Union Judiciary

Question 1

Supreme Court

Answer 1

Branches of the government:
1. Executive branch
2. Legislative branch
3. Judicial branch

Question 2

Composition of the supreme court

Answer 2

Introduced by the government of India Act of 1935

It enforces both Central and state laws

First supreme Court in India was set up in Bengal on 1st October 1937

The official supreme Court of India was set up 26th January 1950. It is in Delhi

Its motto: yato dharmas tata jayah (where there is truth, there is victory)

The Indian constitution says that the court is an integrated system whereas the US constitution states that their’s is a double system of court

Supreme Court has replace the British Privy Council as highest court of appeal

Articles 124 to 147, in part 5 deals with organisation, independence, jurisdiction powers and procedures

Number of positions, sanctioned strength 34 (33 judges and 1 CJI)

Question 3

Organisation

Answer 3

In February 2009, the centre noticed and increase in the number of supreme court judges of India from 26 to 31 including one chief justice of India, according to the SO enactment of supreme Court (number of judges) amendment Act of 2008

Originally the number of supreme Court judges was fixed at 8 (1 CJI and 7 other judges).

10 in 1956, 13 in 1960, 17 in 1977, 25 in 1986

Question 4

Appointment

Answer 4

From 1950 to 73, it was customary to call the senior most charge the CJI

In 1973, the convention was violated as A.N. Ray was appointed CJI by superceding three senior judges

In 1977, MH Beg was appointed CJI by superceding 10 senior judges

Controversy over consultation:

First judges case 1982,
Court held that the consultation does not mean concurrence and it only implies exchange of views

Second judges case 1993,

Court reversed its earlier ruling and changed the meaning of the word consultation to concurrence. Hence, it ruled that the advice tendered by the CJI is binding on the president in matters of appointment of the judges of the supreme court. But the CJI would tender his advice on the matter after consulting 2 of his senior most colleagues

Third judges case 1998,

The court opined that the consultation process to be adopted by the CJI required a ‘consultation of plurality judges’. The sole opinion of the CJI is does not constitute the consultation process and he should consult a collegium of four senior most judges of the supreme court. He should not send a recommendation to the government even if two judges give an adverse opinion.

The court held that the recommendations made by the CJI, who complying with the norms and requirements of consultation process, are not binding on the government

Question 5

Qualification

Answer 5

Has to be a citizen of India
He should have been a judge of a High Court for 5 years
He should have been an advocate of a High Court for 10 years
He should be a distinguished jurist in the opinion of the president

The constitution has not prescribed a minimum age for the appointment of a judge of the supreme court

Question 6

Oath or affirmation

Answer 6

To bear true faith and allegiance to the constitution of India

To uphold the sovereignty and integrity of India

To discharge his duties to the best of his ability, knowledge, judgement and perform the duties of the office without fear or favour, and affection or ill will.

To uphold the constitution and the laws

Question 7

Tenure

Answer 7

The constitution has not fixed the tenure of a judge of the supreme court

He holds office until he attains the age of 65 years.

Any question regarding his age is to be determined by such authority and in such a manner as provided by the parliament

He can resign from his office by writing to the president

He can be removed from the office by the president on the recommendation of the Parliament after impeachment

Question 8

Impeachment

Answer 8

On the grounds of misbehaviour and incapacity

Supreme Court judges can be removed from their office by an order of the president

President can issue a removal order only after an address by the Parliament has been presented to him in the same session for such removal

The address must be supported by a special majority of each house, that is majority to total membership of that house and majority of not less than ⅔ of the members of that house present and voting

Process:
The judges enquiry act, 1968:
Regulate the procedure related to the removal of a judge

Removal motion signed by 100 members of lok sabha or 50 members of the rajya sabha to the speaker or chairman

The speaker or chairman may admit the motion or refused to admit it

If it is admitted, then the speaker or chairman is to constitute a three member committee to investigate into the charges

Committee should consist of, the CJI or a judge of supreme court/the chief justice of high court/distinguished jurist

If the committee finds the judge to be guilty of misbehaviour or suffering from an incapacity then the house can take up the consideration of the motion

After the motion is passed by each house of the Parliament by special majority, an address is presented to the president for the removal of the judge

Finally the president passes an order removing the judge

No judge of the supreme Court has been impeached so far

The first and only case of impeachment is that of Justice V Ramaswamy of supreme Court (1991 to 93). Though the enquiry committee found him guilty of misbehaviour, he could not be removed as the impeachment motion was defeated in the lok sabha due to the Congress party abstaining from voting.

Question 9

Seat of supreme Court

Answer 9

Constitution declares and also authorises the CJI to appoint other place or places as seats 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 to the president or to the chief justice to appoint any other place as a seat of supreme court

Question 10

Acting Chief justice

Answer 10

The president can appoint a judge of supreme Court as an acting chief justice if the office of CJI is vacant, if the CJI is temporarily absent or if the CJI is unable to perform the duties of his office

Question 11

Ad hoc judge

Answer 11

When there is a lack of quoram of permanent judges to hold or continue any session of supreme Court

The Chief justice of India can appoint a judge of high court as an ad hoc judge of supreme Court for temporary period only

He can do so only after consultation with the Chief justice of the High Court concerned and with previous consent of the president

The judge so appointed should be qualified for appointment as a judge of the supreme court

It is the duty of the judge so appointed to attend the setting of supreme Court and give priority to other duties of his office

While so attending, he enjoys all the jurisdiction, power, privileges, discharges and duties of a judge of the supreme Court

Question 12

Retired judges

Answer 12

At any time the Chief justice of India can request a retired charge of supreme Court or retired judge of the High Court, who is duly qualified for appointment as a judge of the supreme court to act as a judge of the supreme court for a temporary period

He can do so only with the previous consent of the president and also the person to be appointed

Such a judge is entitled to such allowances as the President may determine

He will also enjoy all the jurisdiction, power and privileges of the judges of supreme court but he will not be otherwise deemed as a judge of the supreme Court

Question 13

Procedure of court

Answer 13

The supreme court can, with approval of president, make rules for regulating generally the practice and procedure of court,

The constitutional cases or references made by the president under article 143 are decided by a bench consisting of at least five judges.

All other cases are usually decided by a bench of not less than 3 judges

The judgements are delivered by open court

All judgements are by majority vote but if differing then the judges can give dissenting judgements or opinions

Question 14

Salaries and allowances

Answer 14

Determined from time to time by parliament

In 2009, salary of CJI increased from 33,000 per month to 1,00,000 per month

And the salary of a judge increased from 30,000 a month to 90,000 a month

According to the 7th pay commission, there was a 200% hike in the salary of supreme Court and High Court judges:

CJI & CJ of HC: from 1lakh to 2.8lakhs
Judges: from 90,000 to 2.5 lakhs

Question 15

Independence of the supreme court

Answer 15

Significant role in the Indian democratic political system

Highest court of appeal

Guarantor of fundamental rights of citizens

Guardian of constitution

Independence becomes very essential for the effective discharge of duties

Free from encroachments, pressures, interferences of executive (COM) and legislature (parliament)

Should be allowed to do justice without fear or favour

Constitution has made provisions to ensure its independence and impartial functioning

Provisions are made on the mode of appointment, security of tenure, expenses charged on the consolidated fund, fixed service of conditions, conduct of judges cannot be discussed, ban the practice after retirement, power to punish for its contempt, freedom to appoint its staff, its jurisdiction cannot be curtailed and separation from executive

Question 16

Powers of the supreme court

Answer 16

Constitution has conferred very extensive jurisdiction and vast powers on the supreme court

Not only a federal court like the American supreme Court but also a final Court of appeal like the British house of Lords

Final interpreter and guardian of constitution

Guarantor of fundamental rights of the citizens

Advisory and supervisory power

Thus, Alladi Krishnawwami Ayyar, a member of the drafting committee remarked that the supreme Court of India has more power than any other supreme Court in any part of the world

Question 17

Classification of powers and jurisdiction

Answer 17

Original jurisdiction:
Disputes between different units of Indian federation (Central and one or more States, centre and any state or States on one side and one or more States on the other, between two or more States). In the mentioned federal disputes, supreme Court has exclusive original jurisdiction

Writ jurisdiction:
Constitution has constituted the supreme court as the guarantor and defender of the fundamental rights of the citizens. The SC is empowered to issue writs including, habeas Corpus, prohibition, quo warranto, certiorari for the enforcement of fundamental rights of an aggrieved citizen

Supreme Court has original jurisdiction in the sense that an aggrieved citizen can directly go to the supreme court

Writ jurisdiction of SC is not exclusive

High courts are also empowered to issue writs for the enforcement of fundamental rights

Appellate jurisdiction:
SC has not only succeeded the federal court of India but also replace the British privy council as the highest court of appeals
The SC is primarily a court of appeals and hears appeals against the judgements of the lower courts
It enjoys a wide Appellate jurisdiction: appeals in constitutional matters, appeals in civil matters, appeals in criminal matters, appeals by special leave

Advisory jurisdiction:
Article 143 authorises the President to seek the opinion of supreme Court in two categories of matters: on any question of law or that of public importance which has arisen or which is likely to rise

On any dispute arising out of any pre-constitution treaty, agreement, covenant, engagement, sanador or other similar instruments.

Question 18

Court of record

Answer 18

2 Powers:

A) The judgements, proceedings and acts of supreme court are recorded for perpetual memory and testimony

These records are admitted to be of evidentiary value and can’t be questioned when produced before any court

They are recognised as legal precedents and legal references.

B) It has the power to punish for the contempt of court either with simple imprisonment (upto 6 months) or fine upto 2000 or both

In 1991, SC has ruled that it has the power to punish for the contempt not only of itself but also of high court and subordinate courts within the country

Question 19

Power of judicial review

Answer 19

Judicial review is the power of supreme Court to examine the constitutionality of legislative enactments and executive orders of both the central and state governments

On examination if they are found to be violative of the constitution (ultra vires), they can be declared by the supreme court as illegal, unconstitutional or invalid (null and void)

Can’t be enforced by the government

Question 20

Other powers

Answer 20

Problems related to election of president or vice president will be heard by supreme Court

Misbehaviour by member of UPSC will be referred to supreme court by president

Can self review its own mistakes from the past

If any case is pending in High Court, it can be taken over by supreme Court

Question 21

The supreme court advocates

Answer 21

Three types:
Senior advocates:
Designated by supreme Court or High Court
Cannot appear without an advocate on record in supreme Court or Junior

Advocates on record:
These advocate the entitled to file any matter of document before supreme Court
They can also file an appearance or act for party in supreme Court

Other advocates:
Names are written in state for council, and maintained under advocates act of 1961
They cannot file any document or matter before court
Take an appear and argue on instruction from advocates on record

Question 22

Difference between the Indian supreme Court and American supreme Court

Answer 22

Indian SC: Its original jurisdiction was confined to federal cases
American SC: original jurisdiction covers not only federal cases but also cases related to navel forces, Maritime activities and ambassadors

Indian SC: its appallate restriction covers constitutional civil and criminal cases
American SC: confined to constitutional cases

Indian SC: it has a very wide description to grant special leave to appeal in any other matter against the judgement of any Court or tribunal (except military)
American SC: it has no such plenary power

Indian SC: it has advisory jurisdiction
American SC: it has no advisory jurisdiction

Indian SC: its scope of judicial review is limited
American SC: scope of judicial review wide

Indian SC: it defends the right of the citizens according to the procedure established by law
American SC: it defence the right of the citizen according to the due process of law

Indian SC: its jurisdiction and powers can be enlarged by the parliament
American SC: its jurisdiction and powers are limited to that conferred by the constitution

Indian SC: it has power of judicial superintendence and control over state high court due to integrated judicial system
American SC: it has no such power due to double or separated judicial system

Question 23

Judicial review

Answer 23

It is the power of the judiciary to examine the constitutionality of legislative enactments and executive orders at both the Central and state levels

It is a doctrine taken from the USA,

It is a part of the basic structure of the constitution

Is found violative of constitution, it is declared as illegal, unconstitutional or invalid (null and void)

Justice Syed Shah Muhammad Qadri classified judicial review into three categories: judicial review of constitutional amendments, judicial review of legislation of parliament, State legislature, subordinate legislations and judicial review of administrative action of union, States authorities under States

Various cases that defined the power of judicial review:
Golaknath case, 1967
Bank nationalisation case, 1970
Privy purses abolition case, 1971
Keshavananda Bharati case, 1973
Minerva mill case, 1980
In 2015, the supreme court declared both the 99th constitutional amendment Act and the NJAC act of 2014 unconstitutional null and void

Question 24

Need for judicial review

Answer 24

To uphold the principle of the supremacy of constitution

To maintain federal equilibrium, that is the balance between the centre and state

To protect the fundamental rights of citizens

The function of judicial review is part of the constitutional interpretation itself

It adjusts the constitution to meet new conditions and the needs of time

Question 25

Constitutional provision for judicial review

Answer 25

Directly from nowhere but indirectly from: articles 13, 32, 131, 132, 133, 134, 134A, 135, 136, 143, 226, 227, 245, 246, 251, 372

Question 26

The due process of law

Answer 26

Consists of two things:

A) Substantive due process, i.e. whether a law is within the powers of authority concerned or not. It is not expected to go into the question of its reasonability, suitability or policy implications. Taken from the US.

B) Procedural due process: taken from the UK. We do not fully follow the British principle of parliamentary supremacy. There are many limitations on sovereignty of parliament in our country, like the written character of constitution, federalism with division of powers, fundamental rights and judicial reviews. In India it remains both judicial supremacy and the British principle of parliamentary supremacy.

Question 27

Judicial activism

Answer 27

In 1947, Arthur MS Jr., an American historian and educator develop this concept in the USA

In India judicial activism was introduced in the mid 1970s by justice VR Krishna Iyer, justice PN Bhagwati, justice O chinnappa Reddy, justice DA Desai late foundations of judicial activism

It is relate to the protection of the rights of citizens with the judiciary playing a proactive role and promoting justice in society

The judiciary to forces the other 2 organs of government (legislative and executive) to discharge their constitutional duties

PIL is the outcome of judicial activism

PIL is the most popular form of judicial activism

Judicial Activism occurs when the legislature and executive fail to discharge the respective functions, thereby creating a lack of confidence in the constitution and democracy.

As such the citizens of the country can look up to the judiciary for the protection of the right and freedoms.

There can be legislative vacuum in certain areas where the constitution of India has itself given judiciary the scope to play an active role.

When those in power are afraid of taking honest and hard decisions.

When law is misused by a strong authoritarian parliamentary party government.

Difference between judicial restraint and judicial activism is that judicial restrain is the conservative interpretation of the constitution and judicial activism is the liberal interpretation.

Supreme Court’s observation:

While delivering a judgement in December 2017, the supreme court called for judicial restraint and asked courts not to take over the functions of legislature and executive.

This means that there is a broad separation of powers under the constitution and each organ of the state must have respect for others and should not encroach on others.

Question 28

Public interest litigation

Answer 28

It is the litigation for protection of public interests

Litigation means legal action

It was developed from the USA in 1960s

Its objective is to provide legal representation to previously unrepresented groups and interest

PIL is also known as social action litigation (SAL), social interest litigation (SIL) and class action litigation (CAL)

It was introduced in India in early 1980s, bye justice VR Krishna Iyer, justice PN Bhagwati and the pioneers of the concept of PIL

It is a product of the judicial activism role of supreme Court

Question 29

Who can file PIL

Answer 29

Any public-spirited citizen or social organisation can move to the court for the enforcement of the right of any person or group of persons, who because of their poverty, ignorance, or socio-economic status, cannot approach the court for remedies

Any member of the public, having sufficient interest can approach the court for enforcing the rights of other persons and redressal of a common grievance

Question 30

Purpose of PIL

Answer 30

Absolutely necessary for the maintenance of rule of law

Real purposes: vindication of the rule of law, facilitating effective access of justice to socially and economically weaker sections of society, meaningful realisation of the fundamental rights

Question 31

Features of PIL

Answer 31

To bring justice within the reach of the poor masses who constitute the low visibility area of the humanity

It is brought before the court not for the purposes of enforcing the right of one individual but it is intended to promote and vindicate Public interest

Large numbers of people who are poor, ignorant are in a socially and economically disadvantaged position should not go unnoticed

The PIL role held by the court is more assertive than in traditional action

It is creative rather than passive

Question 32

Notes on PIL

Answer 32

In 1998 the supreme court formulated a set of guidelines to be followed.

Who and how PIL is submitted:

Bonded labour matters,
Neglected children,
Non payment of minimum wages to workers
Petitioners from jail complaining of harassment
Petitions against police for refusing to register a case of harassment by police or death in police custody
Petitions against atrocities on women, particular harassment of bride, bride burning, rape, murder and kidnapping
Complaints of harassment of villagers by co-villagers and by police
Petition pertaining to environmental pollution
Petitions from riot victims
Family pension

Will not be entertained as PIL:
Landlord-tenant matters
Service matter and those pertaining to pension and gratuity
Complaints against admission to medical and other educational institutions
Petitions for early hearing of cases spending in High Courts and subordinate courts

PIL issues are of public importance and regarding the enforcement of fundamental rights of a large number of people

It is essentially meant to protect the basic human rights of the week and disadvantaged

Disputes between two warring groups purely in the realm of private law would not be allowed to be agitated as PIL

Court, in special situations, may appoint a Commission or other bodies for the purposes of investigating the allegations

The supreme Court has observed that the pil is not a pill or panacea for all wrongs

It is to protect the basic human rights of the week and the disadvantaged