Introduction

Our constitution provides clear separation of powers of all the three wings of government namely legislature, executive and judiciary with all having separate domains and measures of checks and counterchecks on each other.

Our national leaders of freedom struggle realized that “No free government can survive that is not based on the supremacy of law” so they felt the need of an impartial, sovereign and responsible institution to which the powers to administer justice and the function to uphold the supremacy of law could be delegated and which would be vigilant to other organs encroaching on citizens’ rights and subverting the Constitution.

This resulted in founding of The Supreme Court and a judiciary which is completely separated from legislature and executive in exercising its judicial functions and thereby deviating from the tradition of U.K. where the Supreme Court is the House of Lords and is a part of legislature.

Our Supreme Court is not a part of legislature so it can preside over dispute between the Union and State and also review the executive as well as legislative action of arbitrariness and thereby can protect the voice of minority section of society rising against the atrocities committed on them by the government and thereby uphold the principles of natural justice that one can’t be a judge in its own cause.

The framers of the Constitution took infinite care to provide for an independent and impartial judiciary as

  1. The interpreter of the Constitution and
  2. The custodian of the rights of the citizens and Indian Constitution,
  3. Exercises the process of judicial review over the acts of the legislature and the executive
  4. Court of Records
  5. Highest court of Appeal

Levels of Judiciary in India

There are various levels of judiciary in India – different types of courts, each with varying powers depending on the tier and jurisdiction bestowed upon them.

They form a strict hierarchy of precedence, in line with the order of the courts with the Supreme Court of India at the top, followed by High Courts of respective states with district judges sitting in District Courts and Magistrates of Second Class and Civil Judge (Junior Division) at the bottom.

Supreme Court of India

Articles 124 to 147 of the Constitution of India lay down the composition and jurisdiction of the Supreme Court of India.

  1. Article 124: Establishment and Constitution of the Supreme Court
  2. Article 125 – Salaries etc. of Judges
  3. Article 126 – Appointment of acting CJI
  4. Article 127– Appointment of Ad-Hoc Judges
  5. Article 128 – Appointment of retired judges at sittings of the Supreme Court
  6. Article 129–Supreme Court to be a court of record
    • Punish its own contempt
    • Records maintained for posterity and have value as evidence
  1. Article 130– Seat of the Supreme Court
  2. Article 138 – Enlargement of the jurisdiction
  3. Article 139 – Conferment on Supreme Court of powers to issue certain Writs
  4. Article 139A – Transfer of certain cases
  5. Article 140– Parliament may confer Ancillary powers of Supreme Court
  6. Article 141 – Law declared by Supreme Court to be Binding on all courts
  7. Article 142 – Enforcement of decrees and orders of Supreme Court
  8. Article 144– Civil and Judicial Authorities to act in aid of Supreme Court
  9. Article 145 – Rules of the Court
  10. Article 146 – Officers and servants and expenses of the Supreme Court
  11. Article 147 – Clarify the reference regarding any substantial question of law. It covers the interpretation of the constitution along with that of the government of India act, 1935.

A) Jurisdiction of Supreme Court

  1. Original Jurisdiction
  • Article 131- Federal Disputes
  • Article 71 – Election Disputes regarding President and Vice President
  1. Appellate Jurisdiction
  • Article 132 – Appellate jurisdiction pf Supreme Court in appeals from High Court in certain cases
  • Article 133- Appellate jurisdiction of Supreme Court in regard to civil matters
  • Article 134 – Appellate jurisdiction of Supreme Court I regard to criminal matters
  • Article 134A – Provides for grant of Certificate of leave by a High court permitting a party aggrieved by its order to move the Supreme court
  • Article 136 – Special leave to appeal by Supreme Court
  1. Revisary Jurisdiction
  • Article 137- Review of judgements or orders by the Supreme court
  • Curative Petition – Came in the Rupa Hurra case 2002, it is applicable after the failure of the review petition
  1. Writ Jurisdiction
  • Article 32 – Right to Constitutional Remedies
  1. Advisory Jurisdiction

Held only by Supreme Court and not High Courts

  • Article 143 – The President may seek the opinion of the Supreme Court on any question of law or fact of public importance
  • On such reference from the President, the Supreme Court, after giving it such hearing as it deems fit, may report to the President its opinion thereon.
  • The opinion is only advisory, which the President is free to follow or not to follow.

B) Supreme Court Composition and Language

This court is comprised of the Chief Justice along with 30 other judges to carry on the operation of the court.

The proceeding of the Supreme Court is being heard only in the language of English.  The Supreme Court is governed by the Supreme Court Rules which was published in the year 1966.

C) Appointment of Supreme Court Judges

The judges of Supreme Court are being appointed by the President of India. The system is to send the panel of probable judges by the Chief Justice of Supreme Court through collegiums to the President of India with the approval of the Central Government.

The qualifications and the conditions of the judges so far appointment and the tenure of service are fixed as per below:

  1. He should be the citizen of India.
  2. He should have the experience of serving as the Judge of High Court for a minimum period of at least five years or he should be an advocate of High Court for at least ten years or he should be considered by the President as a distinctive jurist.
  3. The Judge of the Supreme Court is eligible for performing his duties by holding office up to the age of sixty five year if he has not resigned or disqualified on the basis of any act of misbehavior or proving incapable of holding his duties

High Courts

According to the Indian Constitution, Articles 214-231 deals with the provisions of High Courts in India. It provides for separate high courts for separate states but according to 7th constitutional amendment act the same high court can be the court for more than one state. At present, we have 21 high courts in the country, which includes 3 common high courts.

Important Constitutional Provisions

  1. Article 214– High court for States
  2. Article 215– High Courts to be Court of Records
  3. Article 216– Constitution of High Courts
  4. Article 217– Appointment and conditions of office of Judge of the High Court
  5. Article 219– Oath or affirmation by Judges of the High Court
  6. Article 220– Restriction on practice after being a permanent Judge except in Supreme court or another High Court
  7. Article 221-Salaries etc. of High Court Judges
  8. Article 222– Transfer of Judges
  9. Article 223– Appointment of Acting Chief Justice of High Court
  10. Article 224– Appointment of additional and acting judges
  11. Article 224(a)– Appointment of retired judges at sitting of High Court
  12. Article 226– Power to issue writs
  13. Article 228– Transfer of cases to High court from lower courts
  14. Article 229– Appointment of Officers and Servants Of High court
  15. Article 230– Extension of Jurisdiction of High Courts to Union Territories
  16. Article 231– Establishment of a common High Court for 2 or more states

A) Jurisdiction and powers of High Court

  1. Original Jurisdiction

It means that applicant can directly go to High Court and not by means of appeals. This power is used in the following matters –

  • Disputes arising out of relating to members of Parliament and state legislative assembly
  • Relating to marriage, law, admiralty divorce, contempt of court etc
  • Enforcement of fundamental rights (Supreme Court also has this power)
  • Cases transferred from other court to itself which involves a question of law.
  1. Writ Jurisdiction

Article 226 states that High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases, any government, within those territories directions, orders, or writs.

  1. Appellate Jurisdiction

High court is the primary court of appeal i.e. it has power to hear the appeals against the judgment of the subordinate courts within its territories. This power can be classified in to 2 categories-Civil jurisdiction and Criminal jurisdiction

  • In civil cases its jurisdiction includes to the orders and judgments of the district courts, additional district courts and other subordinate courts.
  • In criminal cases its jurisdiction includes judgments relating to sessions courts and additional sessions court.
  1. Power of Superintendence

The High Court has this power over all courts and tribunals except those dealing with the armed forces functioning in the state.The constitution does not place any restriction on this power of superintendence over the subordinate courts

  1. Control over Subordinate Courts

This is an extension of the above supervisory and appellate jurisdiction. The High Court can with draw a case pending before any subordinate court, if it involves the substantial question of law.

  1. Court of Record

It involves recording of judgments, proceedings and acts of high courts to be recorded for the perpetual memory. Based on this record it has power to punish for the contempt of court either with simple imprisonment or with fine or both.

  1. Judicial Review

This power of High Court includes the power to examine the constitutionality of legislative and executive orders of both central and state government.

Procedure for Removal of Judges

A judge may be removed from office through a motion adopted by Parliament on grounds of ‘proven misbehavior or incapacity’.

  1. The Constitution does not use the word ‘impeachment’, it is colloquially used to refer to the proceedings under Article 124 (for the removal of a Supreme Court judge) and Article 218 (for the removal of a High Court judge).
  2. The Constitution provides that a judge can be removed only by an order of the President, based on a motion passed by both Houses of Parliament.

The procedure for removal of judges is elaborated in the Judges Inquiry Act, 1968.  The Act sets out the following steps for removal from office:

  • An impeachment motion may originate in either House of Parliament. To initiate proceedings
  1. At least 100 members of Lok Sabha may give a signed notice to the Speaker, or
  2. At least 50 members of Rajya Sabha may give a signed notice to the Chairman.
  • The Speaker or Chairman may consult individuals and examine relevant material related to the notice. Based on this, he or she may decide to either admit the motion or refuse to admit it.
  • If the motion is admitted, the Speaker or Chairman (who receives it) will constitute a three-member committee to investigate the complaint. It will comprise:
  1. A Supreme Court judge
  2. Chief Justice of a High Court; and
  3. A distinguished jurist.
  • The committee will frame charges based on which the investigation will be conducted. A copy of the charges will be forwarded to the judge who can present a written defense.
  • After concluding its investigation, the Committee will submit its report to the Speaker or Chairman, who will then lay the report before the relevant House of Parliament.
  • If the report records a finding of misbehavior or incapacity, the motion for removal will be taken up for consideration and debated.
  • The motion for removal is required to be adopted by each House of Parliament by:
    1. Majority of the total membership of that House
    2. Majority of at least two-thirds of the members of that House present and voting.
  • If the motion is adopted by this majority, the motion will be sent to the other House for adoption.
  • Once the motion is adopted in both Houses, it is sent to the President, who will issue an order for the removal of the judge.

Judicial Independence

A) Significance

  1. The principle of separation of powers and ‘Checks and Balances’ cannot be operationalized without Judicial independence
  2. To preserve Rule of Law
  3. To protect rights of People
  4. To uphold the constitution against the unwarranted Invasion of the Executive and  the legislature
  5. Judiciary preventsdemocracy from degenerating into a mobocracy or tyranny
  6. To preserve the norms of the federal polity
  7. To check
    • Malfeasance-Abuse of Power
    • Misfeasance-Genuine error in application of law
    • Overfeasance –Acting beyond Jurisdiction
    • Nonfeasance-Not acting within Jurisdiction

B) Methods to Ensure Judicial Independence

  1. Salary, allowances form a part of charged expenditure and can’t be diminished
  2. Difficult process of removal via a lengthy parliamentary process
  3. Restriction on the discussion in the parliamentr.t to conduct of any judge(Article 121)
  4. Contempt of Court Powers
  5. Judicial Primacy in appointment and transfer of judges
  6. Power to make rulesr.t Internal administration
  7. Post retirement restriction as to practicing as lawyers
    • Supreme Court Judge cannot practice anywhere
    • High court Judge cannot practice in same High court but can practice in other High court or Supreme court

Pendency of Court Cases

Over 3 crore cases pending in Indian courts at various levels. Despite having a disposal rate equal to the case filling rate (around 2 crore/year) Indian courts are buoyed down by the Backlog with nearly 28% cases pending for over 5 years and 11% of the backlog has been pending for over 10 years

A) Major reasons/causes

  1. Poor Judge to population ratio
  • 5 per million in India
  • 107 per million in USA
  • 75 per million in Canada
  1. Huge vacancies
  • over 20 thousand judicial position vacant
  • out of the sanctioned strength of 1017 only about 400 position are filled the High courts
  1. Government acting as a compulsive and Irresponsible litigant
  • Close to 50% of cases has Government itself as a party
  1. Slow Case disposal rate
  • Average pendency rate in Indian Judiciary is 15 years
  1. Culture of adjustments and reservation of Judgements
  2. Poor quality of investigation and Prosecution leading to further litigation
  3. Antiquated and Obsolete Laws
  • Lead to procedural complexities
  • Indian evidence Act 1872,IPC 1860, Indian police act 1861and Civil Procedure Code 1908 all are in dire need of revision to keep pace with the 21st century law process
  1. Inadequate Infrastructure
  • Especially in lower Judiciary
  1. Lack of alternative means of dispute redressal
  • Frivolous civil Litigation
  • Frivolous Litigation Prevention act should be enacted on pan India basis
  • States of Madhya Pradesh, Maharashtra and Tamil Nadu have already enacted it
  • Law commission in its 197th report also recommended it
  • Corruption in the Judicial System

B) Solutions

  1. Increase the judge to Population ratio
  2. Popularize and Strengthen Alternative Dispute redressal (ADR) mechanism such as Lok Adalats and Plea Bargaining
  3. Set up additional Benches of Supreme court
  4. Quickly fill up the vacancies in the lower courts
  5. Make use of additional devices such as Mobile courts, evening courts, fast track courts
  6. Improve the infrastructure so that the pace of case disposal can improve

Legislations to overcome pendency

  1. Arbitration and Conciliation Act 1996
  • Arbitration is a form of private adjudication
  • Private companies prefer it due to it being Inexpensive, Quick and Secret (International viewpoint)
  • Experts are appointed as Arbitrators
  • In India it suffers the safe fate as regular courts being a long tedious and costly affair
  • Further under Section 34 of the act the award can be appealed in a regular court adding further the pendency mess
  1. Amendment Ordinance 2015
  • To overcome some of the shortcoming in the above 1996 act the amendment was brought in 2015
  • No arbitration to go beyond 12 months
  • A period expendable by another 6 months with the permission of the court
  • Any delay beyond 18 months will lead to the arbitrator being penalized @5% of its fees each month

National Litigation Policy 2015

A) Main Objectives

  1. To transform the government into an efficient and responsible litigant
  2. To reduce the average pendency from 15 to 3 years
  3. To motivate bureaucrats to shun the attitude of “letting courts decide”

B) Suggested Approach

  • Prioritize emphasis on litigation involving weaker sections, welfare registration
  • Appointment of nodal officers in each department for active case management
  • Screening committees to be setup for assessing skillset of lawyers
  • Adequate infrastructure and resource support for government lawyers
  • Properly Implement Gram Nyayalaya Act,2008as over 5000 such Nyayalays were envisioned but only around 150 have been established
  • Enact the Nyaya Panchayat Bill 2009 which provides for setting up of elected ‘Nyaya Panchayats’
  • Complete the formation of the National Arrears Grid to scientifically establish the total quantum of pendency in Indian Judicial system
  • Revive the idea of “ Committee on disputes” to be set up in cabinet secretariat to resolve interdepartmental and inter-organizational disputes within the Government

Lower Courts of India

A) District Courts

  • The basis of structuring of district courts in India is mainly depending upon the discretion of the state governments or the union territories.
  • The structure of those courts are mainly made considering several factors like the number of cases, distribution of population, etc.
  • These courts are covered by the administrative power of the High Courts under which the district courts are covered.
  • The judgments of the district courts are subject to review to the appellate jurisdiction of the respective high court
  • The district courts are mainly run by the state government appointed district judges.
  • These district courts have the additional jurisdictional authority of appeal handling over the subordinate courts which are there in the same district specifically in the domain of civil and criminal affairs.
  • The subordinate courts covering the civil cases, in this aspect are considered as Junior Civil Judge Court, Principal Junior and Senior Civil Judge Court, which are also known as Sub Courts, Subordinate Courts.
  • The subordinate courts covering the criminal cases are Second Class Judicial Magistrate Court, First Class Judicial Magistrate Court, and Chief Judicial Magistrate Court along with family courts which are founded to deal with the issues related to disputes of matrimonial issues only.
  • There are in total 351 district courts in operation out of which 342 are of states while 9 are of union territories.
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