(IGP) GS Paper 1 - Indian Polity & Governance - "The Judiciary"

Subject - Indian Polity & Governance
Chapter : The Judiciary

Supreme Court

The Supreme Court of India was constituted under Article 124 of the Constitution. It commenced its sittings on January 28, 1950.

Qualifications

In order to be appointed as a Judge of the Supreme Court

• a person must be a citizen of India and must have been

• For at least five years, a Judge of a High Court or of two or more such Courts in succession, or

• An advocate of a High Court or of two or more such Courts in succession for at least 10 years, or

• In the opinion of the President, a distinguished jurist.

Appointment of Judges to the Supreme Court:

• Art. 124 of the Constitution of India deals with the appointment of Supreme Court Judges.

• Art 124(2) says that 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.

• In the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. However, the actual process of appointment has gone through changes due to apex court verdicts.

Retirement

Supreme Court judge retires when he attains the age of 65 years.

Resignation

He may resign addressing the letter to the President of India. He may be removed by an order of the President based on parliamentary vote.

Removal of Supreme Court Judge

• Supreme Court Judge may be removed from his office by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting on the ground of proved misbehaviour or incapacity.

• Article 124(5) specifically Lays down that Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity.

Acting CJI

Art.126 says that when the office of the Chief Justice of India is vacant or when he is not in a position to perform his duties, they are performed by such other judge of the Supreme Court that the President may appoint.

Adhoc and Acting Judges

• Art.127 says that if there is no quorum of the Supreme Court judges to hold or continue any session of the Court, the CJI, with the previous consent of the President and in consultation with the Chief Justice of the High Court concerned can request in writing a judge of the high Court who is qualified to be a judge of the Supreme Court, to function as ad hoc judge of the Supreme Court.

• Art. 128 says that retired High Court and Supreme Court judges may be requested by the CJI, with prior consent of the President to sit and function as the judge of the Supreme Court

Constitutional cases

• Art 132 of the Constitution provides for an appeal to the Supreme Court from any judgment, decree or final order of a High Court, whether in civil, criminal or other proceedings, if the High Court certifies that the case involves a substantial question of law as to the interpretation to the constitution.

• A substantial question of law means a question on which two or more High Courts have differed.

Original Jurisdiction

• Under Art. 131, exclusive original jurisdiction of the Supreme Court is one where no other court in the country enjoys the same power. It extends to all federal disputes- any dispute between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between two or more States.

• The writ jurisdiction of the Supreme Court is original but not exclusive as the power is also availb1e to the High Courts (Art.226). Article 32 of the - Constitution gives an extensive original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. It is empowered to issue writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them.

Appellate Jurisdiction

The Supreme Court has a very wide appellate jurisdiction over all Courts and Tribunals in India as it may, in its discretion, grant special leave to appeal under Art. 136 of the Constitution from any judgment, decree, determination, sentence or order interim or final-in any matter from any Court or Tribunal in the territory of India.

Advisory jurisdiction: Art.143

• The Supreme Court has special advisory jurisdiction in matters which may specifically be referred to it by the President of India under Article 143 of the Constitution.

• According to Art. 143, if it appears to the President that-
  i. a question of law or fact has arisen, or is likely to arise
  ii. which is of public importance and that
  iii. it is necessary to take the opinion and advice of the Supreme Court on it

• The advice of the Supreme Court is not binding on the President but it has the value of a judgement.

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Public Service Commission Member’s Removal

Article 317 of the Constitution, provides that the Chairman or any other member of a Public Service Commission can be removed from his office by order of the President, on the ground of misbehavior, after the Supreme Court on reference being made by the President, has on enquiry reported that he ought, on such ground, to be removed from his office.

Court of record

Under Art. 129 of the Constitution the Supreme Court is a court of record. It means it has the following attributes

• its proceedings are recorded and can be quoted as evidence in any court in the country.
• it sets its own jurisdiction and
• it can punish for contempt of court including contempt of itself.

Judges (Inquiry) Bill, 2006 :

• The Judges (inquiry) Bill, 2006 establishes a National Judicial Council (NJC) to conduct inquiries into allegations of incapacity or misbehaviour by High Court and Supreme Court judges.
• The NJC shall consist of the Chief Justice of India, two Supreme Court judges and two High Court Chief Justices to investigate High Court judges; or the Chief Justice of India and four Supreme Court judges to investigate Supreme Court judges.

Judicial Reforms

Many reforms have already been initiated and are in progress. Some have already taken effect as shown below:

• CPC amendments
• CrPC amendments 2008
• Lok Adalats
• Gram Nyayalayas Act 2008
• B-judiciary
• It is suggested that the jury system like in the US should be adopted where the common public can be asked to work as jurors (judges) and decide cases on the basis of facts. It will reduce pressure on courts.

Gram Nyayalaya Act 2008

• Gram Nyayalaya Act 2008 aims at providing inexpensive justice to people in rural areas on their doorstep.
• It provides for first class judicial magistrates dispensing justice.
• Gram Nyayalayas will try criminal cases, civil suits, claims or disputes concerning all the offences not punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

Fast Track Courts

Fast track courts were set up, on the recommendation of the 11th Finance Commission to deal with criminal cases involving undertrials (there are 1.8 lakh undertrials in jails around the country) and other cases pending for more than two years.

Lok Adalats

• Lok Adalat literally means “people’s court”. It is an alternative dispute settlement mechanism which settles disputes through conciliation and mediation. It helps in quick disposal of cases and the process is simple and carries no fees. Lok Adalats are statutory forums since the enactment of Legal Services Authorities Act, 1987.
• All legal disputes pending in civil, criminal, revenue courts or a tribunal can be taken to Lok Adalat for amicable settlement except criminal cases which are non-compoundable (that is, serious of fences where charges cannot be dropped without the consent of the judge).

Judicial review

• Judicial review is the power of the judiciary to review the laws made and executed by the legislature and executive to make sure that they are in line with the Constitution and statute. If they are not, judiciary strikes them down partly or wholly.
• The PIL movement in the country is a classical case of judicial activism whereby the judiciary- the higher rungs- take justice to the doorstep of the weak and vulnerable.

Public Interest Litigation

• Justice Krishna Iyer, in Murnbai Kamgar Sabha vs. Abdulbhai Faizullabhai (1976) used the expression PIL for the first time. Justice Bhagavathi added momentum to PIL in the late seventies.
• In PIL, the victims of violation of constitution and law may be weak, vulnerable and illiterate. There are many cases where public interest is violated-for example, child labour, bonder labour.
• In such a case involving public interest, Supreme Court since late 1970s, allowed the principle of locus standi to be set aside. Any socially spirited individual is allowed to bring it to the notice of the court.
• PIL means a legal action initiated in a court of law for the enforcement of public interest in which the public as against private individuals have interest in the form of protection/restoration of their rights.

E-judiciary

• The e-Judiciary initiative is taken up- computerization and connectivity to help in meeting the needs of the citizens in a transparent manner and enable quicker disposal of cases.
• The Supreme Court took up the “e-courts” project under the-National e-Governance Plan (NeGEP) for linking about 15,000 courts in the country.

COURTNIC

COURTNIC is an information system designed to provide the information, on the status of cases in the Apex Court to a wide variety of users, from anywhere in the country.

High Court

• High Court stands at the head of the State’s judicial administration. There are 21 High Courts in the country. High courts have jurisdiction over a state, a union territory or a group of states and union territories.
• High Courts are sanctioned under Part VI, Chapter V, Article 214 of the Indian Constitution.
• The Chief Justice of a High Court is appointed by the President in consultation with the Chief Justice of India and the Governor of the state.
• Every High Court shall consist of a Chief Justice and such other judges as the President of India from time to time deem it necessary.
• The number of judges in a court is decided by dividing the average institution of main cases during the last five years by the national average.
• The Additional Judges are appointed for a period not exceeding two years taking into account the temporary increase in the business of the High Court. Such judge shall also not hold office after attaining the age of 62.

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