Indian Polity by Laxmikant - Indian Judiciary

                                                          Indian Judiciary

·         In India we have integrated, independent, single, impartial, supreme judiciary.

·         Single judiciary means there is one set of judiciary for both central & state Govt.

·         All courts in India must work under 1 line, under S.C.

·         SC also known as federal court is highest court in India. SC as federal court was estb. in 1935. It is called federal because, it resolves federal disputes between Central & states.

     Supreme Court of India

·         Art – 124 deals with structure & composition of SC.

·         SC consists of 1 CJ and such no. of other judges as decided by parliament from time to time with ordinary legislature.

·         At present there are 1 CJ + 30 judges.

However, in 1950, there were 1 CJ + 7 judges

1956 – 1 + 10

1960 – 1 + 13

1977 – 1 + 17

1986 – 1 + 25

2009 – 1 + 30

·         In HC, the no. of judges is decided by prez.

·         Apart from these regular judges, certain ad-hoc acting judges may be appointed in SC.

Appointments:

·         Prez makes all appointments including CJI. While app. Other judges of SC, prez has to consult CJI & 4 senior judges of SC known as collegiums. (1 CJI + 4 Senior Judges) à collegiums.

·         This collegiums concept was developed by SC in 3^rd judge case in 1993.

·         While appointing CJI, prez may consult or may not any judge of SC / HC.

·         Usually CJI is appointed on basis of seniority but seniority is not the only criteria for his appointed SC made this opinion n in 3^rd judge case.

·         Merit will also be taken in consideration so far this seniority rule was violated 2 times (1973: Justice A.N Ray was app. As CJI by surpassing 4 sr. judges).

1977: NH. Baig was appointed as CJI by overlooking Sr. judge H.R Khanna.

Qualification of Judges of SC:

·         He should not have completed 65yrs.

·         He must be a practicing advocate of H.C for not less than 10yrs. (or) he must be a judge of HC for not < 5 yrs or he must be a famous jurist.

·         Salary is fixed by parliament, charged on consolidated fund, will not be reduced on consolidated fund, will not be reduced except during course of financial emergency.

·         They are eligible for pension after retirement, at present CJI + 1lakh, other judges RS. 90,000 & all other facilities.

Removal of HC, SC Judges:

·         Judges of HC, SC are removed on the grounds of incapacity & misbehavior, under Art-124 clause 4: SC Art: 217 HC

·         The removal procedure is known as ‘Censure Motion’. Also called ‘impeachment’.

·         The resolution/motion relating to their removal may be initiated in either houses of Parliament.

·         For that incase of L.S a notice signed by 100members 50 members in case  of RC shall be presented to the presiding officer, 14 days in advance.

·         The initiated house will enquire after appointing a committee. This comm. consists of a judge of SC, a CJ of HC and senior advocate in SC.

·         After this enquiry, if it’s proved, the initiating house approves the motion with special majority i.e.; 2/3^rd of the members present & voting, but >1/2 of total members of house.

·         If the same motion is also approved by other house, on the basis these resolutions, president removes them.

·         Both the houses of Parliament have to approve the motion separately.

àSo far no judge is removed, but there was impeachment motion against Justice V. Ramaswamy (1991 – 93) which was defeated in LS. (Initiating house)

àIn 2011, impeachment motion against just soumitrasen of Calcutta HC.

·         Motion was introduced in RS & it approved before it was transmitted to LS, he resigned.

àIn 2011 justice P.D.Dhinakaran of KA, HC. Before the motion was initiated in LS, he resigned

·         Judges of SC after retirement are not allowed to practice law before any court / any authority in India. But HC judges can practice law, before any HC where they have not worked.

·         They are not allowed to ensure impartiality & profession ethics. Moreover the conduct, capacity of judges of SC cannot be discussed any where including parliament, except during the process of removal.

·         Service cond., salary, qualification can’t be altered for their disadvantage.

Powers & Functions of SC:

1.      Original Jurisdiction.

2.      Appellate Jurisdiction.

3.      Advisory Jurisdiction.

4.      Court of Record.

5.      Writs Jurisdiction.

6.      Custodian of const.

A. Original Jurisdiction:

·         Under Art – 131, original jurisdiction, SC has exclusive special powers.

·         It means there are certain cases / disputes taken to SC directly.

1.      Protect. Of FR under Art – 32

2.      Federal disputes (centre – state, interstate)

3.      Election disputes relating to President, V.P.

B.Appellate Jurisdiction:

The following are the cond. to appeal a case from HCàSC. There are 4 types of appeals.

1.      Constitution Appeals under: (Art: 133)

If HC certifies that the case involves further / deeper interpretation of const., all such cases can be appealed.

Both HC, SC interprets, but SC interprets too finally.

2.      Civil appeals under 133:

       Any Civil matter where HC declares that it involves substantial question of law.

3.      Criminal Appeals:

If HC on appeal from lower court completely reversed the judgments of the lower court & the accused has been sentenced to death. (Or) vice versa, all such cases can be appealed to SC.

4.      Special leave petition: (SLP) Art – 136

     SC gives special permission in certain extra ordinary condition, from this permission cases can be appealed.

C. Advisory Jurisdiction:

·         Prez. Under Art. 143 may seek/ask the advice of SC on 2 aspects.

i.                    On any question of law.

ii.                  On any question of fact.

·         Advice given by SC may/may not be followed by govt and SC may/may not give the advice.

·         It is not mutually binding. Only president can ask advices.

·         So far central govt. asked 14 times advice from SC.

1. 1951; Delhi acts

14. 2006; office of profit.

D. Court of Record:

·         It means, all the SC judgments are binding on lower courts, all individuals & institution in India.

·         SC judgments will have evidential value in lower court. Evidence value means, they can be taken as witness (or) case laws.

·         If any deviation/dishonors to the judgments of SC is done, it amounts to contempt of court, under Art – 129, which is a punishable crime.

·         However SC may/may not follow its own judgments in the eventual cases.

·         This is known as Doctrine of “Prospective Over ruling.”

E. Writ Jurisdiction:

·         SC issues writs under Art – 32 to protect FR refer to Art – 32. (page:35)

F. Custodian of Constitution:

SC protects the const. against encroachments of central & state govt & maintains constitutional supreme under Art - 13, 32, 131, 246.

·         Under Art – 138, parliament may extend SC jurisdiction.

·         Under Art – 139 A, SC may call all the cases which have similar issue in the HC for SC consideration.

·         Acc. Art -142, parliament has to implement the judgment of SC.

·         Acc. Art – 146, salaries of staff of SC are also charged on consolidated fund of India.

·         SH kapadia is 38^th CJI.

HJ Kania is 1^st CJI.

·         So far 4 women judges worked in SC.

1.      Fatima Bibi

2.      Sujatha Manohar

3.      Ruma Paul

4.      Ginana Sudha Mishra (currently working)

Admin. Ctrl means, HC of state is to be consulted by state Govt. while making appointments, transfer, promotion & other disciplinary actions w.r.t judicial officers in the subordinate courts.

Judicial control means, lower courts have to follow such procedures, methods, judicial devices as determined by HC.

Usually the seat of HC is located @ capital cities of the states. However, the following states HC are located at places other than capitals.

1.      Kerala              : Ernakulum

2.      Orissa              : Cuttack

3.      M.P.                : Jabalpur

4.      Chhattisgarh    : bilaspur

5.      UP                   : Allahabad

6.      UK                  : nainital

7.      RJ                    : jodhpur

8.      AS                   : guwhati

·         HC will have benches other than seat / HQ, for the sake of litigant’s convenience.

·         More no. of benches for Guwahati HC, they are Aizwal, Kohima, Imphal, Shillong, Itanagar, Agartala.

·         2^nd highest benches Bombay HC: Nagpur, Aurangabad, Panaji.

·         UP has Lucknow bench, MP has Gwalior & Indore bench. RJ: Jaipur bench.

·         1^st HC was estb. @ Calcutta 1862.

·         1^st CJ of A.P. HC = K.Subbarao, only Telugu to be CJI. CJI and was CJ during Golaknath case.

Public Interest Litigation (PIL)

·         3^rd person moving to court, on behalf of the other persons, if there is public interest in a particular case.

·         This system was developed 1980 onwards, when justice Y.V. Chandra chud was CJI along with Justice Bhagawati, justice D.R. Krishna Iyer.

Suo Motu:

·         Suomo means self generated. Judiciary itself taking the initiative & filing the cases by issuing the necessary orders; without any complaint received by any party.

àPIL, suomotu are responsible are responsible for judicial activism in India.

Judicial activism: It means judiciary exercising its powers, functions more assertively, aggressively by employing new methods of adjudication like PIL, suomotu.

·         Judicial activism is a part of judicial review.