Judiciary - SC, HC

and Subordinate
Courts
INDIAN POLITY

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Judiciary - SC, HC and Subordinate

Courts
Supreme Court

Introduction
 Articles 124 - 147 [Part V of the Constitution] deals with the provisions of Supreme Court.

 Supreme Court is the final interpreter and guardian of the Constitution and guarantor of the
fundamental rights of the citizens.

Organisation of Supreme Court

 Currently, the Supreme Court consists of 34 judges (1 chief justice and 33 other judges).

 The strength of supreme court is determined by The Supreme Court (Number of Judges) Act 1956,
amended by the parliament from time to time.

 Latest amendment was in 2019, when the strength of judges in supreme court was increased from 31
to 34.

Appointment of Judges (Constitutional Provisions)

 The Supreme Court judges are appointed by the President.

 The Chief Justice is appointed by the President after consulting with the Supreme Court and high courts
judges, as deemed necessary.

 The other judges are appointed by the president after consultation with the chief justice and other judges
of the Supreme Court and high courts, as deemed necessary.

 When appointing a judge other than the Chief Justice, consultation with the Chief Justice is mandatory.
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Collegium System for the Appointment of Judges

It is the system of appointment and transfer of judges that evolved through decisions of the Supreme Court
and not through any parliamentary law or provision of the Constitution.

Evolution of the System

First case of judges (1981)

 It was stated that the "primacy" of the recommendation of the Chief Justice of India (CJI) on the
appointment and transfer of judges can be rejected for "valid reasons".

 The ruling gave the executive priority over the judiciary in appointing judges for the next 12 years.

Second Judges Case (1993)

 SC introduced the Collegium system and stated that "consultation" really means "concurrence".

 It added that it is not an individual opinion of the CJI, but rather an institutional opinion prepared in
consultation with the two seniors most judges of the SC.

Third Judges Case (1998)

 SC, on the recommendation of the President, expanded the collegium to a 5-member body consisting of
the CJI and 4 of his senior-most colleagues.

 He should consult 4 senior-most judges of the Supreme Court, and even if 2 judges give a negative
opinion, he should not send the recommendation to the government.

 The court ruled that the CJI’s recommendation, which does not meet the standards and requirements of
the consultation process, is not binding on the government.

Fourth Judges Case

 The 99th Constitutional Amendment Act, 2014 and the National Judicial Appointments Commission Act,
2014 replaced the collegium system to appoint judges to the Supreme Court and the High Courts with a
new body called the National Judicial Appointments Commission (NJAC).

 However, in 2015, the Supreme Court ruled that both the 99th Constitutional Amendment and the NJAC
Act were unconstitutional and void.

 As a result, the previous collegiums system came into effect again.

 The court determined that the new system (NJAC) would affect the independence of the judiciary.

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Appointment of Chief Justice

Second Judges Case (1993)
 Supreme Court ruled that the senior-most judge of the Supreme Court should be appointed as the chief
justice of India.

Qualification of Judges
 Constitution does not specify a minimum age to be appointed a judge of the Supreme Court.

 A person who is to be appointed a judge of the Supreme Court must have the following qualifications:

 He must be a citizen of India.

 He should have been a judge of a High Court (or high courts in succession) for 5 years or

 He should have served in High Court (or High courts successively) for 10 years.

 He should be a respected jurist in the opinion of the President.

Oath or Affirmation
 A person appointed to serve as a Supreme Court Judge must take and sign an oath or declaration before
the President or a person designated by him for that purpose prior to assuming office.

 A Supreme Court judge swears the following in his oath

 To have real faith and allegiance to India's Constitution.

 To uphold India's sovereignty and territorial integrity.

 To fulfil the responsibilities of the Office honestly and truthfully to the best of his ability,
knowledge, and judgement, without fear of favour, affection, or ill-will.

 To uphold the law and the constitution

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Tenure of Judges
 The Constitution did not specify the tenure of a Supreme Court judge. In this regard, however, it
establishes the following three provisions:

 He holds office until he reaches 65 years of age.

 Any question about his age must be decided by an authority and in the manner provided by Parliament.

 He can resign his position by writing to the President.

 The President may remove him from office on recommendation of Parliament.

Removal of Judges
Grounds of Removal
 Proved Misbehaviour or Incapacity.

Provisions for Removal

 A Supreme Court judge can be removed by order of the president.

 The Judges Enquiry Act (1968) regulates the procedure associated with the removal of a Supreme Court
judge in impeachment proceedings.

 The president can only issue the removal order after he has been presented with an address from
Parliament on the removal in the same session.

 Each house of the parliament must endorse the address with a special majority (i.e., a majority of the
total members of that house plus not less than 2/3rds of the members present and voting in that house).

 No judge of the Supreme Court has been impeached so far.

Procedure for Removal

 The Speaker/Chairman must receive a removal motion signed by 100 members (in the Lok Sabha) or 50
members (in the Rajya Sabha).

 Then the Speaker/Chairman has the option of accepting or rejecting the motion.

 If it is accepted, the Speaker/Chairman appoints a three-member committee to investigate the

allegations.

 Members of the committee are:

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 A Supreme Court chief justice or a judge

 A high court chief justice

 A famous jurist.

 The House can take up the motion for consideration, if the committee deems the judge guilty of
misbehaviour or suffering from incapacity.

 After the motion is passed by each House of Parliament by special majority, an address is presented to
the president for removal of the judge.

 Finally, the president passes an order removing the judge.

Salaries and Allowances

 The salaries, allowances, privileges, leaves and pension of Supreme Court judges are determined by
Parliament from time to time.

 It cannot be changed to their detriment after their appointment, except in a financial emergency.

 Retired judges are entitled to 50 percent of their last salary as a monthly pension.

Acting, Ad hoc and Retired Judges

Acting Chief Justice
The President might designate a judge of the Supreme Court as an acting Chief Justice of India when:

 The post of Chief Justice of India is empty.

 The Chief Justice of India is temporarily absent.

 The Chief Justice of India is unable to discharge the duties of his office

Ad hoc Judge
 If the permanent judges do not have a quorum to hold or continue a session of the Supreme Court, the
Chief Justice of the Supreme Court may temporarily appoint a High Court Judge as an ad hoc Supreme
Court judge for a term.

 He does this after consulting the Chief Justice of the appropriate High Court and with the prior consent of
the President.
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 The judge thus to be appointed must be qualified to be appointed as a Supreme Court judge.

 It is the duty of the judge thus appointed to attend sessions of the Supreme Court

 During this attendance, he enjoys all the powers, powers and privileges (and duties) of a Supreme Court
judge.

Retired Judges
 The Chief Justice of India may at any time petition a retired Supreme Court Justice or a retired High Court
Justice (who is duly qualified to be appointed Supreme Court Justice) as a Supreme Court Justice for a
temporary period.

 He can only do so with the prior consent of the president and the person designated.

 Such a judge is entitled to allowances determined by the president.

 He will also enjoy all the powers, powers and privileges of a judge of the Supreme Court

 But otherwise, he is not considered a judge of the Supreme Court.

Seat of Supreme Court

 The Constitution declares Delhi as the seat of the Supreme Court.

 The chief justice of India with the prior approval of the President can appoint other place or places as seat
of the Supreme Court.

Procedure of the Court

 The Supreme Court with the approval of the president can make rules for regulating the practice and
procedure of the Court.

 The Constitutional cases or references made by the President [Article 143] are decided by a Bench
consisting of at least 5 judges.

 All other cases are decided by a bench consisting of minimum 3 judges.

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Independence of Supreme Court

The Constitution has established the following provisions to guarantee the independent and impartial
functioning of the Supreme Court:

Mode of Appointment
 Since the third judges’ case the judiciary appoints its own members.

 This type appointment process is not found in other democratic country.

 It ensures high degree of independence of judiciary from executive, something no other institution of
India enjoys.

Security of Tenure
 The Supreme Court judges have security of tenure.

 They can be removed from office by the President only on the grounds specified in the Constitution.

 They do not serve at the pleasure of the President.

Fixed Service Conditions

 The salaries, allowances, privileges, leaves and pension of Supreme Court judges are determined by
Parliament from time to time.

 It cannot be changed to their detriment after their appointment, except in a financial emergency

 Thus, during their tenure on the Supreme Court, the judges' working conditions remain unchanged.

Expenses Charged on Consolidated Fund

 The salaries, allowances and pensions of the judges and the staff as well as all the administrative
expenses of the Supreme Court are charged on the Consolidated Fund of India.

 They are non-votable and can only be discussed by the Parliament.

Conduct of Judges cannot be Discussed

 The Constitution prohibits any discussion in parliament or in any state legislature about the conduct of
Supreme Court judges in the performance of their duties, unless parliament is considering an
impeachment motion.

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Ban on Practice after Retirement

 Retired Supreme Court justices are prohibited from declaring or acting before a court or any agency in the
territory of India.

 This ensures that they do not favor anyone in the hope of future favor.

Power to Punish for its Contempt

 The Supreme Court can punish anyone for its contempt.

 It’s actions and decisions cannot be criticized and no one can reject them.

 This power is given to the Supreme Court to maintain its authority, dignity and honour.

Its Jurisdiction cannot be Curtailed

 The Parliament is not authorised to curtail the jurisdiction and powers of the Supreme Court but it can
extend them.

 The Supreme Court is granted various types of jurisdictions under the Constitution.

Jurisdiction and Powers of Supreme Court

The Supreme Court's jurisdiction and powers are classified as follows:

 Original Jurisdiction.

 Writ Jurisdiction.

 Appellate Jurisdiction.

 Advisory Jurisdiction.

 A Court of Record.

 Power of Judicial Review.

 Other Powers.

Original Jurisdiction
 If there is a dispute between

 the Centre and one or more states;

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 the Centre and any state or states on one side and one or more states on the other;

 between two or more states.

In the above cases, the Supreme Court has exclusive original jurisdiction.

 Exclusive: only supreme court decide on such disputes.

 Original: the power to hear such cases in first instance, not by way of appeal.

Exclusive Jurisdiction of the Supreme Court:

 The dispute must relate to a matter (either fact or law) on which the existence or the scope of a legal
claim is to be determined. This excludes questions of political nature.

 Any lawsuit filed by a private individual against the Centre or any state before the Supreme Court cannot
be considered under this aspect.

Original jurisdiction of the Supreme Court does not extend to the following:

 A dispute arising out of a pre-constitutional contract, agreement, contract, obligation and, or another
similar instrument.

 A dispute arising out of a contract, agreement, etc., specifically provided that such jurisdiction does not
extend to such dispute.

 Interstate disputes over water.

 Matters referred to the Finance Commission.

 Adjustment of certain expenses and pensions between the Centre and the states.

 Ordinary commercial disputes between the Centre and the States.

 Recovery of damages by a state against the Centre.

Writ Jurisdiction
 The Supreme Court has the power to issue writs for the application of the fundamental rights of an
aggrieved citizen.

 There are five writs:

 Habeas Corpus

 Mandamus

 Prohibition

 Quo-Warranto
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 Certiorari

 The Supreme Court has the original jurisdiction in the sense that an aggrieved citizen can appeal directly
to the Supreme Court, not necessarily by appeal

 The writ jurisdiction is not exclusive to Supreme Court only.

 The higher courts are also empowered to issue orders to enforce fundamental rights.

 It means that if the fundamental rights of a citizen are violated, the aggrieved party has the option to go
to the High Court or directly to the Supreme Court.

The original jurisdiction of the Supreme Court over federal disputes v/s disputes over fundamental rights:

 In the first case it is exclusive and in the second case it shares writ powers with the jurisdiction of the High
courts.

 Furthermore, the parties involved in the first case are the state apparatus (central and state), while in the
second case it is between a citizen and the Government (Central or state).

Difference between the writ jurisdiction of the Supreme Court and the High Courts:

 The Supreme Court can issue writs only for the application of fundamental rights and not for any other
purpose.

 High Court, on the other hand, can issue orders not only to enforce basic rights, but for other purposes as
well.

 This means that the writ jurisdiction of the High Court is broader than that of the Supreme Court.

 Parliament may delegate the power of to the Supreme Court to issue writs for other purposes.

Appellate Jurisdiction
 The Supreme Court is primarily an appeals court and hears appeals against lower court rulings.

 It has a wide appellate that can be divided into four categories:

 Appeals in constitutional matters.

 Appeals in civil matters.

 Appeals in criminal matters.

 Appeals by special leave.

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Constitutional Matters (Article – 132)

 In constitutional cases, an appeal against the judgment of a High Court can be made to the Supreme
Court if the High Court certifies that it is a legal question that requires the interpretation of the
Constitution.

 Based on the certificate, the party can appeal to the Supreme Court in case a question was wrongly
decided.

Civil Matters (Article – 133)

 In civil cases, an appeal against the judgment of a High Court can be made to the Supreme Court if the
High Court certifies:

 that it is an essential legal question of general importance.

 that the question needs to be decided by the Supreme Court.

 There is no monetary limit for making an appeal before the Supreme Court.

Criminal Matters (Article – 134)

 The Supreme Court hears appeals against the judgement in a criminal proceeding of a high court if the
high court:

 Changed the acquittal of a defendant and sentenced him to death on appeal.

 has taken a case from a subordinate court and has convicted the defendant and sentenced to
death.

 certifies that the case is eligible for appeal to the Supreme Court.

 In the first two cases, an appeal can be made to the Supreme Court without a certificate from the High
Court. But if the High Court annulus an order to acquit the accused, then there is no appeal to the
Supreme Court.

 Parliament has further extended the powers of the Supreme court in case where the High Court:

 Changes an acquittal to the imprisonment of life imprisonment or life imprisonment for 10 years.

 has taken any case from any subordinate court to convict the accused person to life imprisonment
or 10 years.

Appeal by Special Leave (Article – 136)

 The Supreme Court has the authority to review any judgement issued by any court or tribunal in the
country (except military courts and court martial).

 This provision includes the following four elements:

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 It is a discretionary power and so cannot be claimed as a matter of right.

 It can be granted in any final or even in interlocutory judgement.

 It could be about anything—constitutional, civil, criminal, income tax, labour, revenue, advocates,
and so on.

 It can be granted against any court or tribunal, not just a high court (of course, except a military
court).

Advisory Jurisdiction (Article – 143)

 The Constitution empowers the President to request the opinion of the Supreme Court on two categories
of matters:

 On any matter of law or fact of public interest that has arisen, or that may arise.

 Here, the Supreme Court can offer or reject its opinions to the president.

 For disputes arising from a pre-constitutional contract, agreement, covenant, obligation or other
similar instrument.

 Here, the Supreme Court "must" present its opinion to the president.

 In both cases, Supreme Court opinion is an advisory rather than a judicial decision.

 Therefore, it is not binding on the president.

A Court of Record (Article – 136)

 The judgments, trials and actions of the Supreme Court are recorded for eternal memory and testimony.

 These records can be used as evidences or precedence in any court of law.

 They cannot be challenged before a court.

 It has the power to punish for the defiance of the court with a simple prison sentence of up to 6 months
or a fine of up to 2,000 or both.

 Supreme Court ruled that it could punish for contempt not only of itself, but also of higher courts, lower
courts and courts operating throughout the country.

 Contempt of the court can be civil or criminal in nature:

 Civil Contempt means wilful disobedience to judgments, orders, pleadings or other court proceedings or
wilful breach of an obligation imposed by a court.

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 Criminal contempt means publishing any matter or act that scandalizes or disparages the authority of a
court, interferes or tend to interfere with the legal process or otherwise obstructs the administration of
justice.

 The innocent publication and dissemination of some matters, the fair and accurate account of legal
proceedings, the fair and reasonable criticism of court records and the comments do not amount to
contempt of court.

Power of Judicial Review (Article – 13)

 Judicial review is the power of the Supreme Court to review the constitutionality of the laws and
executive orders of the central and state governments.

 Upon examination if it is determined that they violate the Constitution (ultra-vires), the Supreme Court
can declare them illegal, unconstitutional and invalid (null).

 Consequently, the government cannot enforce them.

Other Powers
 It has the original, exclusive and ultimate authority on the disputes over the election of the president and
vice president.

 Investigates the conduct and behaviour of the president and members of the UPSC on the
recommendation of the president. Supreme Court Recommendation in this regard is binding on the
President.

 It has the authority to review its own judgment or order. Therefore, it is not bound by its previous
decision and can deviate from it in the interests of justice or the common good. In short, Supreme Court
is a self-correcting agency.

 For example, in the Kesavananda Bharati case (1973), the Supreme Court deviated from its earlier
ruling in Golak Nath case (1967).

 It has the power to withdraw cases pending before the high courts and to decide for himself. It can also
transfer a pending lawsuit to another high court.

 Its laws are binding on all courts in India. Its decrees or orders is enforceable nationwide.

 All authorities (civil and judicial) in country must assist the Supreme Court. It is the ultimate and the final
interpreter of the Constitution.

 It has jurisdiction over judicial supervision and control of all the courts and tribunals functioning in the
entire territory of the country.

 The Supreme Court’s jurisdiction and powers with respect to matters in the Union list can be enlarged by
the Parliament.

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 Its jurisdiction and powers with respect to other matters can be enlarged by a special agreement of the
Centre and the states.

Supreme Court Advocates

Senior Advocates
 The Supreme Court can designate any Advocate, with his consent, as Senior Advocate if in its opinion by
virtue of his ability, standing at the Bar or special knowledge or experience in law the said Advocate
deserves such an award.

 A Senior Advocate is not eligible to appear without an Advocate-on-Record in the Supreme Court or
without a junior in any other court or tribunal in India.

 He is also not authorized to accept instructions to write pleas or affidavits, advise on evidence or do any
drafting work of a similar kind in any court or tribunal in India.

 This prohibition does not extend on the settlement of such matters as mentioned in consultation with a
junior.

Advocates-on-Record
 Only these advocates are eligible to file any matter or document before the Supreme Court.

 They can also appear before the Supreme Court or act on behalf of one of the parties.

Other Advocates
 These are the advocates, whose names are entered on the roll of any State Bar Council maintained under
the Advocates Act, 1961.

 They can appear and argue any matter on behalf of a party in the Supreme Court

 They are not entitled to file any document or matter before the Court.

High Courts
Introduction
 Articles 214 to 231 [Part VI of the Constitution] deal with high courts.
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 The high court sits beneath the Supreme Court but above the lower courts in the hierarchy of judicial
system in India.

 A state's judiciary consists of a high court and a hierarchy of subordinate courts.

 The High Court is the first in a state's administration of justice.

 The Parliament has the authority to extend a high court's jurisdiction to any union territory or to exclude a
high court's jurisdiction from any union territory.

 Parliament has the authority to create a common high court for two or more states, or for two or more
states and a union territory.

 A high court's territorial jurisdiction is contiguous with a state's territory.

 Similarly, the territorial jurisdiction of a common high court is contiguous with the territories of the
concerned states and union territory.

Organisation of High Court

 Each High court (whether exclusive or ordinary) consists of a Chief Justice and other justices that the
president from time to time deems necessary to appoint.

 Therefore, the Constitution does not determine the strength of a superior court and leaves it to at the
discretion of the president.

 Consequently, the president from time to time determines the strength of a High Court based on his
workload.

Appointment of Judges
 The President appoints high court judges.

 The President appoints the chief justice after consulting with the Chief Justice of India and the governor of
the state in question.

 The chief justice of the relevant high court is also consulted when appointing other judges.

 When establishing a common high court for two or more states, the president consults with the
governors of all states involved.

 Second Judges Case (1993)

 No high court judge can be appointed unless it is in accordance with the Chief Justice of India's
opinion.
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 Case of the Third Judges (1998)

 In case of the appointment of high court judges, the chief justice of India should consult a collegium of
two senior-most judges of the Supreme Court.

Qualification of Judges
 Constitution does not provide a minimum age for a judge of the High Court.

 A person who is to be appointed a judge of the High Court must have the following qualifications:

 He should be a citizen of India.

 He should have held a judicial office in the territory of India for 10 years.

 He should have been an advocate of a high court (or high courts in succession) for 10 years.

Oath or Affirmation
 A person being appointed to serve as a High Court Judge must take and sign an oath or declaration before
the Governor or a person designated by him for that purpose prior to assuming office.

In his oath, a judge of the High Court swears:

 to bear true faith and allegiance to the Constitution of India

 to uphold the sovereignty and integrity of India

 to duly and faithfully and to the best of his ability, knowledge and judgement perform the duties of the
Office without fear or favour, affection or ill-will

 to uphold the Constitution and the laws.

Tenure of Judges
 The Constitution doesn’t specify the tenure of a High Court judge.

 However, it establishes the following 4 provisions:

 He holds office until he reaches 62 years of age.

 President decides the issues regarding the age of a person to be appointed, in consultation
with the CJI. The decision thus taken is final.

 He can resign his position by writing to the President.

 The President may remove him from office on recommendation of Parliament.

 He vacates his office when appointed as a judge to the Supreme Court or when transferred to
another high court.
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Removal of Judges
Grounds of Removal

 Proved Misbehaviour or Incapacity

Provisions for the Removal

 A High Court judge is removed by an order of the president.

 The Judges Enquiry Act (1968) regulates the procedure associated with the removal of a High Court judge
in impeachment proceedings.

 The president can only issue the removal order after he has been presented with an address from
Parliament on the removal in the same session.

 Each house of the parliament must endorse the address with a special majority (i.e., a majority of the
total members of that house plus not less than 2/3rds of the members present and voting in that house).

 No judge of the Supreme Court has been impeached so far.

Procedure for Removal

 The Speaker/Chairman must receive a removal motion signed by 100 members (in the Lok Sabha) or 50
members (in the Rajya Sabha).

 Then the Speaker/Chairman has the option of accepting or rejecting the motion.

 If it is accepted, the Speaker/Chairman appoints a three-member committee to investigate the

allegations.

 Members of the committee are:

 A Supreme Court chief justice or a judge

 A high court chief justice

 A famous jurist.

 The House can take up the motion for consideration, if the committee deems the judge guilty of
misbehaviour or suffering from incapacity.

 After the motion is passed by each House of Parliament by special majority, an address is presented to
the president for removal of the judge.

 Finally, the president passes an order removing the judge.

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Salaries and Allowances

 The salaries, allowances, privileges, leaves and pension of High Court judges are determined by
Parliament from time to time.

 It cannot be changed to their detriment after their appointment, except in a financial emergency.

 Retired chief justices and judges are entitled to 50 percent of their last salary as a monthly pension.

Transfer of Judges
 The President transfer a judge from one high court to another in consultation with the Chief Justice of
India.

 On transfer, he receives all allowances as determined by Parliament in addition to his salary.

 Judicial review is applicable in transfers to check arbitrariness in transfer of judges. Only the judge who is
transferred can challenge this decision.

 Third Judges case (1998):

 In case of the transfer of high court judges, the Chief Justice of India should consult, the chief
justice of the 2 high courts (one from which the judge is being transferred and the other receiving
him) in addition to the collegium of four senior most judges of the Supreme Court.

Acting, Additional and Retired Judges

Acting Chief Justice
 A judge of the High Court can be appointed as an acting Chief Justice of a high court, by the president,
when:

 the office of Chief Justice of the concerned High Court is vacant.

 the Chief Justice of the concerned High Court is temporarily absent.

 the Chief Justice of the concerned High Court is unable to perform the duties of his office.

Additional and Acting Judges

 A qualified person can be appointed as the additional judges of a high court for a temporary period for
maximum 2 years when:

 there is a temporary increase in the business of the high court.

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 there are backlogs of work in the high court.

 The President can also appoint a qualified person as an acting judge of a high court when a judge of that
high court (other than the chief justice) is:

 unable to perform the duties of his office due to absence or any other reason

 appointed to act temporarily as chief justice of that high court.

 An acting judge holds office until the permanent judge resumes his office.

 Both the additional or acting judge cannot hold office after attaining the age of 62 years.

Retired Judges
 The Chief Justice of a state's High Court may, at any time, petition a retired High Court Judge or any other
High Court Judge to act as a High Court Judge for a limited time.

 This requires the president's consent and the consent of the person designated.

 Such a judge is entitled to allowances as determined by the president, as well as all the powers, powers,
and privileges of a judge of the High Court.

Independence of High Court

The Constitution has established the following provisions to guarantee the independent and impartial
functioning of the High Court:

Mode of Appointment
 The President appoints the judges of the High Court in consultation with the members of the judiciary
itself.

 This provision limits the absolute discretion of the executive and guarantees that the appointments of
judges are not based on political or practical grounds.

Security of Tenure
 The judges of the High Court are given security of tenure.

 They can only be removed from office by the President for reasons specified in the Constitution.

 They do not serve under the President's pleasure.

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Fixed Service Conditions

 Parliament sets the salaries, allowances, privileges, leaves, and pensions of High Court justices on a
regular basis.

 It cannot be amended to their disadvantage after they have been appointed, unless there is a financial
emergency.

Expenses Charged on Consolidated Fund

 The Consolidated Fund of India is charged to pay the judges' and staff's salaries, allowances, and
pensions, as well as all of the High Court's administrative costs.

 These are not available to vote in the Parliament.

Conduct of Judges cannot be Discussed

 The Constitution prohibits any discussion in parliament or in any state legislature about the conduct of
High Court judges in the performance of their duties, unless parliament is considering an impeachment
motion.

Ban on Practice after Retirement

 Retired High Court justices are barred from making any declarations or acting in any court other than the
Supreme Court or other higher courts.

 This ensures that they do not favour somebody in the hopes of receiving favour in the future.

Power to Punish for its Contempt

 The High Court can punish anyone for its contempt.

 Its actions and decisions cannot be criticized and no one can reject them.

 This power is given to the High Court to maintain its authority, dignity and honour.

Freedom to Appoint its Staff

 Without the involvement of the executive, the Chief Justice of the High Court can appoint officers and
servants of the High Court, as well as dictate their terms of service.

Its Jurisdiction cannot be Curtailed

 The Parliament and State Legislature cannot curtail the jurisdiction and powers of the High Court but it
can be changed by them.

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Jurisdiction and Powers of High Court

The jurisdiction and powers of the High Court can be classified into the following:

 Original Jurisdiction.

 Writ Jurisdiction.

 Appellate Jurisdiction.

 Supervisory Jurisdiction.

 Control over Subordinate Courts

 A Court of Record.

 Power of Judicial Review.

Original Jurisdiction
It extends to the following:

 Matters of admiralty (naval affairs), will, marriage, divorce, company laws and contempt of court.

 Election disputes of the members of Parliament and state legislatures.

 In revenue matter or an act ordered or done in revenue collection.

 For enforcement of fundamental rights of citizens.

 Cases involving the interpretation of the Constitution and transferred from a subordinate court.

 The four high courts (i.e., Calcutta, Bombay, Madras and Delhi High Courts) have original civil jurisdiction
in cases of higher value.

Writ Jurisdiction (Article – 226)

 The High Court has the power to issue writs for any purpose including the application of the fundamental
rights of an aggrieved citizen.

 Following are the writs:

 Habeas Corpus

 Mandamus

 Prohibition

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 Quo-Warranto

 Certiorari

 The phrase ‘for any other purpose’ refers to the enforcement of an ordinary legal right.

 The high court can issue writs to anyone within its territorial jurisdiction and also outside its territorial
jurisdiction.

Appellate Jurisdiction
 A high court is essentially an appeals court that handles appeals from subordinate courts functioning
under its territorial authority.

 It has appellate jurisdiction in both civil and criminal cases.

 Thus, a high court's appellate jurisdiction is broader than its original jurisdiction.

Civil Matters

 On both question of law and fact, first appeals from the orders and judgments of the district courts, extra
district courts, and other subordinate courts go straight to the High courts.

 In matters involving the question of law only, second appeals from district court or other subordinate
courts go to the High court.

 Intra-court appeals are allowed in the Calcutta, Bombay, and Madras High Courts.

 When a case is determined by a single judge of the high court (either under the high court's original or
appellate jurisdiction), the case can be appealed to the division bench of the same high court.

 Appeals from administrative and other tribunal orders are heard by the state high court's division bench.

 The tribunals are subject to the high courts' writ jurisdiction. As a result, an aggrieved party must first
appeal to the high court against the tribunals' decisions before proceeding to the Supreme Court.

Criminal Matters

 If the sentence is for 7 years or more, appeals from the judgments of the sessions court and additional
sessions court go to the high court.

 Whether or not there is an appeal by the convicted person, a death sentence (capital punishment)
awarded by a sessions court / additional sessions court must be confirmed by the high court before it can
be carried out.

 Appeals from the judgments of the assistant sessions judge, metropolitan magistrate, or other
magistrates (judicial) lie to the high court.

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Supervisory Jurisdiction
 A high court has jurisdiction over all courts and tribunals that operate in its territorial jurisdiction (except
military courts and tribunals).

 It may:

 ask for returns from them.

 establish and issue general rules and mandate forms to regulate practice and procedures

 require that forms be kept for its books, records, and accounts

 pay the fees payable to the bailiff, clerks, officers and attorneys by them.

This supervisory power of a High Court is broad because:

 It extends to all courts, whether or not they are subject to the power of appeal of the High Court.

 It includes not only administrative but also judicial supervision.

 It is a kind of revised jurisdiction.

 May be suo-motu and not necessarily at the request.

This power is limited to:

 excess of jurisdiction

 gross violation of natural justice

 error of law

 disregard to the law of superior courts

 unreasonable findings

 manifest injustice

Control over Sub-ordinate Courts

This includes the following:

 The governor consults with the high court on the matters related to the appointment, position and
promotion of district judges and the appointment of persons to the State Judicial Service (excluding
district judges)

 Deals with the issues of displacement, promotion, licensing, transfers and disciplinary action of members
of the State Judicial Service (others such as District Judges).

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 May withdraw a case pending in a lower court on an essential legal question that requires interpretation
of the Constitution.

 It can then decide on the case itself or clarify the legal position and refer the case to the lower court with
its judgment.

 Its law is binding on all subordinate courts operating in its territorial jurisdiction.

A Court of Record
 The judgments, trials and actions of the High Court are recorded in for eternal memory and testimony.

 These records have probative value and cannot be challenged when they are brought before a
court.

 They are recognized as legal precedents and legal references.

 It has the power to punish for contempt of court with a simple prison sentence or a fine or both.

 ‘Contempt of Court’ has not been defined in the Constitution.

Contempt of the court can be civil or criminal in nature:

 Civil Contempt means wilful disobedience to judgments, orders, pleadings or other court proceedings or
wilful breach of an obligation imposed by a court.

 Criminal contempt means publishing any matter or act that scandalizes or disparages the authority of a
court interferes or interferes with the proper of any legal process obstructs or otherwise obstructs the
administration of justice.

 The innocent publication and dissemination of some matters, the fair and accurate account of legal
proceedings, the fair and reasonable criticism of court records and the comments do not amount to
contempt of court.

High Court has the power to review his own judgment or order but unlike the Supreme Court this power has
not been conferred on it by the Constitution

Power of Judicial Review

 Judicial review is the power of the High Court to review the constitutionality of the laws and executive
orders of the central and state governments.

 If upon examination it is determined that they violate the Constitution (ultra-vires), the Supreme Court
can declare them illegal, unconstitutional and invalid (null).

 Consequently, the government cannot enforce them.

 The phrase ‘judicial review’ has not been mentioned in the Constitution
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 Articles 13 and 226 confer the power of judicial review on a high court.

 The high courts can also examine the constitutional validity of a central law.

The constitutional validity of a legislative or executive order can be challenged in High Court for three
reasons:

 If it violates fundamental rights (Part III),

 If it is outside the jurisdiction of the authority that designed it,

 If it is contrary to constitutional requirements.

Subordinate Courts

Introduction
 Articles 233 to 237 of part VI of the Constitution contain the following provisions to regulate the
organization of the lower courts

 The state judiciary consists of a High Court and a hierarchy of subordinate courts, also known as lower
courts.

 Subordinate courts are so named because they are subordinate to the state high court.

 They work below the High Court in the district and lower levels.

Constitutional Provisions
Appointment of District Judges
 The governor of the state, in consultation with the high court, appoints, posts, and promotes district
judges in the state.

Qualifications of a person to be appointed as district judge:

 He should not already be in the service of the Central or the state government.

 He should have been an advocate for 7 years.

 His appointment should be recommended by the high court.

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Appointment of Judges other than District Judges

 They are appointed by the governor of the state after consultation with the State Public Service
Commission and the high court.

Control over Subordinate Courts

 Control over the District Courts and other lower courts, including the appointment, promotion and leaves
of persons who serve in the judicial service of a state and in a position subordinate to that of District
Judge, rests with the High Court.

Interpretation
 ‘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.

 Judicial service includes the persons exclusively intended to fill the post of district judge and other civil
judicial posts subordinate to that of District Judge.

Application of the above Provisions to Certain Magistrates

 The governor may by order direct that the above provisions regarding persons in the state judicial service
apply to any class or classes of judges in the state.

Structure and Jurisdiction

 The district judge is the highest judicial authority in the district.

 It has original and appellate jurisdiction in both civil and criminal matters.

 It handles civil cases as a district judge, and criminal cases as a sessions judge.

 The district judge has supervisory powers over all lower courts in the district.

 High Court hears appeals against his orders and sentences.

 The sessions judge has the power to impose prison sentences, including life imprisonment and the death
penalty.

 However, the death penalty imposed by him must be upheld by the High Court, whether or not is an
appeal.

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 Below the district and sessions court stands the subordinate judge on the civil side and the Court of the
Chief Judicial Magistrate on the criminal side.

 The subordinate judge exercises unlimited property jurisdiction for civil actions

 The Chief Judicial Magistrate decides criminal cases, which are punishable by imprisonment of up to
seven years.

 At the lowest level is the Munsiff Court on the civil side and the Court of Judicial Magistrate on the
criminal side.

 The Munsiff has limited jurisdiction and decides on civil matters with low capital expenditures.

 Judicial Magistrate negotiates criminal cases, which are punishable by imprisonment of up to three years.

 In some metropolitan cities, there are city civil courts (chief judges) on the civil side and the courts of
metropolitan magistrates on the criminal side.

National Legal Services Authority (NALSA)

 The Constitution of India under Article 39A provides for free legal aid to the poor and weaker sections of
the society and ensures justice for all.

 The Constitution of India under Articles 14 and 22(1) makes it obligatory for the State to ensure equality
before law and a legal system which promotes justice on the basis of equal opportunity to all.

 The Legal Services Authorities Act of 1987 was enacted to provide a standard nation-wide network of free
and competent legal advice for the poor and the people belonging to weaker social classes.

 The Legal Services Authorities Act of 1987 established NALSA to oversee and assess the execution of legal
assistance programmes, as well as to develop rules and principles for the provision of legal services.

 A State Legal Services Authority has been established in each state, as well as a High Court Legal Services
Committee in each High Court and a Supreme Court Legal Services Committee in each Supreme Court.

 In the districts and Taluks, District Legal Services Authorities and Taluk Legal Services Committees have
been established to implement NALSA norms and directives, provide free legal services to individuals, and
conduct Lok Adalats.

Functions
 Provide free and competent legal services.

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 Organize Lok Adalats for amicable dispute resolution.

 Organization of legal awareness camps in rural areas.

Free Legal Services

 Payment of court fees, litigation fees, and any other fees owed, or that may be incurred in connection
with any legal proceeding.

 Attorney services in legal proceedings.

 Obtain and deliver certified copies of purchase orders and other documents in legal proceedings.

 Appeals Preparation, a paper book that includes printing and translation of court proceedings documents.

Eligible Persons for Free Legal Aid

 Women and children

 Members of SC/ST

 Industrial workmen

 Victims of mass disaster, violence, flood, drought, earthquake, industrial disaster

 Disabled persons

 Persons in custody

 Persons whose annual income does not exceed Rs. 1 lakh (in the Supreme Court Legal Services
Committee the limit is Rs. 1,25,000/-).

 Victims of trafficking in human beings or beggar

Lok Adalats
 Lok Adalat is a forum where cases (or disputes) pending in court or in the pre-trial stage (not yet brought
to court) are amicably resolved.

 Those offences which are non-compoundable (serious offences in which the parties cannot compromise)
fall outside the scope of the Lok Adalat.

 The word ‘Lok Adalat’ means ‘People’s Court’. This system is based on Gandhian principles.

 It is one of the components of ADR (Alternative Dispute Resolution) system.

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 As the Indian courts are burdened with backlog of proceedings and the ordinary courts have to decide the
cases that involve a long, costly and lengthy process, the Court needs years together to resolve even
small cases.

 Therefore, Lok Adalat offers alternative solutions or suggestions for a fast and inexpensive justice system.

 Lok Adalat has been given statutory status under the Legal Services Authorities Act, 1987.

Organization and Functioning of the Lok Adalats

 The State Legal Services Authority/District Legal Services Authority/Supreme Court Legal Services Com-
mittee/High Court Legal Services Committee/Taluk Legal Services Committee organizes Lok Adalats at
such intervals and in places and to exercise jurisdiction and for the territories it deems appropriate.

 Each Lok Adalat organized for an area consists of serving or retired judicial officers and other persons
from the area, as determined by the organization that organizes that Lok Adalat.

 Generally, a judicial officer acts as the chairman and lawyers and social workers act as members in Lok
Adalat.

 A Lok Adalat can reach to a compromise or an agreement between the parties to the dispute regarding:

 all pending cases in a court of law.

 any matter that is within the jurisdiction of any court and is not brought before such court.

 Any case pending before the court can be referred to the Lok Adalat for settlement if:

 the parties concerned agree to settle the dispute in the Lok Adalat

 one of the parties makes an application to the court, for referring the case to the Lok Adalat

 the court is satisfied that the matter is an appropriate one to be taken up by the Lok Adalat.

Powers of Lok Adalat

The Lok Adalat shall have the same powers as a Civil Court under the Code of Civil Procedure (1908), in the
following matters:

 Summon and obtain the presence of a witness for questioning under oath.

 Locate and produce documents.

 Receive evidence for sworn statements.

 Request public records or documents from a court or authority.

 Other matters that may be prescribed.

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 Lok Adalat has the necessary powers to establish its own procedure to resolve any disputes it may have.

 All proceedings before a Lok Adalat are considered court proceedings under the Indian Penal Code (1860)
and every Lok Adalat is considered a civil court under the Code of Criminal Procedures (1973).

 An award of a Lok Adalat is considered an order of a civil court or an order of another court.

 Any prize awarded by a Lok Adalat is final and binding on all parties to the dispute.

 No court can appeal against the Lok Adalat award.

Benefits
The benefits under Lok Adalat are as follows:

 There are no court fees and if court fees have already been paid, it will be refunded if the dispute is
resolved with Lok Adalat.

 The basic characteristics of Lok Adalat are procedural flexibility and rapid dispute negotiation.

 There is no strict application of procedural laws such as Code of Civil Procedure and the Evidence Act to
evaluate Lok Adalat's Claim

 The parties to the dispute can communicate directly with the judge through their lawyer which is not
possible in ordinary courts.

 The Lok Adalat arbitration award is binding on the parties and has the status of a civil court judgment and
is not subject to appeal, which does not result in a delay in the final resolution of the dispute.

Permanent Lok Adalats

The Legal Services Authorities Act, 1987 was amended in 2002 to provide for the establishment of the
Permanent Lok Adalats.

Reasons
 The Legal Services Authorities Act of 1987 was enacted to create legal services authorities that provide
free and expert legal services to the weakest class of society, to ensure that no citizen is deprived of the
opportunity to obtain justice for economic reason or otherwise by Lok Adalats to ensure that the
operation of the legal system promotes equity based on equal opportunities.

 The Lok Adalat system has proven its effectiveness in resolving disputes in the spirit of out-of-court
arbitration.
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 However, the main disadvantage of the existing Lok Adalats organizational scheme under the
aforementioned law is that the Lok Adalats system is primarily based on a compromise or agreement
between the parties.

 If the parties are unable to compromise or reach an agreement, the case will be referred back to court or
the parties will be recommended to appeal to a court.

 This leads to unnecessary delays in jurisprudence.

 Giving Lok Adalats the power to resolve cases where the parties do not compromise or reach an
agreement can be addressed to a great extent.

 The cases related to public utility services need to be settled urgently so that people get justice without
delay even at pre-litigation stage

 Therefore, it is proposed that the Legal Services Authorities Act, of 1987, be amended to establish
permanent Lok Adalats in order to provide a mandatory pre-trial mechanism for arbitration and
resolution of cases related to public services.

Features of Permanent Lok Adalats

 The permanent Lok Adalat consists of a chairman who is or was District Judge or Additional District Judge,
or District Judge, and two other individuals with sufficient experience in public service.

 The Permanent Lok Adalat exercises jurisdiction over one or more public utility services, such as:
Transportation services of passengers or goods by air, land and sea, Mail, telegraph or telephone services,
Supply of electricity, light or water to the public by any installation, conservation or public sanitation,
Services in hospitals or pharmacies, and insurance services.

 The jurisdiction of the permanent Lok Adalat is up to 10 lakhs. However, the central government may
increase the limit.

 The Permanent Lok Adalat cannot be used for matters related to a crime that cannot be compounded
under any law.

 Any party to the dispute may request the Permanent Lok Adalat to resolve the dispute, before any court.

 After a motion is presented to the Permanent Lok Adalat, no party to that application shall invoke
jurisdiction of any court in the same dispute.

 If the Permanent Lok Adalat seems that there are elements of a regulation that may be acceptable to the
parties, it formulates the provisions of a possible agreement and presents them to the parties for
comments and if the parties reach an agreement, the Permanent Lok Adalat shall pass an award in terms.

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 If the parties to the dispute are unable to reach an agreement, the Standing Lok Adalat will resolve the
dispute on the merits.

 Any arbitration award issued by the Permanent Lok Adalat is final and binding on all parties and must be
issued by the majority of the people constituting the Permanent Lok Adalat.

Family Courts
 The Family Courts Act 1984 was enacted to establish family courts to ensure a speedy resolution of
disputes related to marital and family matters.

 More than 438 Family Courts are functional in the country.

Reasons for the Establishment of Family Courts

 Various women's associations, organizations and individuals have requested from time to time for the
establishment of Family Courts to resolve family disputes, which should focus on mediation to achieve
socially desirable outcomes and not just adherence to rigid rules of procedure and evidence.

 The Code of Civil Procedure was amended in 1976 to provide a special procedure in case of Family
Matters.

 In the public interest, the family courts were established for the rapid resolution of family conflicts.

Features of Family Courts Act, 1984

 It obliges state governments to establish a family court in each city with more than one million
inhabitants.

 It allows state governments to establish family courts in other areas as well, if they deem it necessary.

 Regulates exclusively within the jurisdiction of the family courts matters related to:

 marriage assistance, including marriage annulment, judicial separation divorce, restitution of

marital rights or declaration of validity of marriage or in relation the marital status of a person

 the property of the spouses or one of them

 Declaration of legitimacy of a person

 guardianship or custody of a minor

 Support for spouses, children and parents.

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 It obliges the family court to seek a reconciliation or an agreement between the parties to a family
dispute. At this stage, the procedure is informal and no rigid rules of procedure apply.

 It establishes that the parties to a dispute in family court do not have a legal right to be represented by a
legal practitioner.

 However, in the interest of justice, the court may call a legal expert such as amicus curiae (someone who
is not a party to a case who assists a court by offering information, expertise, or insight that has a bearing
on the issues in the case)

 It simplifies the rules of evidence and procedural rules so that a family court can effectively deal with a
dispute.

 It only provides an appeal that is available to the High Court.

Gram Nyayalayas
 The Gram Nyayalayas Act of 2008 was enacted to provide for the establishments of Gram Nyayalayas.

 State Governments establish Gram Nyayalayas in consultation with the respective High Courts under the
Gram Nyayalayas Act of 2008.

The reasons for founding Gram Nyayalayas are as follows:

 Access to justice for the poor and disadvantaged remains a global problem.

 Article 39A of the Constitution of India provides for free legal aid to the poor and weaker sections of the
society and ensures justice for all.

 The establishment of Gram Nyayalayas in rural areas would provide rapid, affordable and substantial
justice to the people of rural areas.

Features of the Gram Nyayalayas

 The Gram Nyayalaya is a court of Judicial Magistrate of the first class and its presiding officer
(Nyayadhikari) is appointed by the State Government in consultation with the High Court.

 The Gram Nyayalaya is established for every Panchayat at intermediate level or a group of neighbouring
Panchayats at intermediate level in a district or where there is no Panchayat at intermediate level in any
State

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 The Nyayadhikaris are judicial officers and draw the same salary as First-Class Magistrates working under
High Courts.

 The Gram Nyayalaya is a mobile court and has the powers of both Criminal and Civil Courts.

 The seat of the Gram Nyayalaya will be located at the headquarters of the intermediate Panchayat, they
will go to villages, work there and dispose of the cases.

 The Gram Nyayalaya is not subject to the Rule of Evidence under the Indian Evidence Act of 1872, but
must be guided by the Principles of Natural Justice and be subject to the rules established by the High
Court

 The appeals in Criminal matters must be filed before the Court of Session, which will be heard and
resolved within six months of the filing of this appeal.

 The appeal in civil matters must be filed with the district court, and a decision must be made within six
months from the date of filing the appeal.

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