Short notes on Polity: JUDICIARY

Supreme Court of India

Supreme Court of India is the highest judicial forum & final court of appeal. According to the Constitution of India, the role of the Supreme Court is that of a federal court & guardian of the Constitution.

Composition of Supreme Court

Under Article 124(1) the constitution originally provided for 1 Chief Justice of India & not more than 6 other judges. The constitution authorizes the Parliament to provide by law in fixing the Strength of the judges of the Supreme Court.

The Parliament passed the Supreme Court (Number of Judges), a Constitutional Amendment Act in 2008, it has increased the strength of Supreme Court to 31 (1 Chief Justice + 30 other judges).

Qualification to be a judge of Supreme Court

  1. A person must be a citizen of India
  2. He/she must have been, for at least five years, a Judge of a High Court or of two or more such Courts in succession
  3. Or an Advocate of a High Court or of two or more such Courts in succession for at least ten years
  4. Or the person must be, in the opinion of the President, a distinguished jurist.

Removal of judges of Supreme Court

  • Article 124(4) provides for the removal of a judge of the Supreme Court.
  • He is removed by the President upon an address by both the Houses of the Parliament supported by a majority of not less than 2/3rd of members present & voting & a majority of total strength of the House on the ground of misbehavior or incapacity.
  • The President shall pass the order of removal in the same session in which the Parliament passed the resolution.
  • Article 124(5) confers the power on the Parliament to provide by law for the procedure for the Presentation of an address & for the investigation for proof of misbehavior or incapacity of a judge.
  • Accordingly the Parliament passed Judges (Inquiry) Act 1968 which states that a resolution seeking the removal of a judge of Supreme Court can be introduced in either House of Parliament.
  • It should be supported by not less than 100 member of Lok Sabha.
  • If it is to be introduced in Rajya Sabha it should be supported by no less than 50 members of Rajya Sabha.
  • Once the resolution is initiated in either house of the parliament, the presiding officer of that House shall appoint a three member Judicial Committee to investigate into charges & provide proof of misbehavior or incapacity.
  • The judicial committee shall be headed by a serving judge of the Supreme Court. Second member can be a serving judge of the High Court & the third member can be an eminent jurist.

SUPREME COURT IN INDIA(JURISDICTION)

  • It is the highest judicial forum & final court of appeal as established by Part V, Chapter IV of the Constitution of India.
  • Articles 124 to 147 of the Constitution of India lay down the composition & jurisdiction of the Supreme Court of India.
  • The Supreme Court has Original jurisdiction,Appellate jurisdiction & Advisory jurisdiction.
  • The Supreme Court is the highest appellate court which takes up appeals against the verdicts of the High court & other courts of the states & territories.
  • The Supreme Court has the power to transfer the cases from one High Court to another & even from one District Court of a particular state to another District Court of the other state.
  • The Supreme Court has the power of Constitutional review.
  • The Supreme Court of India held its inaugural sitting on 28 January 1950.

Salary-Article 125 of the Indian Constitution leaves it to the Indian Parliament to determine the salary, other allowances, leave of absence, pension, etc. of the Supreme Court judges. However, the Parliament cannot alter any of these privileges & rights to the judge’s disadvantage after his appointment.  A judge gets 90,000 & the Chief Justice gets a sum of 1,00,000.

Some Important Points on SC

  1. The first woman judge of the Supreme Court was Justice Fatima Beevi in 1987. However, there has been no female Chief Justice
  2. Ad hoc Judges:
    1. Ad hoc Judges are non-Supreme Court judges who sit in the Supreme Court when there is insufficient quorum to perform the judicial duties.
    2. Ad hoc Judges are appointed by the Chief Justice after obtaining consent from the President.
    3. Serving (HC) & retired(SC & HC)  judges of the Supreme Court (and High Courts) can sit & act as ad hoc Judges of the Supreme Court.
    4. Only such persons can be appointed as ad hoc Judges who are qualified to be appointed as a regular Judge of the Supreme Court
  3. The Chief Justice administers the oath infront of the President.
  4. The first Chief Justice of India was H J Kania (1950 – 1951).
  5. The shortest tenure was for K N Singh (Nov 1991 – Dec 1991, UP)
  6. The longest tenure was for Y V Chandrachud (1978 – 1985, Bombay)

JURISDICTION OF THE SUPREME COURT:

  1. a) Original Jurisdiction:
  2. Original Jurisdiction means that certain types of cases can originate with the Supreme Court only
  3. The Supreme Court has original jurisdiction in
  4. Disputes between the Centre & one or more states.
  5. Disputes between the Centre & any state(s) on one side & one or more states on the other side.
  6. Disputes between two or more states.
  7. Disputes regarding the enforcement of Fundamental Rights.

(b) Appellate Jurisdiction:

Appellate Jurisdiction means that appeals against judgements of lower courts can be referred to SC as the Supreme Court is the highest court of appeal in the country.

 (c) Advisory Jurisdiction:

  1. Advisory Jurisdiction refers to the process where the President seeks the Court’s advice on legal matters.
  2. If the President asks for advice from the Supreme Court, the Court is duty-bound to give it. However, it is not binding on the President to accept the advice.

HIGH COURT

  • The High Court is at the apex of the judicial administration of the state.
  • Art 214 of the Constitution provides that there shall be a High Court for each state of the Indian union. But the Indian Parliament is empowered to establish a common High Court for two or more states & to extend the jurisdiction of a High Court to a union territory. Similarly, Parliament can also reduce the area of jurisdiction of a High Court.
  • The High Court consists of a Chief Justice & some other Judges. The number of judges is to be determined by the President of Indian from time to time.
  • The Chief Justice of a High Court is appointed by the President in consultation with the Chief Justice of the Supreme Court & the Governor of the state concerned. The procedure for appointing other judges is the same except that the Chief Justice of the High Court concerned is also consulted. HC JUDGE hold office until they attain the age of 62 years & are removed from office in the same manner as a judge of the Supreme Court.

Qualification

A person shall be qualified for appointment as a judge of the High Court if

(a)       he is a citizen of India,

(b) has for at least ten yeas held a judicial office in the territory of India, or

(c) has for at least ten years been an advocate of a High Court, or of two or more such courts in succession.

Every judge of the High Court before entering upon his office shall make & subscribe before the Governor of the state, an oath of affirmation in the form prescribed by the Constitution.

Removal of judges

A judge of the High Court shall hold office until he attains the age of 62 years. A judge may resign from his office by writing under his hand to the president of India. He can also be removed by the President of India on the ground of proved misbehavior or inefficiency if a resolution to that effect is passed by both the Houses of Parliament by a two-thirds majority of the total members present & voting, supported by a majority of the total membership of each house.

Jurisdiction of a HC

The High Court has Original jurisdiction in such matters as writs & Appellate jurisdiction over all subordinate courts in their jurisdiction. Every High court has the power to issue to any person or authority including any Govt. within its jurisdiction, direction, or orders including writs which are in the nature of habeas corpus, mandamus prohibition, qua-warranto & certiorari or any of them for enforcement of fundamental rights conferred by part III of the constitution & for any other purpose.

  • Election petitions challenging the elections of Members of Parliament or member of State Legislative Assembly or other local bodies can be filed in the concerned High Court.
  • The High Courts have Appellate jurisdiction in both civil & criminal cases against the decisions of lower courts.

Under Revisory jurisdiction, the High Court is empowered to call for the records of any court to satisfy itself about the correctness of the legality of the orders passed. This power may be exercised on the petition of the interested party or it can suo moto call for the records & pass necessary orders.

All Courts excepting tribunals dealing with the Armed forces, are under the supervision of the High Court.Tribunals dealing with the Armed forces are not under the supervision of HC.

This power is enjoyed under Article 227 of the Constitution. Thus administration of the state’s judiciary is the essential function of the High Court.

Writs in Indian Constitution

As per the Right to Constitutional Remedies-Articles 32-35, A citizen has right to move to the courts for securing the fundamental rights.  Citizens can go to the Supreme Court or the high Courts for getting their fundamental rights enforced. It empowers the Courts to issue directions or orders or writs for this purpose. Writs are issued for enforcement of FUNDAMENTAL RIGHTS BY EITHER SC or HC.

Types of Writs:

  1. Habeas Corpus:

(a)            Habeas Corpus means ‘you may have the body’.

(b)            This ensures that a prisoner can be released from unlawful detention—that is, detention lacking sufficient cause or evidence.

  1. Quo Warranto:

(a)            The meaning of the term Quo Warranto is ‘by what authority’.

(b)            The writ shall be issued only when the public office is held by a particular person in an illegal manner.

(c)             If a person has usurped a public office, the Court may direct him not to carry out any activities in the office or may announce the office to be vacant.

  1. Mandamus:

(a)            A writ of mandamus is an order issued by a superior court to a lower court or other entity commanding the lower court, corporation or public authority to perform or not perform specific acts.

(b)            It cannot be issued to compel an authority to do something against statutory provision.

  1. Certiorari:

(a)            It is a writ (order) of a higher court to a lower court to send all the documents in a case to it so the higher court can review the lower court’s decision.

(b)            It is a writ seeking judicial review.

(c)             Granting a writ of certiorari means merely that at least four of the justices have determined that the circumstances described in the petition are sufficient to warrant review by the Court.

  1. Prohibition:

(a)            A writ of prohibition is issued primarily to prevent an inferior court from exceeding its jurisdiction.

(b)            These Writs are issued as “alternative” or “peremptory.” An alternative Writ directs the recipient to immediately act, or desist, & “Show Cause” why the directive should not be made permanent. A peremptory Writ directs the recipient to immediately act, or desist, & “return” the Writ, with certification of its compliance, within a certain time.

(c)             The writ can be issued only when the proceedings are pending in a court if the proceeding has matured into decision, writ will not lie.

Union Territories

  • Articles 239 to 241 in Part VIII of the Constitution deal with the union territories. Even though all the union territories belong to one category, there is no uniformity in their administrative system.
  • Every union territory is administered by the president acting through an administrator appointed by him. An administrator of a union territory is an agent of the president & not head of state like a governor.
  • The president can specify the designation of an administrator; it is Lieutenant Governor in the case of Delhi, Puducherry & Andaman & Nicobar Islands & Administrator in the case of Chandigarh, Dadra & Nagar Haveli, Daman & Diu & Lakshadweep.
  • The Parliament can make laws on any subject of the three lists (including the State List) for the union territories. This power of Parliament also extends to Puducherry & Delhi, which have their own local legislatures but the legislative assembly of both (Delhi & Puducherry) can also make laws on any subject of the State List & Concurrent List. This means that the legislative power of Parliament for the union territories on subjects of the State List remain unaffected even after establishing a local legislature for them.

GOVENRNMENT BODIES

  • Election Commission
  • The Election Commission is a permanent, independent body established by the Constitution of India directly to ensure free & fair elections in the country. Article 324 of the Constitution provides that the power of superintendence, direction & control of elections to parliament, state legislatures, the office of president of India & the office of vice-president of India shall be vested in the election commission.
  • Elections are conducted according to the constitutional provisions supplemented by laws made by Parliament.
  • The major laws are Representation of the People Act, 1950, which mainly deals with the preparation & revision of electoral rolls, & the Representation of the People Act, 1951, which deals in detail with all aspects of conduct of elections & past election disputes.
  • The electoral system in India in borrowed from the one operating in Great Britain. Presently, the Election Commission consists of one Chief Election Commissioner (CEC) & two Election Commissioners.
  • The Commission works under the overall supervision of the Chief Election Commissioner.
  • The tenure of the CEC & the Election Commissioners has been fixed as six years, subject to the maximum age limit of 65 years (whichever is earlier).
  • The Chief Election Commissioner & the Election Commissioners are placed at par in matters of salary & allowances & they are the same as those of a judge of Supreme Court.
  • The Chief Election Commissioner is not eligible for reappointment.
  • The Election Commission is not concerned with the elections to Panchayats & municipalities in the states.
  • The elections to the Panchayats & the municipalities in the states are conducted by ‘State Election Commissions’.

Independence of CEC

Article 324 of the Constitution has made the following provisions to safeguard & ensure the independent & impartial functioning of the Election Commission:

  1. The Chief Election Commissioner is provided with the security of tenure. He cannot be removed from his office except in same manner & on the same grounds as a judge of the Supreme Court.
  2. The Election Commissioner cannot be removed from office except on the recommendation of the Chief Election Commissioner.

Powers & functions

  1. To determine the territorial areas of the electoral constituencies throughout the country on the basis of the Delimitation Commission Act of Parliament.
  2. To prepare & periodically revise electoral rolls & to register all eligible voters.
  3. To notify the dates & schedules of elections & to scrutinise nomination papers.
  4. To grant recognition to political parties & allot election symbols to them.
  5. To act as a court for settling disputes related to granting of recognition to political parties & allotment of election symbols to them.
  6. To determine the code of conduct to be observed by the parties & the candidates at the time of elections.
  7. To advise the President on matters relating to the disqualification of the members of Parliament.
  8. To advise the governor on matters relating to the disqualification of the members of state legislature.
  9. To cancel polls in the event of rigging, booth capturing, violence & other irregularities.
  10. To register political parties for the purpose of elections & grant them the status of national or state parties on the basis of their poll performance

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