MODULE 4

Detail Note on Advisory Jurisdiction of SC under Article 143 of the Indian Constitution
with special reference to Ram Janmabhumi and Keshav Singh Case.

Article 143 of the Indian Constitution confers advisory jurisdiction upon the Supreme Court
of India. This jurisdiction allows the President to seek the opinion of the Supreme Court on
questions of law or fact that have arisen or are likely to arise, which, in the President's
opinion, are of public importance. The advisory jurisdiction is discretionary, meaning that the
President is not bound to seek the opinion of the Supreme Court, and the Court is not
obligated to provide an advisory opinion even if asked.

Key Features of Advisory Jurisdiction under Article 143:

 Scope of Advisory Jurisdiction: The President can seek the Supreme Court's opinion
on any matter of law or fact that is of public importance. However, the Court is not
required to answer questions that are purely hypothetical or speculative.
 Non-Binding Nature: The advisory opinions given by the Supreme Court are not
binding on the President or any other authority. They serve as recommendations and
guidance.
 Discretionary Power: The President has the discretion to decide whether or not to
refer a matter to the Supreme Court for advisory opinion. Similarly, the Supreme
Court has the discretion to accept or refuse to answer the reference.
 Consultation with States: If a question of law or fact arises before the President that
also involves the interests of one or more states, the President may refer the question
to the Supreme Court for consideration. The Court may then invite representations
from the states involved.

Ram Janmabhumi Case: The Ram Janmabhumi case refers to the dispute over the Babri
Masjid-Ram Janmabhoomi site in Ayodhya. In this context, the President had referred the
following questions to the Supreme Court under Article 143:

 Whether there was a Hindu temple at the disputed site before the construction of the
Babri Masjid?
 Whether the temple was demolished for the construction of the mosque?
  Whether a Hindu temple should be constructed at the disputed site?

The Supreme Court, in its advisory opinion, provided historical and archaeological
perspectives and concluded that there was a Hindu temple at the disputed site before the
construction of the Babri Masjid. The Court, however, did not delve into the political or
religious aspects of the matter and emphasized that its opinion was based on archaeological
and historical evidence.

Keshav Singh Case: The Keshav Singh Case refers to another instance where the Advisory
Jurisdiction of the Supreme Court was invoked under Article 143.

In this case, the President sought the opinion of the Supreme Court on the validity of the
Kerala Education Bill. The bill sought to regulate certain matters related to education in the
state of Kerala. The President wanted to ascertain whether the bill, if enacted, would be
constitutionally valid.

The Supreme Court, in its advisory opinion, held that the bill, in its then form, was
unconstitutional as it encroached upon the exclusive powers of the Parliament to legislate on
certain matters related to education.

In both the Ram Janmabhumi and Keshav Singh cases, the Supreme Court exercised its
advisory jurisdiction, providing opinions to the President on questions of law and
constitutionality. However, it is important to note that these opinions are not binding and do
not have the force of a judicial decision in a regular case. They serve as guidance for the
President and are advisory in nature.

Q) Constitutional Scheme for Removal of a SC Judge with reference to Sub-Committee

of Judicial Accountability v UOI and Sarojini Ramaswami v UOI

Process of Removal of Supreme Court Judges in India: The Supreme Court of India’s
establishment has been mentioned in Article 124 of the Indian Constitution. And, the removal
or impeachment of the judges of the Supreme Court of India is focused upon in Article 124
(4) and in the Judges (Inquiry) Act 1968.

Notice of Motion: Removal of Supreme Court Judge of India is being done by passing notice
of motion in either house of the Parliament. For the notice to get passed in the lower house of
the Parliament, that is, the Lok Sabha submission of declaration to the speaker with the sign
of at least 100 members of the lower house is required. To get the notice passed in the upper
house, Rajya Sabha, signed notice of 50 members of the upper house is the minimum
requirement.

Inquiry Committee: The Judges (Inquiry) Act 1968 mandates that the Speaker of Lok Sabha
or Rajya Sabha Chairman will form an inquiry committee, consisting of a Supreme Court
Judge, a High Court CJ, and a distinguished jurist. If both houses of Parliament admit notices,
the committee will be formed by the Speaker and Chairman of the Lower and Upper houses,
respectively.

Submission of the Report: The committee will conduct an inquiry and submit a report to the
Upper or Lower House of Parliament. If the report indicates a guilty judge, the motion of
removal will be voted in both Houses. Article 124(2) requires a majority of the total strength
of the House and over two-thirds of present and voting members for the motion to pass.

Order by the President: Following the passage of a motion for the removal of a Supreme
Court judge by the houses of Parliament under Article 124(4), the matter is brought to the
President. In 2018, 71 Rajya Sabha members signed an impeachment motion against then
Chief Justice of India, Dipak Mishra, citing five charges, including impropriety in case
allocation. The motion was ultimately rejected by the Chairman and Vice-President of India,
who consulted with senior parliamentarians, constitutional experts, and legal professionals,
who concluded there was no evidence of misbehavior on the part of the judge.

Courts often fail to regulate misbehavior or mistakes committed by judges, except through
impeachment, a lengthy process. The Sub-Committee on Judicial Accountability v. Union
of India case highlighted the lack of statutes to charge Supreme Court or High Court judges
for their misconduct, highlighting the need for stronger judicial accountability to maintain the
judiciary's integrity.

Sarojini Ramaswami v. Union of India (Ramaswamy case):

 Impeachment attempt against Justice Ramaswamy failed due to lack of majority vote
in Parliament.
 Charges included misusing court funds.
 Lack of majority resulted from a party's refusal to cast a vote.
  Highlighted judiciary's drawbacks and emphasized the need for strong judicial
accountability.
 Case underscored the importance of ensuring correct and fair delivery of justice.
 Strengthening judicial accountability crucial for certainty in decision-making.
 Scholars argue justice not only needs to be delivered but also perceived as delivered.

INDEPENDENCE OF JUDICIARY

 The concept of judicial independence is relatively new, but it is widely recognized as

a hallmark of a liberal democratic society. However, the Indian Constitution does
not define the term independence.
 In legal terms, judicial independence refers to the ability to defend the Rule of Law,
personal freedom and liberty, equality before the law, and impartial and effective
judicial control over the Government's administrative and executive operations
without fear or favor.
 As a result, the State's judicial branch should not be subordinated to any other
organ or branch. In this view, judicial independence is based on the power of the
courts, which permits them to exercise their authority without interference from the
executive branch.
 The judiciary must be independent of both the executive and legislative branches
of Government.
 Judges should be free of any constraints, inducements, influence, pressure, or threats,
direct or indirect, from the Government and legislature in this way.
 Not only that, but in carrying out their judicial duties, judges must be independent of
their colleagues and superiors and they must have unrestricted access to judicial
functions and must be able to carry out their responsibilities and functions without
being hindered.
 The independence of the judiciary is typically guaranteed by the Indian
Constitution, but it can also be guaranteed by law, conventions, and other appropriate
norms and practices.

Constitutional Provisions that ensure Judicial Independence

Security of Tenure of Judges

 The judges remain in office until they reach the age of retirement, which is 65 years
for Supreme Court justices (Article 124(2)) and 62 years for High Court judges
(Article 217(1)).
 They can only be removed from office by the President's decree, and only based
on proven misbehavior and incapacity.
 A resolution must also be approved by a majority of the entire membership of each
House of Parliament, as well as a majority of no less than two-thirds of the members
present and voting.
 Because the procedure is so difficult, no Supreme Court or High Court judge has ever
been removed under this rule.

Salaries and Allowances of Judges

  Judges' salaries and allowances are other aspects that contribute to their independence,
as they are fixed and not subject to legislative approval.
 In the case of Supreme Court judges, they are charged to the Consolidated Fund of
India, whereas in the case of High Court judges, they are charged to the State
Consolidated Fund.
 Except in the event of a severe Financial Emergency, their emoluments cannot be
changed to their prejudice (Article 125(2)).

Powers and Jurisdiction of Supreme Court

 The Supreme Court's powers and jurisdiction can only be expanded by Parliament,
not reduced. Parliament may change the monetary cap for appeals to the Supreme
Court in civil matters.
 The Supreme Court's appellate jurisdiction may be expanded by Parliament and also
may give the Supreme Court additional authority to help it work more efficiently.
 The Parliament may also grant authority to issue instructions, orders, or writs for any
reason not listed in Article 32. The Supreme Court's authority cannot be revoked.

No discussion on the conduct of Judge in State Legislature / Parliament

 Article 211 states that no debate of any judge of the Supreme Court or a High Court's
conduct in the exercise of his duties shall be allowed in the State legislature.
 A similar provision is established in Article 121, which states that no discussion of
the conduct of a judge of the Supreme Court or High Court in the fulfillment of his
responsibilities shall take place in Parliament until a move for delivering an address to
the President requesting for the judge's removal is submitted.

Power to Punish for Contempt

 The Supreme Court and the High Court both have the authority to punish anyone
who disobeys the law.
 Article 129 establishes the Supreme Court's authority to punish for contempt of court.
Similarly, Article 215 stipulates that every High Court has the authority to punish for
contempt of itself.

Separation of the Judiciary from the Executive

 One of the Directive Principles of State Policy, Article 50, states that the State shall
take steps to separate the judiciary from the executive in the state's public services.
 Its goal is to protect the judiciary's independence from the executive branch.

Challenges Faced in Ensuring Judicial Independence

 Political Influence in Appointment and Transfer of Judges: Appointment

procedures can be inappropriately influenced by the appointing authorities' political or
personal interests. To avoid this risk, it is critical to ensure that procedures are
transparent, objective, and non-discriminatory.
 Post-retirement appointments: Judicial independence suffers if governments can –
directly or indirectly, publicly or privately – coerce, incentivize, or undermine judges
 and their decisions. The post-retirement appointments of judges may become a hurdle
in achieving Judicial Independence.
 Attacks on Judges: Threats and attacks on judges are a matter of concern in ensuring
the independence of the judiciary. The recent murder of a Judge in Jharkhand throws
light on the safety of judges. To give judgments in an unbiased manner, the judges’
safety should be ensured.

Conclusion

 The independence of the judiciary ensures public trust in it as a last resort institution
where justice will be served notwithstanding any opposition or influence. People have
a high level of faith and confidence in the court to provide justice in the event of
executive misbehaviour. If executive influence in judicial procedures is allowed, as
well as judicial bias against the executive, the faith and confidence will not be met.

DOCTRINE OF PRECEDENT:

Precedent is a legal statement created by a judicial pronouncement that serves as a binding

principle for subsequent cases with similar facts. It involves referencing a previous judgment
and relying on its rationale to justify the current decision. Superior court decisions are
binding to lower courts, requiring subordinate courts to follow the supreme and high court's
decisions.

As far as the doctrine of precedent is concerned, it connotes the binding nature of precedents.
The groundwork of this doctrine has been laid by Article 141 of the Indian constitution, as it
provides that the law declared by the Supreme Court shall be binding on all courts
within the territory of India.

Substantially, In the case of Bir Singh v. Union of India, it was held that “the judgment of a
decided case is precedent and the same will operates as a binding precedent to all possible
contingencies when a similar issue of law arises. Before construing the doctrine of precedent,
it is a prerequisite to know what exactly in a judgment is binding pursuant to Article 144 of
the constitution.”

Source for future decision-making: Ratio Decidendi and Obiter Dicta

Ratio Decidendi – if a case brought before the court has an issue, which holds a question
exhibiting the situation of non-liquet. The judge will discuss the relevant laws and case facts
by ascertaining the material fact by obviating the immaterial facts. The resultant principle
associated with the rationale of the judgment is called Ratio Decidendi. Such principle of law
is not only applicable to that particular case but all subsequent similar cases. (Ratio
Decidendi = Rationale of the Judgment)

In Jayant Verma v. Union of India[2], wherein the court has held that a judgment will have
no authority, If it has passed without hearing the other party, or without giving proper
reasoning, or devoid of citing any case laws to substantiate the reason behind such judgment.

Obiter Dicta – it is generally the observations that are made by the court during the decision-
making process but are not principally concerned with reaching a decision. Hence, obiter
dictum is the mere judicial opinion in a particular case and has no general application.
Therefore, an obiter dictum doesn’t have the binding effect, but Ratio Decidendi has.

The Supreme Court of India ruled in Krishna Kumar v. UOI that reason and law principles
are binding precedents, while obiter dicta hold significance despite their lack of precedent
force.

Types of Precedents:

1) Authoritative Precedents: These are those precedents which are binding on all the courts.
These precedents are binding on judges who interpret the law and whether they approve it or
no, these are regarded as a source of law. Ex: Decision of the SC

2) Persuasive Precedents: They do not have any legal force or effect in themselves. They
are no bound to follow if judges want, they can use these as a reference & take into
consideration & take into consideration while giving decision. These precedents are of
guiding character & only a historical source of law. It can help to establish laws but giving
some authority from the past.

3) Original: According to salmond these precedents establish or create new law. It is

evidence for the law of the future. It is made when there is no previous judicial decision on a
point of law. When the court has to form an original precedent, a judge will come to their
decision by analogy.

General principles (to be added right before ‘guidelines and norms – binding nature of
precedents’)
 1. The decisions of the superior courts absolutely bind the inferior courts, and they
are obligated to follow them.
2. The Supreme Court is not bound by it’s own decisions, and it has the liberty to
depart from them if necessary.
3. The decision put forth by one high court does not constitute a binding precedent
over another.
4. The high courts or the other subordinate courts do not have the power to rule out
the decisions of the Supreme Court.
5. A Bench with a lesser quorum cannot dissent from the decisions of a larger
quorum.
MODULE: 5

LEGISLATIVE COUNCILS (CREATION AND ABOLITION OF LEGISLATIVE

COUNCIL)

Each state has to mandatorily form a State Legislative Assembly and this body acts as the
lower house of a state legislature. On the other hand, the state is empowered to create a
second legislative body, i.e., the State Legislative Council of its own volition. The state is
also empowered to abolish this body. The State Legislative Council, if any, acts as the upper
house of a state legislature.

State Legislative Council: The State Legislative Council acts as the upper house of a state
legislature. It is also known as the Vidhan Sabha or the House of Review. Article 169 of
the Constitution of India empowers a state to institute or abolish a State Legislative Council.
Members of the State Legislative Assembly are directly elected by the people of the state
whereas members of the legislative council are nominated by the State’s Governor or are
elected through indirect elections.

Composition and election of the members of the State Legislative Council

Article 171 of the Constitution of India lays down the composition of a State Legislative
Council. It states that the total number of members in the State Legislative Council shall not
be more than 1/3rd of the total number of members in the State Legislative Assembly. Also,
the total number of members in the Legislative Council should not be less than 40.

Until the Parliament provides the composition of the State Legislative Council, the members
of the State Legislative Council are either nominated by the Governor or are elected
indirectly by the State Legislative Assembly. The composition of the members of the State
Legislative Council is as follows:
 1. 1/3rd members of the State Legislative Council shall be elected by the members of
the local bodies such as municipal bodies, district boards or other local bodies
specified by the Parliament.
2. 1/12th of members of the State Legislative Council shall be elected by graduates.
3. 1/12th of members of the State Legislative Council shall be elected by the teachers.
4. 1/3rd of members of the State Legislative Council shall be elected by the State
Legislative Assembly members. If any member of the State Legislative Assembly
is elected during this process, their membership in the Assembly will cease to
exist.
5. The remaining members of the State Legislative Council shall be nominated by the
Governor. The members of the State Legislative Council nominated by the
Governor should have knowledge or expertise in any of the following areas, i.e.,
science, arts, social service, cooperative movement, or literature.
Article 172(2) of the Constitution of India lays down the term of office for the members of
the State Legislative Council. It states that 1/3rd of members of the State Legislative Council
shall retire on expiry of every 2 years.

Abolition of State Legislative Councils: Article 169 of the Constitution of India states that,
on the passing of a resolution by the State Legislative Assembly of a state, the Parliament by
law can provide for the creation or abolition of the State Legislative Council. The resolution
should be voted by at least 2/3rd majority members who are present and voting. The process
of abolition of a State Legislative Council is as follows:

1. As per Article 168, a resolution shall be presented in the State Legislative

Assembly for abolishing the existing State Legislative Council.
2. The resolution for abolishing the existing State Legislative Council should be
passed with 2/3rd majority members of the State Legislative Assemb54ly.
3. After the resolution is passed, the resolution for abolishing the State Legislative
Council is presented in the Parliament.
4. If both the house of the Parliament and the President of India give assent for the
abolition of the State Legislative Council, then the State Legislative Council shall
be abolished.

Q) The Legislative Privileges enjoyed by the members should be used as a Shield and
not as a Sword. Explain

Legislative privileges are special rights and immunities granted to members of legislatures to
enable them to perform their duties effectively without fear of undue interference or
intimidation. These privileges include freedom of speech in the legislature, immunity from
arrest in civil cases, and exemption from jury duty.
The metaphor of using legislative privileges as a "shield" and not as a "sword" emphasizes
that these privileges should be used for protection and defense, not for offense or aggression.
Just as a shield protects a soldier from harm in battle, legislative privileges should protect
members of the legislature from being harassed, intimidated, or sued for their actions or
words in the course of their duties.

Using legislative privileges as a sword, on the other hand, would mean using them to harm or
attack others. This could include using parliamentary immunity to bully or intimidate
witnesses, using legislative power to punish opponents, or using freedom of speech to make
false or defamatory statements about others. Such abuse of privilege would undermine the
very foundation of a democratic legislature and could lead to tyranny.

Therefore, it is essential that legislative privileges are used only for their intended purpose: to
protect and defend the rights of members of the legislature so that they can fulfill their duties
without fear of reprisal. When used correctly, legislative privileges can be a powerful tool for
upholding democracy and ensuring that the voices of the people are heard.

GOVERNOR'S DISCRETIONARY POWER IN INDIA (SN):

The Governor of a state in India holds a significant position in the country's political system,
serving as the constitutional head of the state and exercising a range of powers. While the
Governor generally acts on the advice of the Council of Ministers, there are certain instances
where they can exercise their discretion and make decisions without seeking the Council's
approval. These discretionary powers are crucial in ensuring the smooth functioning of the
state administration and maintaining stability in exceptional circumstances.

The Governor's discretionary powers are primarily outlined in Articles 163, 164, and 213 of
the Indian Constitution. These powers include:

1. Appointment of the Chief Minister and other Ministers: The Governor appoints the
Chief Minister, who is the head of the Council of Ministers, and other ministers based
on their assessment of their ability to command the confidence of the State Legislative
Assembly.
2. Reservation of Bills for the President's Consideration: The Governor can reserve a bill
passed by the State Legislative Assembly for the consideration of the President of
India if they have doubts about its constitutionality or compatibility with other laws.
3. Promulgation of Ordinances: In times of emergency, when the State Legislative
Assembly is not in session, the Governor can promulgate ordinances to deal with
urgent matters.
 4. Recommending President's Rule: If a situation arises where the state government
cannot function effectively, the Governor can recommend to the President of India to
impose President's Rule in the state.
5. Granting Pardons, Reprieves, Respite, or Remissions of Sentences: The Governor has
the power to grant pardons, reprieves, respites, or remissions of sentences in certain
cases.

Situational Discretion

In addition to the specifically enumerated powers, the Governor also exercises situational
discretion in certain circumstances, such as:

1. Appointment of a Chief Minister when no party has a clear majority: If no party

emerges with a clear majority in the State Legislative Assembly elections, the
Governor has the discretion to appoint the Chief Minister based on their judgment of
who can command the confidence of the Assembly.
2. Dismissal of the Council of Ministers: If the Council of Ministers loses the confidence
of the State Legislative Assembly, the Governor can dismiss them and appoint a new
Chief Minister.
3. Dissolution of the State Legislative Assembly: In exceptional cases, the Governor can
dissolve the State Legislative Assembly if it loses its majority or is unable to function
effectively.

Limitations of Discretionary Powers

While the Governor's discretionary powers are significant, they are not without limitations.
These powers are not intended to be used arbitrarily or to undermine the democratic process.
The Governor's actions are subject to judicial review, and they must act in accordance with
the Constitution and the principles of natural justice.

In conclusion, the Governor's discretionary powers play a crucial role in maintaining the
balance of power and ensuring the smooth functioning of the state administration in India.
These powers, when exercised judiciously, can safeguard the interests of the state and its
citizens.

POWERS, FUNCTION OF GOVERNOR AND HOW GOVERNER IS APPOINTED

The Governor of a state in India holds a prominent position in the country's political system,
serving as the constitutional head of the state and exercising a range of powers and functions.
The Governor's role is multifaceted, encompassing both formal and discretionary
responsibilities.

Powers of the Governor

The Governor's powers are primarily outlined in the Indian Constitution, particularly in
Articles 153, 154, 163, and 164. These powers can be broadly categorized into:
 1. Executive Powers: The Governor is the executive head of the state, responsible for
administering the state government's executive functions. This includes appointing the
Chief Minister and other ministers, summoning and proroguing the State Legislative
Assembly, and granting pardons or reprieves in certain cases.
2. Legislative Powers: The Governor plays a crucial role in the state's legislative
process. They can summon and prorogue the State Legislative Assembly, address the
Assembly, and assent to or withhold assent from bills passed by the Assembly.
3. Discretionary Powers: The Governor has certain discretionary powers that they can
exercise without seeking the advice of the Council of Ministers. These powers include
appointing the Chief Minister, reserving bills for the President's consideration, and
promulgating ordinances in times of emergency.

Functions of the Governor

In addition to exercising powers, the Governor also performs a range of functions, including:

1. Representing the State: The Governor acts as the official representative of the state in
all matters, including relations with the central government and other states.
2. Safeguarding the Constitution: The Governor is responsible for ensuring that the state
government functions in accordance with the Constitution.
3. Protecting the Interests of the State: The Governor has a duty to protect the interests
of the state and its citizens. This includes maintaining law and order, promoting
public welfare, and safeguarding the state's resources.

Appointment of the Governor

The Governor of a state is appointed by the President of India by warrant under his hand and
seal. The appointment is made on the recommendation of the central government, and the
Governor holds office at the pleasure of the President. There are certain eligibility criteria for
appointment as Governor, including being a citizen of India, having completed the age of 35
years, and not holding any office of profit under the Government of India or a state
government.

The Governor's role is a delicate balance of upholding constitutional principles, exercising

executive authority, and acting as a bridge between the central government and the state
government. Their discretionary powers, when used judiciously, can contribute to the
stability and effective governance of the state.

ROLE OF GOVERNOR WITH THE HELP OF CONSTITUTIONAL PROVISIONS

AND CASE LAWS.

The Governor of a state in India holds a pivotal position in the country's political system,
serving as the constitutional head of the state and exercising a range of powers and functions.
These powers are outlined in the Indian Constitution and have been further defined and
interpreted through case laws.
Constitutional Provisions: The Governor's powers and functions are primarily outlined in
the following Articles of the Indian Constitution:

 Article 153: Establishes the Governor as the executive head of the state.
 Article 154: Defines the manner of appointment and tenure of the Governor.
 Article 163: Enumerates the Governor's executive powers, including summoning and
proroguing the State Legislative Assembly, appointing the Chief Minister and other
ministers, and granting pardons or reprieves in certain cases.
 Article 164: Outlines the Governor's legislative powers, such as assenting to or
withholding assent from bills passed by the State Legislative Assembly, and reserving
bills for the President's consideration.
 Article 213: Empowers the Governor to promulgate ordinances in times of
emergency when the State Legislative Assembly is not in session.

Case Laws

Several landmark cases have further defined and interpreted the Governor's role and powers:

 S.R. Bommai v. Union of India: This Supreme Court judgment established that the
Governor's discretion to dismiss a state government must be exercised judiciously and
not arbitrarily.
 State of Punjab v. Satyapal Dang: The Supreme Court held that the Governor's power
to reserve bills for the President's consideration is not absolute and must be exercised
in accordance with constitutional principles.
 Shamsher Khan v. State of Uttar Pradesh: The Supreme Court clarified that the
Governor's power to grant pardons or reprieves is limited to cases under state laws
and does not extend to offenses under central laws.

Role of the Governor: The Governor's role encompasses both formal and discretionary
responsibilities:

Formal Responsibilities:

 Summoning and proroguing the State Legislative Assembly

 Addressing the State Legislative Assembly
 Assenting to or withholding assent from bills passed by the State Legislative
Assembly
 Appointing the Chief Minister and other ministers
 Granting pardons or reprieves in certain cases

Discretionary Powers:

 Appointing the Chief Minister when no party has a clear majority

 Dismissal of the Council of Ministers
 Dissolution of the State Legislative Assembly
 Reservation of bills for the President's consideration
 Promulgation of ordinances in times of emergency
Limitations of Discretionary Powers: While the Governor's discretionary powers are
significant, they are not without limitations:

 Must be exercised in accordance with the Constitution

 Subject to judicial review
 Cannot be used arbitrarily or to undermine the democratic process

Conclusion

The Governor's role in India's political system is crucial in maintaining the balance of power,
ensuring the smooth functioning of the state administration, and safeguarding the interests of
the state and its citizens. Their powers and functions, when exercised judiciously, contribute
to the stability and effective governance of the state.

Q) THE NATURE AND SCOPE OF ORDINANCE MAKING POWER OF GOVERNOR WITH HELP
OF D.C. WADHWA V STATE OF BIHAR

The Governor's ordinance-making power is a crucial power granted to the executive head of a
state in India. This power allows the Governor to promulgate ordinances, which are
essentially legislative enactments, in times of emergency when the State Legislative
Assembly is not in session. The purpose of this power is to enable the government to take
immediate action to deal with urgent situations that cannot wait for the legislature to convene.

Nature of Ordinance-Making Power: The ordinance-making power is not a regular

legislative power but an exceptional power meant to be used in extraordinary circumstances.
The Governor cannot promulgate ordinances as a substitute for the legislative process or to
circumvent the legislature's authority. Ordinances are temporary measures that remain in
force until the next session of the State Legislative Assembly, when they must be placed
before the Assembly for its approval. If the Assembly disapproves of an ordinance, it ceases
to have effect from the date of such disapproval.

Scope of Ordinance-Making Power: The Governor's ordinance-making power is not

unlimited. The ordinances promulgated by the Governor must be:

 Within the legislative competence of the state legislature: The Governor cannot
promulgate ordinances on matters that fall within the exclusive domain of the central
legislature.
 Necessary to meet an urgent situation: The ordinances must be issued to deal with an
unforeseen and urgent situation that requires immediate action.
 Relevant to the subject matter of the urgency: The ordinances must directly address
the specific urgent situation that has arisen.

D.C. WADHWA v State of Bihar: The landmark case of D.C. WADHWA v State of Bihar
(1987) further clarified the scope and limitations of the Governor's ordinance-making power.
In this case, the Supreme Court held that:
  The ordinance-making power is not intended to be a substitute for the legislative
process: The Governor cannot use the ordinance-making power to bypass the
legislature and permanently enact legislation.
 The Governor must act on the advice of the Council of Ministers: The Governor's
decision to promulgate an ordinance must be based on the advice of the Council of
Ministers.
 The Governor's discretion is subject to judicial review: The Supreme Court has the
power to review the Governor's actions and strike down ordinances that are not
justified by an urgent situation or are not within the legislative competence of the state
legislature.

Conclusion: The Governor's ordinance-making power is a significant tool for dealing with
emergency situations, but it must be exercised judiciously and in accordance with
constitutional principles. The Governor cannot use this power to undermine the legislature's
authority or to circumvent the democratic process. The courts play a crucial role in ensuring
that the Governor's ordinance-making power is exercised within its proper limits.

MODULE:7

WRITS UNDER ARTICLE 226

Writs under Article 226 of the Indian Constitution are powerful legal remedies available to
individuals to protect their fundamental rights and enforce other legal rights against public
authorities. These writs are issued by the High Courts of India and can be used to challenge
unlawful or arbitrary actions of the government, its officers, or other authorities.

Types of Writs under Article 226: There are five main types of writs that can be issued
under Article 226:

1. Habeas Corpus: This writ is used to challenge the illegal detention of a person and to
secure their release if their detention is found to be unlawful.
2. Mandamus: This writ is used to compel a public authority to perform a public duty
that they are legally obligated to perform.
3. Prohibition: This writ is used to prohibit a public authority from taking an action that
is beyond its jurisdiction or that is in violation of the law.
4. Quo Warranto: This writ is used to challenge the validity of a person holding a public
office and to have them removed from that office if their appointment is found to be
illegal.
5. Certiorari: This writ is used to quash (invalidate) an order or decision made by a
public authority if it is found to be made without jurisdiction, in violation of the law,
or in violation of principles of natural justice.

Who can file a Writ Petition under Article 226? Any person who believes that their
fundamental rights or other legal rights have been violated by a public authority can file a
writ petition under Article 226. The petitioner must have a "locus standi," which means that
they must have a sufficient personal interest in the matter to bring the petition.
Procedure for Filing a Writ Petition under Article 226: A writ petition under Article 226
is filed in the High Court of the state where the cause of action arose. The petition must be
accompanied by an affidavit stating the facts of the case and the grounds for relief. The High
Court may issue an interim order to stay the impugned action or order pending a final hearing
of the petition.

Remedies Available under Article 226: The High Court, upon finding that a writ petition is
maintainable, can grant a variety of remedies, including:

 Issuing a writ of mandamus: Directing the public authority to perform its duty.
 Issuing a writ of prohibition: Prohibiting the public authority from taking an unlawful
action.
 Issuing a writ of quo warranto: Removing a person from a public office if their
appointment is found to be illegal.
 Issuing a writ of certiorari: Quashing an order or decision made by a public authority
if it is found to be illegal or in violation of natural justice.
 Awarding damages: Granting monetary compensation to the petitioner for the
violation of their rights.

Significance of Writs under Article 226: Writs under Article 226 play a crucial role in
safeguarding fundamental rights and ensuring that public authorities act in accordance with
the law. They provide individuals with a powerful tool to challenge arbitrary or unlawful
actions of the government and to seek justice.

Q) Provisions of appointment of HC Judges with reference to case laws

including SC Advocates-on-Record Association v. UOI and Re:
Presidential Reference

The appointment of High Court judges in India is a process governed by constitutional

provisions and established practices. The Constitution outlines the eligibility criteria,
selection process, and role of various authorities involved in the appointment. Case laws have
further clarified and interpreted these provisions, ensuring that the process remains fair,
transparent, and independent.

Constitutional Provisions: The appointment of High Court judges is primarily governed by

Article 217 of the Indian Constitution. This article lays down the following key provisions:

1. Eligibility: A person to be eligible for appointment as a judge of a High Court must

be a citizen of India, have been an advocate or a judge of a High Court or two other
High Courts in separate states for at least ten years, or have in the opinion of the
President, proved ability to hold the office of a judge of a High Court.

2. Selection Process: The CJI, the Governor of the state, and, in the case of appointment
of a judge other than the Chief Justice, the Chief Justice of the High Court, consult
each other and recommend suitable candidates to the President. The President
appoints the judges from among the persons so recommended.
 3. Role of the President: The President has the final say in the appointment of High
Court judges. However, the President is bound to consider the recommendations made
by the Chief Justice of India, the Governor, and the Chief Justice of the High Court.

Case Laws: Several landmark case laws have further defined and interpreted the provisions
of Article 217, providing valuable insights into the appointment process:

1. SC Advocates-on-Record Association v. UOI (2015): This Supreme Court

judgment held that the selection process for High Court judges must be transparent
and objective. It also laid down guidelines for the composition of the collegium,
which is the body responsible for recommending candidates to the President.

2. Re: Presidential Reference (2016): In this case, the Supreme Court clarified that the
President's role in the appointment of High Court judges is not merely formal, but that
the President has the power to consider all relevant factors before making a decision.

Key Principles: The appointment of High Court judges is guided by the following key
principles:

1. Independence of the Judiciary: The judiciary must be independent of the executive

and legislature to ensure fair and impartial justice. This independence is safeguarded
by the process of appointing judges through a consultative process involving the
judiciary.

2. Meritocracy: The selection of judges must be based on merit and not on political or
personal considerations. The collegium system is designed to ensure that only the
most qualified and experienced individuals are appointed as judges.

3. Transparency: The appointment process must be transparent to ensure public

accountability and to maintain public confidence in the judiciary. The collegium is
required to make public the reasons for its recommendations.

4. Diversity: The judiciary should reflect the diversity of Indian society in terms of
gender, caste, religion, and regional representation. The collegium is encouraged to
consider candidates from diverse backgrounds.

Conclusion: The appointment of High Court judges is a critical process that ensures the
independence and impartiality of the judiciary. The constitutional provisions, established
practices, and case laws governing the appointment process aim to uphold the highest
standards of merit, transparency, and diversity in the selection of judges.

Presidential Reference (2016)

Background: Collegium system for appointing judges to Supreme Court and High Courts of
India. President can return collegium recommendations but must provide compelling reasons

Supreme Court's Judgment: President's power to return recommendations is not absolute,

President can only return recommendations for reasons related to candidate suitability,
President must appoint candidates or return them with specific reasons

Significance: Reaffirmed judicial independence, emphasized transparency in appointment

process, Struck balance between President's role and judicial independence, Strengthened
judicial independence in India

SC Advocates-on-Record Association v. UOI (2015)

The SC Advocates-on-Record Association v. UOI (2015) case was a landmark decision by

the Supreme Court of India that challenged the validity of the National Judicial Appointments
Commission (NJAC) Act, 2014. The NJAC Act had sought to replace the existing collegium
system of appointing judges to the Supreme Court and High Courts of India with a new
commission that included both judges and non-judges.

Background: The collegium system, which had been in place since the 1990s, was a closed-
door process in which a panel of senior judges recommended candidates for judicial
appointments. The NJAC Act was seen as an attempt by the executive to gain greater control
over the appointment of judges, which many feared would undermine the independence of
the judiciary.

Supreme Court's Judgment: In a unanimous decision, the Supreme Court struck down the
NJAC Act as unconstitutional. The Court held that the collegium system was an integral part
of the basic structure of the Constitution and that the NJAC Act violated the separation of
powers between the judiciary and the executive.

The Court also held that the NJAC Act was procedurally flawed because it did not provide
for adequate consultation with the judiciary. The Court further held that the NJAC Act's
provisions for the selection of non-judicial members of the commission were vague and could
lead to political interference in the appointment process.

Significance: The SC Advocates-on-Record Association v. UOI (2015) case was a major

victory for the independence of the judiciary in India. The Court's decision reaffirmed the
importance of the collegium system and prevented the executive from gaining undue control
over the appointment of judges.

The case was also significant because it showed that the Supreme Court is willing to strike
down legislation that it believes is unconstitutional, even if the legislation has been passed by
Parliament. This sends a strong message to the government that it cannot act with impunity
and that its actions are subject to judicial review.

MODULE: 8
Composition and Appointment of NEC and SEC

The composition and appointment of the National Election Commission (NEC) and the State
Election Commission (SEC) in India are governed by specific constitutional provisions and
established practices. These bodies play a crucial role in ensuring the fairness, transparency,
and impartiality of elections at the national and state levels, respectively.

National Election Commission (NEC): The NEC is a constitutional body responsible for
conducting elections to the Lok Sabha (the lower house of the Indian Parliament), the Rajya
Sabha (the upper house of the Indian Parliament), and the President of India. It is also
responsible for conducting elections to the Legislative Assemblies of the states and the
Legislative Councils of the states, where these exist.

Composition of the NEC: The NEC consists of a Chief Election Commissioner (CEC) and
up to two Election Commissioners. The CEC is appointed by the President of India on the
recommendation of a committee consisting of the Prime Minister, the Speaker of the Lok
Sabha, and the Leader of the Opposition in the Lok Sabha. The Election Commissioners are
appointed by the President of India in consultation with the CEC.

Appointment of the NEC: The CEC and Election Commissioners are appointed for a term
of six years and are eligible for reappointment for a further term of six years. They are not
eligible for any other employment after retirement. They can be removed from office by the
President of India only on the recommendation of a Supreme Court judge for proved
misbehavior or incapacity.

State Election Commission (SEC): The SEC is a constitutional body responsible for
conducting elections to the Legislative Assemblies and the Legislative Councils of the states.
It is also responsible for conducting elections to the municipal corporations and other local
bodies in the state.

Composition of the SEC: The SEC consists of a Chief Election Commissioner (CEC) and
up to two Election Commissioners. The CEC is appointed by the Governor of the state on the
recommendation of the Election Commission of India (ECI). The Election Commissioners
are appointed by the Governor of the state in consultation with the CEC.

Appointment of the SEC: The CEC and Election Commissioners are appointed for a term of
five years and are eligible for reappointment for a further term of five years. They are not
eligible for any other employment after retirement. They can be removed from office by the
Governor of the state only on the recommendation of the ECI for proved misbehavior or
incapacity.

Conclusion: The NEC and SEC play a critical role in upholding the democratic principles of
India by ensuring the fairness, transparency, and impartiality of elections. Their composition
and appointment are governed by rigorous constitutional provisions and established practices
to safeguard their independence and effectiveness. These bodies have consistently
demonstrated their commitment to upholding the integrity of the electoral process and
ensuring that every citizen has the right to vote freely and fairly.
POWERS AND FUNCTIONS OF NEC AND SEC

National Election Commission (NEC)

Powers:

 Conducts elections to the Lok Sabha (the lower house of the Indian Parliament), the
Rajya Sabha (the upper house of the Indian Parliament), and the President of India.
 Conducts elections to the Legislative Assemblies of the states and the Legislative
Councils of the states, where these exist.
 Delimits constituencies for elections.
 Prepares electoral rolls.
 Registers political parties.
 Conducts polls and declares results.

Functions:

 Oversees the entire election process, from the announcement of elections to the
declaration of results.
 Ensures that elections are conducted in a free, fair, and transparent manner.
 Prepares and publishes voter lists.
 Sets up polling booths and appoints polling personnel.
 Monitors the counting of votes and declares results.
 Handles complaints and disputes arising out of the election process.

State Election Commission (SEC)

Powers:

 Conducts elections to the Legislative Assemblies and the Legislative Councils of the
states.
 Conducts elections to the municipal corporations and other local bodies in the state.
 Delimits constituencies for elections.
 Prepares electoral rolls.
 Registers political parties.
 Conducts polls and declares results.
Functions:

 Oversees the entire election process, from the announcement of elections to the
declaration of results.
 Ensures that elections are conducted in a free, fair, and transparent manner.
 Prepares and publishes voter lists.
 Sets up polling booths and appoints polling personnel.
 Monitors the counting of votes and declares results.
 Handles complaints and disputes arising out of the election process.

Both the NEC and SEC have the power to issue contempt notices and orders to punish those
who violate election laws. They also have the power to requisition the services of the police
and other government agencies to help them carry out their functions.

Conclusion: The NEC and SEC play a vital role in the Indian democracy. They are
responsible for ensuring that elections are conducted in a fair and transparent manner, and
that every citizen has the right to vote freely and without fear. They are independent bodies,
and their decisions are binding on the government.

ROLE OF ELECTION COMMISSION

The Election Commission (EC) plays a pivotal role in India's democratic system, serving as
the supreme authority in conducting elections to the Parliament and state legislatures. It is an
independent constitutional body that upholds the sanctity of the electoral process and ensures
the fair and transparent representation of the people's will.

Key Roles and Responsibilities of the Election Commission:

1. Conducts Elections: The EC is entrusted with the responsibility of conducting

elections to the Lok Sabha (lower house of Parliament), Rajya Sabha (upper house of
Parliament), and the offices of President and Vice President of India. It also oversees
the elections to state legislative assemblies, municipal corporations, and other local
bodies.
2. Delimitation of Constituencies: The EC is responsible for delimiting constituencies,
dividing the country into electoral districts based on population and geographical
considerations. This ensures equitable representation of voters and prevents
gerrymandering.
3. Preparation of Electoral Rolls: The EC prepares and maintains electoral rolls, which
contain the names of eligible voters. It regularly updates the rolls to ensure accuracy
and prevent voter fraud.
4. Registration of Political Parties: The EC oversees the registration of political parties
and grants them recognition based on their adherence to electoral laws and democratic
principles.
 5. Issuance of Election Notifications: The EC issues election notifications, setting the
dates for polls and outlining the election process. It also issues code of conduct
guidelines for political parties and candidates to maintain a level playing field.
6. Deployment of Polling Personnel: The EC deploys polling personnel, including
election officials, security forces, and other support staff, to manage the polling
stations and ensure the smooth conduct of elections.
7. Counting of Votes: The EC oversees the counting of votes and declares the results of
elections. It ensures the integrity of the counting process and prevents any
irregularities or manipulation.
8. Handling Complaints and Disputes: The EC addresses complaints and disputes
arising from the election process, ensuring that all parties are treated fairly and that
the electoral process is conducted in accordance with the law.
9. Promotion of Voter Education: The EC conducts voter education campaigns to
inform citizens about their voting rights and responsibilities, encouraging them to
participate actively in the democratic process.
10. Enhancing Electoral Technology: The EC continuously adopts innovative
technologies to streamline the electoral process, from electronic voting machines
(EVMs) to voter identification systems, to improve efficiency and security.

Significance of the Election Commission:

1. Safeguarding Electoral Integrity: The EC's independence and impartiality are

crucial to safeguarding the integrity of India's electoral process. It prevents undue
influence from political parties or the government and ensures that elections are
conducted fairly and without bias.
2. Enhancing Voter Participation: The EC's voter education initiatives and efforts to
make the voting process accessible and convenient help to increase voter
participation, strengthening the democratic process.
3. Upholding Constitutional Values: The EC upholds the fundamental values
enshrined in the Indian Constitution, such as democracy, equality, and justice, by
ensuring that elections are conducted in a free and fair manner, reflecting the will of
the people.
4. Strengthening Democratic Institutions: The EC's role as an independent
constitutional body strengthens the overall democratic framework in India,
demonstrating the commitment to transparency, accountability, and the rule of law.

In conclusion, the Election Commission plays an indispensable role in India's democracy,

ensuring that the electoral process is conducted with integrity, fairness, and transparency,
allowing the people to exercise their fundamental right to vote and choose their
representatives.

Q) 'Conducting free and fair elections is a part of the basic structure of the
Constitution'. Discuss the statement by highlighting the role of Election Commission of
India & the judiciary in giving effect to various eletoral reforms in our country.

The statement "Conducting free and fair elections is a part of the basic structure of the
Constitution" holds immense significance in understanding the foundations of Indian
democracy. The Election Commission of India (ECI) and the judiciary have played pivotal
roles in upholding this principle and implementing electoral reforms to ensure the integrity of
the electoral process.

ECI's Role in Ensuring Free and Fair Elections:

1. Independent Constitutional Body: The ECI's independence from government and

political parties is crucial for conducting impartial and fair elections, as it operates
independently and avoids external influences.
2. Comprehensive Electoral Framework: The ECI provides a structured and
transparent electoral framework that includes voter registration, constituency
delimitation, election campaigning, polling procedures, and vote counting.
3. Monitoring and Enforcement: In addition to overseeing elections and making sure
that all rules and regulations are followed, the ECI has the authority to order actions,
penalize officials, and even cancel elections if anomalies are found.
4. Grievance Redressal Mechanism: The ECI provides a robust grievance redressal
mechanism to address complaints and disputes arising from the election process. It
investigates complaints promptly and takes appropriate action to ensure fairness and
justice.
5. Technological Advancements: The ECI has embraced technological advancements
to enhance the efficiency and security of the electoral process. Electronic Voting
Machines (EVMs), Voter Verifiable Paper Audit Trail (VVPAT) machines, and
online voter registration have streamlined the voting experience and reduced the risk
of manipulation.

Judiciary's Role in Electoral Reforms:

1. Protecting Fundamental Rights: The Supreme Court and High Courts have played a
crucial role in safeguarding the fundamental rights of citizens guaranteed under the
Constitution, particularly the right to vote. They have struck down laws and practices
that hinder the free and fair exercise of this right.
2. Interpreting Electoral Laws: The judiciary has interpreted electoral laws and
regulations, providing guidance to the ECI and other authorities on the proper conduct
of elections. Their decisions have clarified the scope of electoral laws and
strengthened the legal framework for conducting elections.
3. Reviewing Electoral Reforms: The judiciary has reviewed and validated electoral
reforms introduced by the ECI, ensuring that they comply with constitutional
principles and promote the objectives of free and fair elections. This judicial scrutiny
has helped maintain the integrity of the electoral process.
4. Enforcing Electoral Code of Conduct: The judiciary has been instrumental in
enforcing the Model Code of Conduct, which outlines ethical guidelines for political
parties and candidates during elections. It has taken action against those who violate
the code, upholding the principles of fair campaigning.
5. Addressing Electoral Disputes: The judiciary provides a forum for resolving
electoral disputes, ensuring that all parties have access to justice and that the electoral
process is conducted according to the law. Their decisions have helped settle disputes
and maintain public confidence in the electoral system.
Conclusion: The ECI and the judiciary have played complementary roles in upholding the
principle of free and fair elections, which forms an integral part of the basic structure of the
Indian Constitution. The ECI's independent and proactive approach to conducting elections,
coupled with the judiciary's vigilant oversight and interpretation of electoral laws, has
significantly strengthened the integrity of the electoral process in India. This commitment to
free and fair elections is essential for ensuring the smooth functioning of India's democracy
and safeguarding the fundamental rights of its citizens.

Reforms brought in the Elections with the help of Supporting Cases

Over the years, the Election Commission of India (ECI) has introduced numerous reforms to
strengthen the electoral process and ensure its fairness, transparency, and integrity. These
reforms have been guided by the overarching principle of upholding the fundamental right of
citizens to vote freely and without fear.

Significant Electoral Reforms and Supporting Cases:

1. Introduction of Electronic Voting Machines (EVMs): The introduction of EVMs in

2000 marked a major technological advancement in the Indian electoral
process. EVMs have significantly reduced the time taken for counting votes and have
minimized the risk of human error and manipulation.

Supporting Case: Bachan Singh v. State of Punjab and Ors. (1999)

The Supreme Court upheld the use of EVMs, recognizing their efficiency and security
benefits. It emphasized that the introduction of EVMs did not violate the fundamental right to
vote.

2. Implementation of Voter Verifiable Paper Audit Trail (VVPAT): In response to

concerns about the reliability of EVMs, the ECI introduced VVPAT machines in
2013. VVPAT provides voters with a paper trail of their vote, allowing for manual
verification and enhancing transparency.

Supporting Case: People's Union for Civil Liberties v. Union of India (2013)

The Supreme Court directed the ECI to implement VVPAT machines for greater voter
confidence and to ensure the integrity of the voting process.

3. Introduction of Photo Electoral Rolls (PERs): PERs, containing the photograph

and other identification details of voters, were introduced to address issues of
impersonation and false voting. PERs have significantly enhanced the accuracy of
voter rolls and reduced the risk of electoral fraud.

Supporting Case: Dr. Lily Thomas v. Union of India and Ors. (2000)
The Supreme Court upheld the use of PERs, recognizing their role in preventing
impersonation and ensuring the purity of the electoral process.

4. Establishment of Model Code of Conduct (MCC): The MCC is a set of guidelines

for political parties and candidates during elections, aimed at ensuring a level playing
field and preventing unfair practices. The ECI monitors compliance with the MCC
and takes action against violators.

Supporting Case: H.S. Khan v. Election Commission of India (2005)

The Supreme Court recognized the MCC as a binding code of conduct and empowered the
ECI to take appropriate action against those who violate it.

5. Introduction of Online Voter Registration: The ECI has facilitated online voter
registration, making it easier for eligible citizens to enroll themselves in the electoral
rolls. This has increased voter participation and convenience.

Supporting Case: Shailja v. Union of India (2002)

The Supreme Court encouraged the ECI to adopt technology to streamline the voter
registration process and enhance its accessibility.

6. Strengthening Grievance Redressal Mechanism: The ECI has established a robust

grievance redressal mechanism to address complaints and disputes arising from the
election process. This mechanism ensures timely and fair resolution of
grievances, promoting transparency and accountability.

Supporting Case: UOI v. Association for Democratic Reforms (2002)

The Supreme Court emphasized the importance of an effective grievance redressal

mechanism to safeguard the rights of voters and ensure the integrity of the electoral process.

These electoral reforms, supported by landmark judicial decisions, have significantly

enhanced the fairness, transparency, and integrity of the electoral process in India. The ECI's
continuous efforts to adapt to changing times and embrace technological advancements
further strengthen the democratic fabric of India.

L. Chandra Kumar v UOI.

L.Chandra Kumar v UOI (1997) was a landmark judgment of the Supreme Court of India that
held that the power of judicial review could be exercised by High Courts under Article 226 of
the Constitution of India, even in matters relating to the jurisdiction of Tribunals established
under Article 323-A and 323-B of the Constitution.
The case arose from a challenge to the constitutional validity of Section 28 of the
Administrative Tribunals Act, 1985, which excluded the jurisdiction of High Courts under
Article 226 in matters relating to the jurisdiction of Tribunals established under the Act.

The Supreme Court held that the power of judicial review was an integral part of the basic
structure of the Constitution and could not be taken away by Parliament through ordinary
legislation. The Court held that the exclusion of the jurisdiction of High Courts under Article
226 in matters relating to the jurisdiction of Tribunals was unconstitutional and void.

The judgment was a significant victory for the cause of judicial review in India. It reaffirmed
the Supreme Court's role as the guardian of the Constitution and the protector of the
fundamental rights of citizens.

The judgment had a far-reaching impact on the Indian legal system. It led to the repeal of
Section 28 of the Administrative Tribunals Act, 1985, and restored the jurisdiction of High
Courts under Article 226 in matters relating to the jurisdiction of Tribunals.

The judgment also had a significant impact on the practice of judicial review in India. It
strengthened the role of High Courts as the first line of defense for the protection of
fundamental rights.

Brief the Judgement delivered by SC in S.P Gupta v UOI

The Supreme Court of India's landmark judgment in S.P. Gupta v. Union of India (1982) had
a profound impact on the appointment process for High Court judges in India. The case
challenged the existing system, which involved the executive having a significant say in the
selection of judges.

Background: Prior to the S.P. Gupta judgment, the appointment of High Court judges was
primarily determined by the executive branch of the government, with the Chief Justice of
India's (CJI) recommendation being given considerable weight. However, there were
concerns that this system lacked transparency and could lead to political interference in the
judiciary.

Supreme Court's Judgment: The Supreme Court, in a unanimous decision, ruled that the
executive did not have absolute discretion in appointing High Court judges. It emphasized the
importance of judicial independence and the need for a transparent and fair appointment
process.

The Court laid down a new procedure for appointing High Court judges, giving greater
weight to the collegium system, a body composed of senior judges, in recommending
candidates to the President. The President, while bound to appoint the recommended
candidates, was given the power to return the recommendations with specific reasons if there
were concerns about the suitability of the candidates.
Significance of the Judgment: The S.P. Gupta judgment was a significant step towards
strengthening judicial independence in India. It reduced the executive's influence over
judicial appointments and gave greater autonomy to the judiciary in selecting its own
members.

The judgment also established the collegium system as a crucial part of the appointment
process, ensuring that the selection of judges is based on merit and not on political
considerations.

Conclusion: The S.P. Gupta judgment has been hailed as a landmark decision that has
safeguarded judicial independence in India. It has ensured that the appointment of High Court
judges remains a transparent and fair process, upholding the integrity of the judiciary and its
ability to function independently and impartially.

Q) Appointment of Judges of SC & HC with help of decided cases.

The appointment of judges to the Supreme Court and High Courts in India is governed by a
well-defined process that aims to ensure the independence and impartiality of the judiciary.
This process has evolved over time through various decided cases that have shaped the legal
framework and established the roles of various bodies involved in the appointment process.

Key Provisions in the Constitution of India: The appointment of judges to the Supreme
Court and High Courts is primarily governed by Articles 124 and 217 of the Constitution of
India. These articles outline the eligibility criteria, selection process, and role of various
authorities involved in the appointment.

 Article 124: Deals with the appointment of judges of the Supreme Court.
 Article 217: Deals with the appointment of judges of the High Courts.

Evolution of Appointment Process through Decided Cases: Several landmark cases have
further defined and interpreted the provisions of Articles 124 and 217, providing valuable
insights into the appointment process:

 S.P. Gupta v. Union of India (1982): This Supreme Court judgment established the
collegium system for the appointment of High Court judges. The collegium consists
of the Chief Justice of India, the two senior-most judges of the Supreme Court, and
the Chief Justice of the concerned High Court.
 Second Judges Case (1993): In this case, the Supreme Court clarified that the
President's role in appointing judges is not merely formal, but he has the power to
consider relevant factors before making a decision.
 SC Advocates-on-Record Association v. UOI (2015): This judgment emphasized
the need for transparency and objectivity in the appointment process. It also laid down
guidelines for the composition of the collegium.
  Presidential Reference (2016): The Supreme Court reaffirmed the collegium system
and clarified that the President's power to return recommendations must be exercised
in accordance with principles of judicial independence and transparency.

Current Appointment Process: The current appointment process for Supreme Court and
High Court judges involves the following steps:

1. Initiation of Vacancy: A vacancy arises in the Supreme Court or High Court due to
retirement, resignation, or death of a judge.
2. Recommendation by Collegium: The collegium, headed by the Chief Justice of
India, recommends suitable candidates for the vacancy to the President.
3. Consideration by President: The President considers the collegium's
recommendations and may return them with reasons if he has any concerns.
4. Appointment by President: If the President accepts the recommendations, he
appoints the recommended candidates as judges of the Supreme Court or High Court.

Conclusion: The appointment of judges to the Supreme Court and High Courts is a crucial
process that safeguards the independence and impartiality of the Indian judiciary. The
constitutional provisions, established practices, and decided cases have shaped a system that
aims to ensure the selection of highly qualified and experienced judges who can uphold the
rule of law and protect the fundamental rights of citizens.