JUDICIARY

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 JUDICIARY : HIGHLIGHTS

 India is one of the Common Law practicing country with Adversarial system of law
where the judicial precedents also have the force of law.
 Indian constitution establishes a single unified judiciary with Supreme court at the
top.
 To assist the judiciary there exist specialized Tribunals to adjudicate matters in
specific sectors ie. Labour ,consumer, telecommunication .
 Supreme Court came into existence with 7 judges and one Chief justice in 1950.
Today there are 34 judges including the CJI.
 Features of Indian Judiciary
 India as a Common Law country with Adversarial Model of dispute Resolution:
 In a Common Law country the judgments and orders passed by courts have the same binding force as
the laws passed by legislative bodies. Thus judiciary also help in not only creating the laws but also
help in the evolution of the new principles of law by interpreting the existing laws.
 Common Law countries including India follow the Adversarial Model of dispute resolution which is
basically a lawyer centric dispute resolution where lawyers representing their parties play vital role
through their arguments and manipulations before a neutral judge who delivers judgment based on the
merit of the case.
 In the Civil law countries, which follow Inquisitorial System of Law, the judges have a pro-active role.
Here the lawyers and judges cumulatively help in the investigation and the trial to determine the
judgment in the civil and criminal cases.
High Courts and Subordinate Courts
 There are 24 High Courts and below it exists the District and Session courts in each judicial
district. These courts are presided over by a District and Session judge who is the highest
judicial authority below a high court judge.
 When he/she presides over a civil case, he is called as District Judge and while presiding
over a criminal case, he is called Session Judge.
 Below the District Courts lie the Subordinate courts/judges in the following
hierarchy(Based on the quantum of punishment and fine they can impose):
CRIMINAL COURT CIVIL COURT

 Chief Judicial Magistrate  Senior Civil Judge

 First Class judicial Magistrate  Principal Junior Civil Judge

 Second Class judicial Magistrate  Junior Civil Judge

 Munsiff court
 LEGAL OFFICERS
 Attorney General and Advocate Generals:
 Attorney General is the First legal officer of the Central Government who aid and advise the government
on important legal matters and represent the government in the courts (Right to audience).
 Any one who possesses the qualification to become the judge of Supreme Court can be appointed as the
Attorney General.
 The Attorney General is assisted by a Solicitor General and four additional solicitor generals. But these
positions are not recognized by the constitution.
 The chief legal officer in a state is called Advocate General who advises the state government on legal
issues and represent the state government in the courts. He/She should possess the qualification of the
judge of a high court to be appointed as the Advocate General. He is appointed by the governor of the
state on the advice of the State council of ministers.
 Independence and Role of judiciary

 In a democratic country independence of judiciary is very important to maintain the

rule of law and establish a free and fair society.
 ART.50 of the Constitution of India provides the rules of independence of judiciary.
 It helps the judiciary to act as the watch dog of democracy by overseeing that all the
organs of the government work within their defined jurisdiction and the government
policies are in the larger interest of the society and individual.
 It protects the judiciary from any external pressure while delivering justice
particularly in cases between the government and the private parties.
 Role of Supreme Court,High Courts and
Lower Courts
o Supreme court primarily performs the role of an adjudicator and interpreter.
o Under its Original jurisdiction the court resolves the dispute between center and states and
between states involving some question of law which needs interpretation of the constitution.
◦ The High Courts function as the organs of judicial administration at the State-level.
◦ Similarly, the lower courts function as centers of civil and criminal justice at the district level.
◦ Lower courts are usually Courts of first instance, where litigants proceed for their disputes.
◦ These Courts have set territorial and pecuniary limits when accepting cases of civil nature.
◦ Once matters are adjudicated by these courts, they proceed to the High Courts on appeal.
◦ Thus sub-ordinate courts are mainly vested with the establishment of facts while the
appellate courts deal with interpretation of statues the correct application of law.
 APPELATE JURISDICTION OF SC
◦ Appeal in Constitutional Matters: Under Article 132 (1) of the Constitution of India, an appeal shall
lie to the Supreme Court from any judgment, decree or final order of a High Court whether in civil,
criminal or other proceedings, if the High Court certifies under Article 134-A that the case involves a
substantial question of law as to the interpretation of this Constitution.
◦ Appeal in Civil cases: Article 133 provides that an appeal shall lie to the Supreme Court from any
judgment, decree or final order in a civil proceeding of a High Court only if High Court certifies
under Article 134-A - (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.
 APPELATE JURISDICTION OF SC-II
◦ Appeal in Criminal Cases: Article 134 provides that an appeal shall lie to the Supreme Court from any
judgment, final order or sentence in a criminal proceeding of a High Court. This appeal can be in two
ways: without a certificate of High Court and with a certificate of the High Court.
◦ An appeal lies without the certificate of the High Court: (i) has on appeal reversed an order of acquittal
of an accused person and sentenced him to death.
◦ (ii) has withdrawn for trial before itself any case from any court subordinate to its authority and has
convicted the accused to death.
◦ Special Leave to Appeal: Under certain special circumstances, an appeal may lie directly to the
Supreme Court from any Court in India under Article 136 of the Constitution. This is Special Leave
Petition .This power of the Supreme Court is discretionary and Hon’ble Court may or may not allow
special leave to appeal to any person
TRIBUNALS

 These are the quasi-judicial bodies headed by administrative officers or judges

without a legal background.
 Tribunals help to reduce the workload on the courts. Tribunals adjudicate matters in
specific sectors ie. labour, consumer, telecommunication etc. National Green Tribunal
resolves disputes involving environmental issues.
 Some of these also function as regulators such as TDSAT which oversee law and
order compliance in Telecom Sector and work alongside TRAI.
 An appeal against the order of the tribunal can be made in the division bench of the
High Court.
 Judiciary as custodian of rights
 Independence of judiciary also helps to protect not only the Fundamental Rights
of the citizens but also in expanding the meaning and scope of these rights.
 For example while interpreting Right to Life and Personal Liberty under ART-
21,the court held that it is the fundamental rights of the street vendors to sell
their products on streets which is the part of their livelihood.
 Independence of judiciary is also vital to ensure that all government actions
must conform to Due process of law, which means following norms of
fairness, liberty and fundamental rights.
Does independence of judiciary and
impartiality of judges mean the same thing?
 Independence of judiciary means freedom of judiciary from the control of
executive and legislature.
But impartiality of judges refers to the unbiased conduct of the judges while
delivering justice.
 Supreme Court as an Activist: Judicial
Activism(PIL)
 In recent years the court has acquired extra-ordinary jurisdiction under the PIL by
relaxing its locus standi (right of a party to appear before the court) permitting the
public-spirited citizens to approach the court on behalf of the victims.
 Since the first PIL as mentioned Hussainara vs. State of Bihar (1979),the court has
played an extremely important role in providing justice at the doorstep on social,
political and environmental issues.
 PIL is a non-adversarial litigation, which aims at democratizing the citizens’ access
to justice by expanding the rights of the third parties to approach the court on behalf of
the victims. The fear of being dragged to the courts through PIL has improved the
working of social institutions such as jails, protective homes, mental asylums, etc
 Important cases related to PIL/SAL
◦ GANGES POLLUTION CASE:

◦ In this case, apart from industries, more than 250 towns and cities have been ordered to put sewage
treatment plants and shift from residential areas to open areas.
◦ A large number of industries were closed down by the Court and were allowed to reopen only after these
industries set up effluent treatment plants and controlled pollution.
◦ As a result of these directions millions of people have been saved from the effects of air and water
pollution in Ganga basin covering 8 states in India.
 IMPACT OF PIL
◦ POSITIVE: Judicial activism has had manifold impact on the political system.
◦ It has democratized the judicial system by giving not just to individuals but also
groups access to the courts.
◦ It has forced executive accountability as well as making electoral system much more
free and fair.
◦ NEGATIVE: There is however a negative side to the large number of PILs and the
idea of a proactive judiciary. In the first place it has overburdened the courts.
◦ Secondly, judicial activism has blurred the line of distinction between the executive
and legislature on the one hand and the judiciary on the other.
 LANDMARK PIL CASES
◦ VEHICULAR POLLUTION CASE:

◦ Against vehicular pollution in India the Supreme Court delivered a landmark judgment in 1992.
◦ The court ordered for providing Lead free petrol in the country and the use of CNG in the vehicles.
◦ All new cars registered from April 1995 onwards have been fitted with catalytic convertors;
◦ Vehicular pollution norms have been set up and today from Euro II norms all vehicles have to follow
BS6 norm.
◦ As a result of this case, Delhi has become the first city in the world to have complete public
transportation running on CNG.
◦
Qualification to become a judge:

Appointment of judges:
Qualification to become a judge:
SUPREME COURT HIGH COURT District and LOWER COURTS

1. Has served in a high court 1 Has held a judicial office for 1 Member of the judicial
as judge for at least 5 years, 10 years in India. or service of the state. or
or

1. Has practiced law as an 1 Has practiced law as an 2. Has practiced law for at least
advocate in a high court for advocate in a high court for at 7 years at bar.
at least 10 years. Or least 10 years.

1. Is a distinguished jurist in    
the opinion of the president.
Appointment of judges:

 Under the chairmanship of MC Setalvad (First Attorney General of India) the

14th Law Commission recommended that the process of appointment of
judges in Supreme court and high courts should be strengthened through a
process of consultation between executive and judiciary to avoid
controversial appointments on political, regional and communal grounds.
 Later a series of three judicial decisions popularly known as Three Judge
Cases led to the development of modern collegium system of appointment of
judges.
 Three Judge Case: Collegium system
 The First judge (1981) case gave primacy to the Executive (The President) in the
appointment of judges by providing that the recommendations of the CJI can be refused
by the president for cogent reasons.
 The Second Judge Case (1993) reversed the earlier judgment and stated that the CJI in
consultation with the other judges will have the final say in the appointment of judges.
 Third Judge Case: Later in 1998 the SC held that the appointment of judges in
Supreme Court and high courts is an integrated participatory process involving a
collegium comprising the CJI and four other senior judges of the Supreme court.
 However this practice of appointment of judges is being criticized in certain sections on
the ground that it is not constitutionally mandated and also lacks transparency.
 Retirement of Judges
◦ The retirement age for a Supreme Court judge is 65 years. Similarly, a High Court judge continues in his
office, till the retirement age which is 62 years.
◦ The age of retirement of District Court judges is determined by their respective State Government under
special service rules.
◦ The retirement age of judges as specified in the Constitution has been subject to intense debate in India.
There lies a pending bill in the Parliament (114th Amendment Bill, 2010) which proposes to increase the
retirement age of High Court judges from 62 to 65.
◦ However, since the bill is still being debated in the Parliament, it has no legal effect. Similarly, the
Venkatachalliah Committee formed to review the working of the Constitution (2000) suggested to
increase the retirement age of Supreme Court judges from 65 to 68.
◦ These proposals have been made in the light of global comparative standards, followed to determine the
retirement age for the judges.
 The Collegium System for High Court
Judges
◦ For High Courts, the collegium comprises of the Chief Justice of the High Court and two senior most
judges of the High Court.
◦ The Chief Justice conveys his recommendations to the Chief Minister of the State and the Governor of
the State, who in turn send their views directly to the Union Minster of Law and Justice.
◦ The complete material is then forwarded to the Chief Justice of India, who in consultation with a
collegium of two Judges of the Supreme Court, would send his recommendations to the Union Minister
of Law and Justice.
◦ The Union Minister of Law and Justice then puts up the same to the Prime Minister who will advise the
President in the matter of appointment.
 REMOVAL OF JUDGES
◦ Removal proceedings against a Supreme Court or a High Court judge can be initiated in any of the houses of
Parliament. For this: 1. A minimum of 100 members of Lok Sabha may give a signed notice to the speaker, or 2. A
minimum of 50 members of Rajya Sabha may give a signed notice to the Chairman.
◦ After the motion is admitted, the Speaker of the Lok Sabha or Chairman of the Rajya Sabha will form an Inquiry
Committee as per Article 3(2) of the Judges (Inquiry) Act, 1968 to start investigating.
◦ It will consist of the following members: • A Supreme Court judge, • A High Court Chief Justice, and • A
distinguished jurist, as per the opinion of the Speaker/Chairman.
◦ the Inquiry Committee will put down its findings in a formal report and submit it to the Speaker or Chairman.
◦ If the report finds misbehaviour or incapacity which makes the judge guilty, the motion for removal has to be put to
vote in both The Lok Sabha and Rajya Sabha.
◦ As per Article 124(4) of the Constitution, the motion is required to be passed by special majority.
Courts and judicial review

 Judicial review is a principle under which a court examines the validity of a

law passed by legislatures or any executive order on the ground that :
 Whether the law is incompatible with the basic provisions of the constitution
or not
 whether it lies within the jurisdiction of the body which has enacted it or not.
 If the law doesn’t conform to the provisions of the constitution, the court can
declare it null and void.
 Scope of judicial review:
 Under the power of judicial review the courts not only examines the validity of the
laws on the grounds of compatibility with the constitution and legislative
competence, but also on the ground of principles of natural justice,
reasonableness, proportionately and legitimate expectation.
 The scope of judicial review in courts in India has developed with respect to three
issues:
 Protection of Fundamental Rights,
 Legislative competence,
 Fairness in executive actions.
 Scope of Judicial review: Individual and Group Rights
◦ Article 13(2) of the Constitution of India provides that: “The State shall not make any law which takes away or
abridges the rights conferred by this Part (Part III - Fundamental Rights) and any law made in contravention of this
clause shall, to the extent of the contravention, be void.
◦ This Article provides explicitly the powers of judicial review to the courts in the matters of fundamental rights.
◦ Furthermore, Article 32 offers the Supreme Court the power to enforce fundamental rights, and provides one the right
to move the Supreme Court for the enforcement of those rights. The court protect the rights of the people through
Writs ie. habeas corpus, i.e., to order the release of person is unlawfully detained; 2) mandamus, i.e., to order to a
public authority to do its duty; 3) prohibition, i.e., to prevent a subordinate court from continuing on a case; 4) quo
warranto, i.e., to issue directive to a person to vacate an office wrongfully occupied; and 5) certiorari, i.e., to
remove a case from a subordinate court and get the proceedings before it.
◦ Article 226 is a parallel provision for High Courts in states and allows one to institute similar writs in the High Courts
for the enforcement of fundamental rights.
 Judicial Review and centre state relation
◦ Judicial review has also been used in matters concerning the legislative competence with regards to the
Centre-State relations.
◦ Article 246 of the Constitution provides that the Parliament has exclusive powers to make laws with
respect to the ‘Union List’
◦ It provides further that both the Parliament and the Legislature of any State have powers to make laws
with respect to matters enumerated in the ‘Concurrent List’
◦ With respect to the States, it provides that the Legislature of any State has exclusive power to make
laws with respect to matters listed in the ‘State List’.
◦ Judicial review helps demarcate the legislative competencies and ensures that Centre does not exert its
supremacy over the state matters and likewise states do not encroach upon matters within the ambit of
the Centre
 Judicial Review and Fairness in Executive Actions
 In matters of executive or administrative actions, judicial review practice of courts have often employed
doctrines like ‘principles of natural justice’, ‘reasonableness’, ‘proportionality’, and ‘legitimate
expectation’;
 In the Maneka Gandhi case SC used a Latin phrase ‘audi alteram partem’, which literally means ‘listen
to the other side’.
 the Supreme Court held that in the matter of confiscation of passport a hearing should have been given
to the petitioner in the interest of the principles of natural justice.
This is an example where the court adopted the principle of post decision-hearing, in situations of
urgency where prior hearing is not feasible, and recognized that a chance of hearing cannot be debarred
completely.
 ASSIGNMENT:
1. The Inquisitorial system of adjudication is interventionist in nature. Justify. 2
2. The Adversarial system of adjudication has made the access to justice difficult. Discuss.2/4
3. How the power of judicial review helps judiciary to safeguard and ensure the separation of power of the other two branches of the
government? 4
4. How is rule of law an essential tool to protect the freedom and dignity of individuals against organized powers? 4
5. Explain three principles of natural justice developed by the courts over the years. 6
6. What prevents the Senior lawyers from accepting judgeship?2
7. Distinguish between independence of judiciary and impartiality of judges. 2
8. What is due process of law? 1
9. How has independent judiciary empowered Indian citizens or expanded the scope of rights? 4
10. Define PIL as a non-adversarial litigation. 2
11. PIL has influenced the working of social institutions. Discuss. 2
12. PIL has been recognized as a tool of social change. Justify.4
13. Distinguish between Common law and Civil Law countries. 4/6
14. What are the benefits of independence of judiciary? 4
1. Give two arguments against the Collegium System of appointment of judges.2
2. How did the three judge case help in growth of present collegium system of appointment of judges? 6
3. The landmark judgment of SC in the Kesvanand Bharti case was an answer to the 24th Amendment of the constitution affecting Art.
13 and 368 of the constitution. Explain.
4. Expain three ways in which the scope of judicial review has evolved in the courts of India and practiced by the SC.
5. The Doctrine of ------------- states that even in doing something legal an administrative action must be fair.
6. In 1950 the Constitution of India envisaged a Supreme Court with one CJI and -------- other judges.
7. The Inquisitorial system of adjudication is interventionist in nature. Justify. 2
8. The Adversarial system of adjudication has made the access to justice difficult. Discuss.2/4
9. How the power of judicial review helps judiciary to safeguard and ensure the separation of power of the other two branches of the
government? 4
10. How is rule of law an essential tool to protect the freedom and dignity of individuals against organized powers? 4
11. Explain three principles of natural justice developed by the courts over the years. 6
12. How did the three judge case help in growth of present collegium system of appointment of judges? 6
THANK YOU