Judicial system in India

• Provisions in regard to the judiciary in India are contained in Part V (The Union) under Chapter IV titled The Union Judiciary and Part VI (The States) under Chapter VI titled Subordinate Courts respectively.

• Under our Constitution there is a single integrated system of Courts for the Union as well as the States, which administer both Union and State laws.

• Integrated Judiciary means that there is systematic hierarchal system of judiciary in India in which Supreme court stands at the top of the hierarchy and it also means that the law declared by the Supreme Court shall be binding on all courts within the territory of India

Structure of Judiciary in India–

• At the top there is Supreme Court in India followed by High Courts at State level.

• After high court than there are courts at District and Subordinate level.

The Supreme Court-

• Articles 124-147 in Part V deals with The Supreme court.

• The Supreme Court of India also came into existence on 28 January 1950.

• The Constitution declares Delhi as the seat of the Supreme Court. 

• It also authorizes the CJI to appoint other place or places as seat of the Supreme Court.

• He can take decision in this regard only with the approval of the President. This provision is only optional and not compulsory. 

• This means that no court can give any direction either to the President or to the Chief Justice to appoint any other place as the seat of the Supreme Court.

Number of Judges-

• Article 124 (1) says that There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.

• It means that initially there were total 8 judges including CJI.

• Afterwards there were many changes and number of judges were increased to 31.

Supreme Court (Number of Judges) Bill of 2019-

• This bill has added four judges to strength. It increased the judicial strength from 31 to 34, including the CJI.

• Therefore at present there are total 33 judges and 1 ACJI in Supreme Court of India.

• Also we can say that it is the Parliament which has a power to increase the strength of judges in Supreme Court.

Appointment-

• Every Judge of the Supreme Court is 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 for the purpose

Collegium system-

• The Collegium System is a system under which appointments/ elevation of judges/lawyers to Supreme Court and transfers of judges of High Courts and Apex Court are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court.’

• There is no mention of the Collegium either in the original Constitution of India or in successive amendments.

If collegiums system is not mentioned in our constitution then how does it came into existence?

• This system came into existence through several judgments passed by Supreme Court.

What were the Judgments related to collegiums system?

There were several judgements and these judgements are discussed below –

S. P. Gupta v. Union of India- 1981(also known as the Judges' Transfer case)

• This case placed one major point before Supreme court that whether with respect to appointment of judges the word “consultation” mentioned in the constitutional article 124 mean “concurrence”.

• The Supreme court overruled this and denied saying that Consultation does not mean concurrence.

• The President was not bound to make a decision based on the consultation of the Supreme Court

Second judges case-1993-

• This case led to development of collegiums system in India.

• In this case, the Supreme court overruled its earlier verdict and changed the meaning of consultation to concurrence.

• Thus binding the President of India with the consultations of the Chief justice of India.

Third Judges Case- 1998

• This case led further development of collegiums system in India and Stated that CJI alone cannot recommend the names of judges and

For Judges of Supreme court-

• There should be 4 senior-most judges of the Supreme Court who are consulted before making recommendation to the President.

• Consultation with senior most judge from the High Court to which the recommended person belongs is also followed.

• There was also one important point and that was even if 2 of the judges are against the opinion, the CJI will not recommend it to the government.

For Judges of High Court-

• Also if matter will be related to appointment of judges of High court than 2 senior-most judges of the Supreme court will be there.

• The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

Appointment of CJI-

• In practice the outgoing CJI recommends his successor.

• It has been strictly by seniority ever since the supersession controversy of the 1970s.

National judicial Appointment commission 2014-

• The commission was established by amending the Constitution of India through the 99th constitution amendment with the Constitution (Ninety-Ninth Amendment) Act, 2014.

• This commission was formed to replace colligium system.

• In 2015 the Constitution Bench of Supreme Court by a 4:1 majority upheld the collegium system and struck down the NJAC as unconstitutional and interference in independence of judiciary.

Qualification-

Qualification of judges of Supreme Court is mentioned under Article 124(3) and it is as follows-

A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and –
(a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or

(b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or

(c) is, in the opinion of the President, a distinguished jurist.

Oath: 

• It is mentioned in Article 124(6) that the oath is administered by the President of India or some person appointed by him for this purpose.

Tenure of judges-

• She/he holds the office till she/he attains the age of 65 years.

Resignation and removal-

• She/he can resign his office by writing to the President.

Removal-

Procedure of removal of judges are mentioned under article 124(4) and it states that -

• 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.

Salaries, etc., of Judges-

• Salaries and allowances of judges are determined by Parliament.

• Provided that neither the privileges not the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment

Acting Chief Justice-

• Detail about acting chief justice is mentioned under Article 126

When the office of Chief Justice of India –

• Is vacant or when the Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office.

• The duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose.

Ad hoc Judges-

• Details about acting chief justice is mentioned in Article 127.

• Ther should not be a quorum of the Judges of the Supreme Court available to hold or continue any session of the Court.

• Therefore the Chief Justice of India may, with the previous consent of the President and after consultation with the Chief Justice of the High Court concerned, request in writing the attendance at the sittings of the Court, as an ad hoc Judge, for such period as may be necessary, of a Judge of a High Court duly qualified for appointment as a Judge of the Supreme Court to be designated by the Chief Justice of India.

While Functioning as Ad hoc judge-

• She/ he have all the jurisdiction, powers and privileges, and shall discharge the duties, of a Judge of the Supreme Court.

Retired judges-

• CJI can request a retired judge of the SC or retired judge of the HC to act as a judge of the SC for a temporary period .

• He can take this step after getting consent from the President of India and also of the person to be so appointed.

• The appointed person in this case will receive such salary and allowances as determined by the President of India.

• This provision Is provided under Article 128 of the constitution.

Jurisdiction and power of Supreme court-

Original jurisdiction of the Supreme Court(Article 131)

There are some disputes or cases which fall within the exclusive jurisdiction of the Supreme Court and only decided by Supreme court are known as Original jurisdiction of supreme court and these are as follows-

a) Dispute between the Government of India and one or more States; or

(b) Dispute between the Government of India and any State of States on one side and one or more other States on the other; or

(c) Dispute between two or more States.

But there are some disputes that are not considered as dispute under this section and they are –

• A dispute arising out of any pre-Constitution treaty, agreement, covenant, engagement, sanad or other similar instrument.

• A dispute arising out of any treaty, agreement, etc., which specifically provides that the said jurisdiction does not extent to such a dispute.

• Inter-state water disputes.

• Matters referred to the Finance Commission.

• Adjustment of certain expenses and pensions between the Centre and the states.

• Ordinary dispute of Commercial nature between the Centre and the states.

• Recovery of damages by a state against the Centre.

Writ Jurisdiction

• This jurisdiction is specifically mentioned in our constitution  this jurisdiction is not exclusive to the SC since the constitution empowers the HC to also issue write.

• Supreme court can issue writs for protection of Fundamental rights of citizens under Article 32

Appellate jurisdiction

• As Supreme Court is the highest judicial body of the country therefore appeals are proffered from high courts to Supreme Court.

There are different types of Appeals-

Appeal in Civil matters-

(1) An appeal shall lie to the Supreme Court room any judgement, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies under article 134A –

(a) that the case involves a substantial question of law of general importance; and

(b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.

(2) Notwithstanding anything in article 132, any party appealing to the Supreme Court under clause (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided

Appeal in Criminal matters-

(1) An appeal shall lie to the Supreme Court from any judgement, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court –

(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or

(b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or

(c) certified under article 134A that the case is a fit one for appeal to the Supreme Court

Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law.

Special leave to appeal by the Supreme Court

• It is mentioned under article 136 of the constitution.

SC is authorized to grant in its discretion special leave to appeal from –

• Any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

• Also Article 136(2) says that this power cannot be used against any court or tribunal constituted by or under any law relating to the Armed Forces.

Therefore from above article it is clear that-

• It is a discretionary power and hence cannot be claimed as a matter of right.

• It can be granted in any judgment- final or interlocutory.

• Except military tribunal it can be granted against any court on any matter

Advisory and Consultation power (Article 143)-

Case 1

• If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.

Case- 2

• The President may refer a dispute arising out of any pre-constitution treaty, agreement, covenant, engagement, sanad or other similar instruments to the Supreme Court for opinion and the Supreme Court shall, after hearing as it things fit, report to the President its opinion thereon.

From Above Two points following observations are there-

• In 1st case there is word “may” which means that Supreme court is not bound to give advice in this matter.

• In 2^nd case there is word “shall” which means that court is bound to give advice in this case

Note-

• The advice of the Court is not binding on the President.

Review Jurisdiction-

• The Supreme Court has the power to review any judgement pronounced or order made by it. This means that the Supreme Court may review its own judgement order.

• From the above it is clear that the Supreme Court in India is far more powerful than its counterpart in the United States of America.

This provision is mentioned under article 137 and it says that-

• Subject to the provisions of any law made by Parliament or any rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it

Court of Record-

It means that Supreme court has-

• The power to punish for contempt of court, either with simple imprisonment for a term up to six months or with a fine or with both.

• Also the judgements, proceedings and acts of the Supreme Court are admitted to be of evidentiary value and cannot be questioned when produced before any court.

• They are recognised as legal precedents and legal references.

Article 140 :Ancillary powers of Supreme Court

• Parliament may by law make provision for conferring upon the Supreme Court such supplemental powers not inconsistent with any of the provisions of this Constitution as may appear to be necessary or desirable for the purpose of enabling the Court more effectively to exercise the jurisdiction conferred upon it by or under this Constitution.

Contempt of Court-

• Contempt of court is an act of disrespect or disobedience toward a court or interference with its orderly process.

• The expression contempt of court has not been defined by the Constitution the expression has been defined by the Contempt of Court Act of 1971.

Contempt of court can be of two types:

1.Civil contempt-

• It refers to the willful disobedience of a court order or judgment or willful breach of an undertaking given to a court.

2.Criminal contempt-

Criminal contempt includes any act or publication which:

(i) ‘scandalises’ the court, or

(ii) prejudices any judicial proceeding, or

(iii) interferes with the administration of justice in any other manner.

Note-

• ‘Scandalising the Court’ broadly refers to statements or publications which have the effect of undermining public confidence in the judiciary.

• Article 129 and 215 of the Constitution of India empowers the Supreme Court and High Court respectively to punish people for their respective contempt.

• Section 10 of The Contempt of Courts Act of 1971 defines the power of the High Court to punish contempts of its subordinate courts.

Enlargement of the jurisdiction of the Supreme Court(Article 138)-

• Enlargement of the jurisdiction of the Supreme Court can be done by the parliament.

Judicial review

• Judicial review is the power of Judiciary to review any act or order of Legislative and Executive wings and to pronounce upon the constitutional validity when challenged by the affected person.

• This power comes from various articles like Article 13, 32, 136, 142 and 147 of the Constitution

Some Facts-

• The first woman judge of SC of India and also in Asia was the Fathima Beevi who was appointed to Supreme Court in 1959.

• Sir Maurice Gwyer(1937-43) was 1^st Chief justice before Independent India.

• Harilal Jekisundas Kania was 1^st Indian 1^st Chief justice before Independent India and he was also 1^st CJ of Independent India.