Indian Judiciary System Constitution of India
Indian Judiciary is single, integrated, independent, impartial and supreme.
Single, which means only one set of court for central and state government. i e., No division of judiciary
Integrated, which means all courts in the India have to work under the hierarchy of Supreme court
Note: The Highest court in India is Supreme court. It is also known as Federal court
Supreme court was established as Federal court in 1935. Supreme court of India came into force on 28th January 1950. i e., Federal Court changed to Supreme court on 26th Jan 1950
Supreme court of India
Part V of constitution of India chapter IV, Article 124 to 147 deals with all aspects of Supreme court
Article 124 of Indian Constitution: Establishment and constitution of supreme court
This article says about composition and as well as established of Supreme court of India
Supreme court shall consists of one Chief Justice and number of other judges will be determined by the parliament time to time
Initially in 1950, Supreme court had one Chief Justice and seven judges(1+7)
At Present, one Chief Justice and thirty judges(1+30), which was fixed at 2009
Note: Apart from regular judges certain Adhoc judges may be appointed
Chief Justice of Supreme court with prior permission of President of India may ask any retired Judge of Supreme court or any Judge of High court who is possessing all the qualification to be appointed as Judge of Supreme court
Adhoc Judges don’t have particular tenure, salary. Pensions of Adhoc Judges were decided by President of India.
President of India while appointing other judges consults Chief justice of Supreme court and Collegium, consisting of 4 senior Judges of Supreme court
i e., Collegium = One Chief Justice and 4 Senior Judges (1+ 4 Judges)
The Collegium concept was invented by Supreme court in “Supreme court advocates association case”. Generally known as First Second and Third Judge case
Note: While appointing Chief Justice, President of India may or may not consult any Judges
Qualification of Supreme court Judges
a) He must be citizen of India and should not completed 65 yrs
b) He should be Judge of High court not less than 5 yrs or he must be practicing advocate of High court not less than 10 yrs
If Judge – 5 yrs experience
if Advocate- 10 yrs experience
c) He must be famous Jurist
Usually senior Judge of Supreme court is appointed as Chief Justice. But it is not compulsory to appoint senior Judge as Chief Justice of Supreme court, this view was held in Third Judge case. In Appointment, merit is also taken into consideration
Note: Two times seniority is not followed while appointing Chief Justice of Supreme court ie., seniority is violated.
In 1973- A.N.Roy
In 1977- M.H. Beg
Salaryand allowance of Judges
Salary of Judges is fixed by parliament and charged on consolidated fund of India. It cannot be reduced expect in the course of financial emergency
Chief Justice of Supreme court is eligible for pension after retirements and all other facilities.
Impeachment of Judges
Removal process of Judges is known as Censure or Impeachment
Article 124(4) of Indian Constitution: A Judge of the Supreme Court shall not be removed from his office except 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 has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
This article deals with removal of Judges of supreme court
Judges of Supreme court removed on two grounds
a) Incapacity
b) Misbehavior
Procedure and other rules are decided by Parliament. In 1968, Parliament made a law on removal procedures and regulating the behavior of Judges of Supreme and High court
The motion relating to the removal of Judges of Supreme court or High court may be introduce on either houses of Parliament
If removal process initiated in Loksabha then the notice must signed by 100 members
If removal process initiated in Rajya sabha then the notice must signed by 50 members, shall be presented to the houses
Lok Sabha = 100 members
Rajya Sabha = 50 members
Initiating house inquires against the allegation of a Judge by appointing a committee consisting of Judge of Supreme court, Chief Justice of High court and senior advocate in Supreme court
a) Judge of Supreme court
b) Chief Justice of India
c) A senior Advocate in Supreme court
If the allegations are proved in committee then the initiating houses approves the motion with a majority of total members of the houses, majority not less than 2/3rd members of present and voting
After this, the motion is transmitted to other house. If other house also approves the motion with same majority then the President of India issues order for removing the Judge
Note: In case of conflict between two houses regarding removal, motion gets defected. No joint session
The Same procedures and grounds are applicable to High Court Judges, Comptroller and Auditor General of India (CAG), Chief Election Commissioner of India and State Chief Election Commissioner
Judges are accountability to Parliament. some of the cases of impeachment process
a) In 1991-93, Impeachment motion was introduced in Lok sabha against the then judge of Supreme court of India,V. Ramaswami. The motion was defeated in the initially house itself
b) In 2012, Impeachment motion was introduced in Rajya sabha against Kolkata Judge Soumitra Seth but he resigned mean while
c) P.D Dinakaran, Karnataka Chief Justice of High court resigned before the motion was initiated
Power and Function of Judges
Power and functions given as
a) Original Jurisdiction
b) Appellate Jurisdiction
c) Advisory jurisdiction
d) Court of record
e) Writ jurisdiction
f) Custodian of the constitution
Original jurisdiction: Under Article 131
Article 131 of Indian Constitution: Original jurisdiction of the supreme court
Original which means exclusive, Special which are not enjoyed by other courts i e., Certain cases are directly taken to supreme court whose judgement is final. These type of cases is known as original jurisdiction
Some of Cases like
a) All Federal disputes i e., Center and State, Inter state disputes
b) Protection of Fundamental rights under Article 32
c) Any elections disputes relating to President of India and Vice President of India
Some disputes though there are Federal in nature but there not taken to Supreme court under original jurisdiction which are given as follows
a) Recommendation of Financial commission
b) Disputes between or among states regarding sharing river water. For Water sharing disputes Parliament had established an Inter state river water disputes tribunal under Article 262
Article 262 of Indian Constitution: Adjudication of disputes relating to water of inter-state rivers or river valleys
c) All disputes relating to the agreements entered by the states before commencement of Supreme court
Appellate Jurisdiction: Under Article 132
Article 132 of Indian Constitution: Appellate jurisdiction of Supreme court in appeals from high courts in regard to civil matters
The following are conditions to appeal a case from High court to Supreme court
a) High court has to certify that, that case involves substantial question of law
b) If High court certify that, the case further interpretation of the constitution
Note: Ultimate interpretation of constitution is Supreme court
c) In criminal cases, if High court completely reversed the judgement of lower court where by the accused as been sentence to death or he as been acquitted
d) Cases can also be appealed to supreme court under Article 136, Special leave petition i.e., with the special permission of supreme court, cases can be appealed to supreme court in rare cases
Article 136 of Indian Constitution: Special leave to appeal by the Supreme court
Advisory Jurisdiction: under Article 143
Article 143 of Indian constitution: Power of President to consult Supreme court
President of India under Article 143 can seek or ask the advice of Supreme court on two matters
a) On any question of law
b) On any question of fact
Supreme court may or may not give an advise to President and President may or may not follow such advises. So it is not mutually binding
Some of incidents where President as been referred to Supreme court for advice
a) 2G Spectrum case
b) Office of profit
Note:
a) The advice given by the supreme court of India is binding on lower courts
b) High court doesn’t have advisory jurisdiction
Court of Record: under Article 129
Article 129 of Indian Constitution: Supreme court to be a court of record
Court of record which means the judgement of supreme court have evidential value or they can be taken as witness or precedent and case laws in the lower courts
All person, All instruction in India have to honor, respect the judgement of Supreme court. If any person willfully dishonors the judgement of supreme court, it amount to contempt of court under article 129 which is punishable
However Supreme court may or may not follow its own judgement in subsequent cases which is known as Doctrine of Prospective overruling. This doctrine has been applied in Kesavananda Bharati case for 1st time
Writ Jurisdiction:
Complete writ jurisdiction concept is explained in Fundamental rights,
Link – Writ Jurisdiction of Supreme court
Custodian/Protector of constitution:
Supreme court of India protect the constitution from the encroachments of central and state government by the power of Judicial review
The power of Judicial review is mentioned in Article 13, Article 32, Article 226(In case of High court), Article 131 and Article 246
Article 13 of Indian constitution: Laws inconsistent with or in derogation of fundamental rights
Article 32 of Indian constitution: Remedies for enforcement of fundamental rights including writs
Article 226 of Indian constitution: Power of high courts to issues certain writs
Article 131 of Indian constitution: Original jurisdiction of the supreme court
Article 246 of Indian constitution: Subject matter of laws made by Parliament and the legislature of states
Some of the important related articles
Article 137 of Indian constitution: Review of judgments or orders by the supreme court
This article says that Supreme court of India can give order for enforcement of its own judgement
Article 138 of Indian constitution: Enlargement of the jurisdiction of the supreme court
Constitution of India about High Courts
High court is highest court in every state under Article 214
Article 214 of Indian constitution: High courts for states
1st High court was established in 1862 in Kolkata, Subsequently Madras, Mumbai, Allahabad under Council Act 1861
Common High courts can be established for two or more than 2 states. Some of common High court for states
a) Maharashtra and Goa- Common High Court in Bombay
b) Haryana and Punjab – Common High court in Chandigarh
c) All North East states expect Sikkim – Common High court in Guwahati
Only one Union territory of India having its own High court ie., NCT Delhi. The remaining Union territories come under the nearest State High court jurisdiction like
a) Lakshadweep – comes under Kerala High court
b) Andaman and Nicobar -comes under Kolkata High Court
c) Pondicherry – comes under Madras High Court
In 2013- Meghalaya, Manipur and Tripura were also given their own High court . With establishment of High courts in 3 states in 2013 makes total of 24 High courts in India
Composition of High Courts
A High Court shall consist of one Chief Justice and such number of other Judges as decided by President from time to time
Note: In case of Supreme court – Parliament decides number of Judges
Apart from the regular Judges, President of India also appoints certain additional Judges for the term of 2 yrs
Note: In case of Adhoc Judges of Supreme court, No fixed tenure but for High Court Adhoc Judges, 2 yrs tenure
Appointment of Judges of High courts
President of India makes all appointments in High court including Chief Justice under article 217 after consultation with Chief Justice of India and Governor of state while appointing other Judges
Article 217 of Indian constitution: Appointment and condition of the office of a Judge of a High court
Qualification for Judges of High courts
a) They should not completed the age of 62 yrs
Note: Original the retirement age was 60 yrs but increased to 62 yrs in 1963 by 14th Amendment. Again the retirement age of High court further increased for 65 yrs by 114th Amendment
Now Supreme court and High Court retirement Judge age is same i e., 65 yrs
b) He must be practicing advocate not less than 10 yrs in High court or he must be judicial officer for 10 yrs experience in center state Judicial service
Salary for Judges of High courts
Salary of High court Judges were determine by Parliament and charged on consolidated fund of state. The Pensions were charged on consolidation fund of India because Judges are transferred to one state to another state
President of India transfers the Judges of High court including the Chief justice after consulting the Chief justice of India.
Removal of Judges of High courts
Judges of High Court is removed same as Supreme court Judges procedure i e., impeachment under Article 217(1b)
Article 217(1b) of Indian constitution: Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court
Note: High court Judges addresses the resignation to President of India
Judges of High Courts are transferred under Article 222
Article 222 of Indian constitution: Transfer of a Judge from one High court to another
Note: The Judges of Supreme court of India including Chief Justice of India after their retirement they are not allowed to practice law before any court or any authority in India
However, Judges of High court can practice law in such High court they are not worked
Power and function of High court
a) Original Jurisdiction
Original Jurisdiction are observed in the following cases
i) All election disputes in Member of Legislative Assembly(MLA’s), Member of Legislative Council (MLC’s), Member of Parliament (MP’s)
ii) Protection of Fundamental under Article 226
Article 226 of Indian Constitution: Power of High courts to issue certain writs
iii) Disputes relating to company Acts, Copy right (Patent right)
b) Appellate Jurisdiction
Any court lower to High court is called sub-ordinate court. Any case irrespective of its value can be appealed to High court
However, Any death penalty imposed by sessions court must be endorsed by High court
C) Advisory Jurisdiction
High court doesn’t have advisory Jurisdiction
d) Court of Record
The Judgement of high Court are binding on the lower court
If court or individual willingly dishonors High court judgement, it comes under the contempt of court and attract the punishment
e) Writ jurisdiction
High Writ on Fundamental under Article 226
Article 226 of Indian Constitution: Power of High courts to issue certain writs
Complete writ jurisdiction concept is explained in Fundamental rights,
Link – Writ Jurisdiction of High court
f) Administrative and Judicial control
High court enjoys certain administrative and judicial control over the lower courts
Administrative control, High court of state to be consulted by Governor while appointing, transferring, promoting and other disciplinary action against Judicial officers in state
Judicial control, Lower court as to follow such procedures, methods, rules which are determined by High court in dealing the cases of judgement
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