Judiciary

Judiciary

The Indian Constitution has established an integrated and independent judicial system with the Supreme Court at thetop and the high courts below it and under a high court, there is a hierarchy of subordinate courts.

Supreme Court

• The Supreme Court of India, inaugurated on January 28, 1950, succeeded the Federal Court of India, established under the Government of India Act of 1935. However, unlike its predecessor, the Supreme Court has replaced the British Privy Council as the highest court of appeal.
• Articles 124 to 147 in the Part V of the Constitution deal with the provisions of the Supreme Court.

Composition

• Initially, there was a Chief Justice and seven other Judges in the Supreme Court. The Parliament has been given the power to increase the number of Supreme Court judges.
• There are currently 30 judges (including the Chief Justice of India) and maximum possible strength is 34.Justice Sharad Arvind Bobde is the 47^th Chief Justice of India.

Appointment

• The chief justice is appointed by the president after consultation with such judges of the Supreme Court and high courts as he deems necessary. The other judges are appointed by president after consultation with the chief justice and such other judges of the Supreme Court and the high courts as he deems necessary. The consultation with the chief justice is obligatory in the case of appointment of a judge other than Chief justice.
• The Supreme Court has given different interpretation of the word ‘consultation’ in the above provision. In the First Judges case (1982), the Court held that consultation does not mean concurrence and it only implies exchange of views.
• But, in the Second Judges case (1993), the Court ruled that the advice tendered by the Chief Justice of India is binding on the President in the matters of appointment of the judges of the Supreme Court. But, the Chief Justice would tender his advice on the matter after consulting two of his senior most colleagues.
• Similarly, in the Third Judges case (1998), the Court opined that the consultation process to beadopted by the Chief justice of India requires ‘consultation of plurality judges’ (the collegium).
• The 99th Constitutional Amendment Act of 2014 and the National Judicial Appointments Commission Act of 2014 have replaced the collegium system. However, in 2015, the Supreme Court, in the Fourth Judges case (2015), has declared both the 99th Constitutional Amendment as well as the NJAC Act as unconstitutional and void. Consequently, the earlier collegium system became operative again.
• From 1950 to 1973, the practice has been to appoint the senior most judge of the Supreme Court as the chief justice of India. This established convention was violated in 1973 when A.N. Ray was appointed as the Chief Justice of India by superseding three senior judges. Again in 1977, M.U. Beg was appointed as the chief justice of India by superseding the then senior-most judge.
• This discretion of the government was curtailed by the Supreme Court in the Second Judges Case (1993), in which the Supreme Court ruled that the senior most judge of the Supreme Court should alone be appointed to the office of the chief justice of India.

Qualifications

• He should be a citizen of India.
• He should have been a judge of a High Court (or high courts in succession) for five years; or should have been an advocate of a High Court (or High Courts in succession) for ten years; or should be a distinguished jurist in the opinion of the president.

Tenure

• A Judge of the Supreme Court continues to hold the office till he/she attains the age of 65 yrs.Any question regarding his age is to be determined by such authority and in such manner as provided by Parliament.
• He can resign his office by writing to the president.
• He can be removed from his office by the President on the recommendation of the Parliament.

Removal

• Can be removed by an order of the President only after an address by Parliament has been presented to him in the same session for such removal.

Process

A judge can be removed from office through a motion adopted by Parliament on grounds of proved misbehaviour or incapacity.

The Judges Enquiry Act (1968) regulates the procedure relating to the removal of a judge of the Supreme Court by the process of impeachment:

• A removal motion signed by 100 members (in the case of Lok Sabha) or 50 members (in the case of Rajya Sabha) is to be given to the Speaker/ Chairman.
• The Speaker/Chairman may admit the motion or refuse to admit it.
• If it is admitted, then the Speaker/ Chairman is to constitute a three-member committee to investigate into the charges.
• The committee should consist of (a) the chief justice or a judge of the Supreme Court, (b) a chief justice of a high court, and (c) a distinguished jurist.
• If the committee finds the judge to be guilty of misbehaviour or suffering from incapacity, the House can take up the consideration of the motion.
• After the motion is passed by each House of Parliament by special majority, an address is presented to the president for removal of the judge.
• Finally, the President passes an order removing the judge.

Note: No case of removal of SC judge has happened so far.

Jurisdiction and Power

Original Jurisdiction

Under Article 131, subject to the provisions of this Constitution, the Supreme Court shall haveoriginal jurisdiction for any dispute:

• Between the Government of India and States;
• Between the Government of India and any State or States on one side and one or more other States on the other; or
• Between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.
• The Supreme Court has exclusive original jurisdiction in the above cases. Exclusive means, no other court can decide such disputes and original means, the power to hear such disputes in the first instance, not by way of appeal.
• This jurisdiction does not extend to a dispute arising out of any treaty, agreement, covenant, engagement, or other similar instrumentwhich, having been entered into or executed before the commencement of this Constitution, continues In operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.

Writ Jurisdiction

• Article 32 imposes duty on the Supreme Court to enforce the Fundamental Rights. Under this Article, every individual has a right to move the Supreme Court provided there has been any infringement on his/ her Fundamental Rights.
• However, the writ jurisdiction of the Supreme Court isnot exclusive. The high courts are also empowered to issue writs for the enforcement of the Fundamental Rights.

Appellate Jurisdiction

• The Supreme Courte enjoys a wide appellate jurisdiction which can be classified under four heads:
• Appeals in constitutional matters.
• Appeals in civil matters.
• Appeals in criminal matters.
• Appeals by special leave.

Advisory Jurisdiction

• As per Article 143 the President can refer to the Court either a question of law or a question of fact provided that it is of public importance. However, it is not compulsoryfor the Court to give its advice and it is also not binding on the President.
• But for the disputes arising out of any treaty, agreement etc., which had been entered into or executed before the commencement of the Constitution, the Supreme Court must tenderits opinion to the President.

A Court of Record

• Article 129 states that the Supreme Court of India shall be a Court of Record.

High Courts

• Article 214 states that there shall be a High Court for each State.
• The Judiciary in the States consists of a High Court and the Subordinate Courts. The Parliament can, however, establish by law, a common High Court for one or more State(s) and one or more Union Territory (Art 231).
• Every High Court shall be a Court of record (Art 215).
• The High Courts in India find their roots in the British Period when three High Courts namely Bombay, Madras and Calcutta were set-up in 1862.

Appointments

• The judges of a high court are appointed by the President. The chief justice is appointed by the President after consultation with the chief justice of India and the governor of the state concerned.
• For appointment of other judges, the chief justice of the concerned high court is also consulted.
• In case of a common high court for two or more states, the governors of all the states concerned are consulted by the president.

Qualifications

• Must be a citizen of India; and
• Must have held a judicial office in the territory of India for at least ten years; or
• Must have been an advocate of a High Court or two or more such Courts in succession for at least ten years.

Transfer between High Courts

• A Judge can be transferred without his/her consent by the President (Article 222).
• Consultation with the Chief Justice of India must be full and effective.
• All relevant facts relating to the transfer of a Judge of a High Court must be provided to the Chief Justice of India.
• The opinion provided by the Chief Justice shall have primacy and is binding on the President.

Jurisdiction

Original Jurisdiction

• It extends to the:
• Matters of admiralty, will, marriage, divorce, company laws and contempt of court
• Disputes relating to the election of members of Parliament and state legislatures.
• Regarding revenue matter or an act ordered or done in revenue collection.
• Enforcement of fundamental rights of citizens.
• Cases ordered to be transferred from a subordinate court involving the interpretation of the Constitution to its own file.

Appellate Jurisdiction

• As Courts of appeal, all High Courts entertain appeals in civil and criminal cases from their subordinate courts as well as on their own.
• They have, however, no jurisdiction over tribunals established under the laws relating to the Armed Forces of the Country.
• The appellate jurisdiction of a high court is wider than its original jurisdiction.

Control over Subordinate Courts

• High Court enjoys supervisory Jurisdiction over the subordinate Courts. These include:
• Governor in consultation with High Courts appoints the district judges.
• The administrative control of the High Courts over the District Courts and other lower courts is full in as much as postings, promotions and grant of leave etc. to any person belonging to the judicial service of a state and holding any post inferior to the post of judges is vested in High Court.
• Article 236 is the interpretation clause and explains terms like district judge, judicial service etc.
• The High Court’s Law is binding on all subordinate Courts functioning within its territorial’s Jurisdiction in the same sense as the law declared by the Supreme Court is binding on all courts in India.

Subordinate Courts

Articles 233 to 237 in Part VI of the Constitution make the following provisions to regulate the organization of subordinate courts and to ensure their independence from the executive:

Appointment of District Judges

• The appointment, posting and promotion of district judges in a state are made by the governor of the state in consultation with the high court.
• A person to be appointed as district judge should have the following qualifications:
  • He should not already be in the service of the Central or the state government.
  • He should have been an advocate or a pleader for seven years.
  • He should be recommended by the high court for appointment.
• Appointment of persons (other than district judges) to the judicial service of a state is made by the governor of the state after consultation with the State Public Service Commission and the high court.

Alternative Dispute Resolution

• It encompasses arrange of means to resolve conflict without formal litigation, It seeks to reduce cost and delay and avoid the adversarial nature of litigation. ADR today falls into two broad categories- Court-driven Options and community based dispute resolution mechanisms (Lok Adalats)
• Court-driven options include mediation/conciliation where a neutral third party assists disputants in reaching a mutually acceptable solution.
• Conciliation is informal process designed to create an environment where negotiations can take place. If the parties fail to reach an agreement the case is referred to mediation.
• Mediation is a voluntary and confidential process where a neutral third party assists negotiations. The parties are responsible for reaching an agreement and the negotiator cannot impose settlement. If the mediation fails to reach agreement, the case is referred to arbitration.
• Arbitration is a form of private adjudication where a mutually acceptable third party hears arguments from either side in a dispute, and renders a judgment. The judgment is known as award and is confidential and binding.

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