court.
• Ensuring that the persons recommended are of ability and integrity.

Evolving System:

High Court

• The judiciary in the states consists of a High Court and a system of subordinate courts below it.
• The High Court is at the apex of the judiciary in the state.
• Article 214 provides for High Court for each state but there can be common High Courts for two or more states established by Parliament under Article 231.
• Under Article 230 the jurisdiction of High Court can be extended to the Union Territories also.
• At present there are only 24 High Courts covering all the 29 states and 7 Union Territories.
• A High Court may also have one or more benches of itself within the area of its territorial jurisdiction.

Indian High court Act, 1861
• High courts established at Calcutta, Bombay & Madras
• Constitution states that there shall be HC in every state, but, parliament has the power to establish a common HC for 2 or more states (At present 24 HC for 29 states & 7 UTs)
• Strength of HC is flexible (Unlike SC – which can be increased by parliament)
• President may from time to time appoint judges of HC, keeping in view amount of work before HC.

Jurisdiction and Seats of Courts in India

Appointment of High Court Judges:
Initiation of proposal for appointment of judges of HC must invariably be made by CJ of that HC
Appointment is made with respect to recommendations of NJAC
Composition of the NJAC – 6 members
• Chief Justice of India (Chairperson, ex officio)
• Two other senior judges of the Supreme Court next to the Chief Justice of India – ex officio
• The Union Minister of Law and Justice, ex-officio
• Two eminent persons (one of which would be from the SC or ST or OBC or Minority communities or a woman ), for 3 yrs, not eligible for re-nomination, to be nominated by a committee consisting of :
– Chief Justice of India
– Prime Minister of India
– Leader of opposition in the Lok Sabha ( where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in Lok Sabha)

Functions of the Commission:
Recommending persons to president for appointment as:
• Chief Justice of India,
• Judges of the Supreme Court,
• Chief Justices of High Courts and other Judges of High Courts.
– Recommending transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court
– Ensuring that the persons recommended are of ability and integrity

Appointment of Acting CJ, Additional Judges & Ad Hoc Judges – High Court


Tenure of High Court Judges
• 62 Years
• Any dispute regarding the age of judge of HC is decided by President in consultation with CJ of India

Removal of High Court Judges
• HC judge can resign by writing to President; or
• By same removal process as in case of SC judges

Salary of High Court Judges
• CJ – Rs. 90,000
• Others – Rs.80,000
• From consolidated fund of State
Oath – before Governor (Unlike before President as in case of Supreme Court)

Qualification for High Court Judges
• Must be citizen of India
• Must have held a judicial office in territory of India for atleast 10 years or
• Must have been an advocate of HC in succession for 10 years
After retirement a judge of HC cannot plead in a court or before any authority in India except in SC or HC other than in which he held office

Jurisdiction of High Court
A. Original Jurisdiction
• In civil cases with amount > 2000
• In criminal cases, authorised to them by President Magistrates

B. Appellate Jurisdiction
All HCs entertain appeals in civil & criminal cases from their subordinate courts.
They have, however, no jurisdiction over tribunals established by the law relating to armed forces of the country

C. Writ Jurisdiction:
• Jurisdiction to issue writs under HC is larger than the SC.
• SC can issue them only where a FR has been infringed whereas a HC can issue them, not only in such cases but also where an ordinary legal right has been infringed

D. Administrative & supervisory Functions of HC:
• HC supervise & controls the working of courts subordinate to them
• Frame rules & regulations for transactions of their business. For ex. Transfers, Postings, Promotions etc.
• Not applicable in case of tribunals dealing with armed forces
(HC acts as court of records & has power to punish its own contempt)

Superintendence over Courts:
• Under Article 227 every High Court has a power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Superintendence covers both administrative as well as judicial.
• The power of superintendence is an extraordinary power to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for making trifle corrections.
• The High Court should intervene in cases of gross injustice or non-exercise or abuse of jurisdiction even though there is no provision for appeal or revision.

Transfer of Certain Cases to High Court (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, the High Court will withdraw the case and either determine the question of law and return the case to the court from where it was withdrawn or dispose of the case itself.

Control over the Subordinate Judiciary:
As the head of the judiciary in the State, the High Court has got an administrative control over the subordinate judiciary in respect of certain matters. The subordinate courts include District Judges of the city, Civil Courts as well as the Metropolitan Magistrates and Members of the Judicial Services. The control over the judges of these subordinate courts is exercised by the High Court in the following matters-
• The High Court is to be consulted by the Governor in the matter of appointing, posting and promoting district judges.
• The High Court is consulted along with the state Public Service Commission, by the Governor, in appointing persons to the judicial service of the state.
• The control over district courts and courts subordinate thereto, including the posting and promotion of and the grant of leave to persons belonging to the judicial service and holding any post inferior to the post of a district judge is vested in the High Court.
The initial appointment of a District Judge or Additional District Judge is made by the Governor who has to act in consultation with the High Court. After he is appointed his posting and promotion is done by the Governor in consultation with the High Court (Article 233). Normally the High Court’s recommendation must be accepted. Departure from it must be rare and for cogent and compelling reasons.
The posting and promotion of the district judge is done by the Governor in consultation with the High Court but posting and promotion of persons belongings to state judicial service (other than district judges) exclusively rests with the High Court (Article 235).
Article 235 expressly states that the control over district court and courts below it vest in the High Court. The control is administrative, removal or reduction in rank. In the matter of dismissal, removal and reduction also the High Court may recommend such punishment to the Governor.

Powers to issue writs:
• The Supreme Courts and High Courts can issue writs to ensure that rights of the people are not violated either by State or otherwise.
• The Constitution has specifically given the power ‘to issue certain writs’ to the High Courts.
• These Courts can issue writs (which are binding directions of the Court) to any person or authority, including government of the State concerned.
• The writs in the nature of Habeas, Corpus, mandamus, prohibition, quo warranto, and certiorari (explained in lesson 6) for the enforcement of rights of the people.
• This power is exercised in the original jurisdiction of the High Court, and is not derogatory to similar power of the Supreme Court.

Transfer of Cases to the High Court
• If a 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, the High Court may withdraw such a case from the lower court.
• After examining the case, the High Court may either dispose it off itself, or may return it to the lower court with instructions for disposal of the case.

Superintendence of Subordinate Courts
• A High Court has the right of superintendence and control over all the subordinate courts in all the matter of judicial and administrative nature.
• In the exercise of its power of superintendence, the High Court may call for any information from the lower courts; may make and issue general rules and prescribe norms for regulating the practice and proceedings of these courts; and it may issue such directions, from time to time, as it may deem necessary.
• It can also make rules and regulations relating to the appointment, demotion, promotion and leave of absence for the officers of the subordinate courts.

Court of Record
• A High Court is also a court of record, like the Supreme Court.
• Lower courts in a State are bound to follow the decisions of the High Court which are cited as precedents.
• A High Court has also the power to punish for its contempt or disrespect.

District Court

Subordinates courts – district courts
Civil cases- district judges,
Criminal cases- session judges
Appointed by Governor in consultation with CJ of HC
In each district of India there are various types of subordinate or lower courts. They are civil courts, criminal courts and revenue courts. These Courts hear civil cases, criminal cases and revenue cases, respectively.
Civil cases pertain to disputes between two or more persons regarding property, breach of agreement or contract, divorce or landlord – tenant disputes. Civil Courts settle these disputes. They do not award any punishment as violation of law is not involved in civil cases.
Criminal cases relate to violation of laws. These cases involve theft, dacoity, rape, pickpocketing, physical assault, murder, etc. These cases are filed in the lower court by the police, on behalf of the state, againt the accused. In such cases the accused, if found guilty, is awarded punishment like fine, imprisonment or even death sentence.
Revenue cases relate to land revenue on agriculture land in the district.

Qualifications and Appointment of Judges
• The judges of subordinate courts are appointed by the Governor in consultation with the Chief Justice of the High Court of the concerned State.
• These days, in most of the States judicial service officers including the magistrates are selected through competitive examinations held by the State Public Service Commission. They are finally appointed by the Governor.
• Any person who has been an advocate for at least seven years or one who is in the Structure of Government service of the State or the Central Government is eligible to be a judge of the District Court provided he/she possess the required legal qualifications.

The Designation System:
• As per the direction of the Supreme Court, a uniform designation has been brought about in the subordinate judiciary’s judicial officers all over the country, namely, district or Additional District Judges, Civil Judge (Senior Division) and Civil Judge (Junior Division) in the Civil Courts and in Criminal Courts, Sessions Judge, Additional Sessions Judge, Chief Judicial Magistrate and Judicial Magistrate, etc.
• The next set of courts is described as courts of District and Sessions Judge, which also includes courts of the Additional Judge, Joint Judge, or Assistant Judge. The court of the District and Sessions Judge at the district level is the principal court of original jurisdiction.
• It is presided over by an officer called the District and Sessions Judge. As a rule, the same officer is invested with power under both the statutes and presides over the court, known as the District and Sessions Court.
• Depending upon workload, a district court may have jurisdiction over more than one district- In some states, there is a court called the Court of Civil and Sessions Judge.
• These courts generally have unlimited pecuniary jurisdiction and depending upon the power conferred on the incumbent officer-in-charge of the court, it can handle criminal cases. In some states, these courts with unlimited pecuniary jurisdiction are called Courts of Civil Judge (Senior Division) while in other states they are described as Courts of Subordinate Judge. In addition there are courts known as Small Causes Courts.
• These are set up either under the Provisional Small Causes Act at the district level or under the Presidency Town Small Causes Court Act in presidencies/metropolitan towns.

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