Judiciary

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# Supreme Court

SUPREME COURT

The Supreme Court of India is the highest judicial court and the final court of appeal under the Constitution of India, the highest constitutional court, with the power of judicial review

  • Establishment and constitution of Supreme Court (Article 124)
  • Parliament by law determines the number of judges.
  • Appointed by the President; Appointed by warrant under his hand and seal.
  • Hold office until he attains 65 years of age; can resign anytime addressed to President; removed by a motion.
  • Oath to be administered by the President.
  • Judge of Supreme Court not to plead in any court or authority within the territory of India.

Qualification:

  • Citizen of India.
  • Should have experience as a –
    • Judge of a High Court for 5 years or two or more such courts;
    • Advocate of High Court or two or more such Courts in succession;
    • Distinguished Jurist in the opinion of the President.

Appointment of Judges

  • The judges of the Supreme Court are appointed by the President.
  • The appointment is based on the Collegium System.
  • Collegium system was born through Third Judges case and it is in practice since 1998. It is used for appointments and transfers of judges in High courts and Supreme Courts.
  • No mention of the Collegium either in the original Constitution or in successive amendments
  • In the Third Judges case (1998), the Court opined that the consultation process to be adopted by the Chief Justice of India requires ‘consultation of plurality judges’.
  • The CJI should consult a collegium of four senior most judges of the Supreme Court and even if two judges give an adverse opinion, he should not send the recommendation to the government.
  • Through the 99th Constitutional Amendment Act, 2014 the National Judicial Commission Act (NJAC) was established to replace the collegium system for the appointment of judges.

However, the Supreme Court upheld the collegium system and struck down the NJAC as unconstitutional on the grounds that the involvement of Political Executive in judicial appointment was against the “Principles of Basic Structure”. I.e. the “Independence of Judiciary”.

Removal of Judges:

  • By an order of President;
  • A removal motion needs to be passed in both the Houses of the Parliament by a special majority in the same session;
  • On grounds of proved misbehavior or incapacity.
  • Parliament may provide by law to regulate the procedure for the presentation and address and investigation of such charges.
  • The Judges Enquiry Act (1968) regulates the procedure relating to the removal of a judge of the Supreme Court by the process of impeachment:
  • No judge of the Supreme Court has been impeached so far.

Salaries of Judges of Supreme Court (Article 125)

  • Determined by Act of Parliament
  • Not to be varied to his disadvantage (salaries; allowances and pension etc…)
  • The President may appoint acting CJI in case of vacancy or absence of Chief Justice of India (Article 126)

Appointment of Ad Hoc Judges (Article 127)

  • In the absence of Quorum; CJI with the previous consent of the President and after consultation of CJ of High Court concerned; appoint any Judge of High Court as Ad Hoc Judges of SC.
  • Shall enjoy the powers and privileges of Judges of SC.

Supreme Court to be a Court of Record (Article 129)

  • Court whose proceedings are recorded and available as evidence of the fact.
  • Note: Article 125 – High Court of States to be Court of records.
  • Power to punish for contempt of court.

Seat of Supreme Court (Article 130)

  • Seat of Supreme – Court may sit in Delhi; or another place as decided by CJI with approval of the President.

Original Jurisdiction of the Supreme Court (Article 131)

  • Between GoI vs State or States
  • Between GoI and State vs State/States
  • State vs State (two or more States)

Appellate Jurisdiction of the Supreme Court (Article 132; Article 133; Article 134; Article 134A)

  • Appeal on civil, criminal (or) other proceedings to Supreme Court; provided H.C grants a certificate; [Article 134A]; it involves a substantial question of law relating to the interpretation of the Constitution.
  • Appellate Jurisdiction of S.C in civil matters [Article 133]; case involves substantial question of general importance; If in the opinion of the High Court, the Supreme Court should decide the matter; certificate issued by H.C [Article 134A].
  • Appeal in cases of criminal matters; sentence is death (matter of right); or certified by H.C under Article 134A.

Special leave Jurisdiction (Article 136)

  • SC has discretion to grant special leave to appeal from any judgment; decree or order.

Power to review its own orders and decisions (Article 137)

  • The Supreme Court has the power to review its own orders and judgments.
  • Subject:
    • Rules made by SC (Article 145)
    • Law made by Parliament.
  • Article 139 – Power to issue writs: Any writ apart from Fundamental Rights; by a law of Parliament.
  • Article 141 – Law declared by S.C to be binding on all courts.
  • Article 142 – Extraordinary powers of the S.C
    • C can pass any order/decree to do complete justice on any matter pending before it.
  • Article 143 – Power of the President to consult the Supreme Court
    • Advisory jurisdiction of the Supreme Court.
  • Article 145 – Rulemaking power of the Supreme Court
    • Subject to Law of Parliament; Supreme Court to make rules; with approval of President; regulating general practice and procedure in the House.
    • Five Judges to decide any substantial question of law under Article 143.
  • Article 146 – Officers and Servants and the expenses of the Supreme Court
    • CJI may appoint officers and servants of the Supreme Court; or such other Judge or officer as the Court may decide.
    • Conditions of service shall be made by CJI; subject to the law made by Parliament
    • Note- Salaries; allowances and pensions or leave require the approval of the President.
    • Administrative expenses of Court; salaries; allowances and pensions etc. to be charged on the Consolidated Fund of India.

# High Court and Subordinates Courts

HIGH COURT

  • There shall be a High Court for each State. (Article 214).
  • Every High Court shall be a Court of record and shall have the power to punish for its contempt. (Article 215).
  • Every High Court consists of Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint.

Appointment and conditions of service of a Judge of a High Court (Article 217)

  • Every Judge of HC shall be appointed by the President; by warrant under his hand and seal.
  • Hold office until he attains the age of 62 years.
  • President to consult
    • CJI
    • Governor of the State
    • Chief Justice of the concerned State where the appointment is to other Judges of the HC.
  • Judges (HC) to take oath administered by Governor.
  • Judge may resign anytime; Resignation addressed to the President.
  • Judge may be removed; in the manner provided under Article 124 (Same as SC Judges).
  • Office may be vacated due to appointment to SC; or transfer to other HC by President.
  • Qualification for Judges of HC
    • He shall be a citizen of India;
    • Held at least 10 years of judicial office in the territory of India.
    • Advocate of High Court for at least 10 years (or High Courts in succession).
  • Note- Any question with regard to age of a Judge of HC; President’s decision is final taken after consultation with CJI.
  • Any permanent Judge of HC shall not plead or act in front of any authority; Except the SC and other HC.
  • Article 222 – Transfer of Judges from one HC to another – By the President with consultation of CJI transfer Judges from one HC to another.
  • Article 223 – Acting Chief Justice
  • President may appoint acting Chief Justice.
  • If Chief Justice is unable to perform his duties.

Additional/ Acting Judges of H.C

  • Additional
    • More work/ pending cases (additional Judges can be appointed).
    • Not exceeding 2 years; not after attaining 62 years.
  • Acting Judges
    • When any Judge is absent; not able to perform his duty (Acting Chief Justice).
    • Acting Judge under such circumstances.
    • Tenure: Not exceeding 2 years and not after attaining 62 years.

Appointment of retired Judges of HC

  • By the Chief Justice of High Court with previous consent of the President; request retired Judges of other HC to act as Judge of that HC.
  • Salaries, allowances to be determined by the President.

Jurisdiction of High Courts

  • Constitution does not provide for any general jurisdiction of the Courts (Article 225);
  • Says as it existed at the commencement of the Constitution
  • Subject to law made by Parliament and State Legislature.
  • Original Jurisdiction
    • No original jurisdiction in the case of criminal matters; original jurisdiction in certain civil cases of higher value.
  • Appellate Jurisdiction
    • Both civil and criminal matters
    • Letter Patent Appeals in case of H.C of Allahabad; Bombay; Calcutta; Madras and Patna High Courts.

High Court’s power of superintendence (Article 227)

  • Every High Court has superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
  • Issue general rules; regulating practicing and proceeding in the Courts; prescribe forms in which entries and accounts to be kept.
  • Note:
    • Such rules require previous approval of Governor and not in violation of any law.
    • Armed Forces Tribunal doesn’t fall within the jurisdiction of High Courts.

Writ jurisdiction (Article 226)

  • Writ jurisdiction throughout the territory in relation to which it exercise jurisdiction.
  • Not only for violation of FR’s but for other purposes as well (legal rights).

Transfer cases to HC (Article 228)

  • The H.C can transfer cases pending before a subordinate court to itself if it involves a substantial question of law as to the interpretation of this constitution.

Extension of jurisdiction of the High Court (Article 230)

  • Parliament may by law; include or exclude the jurisdiction of the High Court to any union territory.

Establishment of common high court for two or more states (Article 231)

  • Parliament may by a law; establish common High Court for two or more states.

 

SUBORDINATE COURTS

  • Appointment of District Judges (Article 233)
  • Appointment to district judge is made by the Governor; consultation with the High Court of the concerned state
  • Criteria – At Least 7 years an advocate (recommended by HC)
  • Recruitment of persons other than District Judges to the Judicial Service (Article 234)
  • Appointment of persons other than District judges; shall be made by the Governor (Sub judicial service)
  • Accordance to rules made by governor in consultation with State Public Service Commission and High Court concerned.

 

# Tribunals and Gram Nayayalayas

TRIBUNALS

  • Tribunals were not part of the original constitution.
  • It was incorporated in the Indian Constitution by 42nd Amendment Act, 1976 in accordance with the recommendations of the Swaran Singh Committee.
  • The Amendment introduced Part XIV-A to the Constitution. This Part is called ‘Tribunals’.
  • It contains two articles.
  • Article 323A – Administrative Tribunals.
    • Administrative tribunals are quasi-judicial institutions that resolve disputes related to the recruitment and service conditions of persons engaged in public service.
    • The Central Administrative Tribunal was created under this Section.
    • They are of statutory origin, and so must be created by a statute by Parliament/Legislatures.
    • They function on the principles of natural justice and are not bound by the Civil Procedure Code.
    • They have the power to summon witnesses, administer oaths and compel the submission of documents, etc. like other courts.
    • The writs of prohibition and certiorari are available against decisions of such tribunals.
    • They are independent bodies and are not subject to administrative interference.
    • In the Chandra Kumar case (1997), the Supreme Court had held that appeals against the orders of a tribunal could be made in the High Court. This defeats the purpose of reducing the burden of the normal courts.
  • The Administrative Tribunals Act, 1985 provides for three types of tribunals:
    • The Central Government establishes an administrative tribunal called the Central Administrative Tribunal (CAT).
    • The Central Government may, upon receipt of a request in this behalf from any State Government, establish an administrative tribunal for such State employees.
    • Two or more States might ask for a joint tribunal, which is called the Joint Administrative Tribunal (JAT), which exercises powers of the administrative tribunals for such States.
  • Article 323B – Tribunals for other subjects such as:
    • Taxation, Industrial and labour, Foreign exchange, import and export, Land reforms, Food , Ceiling on urban property, Elections to Parliament and state legislatures, Rent and tenancy rights
  • Tribunals under 323A can be established only by the Parliament. However, tribunals under 323B can be established by both the Parliament and the State Legislature.
  • Under 323A, there can be only one tribunal at the Centre and one for each state (or two or more states), but under 323B, there can be a hierarchy of tribunals.

National Green Tribunal

  • The National Green Tribunal was established in 2010 under the National Green Tribunal Act 2010 as a statutory body for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources.
  • The Tribunal is mandated to make and endeavor for disposal of applications or appeals finally within 6 months of filing of the same.
  • Initially, the NGT is proposed to be set up at five places of sittings and will follow circuit procedure for making itself more accessible.

New Delhi is the Principal Place of Sitting of the Tribunal and Bhopal, Pune, Kolkata and Chennai shall be the other four place of sitting of the Tribunal.

GRAM NYAYALAYAS

  • Gram Nyayalayas or village courts are established under the Gram Nyayalayas Act, 2008 for speedy and easy access to justice system in the rural areas of India.
  • The Gram Nyayalayas are presided over by a Nyayadhikari, who will have the same power, enjoy same salary and benefits of a Judicial Magistrate of First Class.
  • Such Nyayadhikari are to be appointed by the State Government in consultation with the respective High Court.
  • Jurisdiction:
    • A Gram Nyayalaya have jurisdiction over an area specified by a notification by the State Government in consultation with the respective High Court.
    • Can function as a mobile court at any place within the jurisdiction of such Gram Nyayalaya, after giving wide publicity to that regards.
    • They have both civil and criminal jurisdiction over the offences.
    • The pecuniary jurisdiction of the Nyayalayas is fixed by the respective High Courts.
    • Gram Nyayalayas has been given power to accept certain evidences which would otherwise not be acceptable under Indian Evidence Act.
  • Procedure to be followed:
    • Follow special procedures in civil matters, in a manner it deem just and reasonable in the interest of justice.
    • Allow for conciliation of the dispute and settlement of the same in the first instance.
  • Appeals:
    • Appeal in criminal cases shall lie to the Court of Session, which shall be heard and disposed of within a period of six months from the date of filing of such appeal.
    • Appeal in civil cases shall lie to the District Court, which shall be heard and disposed of within a period of six months from the date of filing of the appeal.

 

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