Indian Judiciary
Indian Judiciary
Indian Judiciary
Age of retirement
Article 124(2) of the Constitution of India, Supreme Court judges retire at the age of 65 years
Qualification
• must be a citizen of India
• must have been, for at least five years, a Judge of a High Court or of two or more
such Courts in succession
• OR
• been an Advocate of a High Court or of two or more such Courts in succession for at
least 10 years
• OR
• he must be, in the opinion of the President, a distinguished jurist
Composition
The Indian Constitution under Article 124(1) states that there shall be a Supreme Court of
India consisting of a Chief justice of India (CJI) and 34 judges, including the CJI.
Original Jurisdiction
Original jurisdiction of a court refers to a matter for which the particular court is approached
first. In the case of the Supreme Court in India, its original jurisdiction is covered under
Article 131. It involves the following cases:
• Any dispute between the Indian Government and one or more States.
• Any dispute between the Indian Government and one or more States on one side
and one or more States on the other side.
• Any dispute between two or more States.
• Article 32 of the Constitution provides original jurisdiction to the SC for matters
regarding the enforcement of Fundamental Rights.
• The SC can issue writs, directions, or orders including writs in the nature of
mandamus, habeas corpus, quo warranto, prohibition and certiorari.
• The SC also has the power to direct the transfer of a criminal or civil case from the
High Court in one State to the High Court in another State.
• It can also transfer cases from one subordinate court to another State High Court
• If the SC deems that cases involving the same questions of law are pending before it
and one or more High Courts, and that these are significant questions of law, it can
withdraw the cases before the High Court or Courts and dispose off all these cases
itself.
• The Arbitration and Conciliation Act, 1996 gives SC the authority to initiate
international commercial arbitration.
Appellate Jurisdiction
Under this, the Supreme Court can hear cases only when they are appealed against a High
Court order.
Advisory Jurisdiction
Article 143 of the Indian Constitution empowered the Supreme Court with advisory
jurisdiction. The Supreme Court advises the President on matters of public importance and
law after full consideration of the subject concerned. It is up to the President only either he
accepts the advice or not.
Review Jurisdiction
This is covered under Article 137 and it gives SC the authority to review its judgements.
There are two grounds on which a review is permitted. They are as follows:
• If there has been an apparent error on the face of record leading to the perversity of
judgement, or
• If new evidence has been uncovered which was not available earlier despite the best
attempt by the party or out of no fault of the party.
Removal of Judges
A Judge of the Supreme Court cannot be removed from office except by an order of
the President passed after an address in 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 members present and voting and presented to the President in the same
Session for such removal on the ground of proved misbehaviour or incapacity.
High Court
Age of retirement
As per Article 217(1) of the Constitution, High Court judges retire at 62
Qualification
• must be a citizen of India
• must have an LLB / LLM degree
• has for at least 10 years held a judicial office in the Territory of India
• OR
• Has for at least 10 years been an advocate of a High Court or of two or more such
courts in succession
Composition
High court consists of Chief Justice and number of other judges. This number varies from
state to state. Chief Justice of every High Court is appointed by the President of India with
the aid of Chief Justice of the Supreme Court and Governor of the State
Original Jurisdiction
• The High Courts of Calcutta, Bombay and Madras have original jurisdiction in
criminal and civil cases arising within these cities.
• An exclusive right enjoyed by these High Courts is that they are entitled to hear civil
cases which involve property worth over Rs.20000.
• Regarding Fundamental Rights: They are empowered to issue writs in order to
enforce fundamental rights.
• With respect to other cases: All High Courts have original jurisdiction in cases that
are related to will, divorce, contempt of court and admiralty.
• Election petitions can be heard by the High Courts.
Appellate Jurisdiction
• In civil cases: an appeal can be made to the High Court against a district court’s
decision.
• An appeal can also be made from the subordinate court directly if the dispute
involves a value higher than Rs. 5000/- or on a question of fact or law.
• In criminal cases: it extends to cases decided by Sessions and Additional Sessions
Judges.
• If the sessions judge has awarded imprisonment for 7 years or more.
• If the sessions judge has awarded capital punishment.
• The jurisdiction of the High Court extends to all cases under the State or federal
laws.
• In constitutional cases: if the High Court certifies that a case involves a substantial
question of law.
Administrative Powers
• It superintends and controls all the subordinate courts.
• It can ask for details of proceedings from subordinate courts.
• It issues rules regarding the working of the subordinate courts.
• It can transfer any case from one court to another and can also transfer the case to
itself and decide the same.
• It can enquire into the records or other connected documents of any subordinate
court.
• It can appoint its administration staff and determine their salaries and allowances,
and conditions of service.
Power of Certification
A High Court alone can certify the cases fit for appeal before the Supreme Court.
Removal of Judges
A Judge of a High Court can be removed by the President on the ground of proved
misbehaviour or incapacity on an address of each House of Parliament. Such an address
should be supported by a majority of the total membership of the House and by two -thirds of
the members present and voting.
District Court
• The court of the district judges is the highest civil court in a district.
• It has both administrative and judicial powers.
• The court of the District Judge is in the district HQ.
• It can try criminal and civil cases and hence, the judge is called District and Sessions
Judge.
• Under the district courts, there are courts of the Sub-Judge, Additional Sub-Judge
and Munsif Courts.
• Most civil cases are filed in the Munsif’s court.
Powers of District Judge
• Judicial Power
(1) Civil side: – In the district, the District Judge exercises the original power to try
cases of Land Acquisition cases, Election Petitions relating to Zila Panchayat &
Chhetra Sammittee & Nagarpalika, cases under Guardian & Wards Act, Motor
Accident Claim Petitions, Probates cases and Insolvency cases. The district Judge
exercises the powers of appellate court and hear the appeals against the judgment &
decree passed by the Civil Judge (Sr.Div.), Civil Judge(Jr.Div.) and judgment and
order passed by the said judicial officers and prescribe authority and civil revisions
against the order passed by the Civil Judge (Sr.Div.) and Civil ( Jr.Div.) in the district.
(2) Criminal side: - In this Sessions division the Session Judge try the cases in which
punishment is prescribed more than 07 year years, Cases under N.D.P.S. Act ,
cases under S.C./S.T Act and appeal against the judgment passed by the
Magistrates and revisions against the judgment and order passed by the Magistrate.
Sessions judge hears the bail applications of his own court, and the bail rejected by
the Magistrate.
• Administrative
The district Judge has the power to appoint the class III and IV employees, transfer
and promotion of the employees. To award the annual remark to the officer s and
employees working under his kind control. To take departmental and disciplinary
action against the employees. To inspect the court & offices functioning in the district.
He inspects the jail inspection along with D.M. & Supdt. of police in each quart er and
to hold the monthly meeting of judicial officers and meeting of monitoring cell.
(B)(i) Financial Powers:
To pass the Pay bills, T. A. Bills, Transfer T. A. Bills of the subordinate officer and
official of the District Court under him.
To pass the contingent bills related to office expenditure.
To pass the G. P. F. Bills, Pensions & Gratuity Bills, Leave Salary Bills
To pass some suitable orders related to any other financial matters.
• The legislature is not involved in the process of appointment of judges. Thus, it was
believed that party politics would not play a role in the process of appointments.
• In order to be appointed as a judge, a person must have experience as a lawyer
and/or must be well versed in the law. Political opinions of the person or his/her
political loyalty are not the criteria for appointments to the judiciary.
• The judges have a fixed tenure. They hold office till reaching the age of retirement.
• The Judges have the security of tenure. Security of tenure ensures that judges could
function without fear or favour.
• The Constitution prescribes a very difficult procedure for the removal of judges.
• The judiciary is not financially dependent on either the executive or legislature. The
Constitution provides that the salaries and allowances of the judges are not
subjected to the approval of the legislature.
• The judiciary has the power to penalise those who are found guilty of contempt of
court.
• Parliament cannot discuss the conduct of the judges except when the proceeding to
remove a judge is being carried out. This gives the judiciary independence to
adjudicate without fear of being criticised.
Judicial Activism
The judiciary plays an important role in upholding and promoting the rights of citizens in a
country. The active role of the judiciary in upholding the rights of citizens and preserving the
constitutional and legal system of the country is known as judicial activism. This entails,
sometimes overstepping into the territories of the executive. Candidates should know the
judicial overreach is an aggravated version of judicial activism.
1. Judicial review (power of the judiciary to interpret the constitution and to declare any
such law or order of the legislature and executive void, if it finds them in conflict with
the Constitution)
2. PIL (The person filing the petition must not have any personal interest in the litigation,
this petition is accepted by the court only if there is an interest of large public involved;
the aggrieved party does not file the petition).
3. Constitutional interpretation
4. Access of international statute for ensuring constitutional rights
5. Supervisory power of the higher courts on the lower courts
• Judicial Activism sets out a system of balances and controls to the other branches of the
government. It accentuates required innovation by way of a solution.
• In cases where the law fails to establish a balance, Judicial Activism allows judges to use
their personal judgment.
• It places trust in judges and provides insights into the issues. The oath of bringing justice
to the country by the judges does not change with judicial activism. It only allows judges
to do what they see fit within rationalised limits. Thus, showing the instilled trust placed
in the justice system and its judgments.
• Judicial Activism helps the judiciary to keep a check on the misuse of power by the state
government when it interferes and harms the residents.
• In the issue of majority, it helps address problems hastily where the legislature gets stuck
in taking decisions.
Cons Associated with Judicial Activism
• Firstly, when it surpasses its power to stop and misuse or abuse of power by the
government. In a way, it limits the functioning of the government.
• It clearly violates the limit of power set to be exercised by the constitution when it
overrides any existing law.
• The judicial opinions of the judges once taken for any case becomes the standard for
ruling other cases.
• Judicial activism can harm the public at large as the judgment may be influenced by
personal or selfish motives.
• Repeated interventions of courts can diminish the faith of the people in the integrity,
quality, and efficiency of the government.
Judicial Activism Criticism
Judicial activism has also faced criticism several times. In the name of judicial activism, the
judiciary often mixes personal bias and opinions with the law. Another criticism is that the theory
of separation of powers between the three arms of the State goes for a toss with judicial activism.
Many times, the judiciary, in the name of activism, interferes in an administrative domain, and
ventures into judicial adventurism/overreach. In many cases, no fundamental rights of any group
are involved. In this context, judicial restraint is talked about.
Public Interest Litigation
• Public interest Litigation (PIL) means litigation filed in a court of law, for the protection
of “Public Interest”. Any matter where the interest of the public at large is affected can
be redressed by filing a Public Interest Litigation in a court of law such as Pollution,
Terrorism, Road safety, Constructional hazards, etc.
• PIL is not defined in any statute or in any act. It has been interpreted by judges to
consider the intent of the public at large. It is the power given to the public by courts
through judicial activism.
• However, the person filing the petition must prove to the court’s satisfaction that the
petition is being filed for public interest and not just as a frivolous litigation
• Some of the matters which are entertained under Public Interest Litigation are
Neglected Children, Bonded Labour matters, Atrocities on Women, Non -payment of
minimum wages to workers, exploitation of casual workers, food
adulteration, Environmental pollution, and disturbance of ecological balance,
Maintenance of heritage and culture, etc.
Judicial Accountability
• Ethical decision: The judicial decision has to be honest and fair. This is very
important because the public’s confidence lies in the judges. The opinion of judges
has to be according to their proficient facts and law.
• Administer Justice: The main motto of the judge should be not to fear anything
while administering justice.
• Maintaining distance from relatives: The judge needs to distance himself from the
disputing parties and their lawyers during the trial conduct. It is often seen that a
close connection with judges is utilised to win over a case, which is unethical.
• Equal Opportunity: Both the parties disputing should be equally treated by the
principles of law and equity. The judge should be above any bias on group, caste,
section or division. There should be equal opportunities given to the parties during
the trial. The judge should not be affected by anyone’s personality. The judge cannot
disregard the presence of law and equity in terms of fairness while discharging his
duties.
• No man can be judged in his/her cause: This principle of ethics applies to the case
where the judge is convicted as a party and in cases that can have the judges’
interest. The impartiality of the judges is one prime aspect. The Supreme Court
manifests this.
The Judge is accountable to the law if the decision was taken following the law or arbitrarily.
The judiciary is accountable to the general public.
In India, in what ways judiciary accountability needs to be checked?
Through Right to Information, judiciary accountability can be checked in India. Through RTI,
transparency of a case can be demanded.
The standards for making judicial accountability are made by the Judicial Standards and
Accountability Bill. The Supreme Court and High Court judges have to declare their liabilities
and assets, even their dependents and spouses.