UPSC COURSE

VIDEO- 76

POLITY

JUDICIARY (S.C,
H.C & SUBORDINATE
COURT)
BY- DEWASHISH AWASTHI SIR
 SUPREME COURT

Article 124 to 147 in Part V of the Indian Constitution envisages the powers, independence and
jurisdiction of the Supreme Court.

The Supreme Court came into existence on January 28, 1950.

It is as an integrated judicial system of Courts that is present in India.

The Supreme Court is the apex court ( in the hierarchy) in the country. The Supreme Court is the guardian of the
Constitution.

The High Courts are below the Supreme Court. Under the High Court there is a system of subordinate courts. (District
Courts )

The Supreme Court is the guarantor and protector of the Fundamental Rights of the citizens.

.
The Judges of the Supreme Court do not hold the office during the pleasure of the President.

So far how many judges of Supreme Court have been removed? No Supreme Court judge was removed so
far in independent India

The Security of tenure is provided to the judges by the Constitution. This means the judges of Supreme Court
can be removed by the President only in the manner and on the grounds mentioned in the Constitution.

Article 124 – Establisment of Supreme Court.

 STRENGTH OF SUPREME COURT

The original strength (1950) of the Supreme Court was eight judges. This includes one Chief Justice of India
(CJI) and seven other judges.

The Parliament of India is empowered to increase the strength from time to time.

The present strength of Supreme Court is thirty one (34) including CJI i.e 33+1
 QUALIFICATIONS OF JUDGES

•Should be a citizen of India.

•Should have been a judge of a High Court(s) for five (5) years.
• (OR)
•Should have been an advocate of High Court(s) for ten (10) years.
• (OR)
•Should have been a distinguished jurist in the opinion of the President.

•By “distinguished jurist”, the Constitution means that the person thus referred is a respected scholar of law,
and has contributed greatly to legal academia, though not as a practicing lawyer.

(Note: The Constitution has not prescribed a minimum age for appointment of a judge of the Supreme Court).
 APPOINTMENT OF JUDGES:

The judges of the Supreme Court are appointed by the President.

The Chief Justice of India (CJI) is appointed by the President after consultation with such judges of the Supreme
Court and High Courts as the President deems necessary.

From the year 1950 to 1973 a practice has been established that the senior most judge of the Supreme
Court is appointed as the Chief Justice of India.

The convention was violated in the year 1973 when A N Ray was appointed as the CJI by superseding three
senior judges.

In the year 1977 M U Beg was appointed as the CJI by superseding the then senior most judge of the
Supreme Court.

In the year 1993 in the second judges case the Supreme Court ruled that that the senior most judged of the
Supreme Court alone be appointed as the CJI.
The other judges are also appointed by the President after consultation with the Chief Justice of India and
such other judges of the Supreme Court and the High Court as the President deems necessary.

The collegium of the Supreme Court judges is comprises of 5 senior most judges of Supreme
Court.

The system through which the judges of the Supreme Court/High Courts are appointed and
transferred is called “Collegium System”.

Oath
Oath of office is administered by the President of India.

In the absence of the President some other person appointed by the President would perform the same.
TENURE (TERM):

A judge holds the office till he/she attains the age of 65 years.

SALARY (Article- 125)

The salaries, privileges, leaves and pensions of the Supreme Court are determined by the Parliament
from time to time.

RESIGNATION
A judge submits the resignation to the President of India.
 IMPEACHMENT OR REMOVAL

A judge of the Supreme Court can be removed through impeachment.

A judge can be removed from the office by the President on the recommendation by the Parliament.

There are two grounds that are mentioned in the Constitution for the removal of judge of the Supreme Court.

Proved Misbehavior (OR) Incapacity.

The removal procedure of a Judge of the Supreme Court is initiated either in the Lok Sabha or in the Rajya Sabha.

Lok Sabha A motion can be preferred before the house if signed by 100 members
Rajya Sabha A motion can be preferred before the house if signed by 50 members
 If the procedure begins in Lok Sabha.

•A removal motion of a Supreme Court judge is signed by 100 members in the case of Lok Sabha.

•The signed removal motion is to be given to the Speaker.

•The speaker may admit or refuse to admit the same.

•If it is admitted the speaker constitutes a committee to investigate into the charges.

•The committee should consist of

•the CJI (OR) a judge of the Supreme Court

•a chief justice of a high court

•A distinguished jurist.
 If the committee finds the judge to be guilty of or suffering from incapacity the Lok Sabha can take up
the consideration of the motion.

After it is passed in Lok Sabha with a special majority the motion is presented to the Rajya Sabha.
If it is also passed in the Rajya Sabha with a special majority an address is presented to the President for
the removal of the judge.

The President passes an order removing the judge.

Under Article 121 of the Indian Constitution no discussion shall take place in Parliament with respect to
the conduct of any judge of the Supreme Court or of a high Court in the discharge of his duties except
upon a motion for presenting an address to the President praying for the removal of the Judge.
In the absence of the CJI the President can appoint a judge of the Supreme Court as an acting CJI.

The CJI can appoint a judge of a High Court as an ad hoc (temporary) judge of Supreme Court. (This
can be done by the CJI only with the prior permission of the President. ( (Judges shall be qualified to be
judges of SC)

The CJI can request a retired judge of the Supreme Court or High Court to act as a judge of the
Supreme Court for a temporary period of time.

After retirement, a Judge of SC is prohibited from practising or acting as a judge in any court

Seat of Supreme Court (Article 130)

The Supreme Court of India is located in Delhi.

The CJI can set up the Benches of the Supreme Court of India in other places of the Country by the CJI with
the prior permission of the President.
The Constitutional cases or references made by the President under article 143 of the Constitution are
decided by a bench consisting of at least five judges.

Jurisdiction & Powers of Supreme Court

Original Jurisdiction (Article- 131)

“Original jurisdiction of SC is power to hear a case for the 1st time unlike Appellate jurisdiction”

Exclusive authority to decide any dispute involving a question of law between:

•GOI (Union) v/s state or states

•GOI & any state / states on one side & state / states on the other

•Two or more states

 As per article 71, all disputes regarding election of President & vice President are handled by SC

Appellate Jurisdiction

Writ Jurisdiction (Article 32)

Jurisdiction of SC to enforce FRs → Every individual has a right to move to SC directly by appropriate
proceedings for the enforcement of his FR, without coming via HC, by means of writs

The Indian Constitution empowers the Supreme Court and High Courts to issue writs for enforcement of any
of the fundamental rights conferred by Part III of Indian Constitution
The writ issued by Supreme Court and High Court differs mainly in three aspects:

•The Supreme Court can issue writs only for the enforcement of fundamental rights
whereas a High Court can issue writs for enforcement of fundamental rights along
with “ for any other purpose” (refers to the enforcement of any legal right).

•SC can issue writ against a person or government throughout the territory whereas
High Court can issue writs against a person residing or against a government located
within its territorial jurisdiction

•SC writs are under Article 32 which in itself is a fundamental right thus SC cannot
refuse to exercise its writ jurisdiction. Whereas article 226 is discretionary thus HC can
refuse to exercise its writ jurisdiction.
Advisory Jurisdiction (Only consultative Role) Article- 143

President can refer to court either on a question of law or on a question of fact provided it is of public
importance. However, it is not compulsory for court to give its advice.

“In both of above cases, opinion expresses by SC is only advisory in nature & not binding on President”

Revisory Jurisdiction (Article – 137)

•Empowered to review any judgment or order made by it with a view to remove any mistake or error that might
have crept in judgment

•Even though, judgment have been passed by SC has a binding effect on all the courts of India, but not on SC itself.
 Supreme Court as Court of Record (Article 129)

Supreme court has 2 powers under Court of Record.

1) Court of record means a court whose proceedings are put as a record and are available as evidence of fact
.
2) Contempt of court-

When a person wilfully disobeys a court’s judgement, order or direction, it comes under civil contempt.

Criminal contempt, on the other hand, include one or more of the following:

(a) scandalise or lower the authority of any court;

(b) prejudice or interfere with the due course of any judicial proceeding; or

(c) interfere with or obstruct the administration of justice in any other manner.
Curative Petition
•A review petition may be filed in SC after delivery of its judgment; Court may review the case under its inherent
power but on very restricted grounds.

Judicial review

The Judicial review is the power of the Supreme Court to examine the constitutionality of legislative
enactments and executive orders of both the central and state governments.

The words “Judicial Review” is not mentioned in the Constitution

The Supreme Court is the ultimate interpreter of the Constitution.

Both Supreme Court & High Court enjoys the power of judicial review in India
 Article 136 empowers the Supreme Court to grant special leave to appeal

In other words, under this article, any person aggrieved by decision of any court in India can move to
Supreme Court against such decision. However, there must be a substantial question of law involved
or gross injustice has been meted out to the party.

Merely filing a Special Leave Petition doesn't mean petition has been admitted by the Supreme Court.
First, the court examines the petition and then it decides whether it is fit to be admitted or not. Most
of the petitions are rejected in this stage only.

It must be noted that special leave to appeal to the Supreme Court can't be claimed as a matter of
right, it is the sole privilege of the court whether to grant it or not.

Clearly, the court has absolute discretionary power.

 Judicial Activism
Judiciary plays an assertive role to force the other organs of the state to discharge their constitutional duties towards
public.

Concept of Judicial activism emerged when SC started playing assertive role by giving some landmark judgments &
issued some stern directives to legislature & executives concerned

Phenomenon of judicial activism is welcome step only in short run & if it is carried out for long, it may destroy the
very essence of separation of powers , with the judiciary assuming greater powers compared to legislature &
executive in the absence of proper checks & balance mechanism

Insensitive & unresponsive administration lead to judiciary activism.

 Procedure established by law (India) v/s Due process of Law (US)

Procedure established by law

Court sees that the prescribed procedure has been followed by the executive

Court examines only procedural aspect not the motive behind the law or reason behind it, hence can not pronounce it
unconstitutional unless the law is passed without the authorities competence
 Due process of Law
Court can examine the law, not only from the point of view of legislature’s competence, but also from the aspect of
motive behind the law

Though constitution of India follows procedure established by the law, but in case of Maneka gandhi case, SC
interpreted article 21 to include the expression of due process of law in it
 HIGH COURT

Article 214 to 231 in Part 6 of the constitution – Deals with High Court.

The High Court occupies the top position in the judicial administration of state.

The first High Courts were set up in India in Calcutta, Bombay and Madras in 1862.

In the year 1866 the fourth High Court was set up in Allahabad.

The 7th amendment (1956) Act authorized the Parliament to establish a common High Court for 2 or more states.

At present there are 25 High Courts in the country.

•Strength of HC is flexible (Unlike SC – which can be increased by parliament)

•President may from time to time appoint judges of HC, keeping in view amount of work before HC
 The Judges of the High Court do not hold the office during the pleasure of the President.

So far how many judges of High Court have been removed?

No High Court judge was removed so far in independent India.

The Security of tenure is provided to the judges of High Courts by the Constitution. This means the judges of High
Court can be removed by the President only in the manner and on the grounds mentioned in the Constitution.

The salaries, allowances and pensions of the High Court judges are
determined from time to time by the Parliament.

Article 214 – Establisment of High Court.

 QUALIFICATIONS OF JUDGES OF THE HIGH COURT:

•Must be citizen of India

•Must have held a judicial office in territory of India for atleast 10 years
or
•Must have been an advocate of HC in succession for 10 years

APPOINTMENT OF JUDGES:

The Chief Justice (CJ) is appointed by the President after consultation with the CJI and the Governor of the
concerned state.

The appointment of CJ OF HC, which is done by a collegium of three senior-most Supreme Court justices.
It includes chief justice of india also.
The judges of the High Court are appointed by the President after concerning Chief justice of India
,The Chief Justice of the concerned High Court and The Governor of the concerned state.

The appointment of High Court judges, which is done by a collegium of three senior-most Supreme Court
justices. It includes chief justice of india also.

TRANSFER OF JUDGES OR CJ OF High Court (Article 222)

The President can transfer a judge from one High Court to another after consulting the CJI (Chief
Justice of India).

Transfers are so important, they are collectively decided by the full collegium of the five senior-most
judges. Including CJI.
OATH: (Article- 219)

Oath of office is administered by the Governor of the concerned state.

In the absence of the Governor some other person appointed by the President would perform the same.

TENURE (TERM):

A judge of High Court holds the office till he/she attains the age of 62 years

SALARY: (Article 221)

Determined by the Parliament from time to time.

 PENSION:

The Pension of the High Court judges is charged on the Consolidated Fund of India and not by the state.

Note: Salaries are paid by the States and pension by the Central Government.

Note: For Supreme Court both the salary and the pension is paid by the central government.

RESIGNATION:

A judge of High Court submits the resignation to the President of India.

IMPEACHMENT

• A judge can be removed from the office

by the President on the recommendation
by the Parliament.

• (Removed in the same manner like that

of a Supreme Court).

• Note: Please go through Supreme

Court.
The High Court is the protector of Fundamental Rights of the citizens.

The High Courts are vested with the power to interpret the Constitution
but the final interpreter is the Supreme Court.

In the absence of the CJ the President can appoint a judge of a

High Court as an acting Chief Justice of the High Court.

The CJ can request a retired judge of that High Court or any High
Court to act as a judge of the High Court for a temporary period of
time. (Prior consent of President)
 Jurisdiction of High Court

Original Jurisdiction

Dispute related to the election of members of parliament & State legislature.

Appellate Jurisdiction

Writ Jurisdiction (Article 226)

Court of records (Article 215)

The High Court is also a court of records.

The judgments of the High Court are admitted to be of evidentiary value and cannot be questioned when
produced before any subordinate court.

Secondly, the High Court has also got the power to punish for the contempt of court. ( Done in SC)

Judicial review

The Judicial review is the power of the High Court to examine the constitutionality of legislative
enactments and executive orders of both the central and state governments.
 Public interest litigation (PIL)
Right to entertain PIL cases lies with Supreme Court and High Court only.

A Public Interest Litigation (PIL) is introduced in a court of law not by the aggrieved party but by a
private party or by the court itself.

Public interest Litigation (PIL) means litigation filed in a court of law, for the protection of “Public Interest”,
such as Pollution, Terrorism, Road safety, Constructional hazards etc. Any matter where the interest of public
at large is affected can be redressed by filing a Public Interest Litigation in a court of law.

Usually, relief provided by court is in form of directions or order of state including compensation to affected parties

It is a result of judicial activism, not mentioned in constitution or any law enacted by Parliament.

Justice P.N. Bhagawati

 List of High Courts In India
Year Name Territorial Jurisdiction Bench

Maharashtra
Dadra & Nagar Haveli
1862 Bombay
Goa
Daman Diu

West Bengal
1862 Kolkata Kolkata (Bench of Port Blair)
Andaman & Nicobar islands

Tamil Nadu
1862 Madras Chennai
Pondicherry

1866 Allahabad Uttar Pradesh Allahabad (Bench at Lucknow)

1884 Karnataka Karnataka Bangalore

1916 Patna Bihar Patna

1928 Jammu & Kashmir Jammu & Kashmir Srinagar

Assam
Nagaland
1948 Guwahati Guwahati
Mizoram
Arunachal Pradesh
1949 Odisha Odisha Cuttack
1949 Rajasthan Rajasthan Jodhpur
1956 Madhya Pradesh Madhya Pradesh Jabalpur (Bench-Gwalior and Indore)
1958 Kerala Kerala & Lakshadweep Ernakulam
1960 Gujarat Gujarat Ahmedabad
1966 Delhi Delhi Delhi
1971 Himachal Pradesh Shimla Shimla
1975 Punjab & Haryana Punjab, Haryana and Chandigarh Chandigarh
1975 Sikkim Sikkim Gangtok
2000 Chattisgarh Chattisgarh Bilaspur
2000 Uttarakhand Uttarakhand Nainital
2000 Jharkhand Jharkhand Ranchi
2013 Tripura Tripura Agartala
2013 Manipur Manipur Imphal
2013 Meghalaya Meghalaya Shillong
2019 Telangana Telangana Hyderabad
2019 Andhra Pradesh Andhra Pradesh Amravati
 Subordinate Courts
The Articles 233 to 237 Part 6 in the Constitution describe the provisions to regulate the organization of
Subordinate Courts

Appointment of District Judges (Highest Judcial authority in district) (Article- 233)

Appointments of District Judges in any State shall be made by the Governor of the State in
consultation with the High Court exercising jurisdiction in relation to such State.

A person not already in the service of the Union or of the State shall only be eligible to be appointed a
District Judge

if he has been for not less than seven years an advocate or a pleader and is recommended by the High
Court for appointment.
Appointment of other Judges (Article- 234)

Appointment of other Judges (other than district judges) to the judicial service of a
state is to be made by the Governor of the State after consultation with the State
Public Service Commission and the High Court.
• District Judge- When hears matter of civil case

• Subordinate Judge court (Civil Side)- Pecuniary Matter.

• Munsiffs court ( Civil side) – Small pecuniary Matter.

• Session Judge- When hears matter of Criminal Case. Power to give

death penality ( with the confirmation of HC)

• Chief Judicial Magistrate Court ( Criminal side) - Give punishment

upto 7 years.

• Judicial Magistrate court (Criminal) – Punishment upto 3 years.

In metropolititan cities –

City Civil Court ( Chief Judges) –

Civil side

Court of metropolitan
Magistrate- Criminal side
 Lok Adalat (People’s court)
Legal services authority act, 1987 gave Statuary status to Lok Adalats

The advent of Legal Services Authorities Act, 1987 gave a statutory status to Lok Adalats, pursuant to the
constitutional mandate in Article 39-A

An award passed by the Lok Adalat is final and no then appeal

•To provide speedy & economic justice to weaker sections of the society

•Focus in Lok adalat is on compromise, When no comprise is reached, matter goes back to the court

•No advocate, No witnesses examined, No court fee is levied.

•Resolves cases which have not yet gone to courts or are pending in courts
The Lok Adalat shall have the powers of a civil court

The Lok Adalat can compromise and settle even criminal cases, which are compoundable under the relevant laws.

Main condition of the Lok Adalat is that both parties in dispute should agree for settlement.