Indian judiciary system – Best notes

The Indian judiciary system is based on an established common law framework, based on judicial precedents that have been recorded which were acquired through the British colonial past. The court system in India is comprised of the Supreme Court of India, the High Courts, and subordinate courts at the municipal, district as well as village levels.

Supreme Court of India

Supreme Court – The Guardian of the Constitution

The essence of a federal Constitution is the division of powers between the Central and State Governments. The division is made by a written Constitution which is the Supreme Law of the Land. In order to maintain the supremacy of the Constitution, there must be an independent and impartial authority to decide disputes between the Centre and the States. This function can only be entrusted to a judicial body. The Supreme Court under our Constitution is such an arbitration. It is the final interpreter and guardian of the Constitution.

• Stands at the apex of the judicial system of India.
• Consists of Chief Justice & 30 other judges.

Appointment

• The senior judge of the Supreme Court is appointed as the Chief Justice of India. Other judges are appointed by the President after consultation with such judges of the Supreme Court and of the High Courts as the President may deem necessary.
• In a landmark judgment, the Supreme Court in the “Supreme Court Advocates-on-Record Association vs. Union of India” case, 1993, held that the Chief Justice’s opinion in the appointment of the judges of the Supreme Court and in the appointment and transfer of the judges of the High Court shall enjoy primacy.

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Qualification

a. Citizen of India.
b. Have been a judge of the High Court for 5 yrs or an advocate of the High Court for 10 yrs minimum or in the President’s view, a distinguished jurist of the country.

Term and Salary

• The Chief Justice & other judges hold office till 65 yrs of age.

a. Can give resignation to President.
b. Can be removed by the Parliament.
c. After retirement, a judge of the Supreme Court cannot plead or act before any authority.

Removal of Judges

• A motion seeking the removal of the judge can be preferred before either House of Parliament.
• If it is to be introduced in the Lok Sabha, it should be signed in by not less than 100 members of the Lok Sabha.
• If it is to be introduced in the Rajya Sabha, the motion should be signed in by not less than 50 members.
• The resolution should be supported by a majority of the total membership of both houses & by 2/3 majority of the members present & voting.

Independence of Judges

• The Constitution has ensured this by:
  1. Salaries from Consolidated Fund.
  2. Salaries cannot be changed to their disadvantage.
  3. Removal is difficult.
  4. Cannot practice after retirement.
  5. The decisions & actions of judges cannot be criticized & the person doing so can be punished.
  6. The conduct of judges cannot be discussed in Parliament.
  7. President cannot appoint judges of the Supreme Court himself, he has to consult the judges also.

Jurisdiction of The Supreme Court

a. Original Jurisdiction: The Supreme Court settles all disputes between Centre — State, State — State, etc.

b. Writ Jurisdiction: Every individual has the right to move the Supreme Court directly by appropriate proceedings for the enforcement of his Fundamental Rights.

c. Appellate Jurisdiction: ft is three-fold:

1. Constitutional: In constitutional matters, an appeal lies to the Supreme Court if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.
2. Civil: In civil cases, an appeal lies to the Supreme Court if a High Court certifies that the value of the subject matter of the dispute is not less than Rs.20,000 or that the case is fit for appeal to the Supreme Court.
3. Criminal: In criminal cases, an appeal lies to the Supreme Court if the High Court:
   (i) Has on appeal reversed the order of acquittal of an accused and sentenced him to death; or
   (ii) Has withdrawn for trial before itself any case from any subordinate court and has in such trial convicted the accused and sentenced him to death; or
   (iii) Certifies that the case is fit for appeal to the Supreme Court.

d. Advisory Jurisdiction: If the President seeks the advice of the Supreme Court, it is duty-bound to give its opinion. (Its opinion isn’t binding on President).

e. Revisory Jurisdiction: The Supreme Court under Article 137 is empowered to review any judgment or order made by it with a view to removing any mistake or error that might have crept in the judgment or order.

f. It is a court of record as its decisions are of evidentiary value & cannot be questioned in any court.

g. The Supreme Court also enjoys the power of judicial review as it can ensure that the laws passed by legislature and orders issued by the executive do not contravene any provision of the Constitution.

h. The Supreme Court decides disputes regarding the election of the President and the Vice President.

i. The Supreme Court recommends the removal of members of UPSC to the President.

Public Interest Litigation

• Any member of the public can now initiate a proceeding on behalf of the aggrieved person (esp. if the person is too poor or unable to move the court on his or her own) in either the High Court or the Supreme Court for enforcement of constitutional rights. A destitute citizen can file a writ petition even through a simple letter written on a postcard.
• This derives from the ‘right to be heard’ as implied by Article 32.
• Justice P.N. Bhagwati and Justice V.R. Krishna Iyer were among the first judges to admit PILs in the Court.

High Court

• Each State has a High Court; it is the highest judicial organ of the State.
• However, there can be a common High Court like Punjab, Haryana & Union Territory of Chandigarh.
• Presently there are 21 High Courts in India.
• Consists of Chief Justice & other such judges as appointed by the President.
• The Constitution, unlike in the case of the Supreme Court, does not fix any maximum number of judges for a High Court.
• A judge of a High Court can be transferred to another High Court without his consent by the President. In this, the Chief Justice of India is also consulted. The opinion provided by him shall have primacy and is binding on the President.

Appointment of Judges

• The appointment of the Chief Justice is made after consultation with the Chief Justice of the Supreme Court & the Governor of the State by the President. In case of appointment of a Judge, the Chief Justice of the High Court concerned is also consulted in addition to the Chief Justice of the Supreme Court & Governor of the State concerned.

Qualifications

a. Must be a citizen of India.
b. Should have been an advocate of a High Court or of two such Courts in succession for at least 10 yrs; or should have held judicial office in Italian for a period of at least 10 yrs.

Term & Salary

• A judge of the High Court continues his office till 62 yrs of age. Term can be cut short due to resignation or removal by the President.

Removal

• The President can remove a judge of the High Court only if the Parliament passes the resolution by a 2/3 majority of its members present & voting in each house.
• The conduct of the judges of the High Court cannot be discussed in Parliament, except on a motion for the removal of a judge.

Restriction on Legal Practice

• The judge of a High Court is not allowed to practice law before the authority of the same court except the Supreme Court & any other High Court.

Jurisdiction of High Court

a. Court of record & has the power to punish for its contempt.
b.Under Article 226, the High Courts are given powers of issuing writs for the enforcement of Fundamental Rights and for other purposes. The jurisdiction to issue writs under this Article is larger for High Courts as compared to the Supreme Court because whereas the Supreme Court can issue them only where a Fundamental Right has been infringed, a High Court can issue them not only in such cases but also where an ordinary legal right has been infringed.
c. Supervises the working of all subordinate courts & frames rules & regulations for the transaction of business. It can examine the records of subordinate courts.

Subordinate Courts

• Judiciary in States consists of a High Court and subordinate courts.
• The organisation of the Subordinate Courts throughout the country is generally uniform. There are two types of law courts in every district —Civil and Criminal Courts. They function under the superintendence and control of the High Court of that particular state.
• The highest civil court in a district is the court of the District Judge The court decides civil and criminal cases.
• When the judge decides civil cases, he is called the District Judge and when he deals with Criminal Cases, he is called the Session Judge.
• The District Judge is appointed by the Governor in consultation with the Chief Justice of the High Court. He hears the appeals against the decision of the sub-judges.
• Besides the District Court, there are courts of sub-judges, munsif courts and courts of small causes.
• Below the Session Courts are the courts of First Class Magistrates. In Metropolitan cities like Kolkata, Chennai, Mumbai and Delhi, these Magistrates are known as Metropolitan Magistrates. Apart from this, there are courts of Second Class and Third Class Magistrates also.

Union Territories

• Refers to areas directly administered by the Central Govt.
• They are administered by the President through an administrator appointed by him with a suitable designation.
• In Delhi, Daman-Diu, Dadra and Nagar Haveli and Pondicherry — Lt. Governor
• Andaman & Nicobar and Chandigarh — Chief Commissioner
• Lakshadweep – Administrator
• There are Legislative assemblies and council of ministers in Pondicherry & Delhi.
• Total no. is 6 + 1 at present — Andaman & Nicobar Island, Chandigarh, Dadra & Nagar Haveli, Delhi (National Capital Territory), Daman-Diu, Lakshadweep & Pondicherry
• According to the 69th Amendment Act, 1991, the Union Territory of Delhi shall be called the National Capital Territory and it shall have a Legislative Assembly to which members shall be directly chosen by the people. The Assembly shall make laws on the matters enumerated in State List (except on matters relating to Public order, Police, Land).

Important Commission [Union Public Service Commission (UPSC)]

• Composition is determined by the President.
• The members of the UPSC are appointed for a term of 6 yrs, or till they attain 65 yrs of age.
• Can resign earlier to the President.
• President can remove them by issuing orders only the SC makes such a recommendation on the basis of an inquiry.
• Members of the UPSC are not eligible for employment by the govt. after retirement.
• Function:-

a. To conduct exams for appointments to services under the Union.
b. Advise the President (not obligatory on him) in matters relating to appointments, promotions & transfers from one service to another of civil servants.
c. All disciplinary matters affecting a person in the service of Union.
d. Matters regarding the award of pension & awards in respect to injuries sustained during service under the govt.
e. Maintains continuity of administration.

Election Commission

• The Constitution provides for an independent election commission to ensure free and fair election to the Parliament, the state legislature and the offices of President and Vice-President.
• Consists of Chief Election Commissioner + 2 Election Commissioners. They all enjoy equal powers.
• The Chief Election Commissioner is appointed by the President and the other Election Commissioners are appointed by the President after consultation with the Chief Election Commissioner. Article 324 also provides for the appointment of Regional Commissioners at the time of General Elections after consultation with the Election Commission.
• Election Commissioners are appointed for a term of 5 yrs.
• They are not eligible for re-appointment. Also, they cannot hold any office of profit after their retirement.
• Article 324 says that there is no upper limit on the no. of Election Commissioners. In 1990, Dinesh Goswami Committee recommended that the Election Commission be a 3-membered body. Also, in its constitution Chief Justice & leader of the opposition ought to be consulted. (Thus Article 324 as amended).
• The Chief Election Commissioner can be removed from office before the expiry of his term by the President on the basis of a resolution passed by the Parliament by a special majority on the ground of proven misbehavior or incapacity (same as that of Judge of the Supreme Court). The other Election Commissioners may be removed by the President on the recommendation of the Chief Election Commissioner.
• Functions –
  1. Preparation of electoral rolls & keep voters list updated. The electoral roll is nor mall revised every year to add the names of those who have turned 18 on the 1st January of that year or have moved into a constituency and to remove the names of those who have died or moved out of a constituency.
  2. Preparation of code of conduct for all political parties.
  3. Recognition of various political parties & allotment of election symbols.
  4. Appointment of election officers to look into disputes concerning election arrangements.
  5. To examine the returns of election expenses filed by the candidate.

Finance Commission

• The Finance Commission is constituted by the President of India every fifth year or at such an early time as he considers necessary.
• It consists of a Chairman & 4 other members. They are eligible for re-appointment.
• The Chairman is selected from persons who have had experience in public affairs, while the members are selected from the persons who :
  1. Qualified to be appointed judges of the High Court.
  2. Have special knowledge of the finance & accounts of govt.
  3. Wide experience in financial matters & in administration
  4. Have special knowledge of Economics.
• Presently 13th Finance Commission is working. (Vijay S. Kelkar-Chairman)
• Functions –
  1. To recommend to the President distribution of net proceeds of the taxes which are divisible between the Union and States.
  2. To recommend the principles which should govern the Grants of the revenues of the State out of the Consolidated Fund of India.
  3. The recommendations made by it are only of advisory nature and hence, not binding on the Government.
  4. To tender advice to the President on any other matter referred to the Commission in the interest of sound finance.

Inter-State Council

• Inter-State Council was constituted in 1990 under Art. 263.
• Inter-State Council consists of the Prime Minister, 6 Union Cabinet Ministers the Chief Ministers of all the States and administrators of all UTs.
• The Sarkaria Commission recommended the Constitution of a permanent Inter-State Council for co-ordination among States and with the Union. (Justice R.S. Sarkaria died in 2007.)
• Inter-state Council is chaired by Prime Minister.
• Inter-State Council meets thrice a year.

Planning Commission

• Planning Commission is not mentioned in the Constitution.
• Planning Commission is an economic advisory body set up by a resolution of the Union Cabinet in 1950.
• At present, the planning commission consists of the chairman, four Ministers as part-time members, and seven full-time members.
• Prime Minister is the Chairman of the Planning Commission.
• Main functions of the Planning Commission are:
  • To formulate an integrated Five Year Plan for economic and social development.
  • To act an advisory body to the Union Government.

National Development Council (NDC)

• The National Development Council was formed in 1952, to associate the States in the formulation of the Plans.
• All members of the Union Cabinet, Chief Ministers of States, the Administrators of the Union Territories and member of the Planning Commission are members of the NDC.
• The functions of the NDC are:
  • Review the working of the national plan
  • Recommend measures to meet targets of the national plan
• It is a non-constitutional body.

National Integration Council

• National Integration Council, was set up in 1986, to deal with welfare measures for minorities on an All-India basis.
• It includes Union Ministers, Chief Ministers of State, representatives of National and Regional political parties, labour, women public figures and media representatives.
• It is a non-constitutional body.

Zonal Councils

• Set up under State Reorganization Act 1956,
  1. Northern Zone: Consist of Punjab, Rajasthan, Haryana, J&K, Uttarakhand, Himachal Pradesh, Chandigarh & National Capital Territory of Delhi.
  2. Central Zone: UP Chhattisgarh and MP.
  3. Eastern Zone: Bihar, Jharkhand, West Bengal, Orissa and Sikkim.
  4. Western Zone: Maharashtra, Goa’ Gujarat and UTs of Dadar and Nagar Haveli and Daman Diu.
  5. Southern Zone: Andhra Pradesh, Tamil Nadu, Karnataka, Kerala and UT of Pondicherry.
  6. North Eastern Council: It was created in 1972 for Assam, Manipur, Tripura, Meghalaya, Nagaland, Mizoram & Arunachal Pradesh, In 1994, Sikkim was included in it making its strength eight.
• The objective is to promote collective approach and for sorting out common problems of the member states and also for solving inter-state disputes.
• Each Council consists of a Chief Minister and two other ministers of each of the States in the zone and the administrator in the case of a Union Territory.
• The Union Home Minister has been nominated to be the common Chairman of all the Zonal Councils.