16. The Judiciary

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polity study materials 16
  • The judiciary performs very important functions and the most important is that of the administration of justice.Wherever a case comes before a judge, it is his duty to interpret the law of the country on that point in an impartial manner and give his decision accordingly. It is his duty to see that justice is dispensed according to the law.
  • The judiciary is the custodian of a written constitution.
  • The welfare of the citizens greatly depends upon speedy and impartial justice.
  • The judiciary is the guardian of the rights of man and it protects these rights from all possibilities of individual and public encroachment.
  • The feeling in an average citizen that he can rely on the certain and prompt administration of justice maximises his liberty.
  • If there is no adequate provision for the administration of justice liberty of the people is jeopardized, for there is no definite means which should ascertain and decide rights, punish crimes and protect the innocent from injury and usurpation.
  • According to Bentham, the administration of justice by the state must be regarded as a permanent and essential element of civilization and as a device that admits of no substitute.
  • The judiciary will see that the rights of the people are protected. Once the law has been made, it cannot be given any arbitrary interpretation by the executive.
  • It is upto the courts to decide the meaning of law.

The Qualification of The Judges:

  • What the judiciary does and does not do is a matter of concern which affects every individual and every section of the society.
  • Judiciary should have as judges, persons of high calibre and with sound knowledge of jurisprudence and the laws of the country.
  • The qualifications prescribed for appointment as judges vary from state to state and from place to place.

Judicial Review: 

  • Judicial Review is an important contribution of the U.S.A. to political science.
  • The power of the Judiciary to declare law unconstitutional is called judicial review. In England the judiciary has no power to sit in judgement on the law passed by parliament.
  • In countries like U.S.A., Canada, India, Australia, if the legislature passes a law which is against the constitution, the judiciary can declare such law as ultra vires.
  • The Supreme Court enjoys the power of judicial review.
  • The Supreme Court of India has judicial review power with regard to:
  1. Disputes between the centre and the states.
  2. To interpret and clarify a provision of the constitution above which there are some doubts and differences of opinion.
  3. Protecting the fundamental rights.
  4. Those laws passed by the legislature which are not in accordance with the constitution.
  • In India, the Supreme Court and High Courts enjoy this power

Merits and demerits of Judicial Review Merits:

  1. Judges are competent to make judicial review by virtue of their knowledge and experience.
  2. It enables the federal judiciary to act as the guardian of the constitution.
  3. The courts are independent and less biased than legislatures.
  4. It protects the fundamental rights of the people in particular the rights of the minorities.
  5. It is necessary to preserve a free and limited government.
  6. It enables the judiciary to guard against legislative haste and rashness.

De-merits 

  • It may violate the spirit of separation of powers.
  • By giving the power of judicial review to the courts the smooth functioning of the representative system of government is affected as the courts infringe upon the legislative and executive functions.
  • Judicial review delays the operation and implementation of important and pressing social policies so necessary for the needs of a dynamic society.
  • Almost all problems coming before the judges involves issues of political, economic and social importance and legislation on them. Thus it makes the judiciary a super legislature.
  • Issues brought before the courts are decided by a majority of single judge (in the U.S.A. five to four majority). It shows how the judges are sharply divided amongst themselves and their judgement vitally affects the nation as a whole.
  • Judges may over look the challenges of the changing times and may refuse to move forward. They may become conservative.
  • Judges may follow blindly only the letter of the law totally ignoring its spirit. They may develop hard attitude. Judicial review has been accepted as an important doctrine in the working of the judiciary.

Judicial Activism:

  • The judiciary is one of the important pillars of democracy.
  • It has more onerous responsibilities than two other important estates, the executive and the legislature.
  • It is the judiciary and the institution of justice that helps the orderly functioning of
  • parliamentary democracy and the exercise of powers by the various wings of administrative machinery.
  • “Judicial activism” is inspired by the public, who knock the doors of justice and thus judicial activism is basically citizens activism. By exercising the right to freedom of expression and assuring the representation of the common citizen, the press has raised same particular issues, conducted risky investigation and exposed serious omissions, sometimes going to court with public interest litigation.
  • The lion’s share of citizens’ activism is that of the press, the fourth estate. When the administration fails to respond the citizen looks to the press for communication and turn to the judiciary for a remedy.
  • Since the judiciary is part and parcel of the society as a whole and the persons who man the administration of justice are none other than the same persons from the community, it is difficult to imagine better standards and higher moral values only in the judiciary.
  • The people as a whole should therefore have overall control, in accordance with democratic principles.
  • Hence an enlightened and conscious citizen should ponder over the need to reform every system, including the judiciary, to be more useful to the public in general and the democratic institutions in particular.
  • The delayed dispensation of justice is one of the main maladies confronting the fabric of our republic.
  • If by delay justice is denied, it is conversely burried if hurried.
  • With its defective structure and unquestionable power devoid of any accountability, the judiciary as for that matter, any system can play havoc with the setup.
  • Our constitutional frame work provides for a fairly good amount of independence to the judiciary to act as watchdog, over the other two estates.
  • To retain such independence the judiciary is rightly enjoying an enormous amount of power too.
  • The Supreme Court in India unlike in the U.S.A has vast powers in controlling administrative discretion. Judicial activism, particularly on public interest litigation, has revolutionised constitutional jurisprudence.
  • Persons belonging to the executive and legislative have criticiced the judiciary for weakening those wings and making them feel insecure.
  • They described the situation as judicial tyranny and judicial grabbing or judiciacracy. Various phenomena reflect the denigration of justice system.
  • Charges of corruption, links between some advocates and some judges, the brokerage system, chasing litigation, bias, political appointments of public prosecutors and government pleaders are some of them.
  • As the purview of the judicial review is expanding by leaps and bounds, every action of the two estates is coming in for judicial scrutiny.
  • In a way, this situation is helping to increase the powers of the judiciary.
  • Citizens should be enlightened about the defects of the judiciary and the media should play the role of catalyst in reforming the administration of justice, to make it more useful to society and for judicial activism to help the development of law.

Rule of Law:

  • The guarantee of Equality before Law is an aspect of what Lord Diceycalls, the ‘Rule of Law’ that originated in England. It means no man is above law and that every person, whatever be his rank or status is subject to the jurisdiction of ordinary Courts. Also, it says that no person shall be subject to harsh, uncivilised or discriminatory treatment even for the sake of maintaining law and order.

There are three basic meanings of ‘Rule of Law’ :

  1. Absence of arbitrary power or supremacy of law – A man can be punished for a breach of law but he cannot be punished for anything else.
  2. Equality before law – No one is above law
  3. The Constitution is the Supreme law of the land and all laws passed by the legislature must be consistent with the provisions of the Constitution.

Procedure Established by Law and the Due Process of Law

  • The procedure established by law means the uses and practices as laid down in the statute or law.
  • Under this doctrine, the Court examines a law from the point of view of the Legislature’s competence and sees whether the prescribed procedures have been followed by the Executive.
  • The Court cannot go behind the motive of the law and cannot declare it unconstitutional, unless the law is passed without procedure established by law. Therefore, the Court relies more on the good sense of the Legislature and strength of the public opinion.
  • This doctrine protects individual only against the executive actions.
  • On the other hand, the phrase due process of law means that the court should examine the law, not only from the point of view of legislature’s competence, but also from the broad view of the intention of the law.
  • Thus, it provides greater power to the court.
  • The constitution of India provides for the procedure established by law.
  • But, the Supreme Court in the Maneka Gandhi case, in 1978, interpreted Art 21 to include the phrase “due process of law” in it.
  • This, Art 21 now protects an individual both against legislative and executive actions.

Supreme Court:

Appointment of Judges:

  • Every Judge of the Supreme Court is appointed by the president by warrant under his hand and seal after consultation with such Judges of the Supreme Court and of the High Courts as the President may deem necessary for the purpose.
  • In case of appointment of a Judge, other than Chief Justice, the Chief Justice of India is to be necessarily consulted.
  • A Judge of the Supreme Court remains in office until he attains the age of 65 years.

Qualifications

  • No persons can be appointed a judge of the Supreme Court unless He is a citizen of India,
  • He has been for at least five years a judge of a High Court or has been for at least ten years an advocate of a High Court or two or more such courts in succession,
  • He is ‘in the opinion of the President’ a distinguished jurist.

Privileges of Judges

  • A Judge of the Supreme Court is entitled to such salaries as are specified in the Second Schedule.
  • The Chief justice gets rupees thirty-three thousand per month and other judges rupees thirty thousand per month.

Removal of Judges

  • A Judge of the Supreme Court can only be removed from office by an order of the president, passed after an address by each house of parliament, supported 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 misbehavior or incapacity.

Composition

  • The Supreme Court is the highest Court of Justice in India.
  • It consists of one Chief Justice and 25 other Judges who are appointed by the President.
  • Provision has also been made for the appointment of ad hoc judges and even the retired judges may be at times, when the necessity arises, requested to be present.

Powers and Functions

  • The Supreme Court is a Court of Record and exercises all the powers of such a court, including the power to punish for the contempt of itself.
  • It main functions may be studied under the following heads:

Original Jurisdiction;

  • The Supreme court has exclusive jurisdiction in all disputes: Between the Government of India and one or more states;
  • Between the Government of India and any state or states, on the one side, and one or more states on the other; and
  • Between two or more states.
  • Such jurisdiction, however, does not extend to a dispute arising out of any treaty, agreement, covenant, engagement or sanad or any similar instrument which was executed before the commencement of the Constitution.

Appellate Jurisdiction in Certain Cases:

  • An appeal to the Supreme Court lies from any judgement, decree or final orders of a 24 High Courts in India on a certificate from these High Courts concerned that the case involves a substantial question as to the interpretation of the Constitution.

Advisory Jurisdiction:

  • The President may refer to the Supreme Court any question of law or fact of sufficient importance for its opinion under Article 143. The President may also refer to the court disputes arising out of any provision of treaty, agreement, covenant, engagement or sanad, etc. The opinion so expressed is not binding on the President.

Enforcement of Fundamental Rights:

  • The Supreme Court has been armed with powers to issue direction or orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari (Article 32) for the enforcement of the Fundamental Rights conferred by the Constitution.

Additional Jurisdiction:

  •  Article 138 of the Constitution provides for enlargement of the jurisdiction of the Supreme Court by parliament with reference to any matter contained in the Union List. It has also jurisdiction on any such matter as the Government of India and the Government of any state may, by agreement, confer. But the Parliament has to give effect to his agreement by passing a law.

Power to Review:

  • The Supreme Court has power to review any judgement or order made by it, subject to any law passed by the Parliament in this regard under art. 137.

Supplementary Powers:

  • Parliament may be law confer such supplemental powers on the Supreme Court as may appear to be necessary and desirable for the due discharge of its functions.

Guardian of the constitution

  • It is clear from the powers and functions of the Supreme Court that it is the ultimate interpreter of the Constitution and, as such, is guardian.
  • The authority of the Court is further reinforced by the provision that “the law declared by the supreme Court shall be binding on al courts within the territory of India.”
  • In 1970, the Supreme Court had declared the following Acts of the Parliament as null and void:
  • Banking Companies Act, 1969, for the nationalization of 14 banks Presidential order concerning de-recogisation of the former princes.
  • Truly, the Supreme Court acts as the guardian of the Constitution.

Constitutional Functions of the Supreme Court

  • Appellate Jurisdiction in Matters involving Interpretation of Constitution Article 13

Judicial Review of Legislation

  • The Supreme Court has also been vested with wide powers in the form of Judicial Review under Art. 13, like the Supreme Court of the USA. According to the right of
  • judicial review, the Supreme Court can declare any law passed by the parliament unconstitutional on the ground that it contravenes the provisions of the Constitution. The Supreme Court is also the final interpreter of the Constitution. The law declared by the Supreme Court is binding on all Courts within the territory of India.

Independence of Judiciary:

  • The independence and impartiality of the Supreme Court is the cornerstone of democracy.
  • Our constitution ensures the independence of the Judiciary through the following measures:
  • Though appointed by the President, a judge of the Supreme Court can only be removed after an address of 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 present and voting and presented to the President on the ground of proved misbehavior or incapacity.
  • The salary and the conditions of service of a judge of the Supreme Court cannot be varied to his disadvantage after his appointment.
  • After retirement, a judge of the Supreme Court cannot plead or act in any other court or before any authority within the territory of India.
  • The salaries, etc., of the judges and administrative expenses of the Supreme Court are chargeable on the Consolidated Fund of India and are, therefore, not votable.

High Courts

  • It consists of a Chief Justice and several other judges.
  • The Chief Justice of High court is appointed by the President of India. Other judges are appointed by the President after consultation with the Chief Justice of Supreme court, the Governor of the state and the Chief Justice of the High court.
  • The President has the power to appoint additional judges for a temporary period not exceeding two years, for the clearance of arrears of work in High Court and an acting judge, when a permanent judge of the High Court is temporarily absent or unable to perform his duties or is appointed to act temporarily as Chief Justice.
  • A Judge of High Court shall hold office until the age of 62 years.
  • Every judge permanent, additional or acting, may vacate his office earlier in any of the following ways.
  • By resignation in writing and addressed to the President
  • By being appointed a Judge of the Supreme Court or being transferred to any other High Court, by the president; and
  • By removal of the President on an address of both Houses of Parliament on the ground of proved misbehavior or incapacity.

Qualifications:

  • The qualifications laid down in the constitution for the appointment as a High court Judge are following:
  1. He must be a citizen of India
  2. He must not be over 62 years of age.
  3. He must have held a judicial office in the territory of India. or,
  4. He must have been an advocate of a High Court for at least 10 years.

Independence of the Judges: 

  • As in the case of the Judges of the Supreme Court, the constitution seeks to maintain the independence of the Judges of the High Courts by the following provisions.
  1. The Judges of the High Court are important constitutional authorities.
  2. The salaries and allowances of the Judges are charged from the Consolidated Fund of the state.
  3. Salaries and allowances payable to a Judge and rights in respect of leave and pension cannot be varied by the parliament to his disadvantage after his retirement, except under the Financial Emergency under Article 360.
  4. The removal of a Judge is followed by a strict procedure like that of the removal of a Judge of the Supreme Court; and
  5. A Judge should not hold any office of profit after his retirement.

Jurisdiction and powers

  • The High Court of Chennai has the following jurisdiction and powers as per the constitution.

Original Jurisdiction: 

  • The High Courts at the three presidency towns of Bombay, Calcutta and Madras had an original jurisdiction, both civil and criminal, over cases arising within the respective presidency towns.
  • The original criminal jurisdiction of the High Court has, however, been completely taken away by the criminal procedure code, 1973.
  • City civil courts have also been set up to try civil cases within the same area, the original civil jurisdiction of these High Courts has not altogether been abolished but retained in respect of actions of higher value.

Appellate Jurisdiction: 

  • The High Court is the highest court in the state of Tamil Nadu. It has appellate jurisdiction in both civil and criminal cases.
  • On the civil side, an appeal from the decision of District Judge and from that of a subordinate Judge in cases of higher value, lie direct to the High Court.

Writ Jurisdiction 

  • According to R. Ambedkar, the Chairman of the Drafting Committee of the Constitution of India, Article 32 is the soul and heart of the constitution, because, it safeguards the rights, liberty and privileges of every citizen of India in terms of writs.
  • The High Court has the writ jurisdiction under Article 226.
  • There are five writs, namely, Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo-warranto.

Power of Superintendence 

  • The High Court has the power of superintendence over all courts and tribunals throughout its territorial Jurisdiction, except military tribunals. Indeed, it has a wide power.

Head of State Judiciary 

  • As the head of the state judiciary, the High Court has got an administrative control over the subordinate judiciary in respect of certain matters, besides its appellate and supervisory jurisdiction over them.
  • The High Court is powerful.
  • It acts as the court of records.
  • It has the bench jurisdiction in which the most important and burning cases of the state are settled

National Judicial Appointments Commission (NJAC) 

  • The National Judicial Appointments Commission (NJAC) has been established by the 121st constitutional Amendment Bill, 2014 . NJAC is a proposed body responsible for appointment and transfer of judges to the higher judiciary in India. The present Collegium system of appointing the judges of Supreme Court and 24 High Courts will be replaced with judicial appointments commission wherein the executive will also have a say in appointing the judges.
  • The NJAC Bill provides for the procedure to be followed by the NJAC for recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court (SC), and Chief Justice and other Judges of High Courts (HC). The bill also seeks changes in articles 124,217,222 and 231.
  • The 121st Constitution Amendment Bill stipulates amendments to Articles 124 (2) and 217 (1), which deal with the appointment of judges in the Supreme Court and the High Courts, respectively. Under the 121st amendment, every judge in the Supreme Court and the High Courts would be now appointed by the President in consultation with the National Judicial Appointments Commission (NJAC).

Composition of NJAC

  • Chief Justice of India (Chairperson)
  • Two senior most Supreme Court Judges next to the Chief Justice of India The Union Minister of Law and Justice
  • Two eminent persons (to be nominated by a committee consisting of the Chief Justice of India, Prime Minster of India and the Leader of Opposition in the Lok Sabhaor the leader of the single largest opposition party in the House where there is no such Leader of Opposition)
  • Of the two eminent persons, one person would be from the SC/ST/OBC/minority communities or be a woman.
  • The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nominatio

Functions of the NJAC

  • According to a new article 124B, the functions of the NJAC will be as follows: Recommending persons for appointment as Chief Justice of India, judges of Supreme Court of India, Chief Justices of high courts and other judges of the high courts.
  • Recommending transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court
  • Ensuring that the recommended persons have ability and integrity.

NAME AND JURISDICTION OF HIGH COURTS

No NAME YEAR OF ESTBLISHMENT TERRITORIAL JURISDICTION SEAT
1 Allahabad 1866 Uttar Pradesh Allahabad (Bench at Luchnow)
2 Andhra Pradesh 1954 Andra Pradesh Hyderabad
3 Bombay 1862 Maharashtra, Goa, dandra and Nagar Haveli and Daman and Diu Mumbai (Benches at Nagpur, Panaji and Aurangabad)
4 Calcutta 1862 West Bengal and Andaman and Nicobar Islands Kolkata (Circuit Bench at Port Blair)
5 Chhattisgarh 2000 Chhatytisgarh Chhatytisgarh
6 Delhi 1966 Delhi Delhi
7 Guwahati 1948 Assam, manipur, Meghalaya, Nagaland, Tripura, Mizoram and Arunachal Pradesh Guwahati (Benches at Kohima, Aizawl, Imphal, Shillong and Agartala)
8 Gujarat 1960 Gujarat Ahmedabad
9 Himachal Pradesh 1971 Himachal Pradesh Simla
10 Jammu and Kashmir 1928 Jammu and Kashmir Srinagar and Jammu
11 Jharkhand 2000 Jharkhand Ranchi
12 Karnataka 1884 Karnataka Bangalore
13 Kerala 1958 Kerala and Lakshadweep Ernakulam
14 Madhya Pradesh 1956 Madhya Pradesh Jabalpur (Benches at Gwalior and Indore)
15 Madras 1862 Tamil Nadu and Pondicherry Chennai
16 Orissa 1948 Orissa Cuttack
17 Patna 1916 Bihar Patna
18 Punjab and Haryana 1875 Punjab, Haryana and Chandigarh Chandigarh
19 Rajasthan 1949 Rajasthan Jodhpur (Bench at Jaipur)
20 Sikkim 1975 Sikkim Gangtok
21 Uttaranchal 2000 Uttaranchal Nainital
22 Meghalaya 2013 Meghalaya Shilong
23 Tripura 2013 Tripura Agartala
24 Manipur 2013 Manipur Imphal

 

Subordinate Courts

  • The subordinate courts are divided into two categories, namely, the civil courts subject to the civil procedure code and the criminal courts subject to the criminal procedure code.
  • According to the All India Judges Association case (1989), the Supreme Court directed to bring a uniform designation in the subordinate judiciary’s judicial officers all over the country – District or Additional District Judges, Civil Judge (Senior Division) and the Civil Judge (Junior Division) on the civil side and Sessions Judge, Additional Sessions Judge, Chief Judicial Magistrate, and Judicial Magistrate on the criminal side as laid down in the criminal procedure code.
  • In addition, there are courts known as small causes courts.
  • These courts are set up either under the Provisional Small Causes Act at the district level or under the Presidency Small Causes Court Act in presidency or metropolitan down

Appointment of District Judges

  • The appointment, posting and promotion of district judges in a state are made by the governor of the state in consultation with the High Court.
  • A person to be appointed as district judge have the following qualifications:
  • He should not already be in the service of the Central or the state government. He should have been an advocate or a pleader for seven years.
  • He should be recommended by the High Court for appointment.
  • The expression district judge includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge.

Appointment of other judges

  •  Appointment of persons (other than district judges) to the judicial service of a state are made by the governor of the state after consultation with the State Public Service Commission and the High Court.
  • The expression ‘Judicial Service’ means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.
  • The administrative control over the members of subordinate judicial service vests with the High Court under Article 235 of the constitution.

Family Courts:

  • In addition to the hierarchy of regular courts, family courts also are constituted in various states in India.
  • According to Family Courts Act of 1984, these courts have powers and jurisdiction to enquire into the cases relating to marriages and family affairs with a view to settle cases without much expenditure and going to regular courts which are
  • Matters such as dispute within the family, divorce, dowry harassment, etc. are looked into by these courts. These courts follow the Civil Procedure Code.

The chart showing hierarchy of subordinate courts

 

Civil side

     Criminal side

  1. District Judge 

Sessions Judge

2, Additional District Judge Additional Sessions Judge
3. Civil Judge (Senior Division) Chief Judicial Magistrate
4.Civil Judge (Junior Division)

 

Judicial Magistrate

 

Control over Subordinate Courts:

  •  The control over district courts and other sub-ordinate courts including the posting, promotion and leave of persons belonging to the judicial service of a state and holding any post inferior to the post of district judge is vested in the High Court.

Law Officers and the Central Law Agency Attorney General:

  •  Article 76 of the constitution makes provision for the appointment of a law officers the attorney general, by President of India.
  • It is his duty to give advice to the Government of India upon legal matters and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President and to discharge the functions conferred on him by or under this constitution or any other law for the time being in force.
  • The Attorney General is the highest law officer in the country and, in the performance of his duties, he has a right of audience in all courts in the territory of India.
  • The Attorney General holds office during the pleasure of the President and receives such remuneration as the President determines from time to time.
  • Apart from the Attorney General, the other law officers are the Solicitor General of India.

 

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