13. Indian Judiciary

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Appointments of Judges in India

The Indian judiciary can be divided into two main categories, higher judiciary and lower judiciary.Higher Judiciary includes High Courts and Supreme Court the rest is lower judiciary.

The Lower Judiciary

The process of appointment to the lower judiciary is carried out by the state public service commissions or through the high courts (PCSJ). The process usually involves written examination which includes a preliminary objective test and then a mains subjective test. Once you qualify it you are subject to the interview after which if cleared you to become a judge in the lower judiciary (Munsif courts).

There is another set of examinations that are conducted by the High Court for induction of Judges at the level of Additional District Judges, this is called HJS or Higher Judicial Services while it is higher than the PCSJ in rank, in the overall scheme of things it is still lower judiciary.

The process for HJS is also the same but it requires experience as a Judge or a Lawyer (7 Years). These two posts are regularly promoted and eventually, some make it to the high courts or supreme courts.

The Higher Judiciary

The Higher Judiciary includes the High Courts and the Supreme Courts. The appointment to this judiciary is done in the following manner:
1. Through Promotion from Lower Judiciary
2. Through direct elevation of practicing lawyers (has been an advocate for atleast 10 years of a high court)
3. In case of Supreme Court through direct elevation and promotion from high courts. (has been a judge for at least 5 years in High court/s)

The Evolution of Appointment to Higher Judiciary

The appointment of Judges to higher judiciary has always been very contentious. It has been a subject matter of both politics and law. The history is very interesting though

Before 1981

Before 1981, the appointment was made by the government. The process in the constitution mentioned that the appointments shall be made in consultation with the chief justice. This opinion in this consultation was not binding on the government. The government (through the president) appoint who in its opinion was fits to be elevated (provided they met the minimum criteria in the constitution).


While this was the settled norm, the post of the chief justice was usually given to one who was the senior-most judge in the supreme court. There was nothing in the constitution which mandated it but this was the practice. In 1977 however, PM Indira Gandhi (through the president of course) superseded H. R. Khanna and appointed M. H. Beg. It is often considered a “punishment” for H. R. Khanna’s dissenting opinion in Additional District Magistrate, … vs S. S. Shukla Etc. Etc on 28 April 1976 and the invention of the doctrine of Basic Structure in Kesavananda Bharati v. State of Kerala. The doctrine limited the power of parliament to make amendments to the constitution, a doctrine which in the opinion of PM Indira Gandhi hindered her reforms agenda.

After 1981

This was a year where the dominance of the Judiciary was to begin in the appointment of Judges. The process was going to become opaque and the democratic representatives were seized off the control of the judiciary, all because PM Indira Gandhi made the mistake of over-interfering with the Judiciary. From 1981 to 1998 saw Three Judges Cases which set in stone the collegium system of appointment of judges.

The Collegium System

The collegium system of appointment was roughly a process where the chief justice and four senior-most judges of the supreme court made recommendations of names that shall be appointed to the High Courts/Supreme Courts.

Criticism of Collegium System

The Collegium System was mainly criticized for lack of transparency, accountability and democratic process. In all modern democracy, the process of appointment of Judges was either through elected representatives or through Independent commission, collegium system was however a very opaque and unaccountable system where it could never be known what went inside. While it was argued that this ensured independence of the judiciary, it was still not a fit process. The representation of people, representatives of interest group and transparency was felt necessary.


However, the parliament never took the initiative to set right the appointment system because the age of coalition governments and unstable parliament was beginning. The parliament was not determined enough to confront the all-powerful supreme court (after Keshwananda Bharti).

The Judicial Appointments Commission

In the second term of the UPA government it was a popular consensus that the Collegium system was not the right manner of appoinment of judges in a democracy. But a powerful institution like the supreme court would only heed to a equally powerful parliament. This equally powerful parliament was given by BJP and its allies.

The swept the 2014 lok sabha elections and swiftly moves the NJAC Bill through parliament and the constitutional amendment (121st amendment). The bill now requires to be notified to become law.
The real test would be when the Law and the Amendment is challenged in the supreme court as violative of basic structure and the supreme court makes the call.

To make this bill a reality the Parliament, the media and people must come together. While the bill is not perfect, it is way better than what we had earlier (i.e. before 1981 and after the three judges cases).

NJAC

It stands for National judicial appointment Commission.

Article 124 deals with the appointment of judges.

National judicial appointment Commission was responsible for appointment and transfer of judges of higher judiciary.

Following are members of National judicial appointment Commission –

Chief Justice of India, two senior most judges of supreme court, Union Law Minister, two other persons appointed by A committee consisting of Chief Justice of India, Prime Minister, Leader of opposition in Lok Sabha .

Present status

It has been declared unconstitutional by Supreme Court because Supreme Court considers it as against independence of judiciary. 99th constitutional amendment was declared Ultra vires.

Supreme Court

On January 28, 1950, India’s Supreme Court succeeded the Federal Court of India which was established by Government of India Act 1935 and the Privy Council, which was highest judicial body in the country during British Era. The organisation, independence, jurisdiction, powers and functions of the Supreme Court are provided in articles 124 to 147 in Part V of the Constitution of India.

Since February 2009, Supreme Court of India has total sanctioned strength 31 judges including the Chief Justice. The original constitution had fixed sanctioned strength of the court at 8 and left the matter to parliament to increase the number of judges as needed by making a law. The number was increased to 11 in 1960, 14 in 1968, 18 in 1978, 26 in 1986 and 31 in 2009.

Appointment of the Judges

Every Judge of the Supreme Court is appointed by the President after consultation with the Judges of the Supreme Court and High Courts in states, the president may deem necessary for the purpose. President if thinks necessary, can consult the Judges of the High Courts of States to appoint a supreme court Judge, as per article 124(2).


However, in the appointment of the other judges, the president shall always seek consultation from the Chief Justice of India. Till 1993, the Judges of the Supreme Court were appointed by the President on the recommendation of the CJI, but now a committee of 5 senior-most judges recommends the names to the law ministry which after scrutinizing send the paper to the president.


The president either approves the names or returns the names for reconsideration of the Supreme Court. If still the Supreme Court sends the president of the same name appoints the persons recommended.

Qualifications of the Judges of the Supreme Court

To be appointed a Judge of the Supreme Court, a person must be a citizen of India and must have been the judge of a high court for a period of 5 years or an advocate of the High Court for at least 10 years or in view of the President a distinct Jurist of the country. Thus, there is nothing which can prevent the direct appointment of the Judges of Supreme Court from the Bar, yet, so far the appointments have been made from the Judges of High Courts only.

Tenure of the Judges

The CJI and other Judges of the Supreme Court of India hold the office until they attain the age of 65 years { Presently, Supreme Court judges retire at 65 and High Court judges at 62}. A Judge can relinquish the office by addressing the resignation to the President of India.

A retired Judge of the Supreme Court is prohibited from practising law before any court or authority within the territory of India; however, there is NO constitutional prohibition that a retired judge gets appointed for some specialized work of the Government.

Removal of Supreme Court Judges

A Judge of the Supreme Court (and also the High Court) can be removed from his position by President only on the ground of proved misbehaviour or incapacity. The power for investigation and proof of such misbehaviour or incapacity is vested in the parliament. Each house, in order to remove the judge, will have to pass a resolution which is supported by 2/3rd of members present and voting and majority of the total membership of the house {absolute + special majority}

High Courts in India

High court occupies top position in the judicial administration of the state. Parliament can have common high court for two or more states or states and UT’s. [Ex: Bombay HC over Daman Diu and dadra nagar haveli, Calcutta HC over A&N islands, Kerala HC over Lakshadweep islands and madras HC over Puducherry].

Only Delhi is a union territory that has a HC. HC has a chief justice and other judges as the president may deem necessary to appoint. Constitution doesn’t determine strength of HC but leaves it to the President.

Appointment of Judges:

The President appoints chief justice of high court after consulting CJI and governor of the state or states [in case of common high court]. For other judges of that court chief justice of that high court is also consulted.

Qualification for judges of HC:

1. Citizen of India

2. A) should have held a judicial office in India for 10 years

OR

2 B) should have been an advocate of HC for 10 years in succession.

Tenure:

He can be a judge of the high court till he reaches 62 years of age. He can be removed by president on recommendation of parliament. He can resign by writing to the president.

Removal of judges [Act of Parliament]:

Grounds for removal are proven misbehaviour or incapacity.

A motion support removal must be supported by 100 LS / 50 RS members. The presiding officer may or may not admit it. If admitted an inquiry committee of Chief justice of India or a Supreme Court judge; A Chief justice of high court and distinguished jurist checks if judge is guilty; if the committee finds the judge guilty then parliament can pass a motion by special majority in both houses. An address supported by this motion must be presented to the president on the same day. Then by a presidential order the judge can be removed.

President can transfer the judge of a HC after consultation with chief justice of India.

Acting Chief Justice:

The president can appoint a HC judge as acting chief justice in case the vacancy of office of chief justice OR C.J is temporarily absent or unable to perform his duties.

Additional or Acting judges:

President can appoint additional judges for a period of two years if additional work load is seen or to clear arrears. The appointees should be duly qualified. For acting judges the president can appoint duly qualified people till the judge is temporarily absent or unable to perform his duty.

Retired judges: The chief justice may with previous consent of president and the person concerned

Appoint a retired judge [of the same HC or other HC] as judge of the HC. Though such a person enjoys all privileges and powers he isn’t considered as a judge of the HC.

Independence of HC:

1. President appoints judges only after consultation with other judges. Executive interference is minimum.

2. Security of tenure and protection against arbitrary removal

3. Expense charged on consolidated fund.

4. Ban on practise after retirement

5. Jurisdiction as specified can’t be changed for HC and SC by any legislature. But jurisdiction with respect to other matters can be changed by both.

6. Power to punish for contempt

7. Conduct of judges can’t be discussed

Jurisdiction of High Court:

Original jurisdiction

1. Four HC’s of Bombay, madras, Calcutta and Delhi have original jurisdiction over civil cases of higher value.

2. Revenue matters

3. Elections disputes related of parliament and state legislatures.

4. Enforcing fundamental rights

5. Cases involving interpretation of constitution.

Writ jurisdiction:

The HC can issue writs to any person, organisation or authority for enforcement of fundamental rights as well as for any other purpose. Hence it is wider than the writ jurisdiction of SC.

Appellate jurisdiction:

It is a court of appeal for civil, criminal cases of subordinate courts. The appellate jurisdiction extends to even tribunal orders.

Supervisory jurisdiction:

High courts have wide supervisory jurisdiction over all courts and tribunals in its territorial jurisdiction. Also it has judicial as well as administrative superintendence. It can take suo moto cognisance.

It is a court of record; it has power of judicial review.

Judicial Review, Activism, Overreach

Judicial Review, Judicial Activism and Judicial Overreach are terms which come often in news. In this post, we shall compare Judicial Review vs Judicial Activism vs Judicial Overreach.

Judicial Review

Though legislature has the power to make laws, this power is not absolute. Judicial Review is the process by which the Judiciary review the validity of laws passed by the legislature.

  • From where does the power of Judicial Review come from: From the Constitution of India itself(Article 13).
  • The power of judicial review is evoked to protect and enforce the fundamental rights guaranteed in Part III of the Constitution.
  • Article 13 of the Constitution prohibits the Parliament and the state legislatures from making laws that “may take away or abridge the fundamental rights” guaranteed to the citizens of the country.
  • The provisions of Article 13 ensure the protection of the fundamental rights and consider any law “inconsistent with or in derogation of the fundamental rights” as void.
  • Under Article 13, the term ‘law’ includes any “Ordinance, order, bye-law, rule, regulation, notification, custom or usage” having the force of law in India.
  • Examples of Judicial Review: The striking down of the Section 66A of the IT Act as it was against the Fundamental Rights guaranteed by the constitution.

Judicial Activism

Judicial activism denotes a more active role taken by Judiciary to dispense social justice. When we speak of Judicial Activism, we point fingers to the invented mechanisms which have no constitutional backing (Eg: Suo moto (on its own) cases, Public Interest Litigations (PIL), new doctrines etc).

  • From where does the power of Judicial Activism come from: Judicial Activism has no constitutional articles to support its origin. Indian Judiciary invented it. There is a similar concept in the United States of America.
  • Suo Motto cases and the innovation of the Public Interest Litigation (PIL), with the discontinuation of the principle of Locus Standi, have allowed the Judiciary to intervene in many public issues, even when there is no complaint from the concerned party.
  • Although the earlier instances of Judicial Activism was connected with enforcing Fundamental Rights, nowadays, Judiciary has started interfering in the governance issues as well.
  • Examples of Judicial Activism: Invention of the ‘basic structure doctrine’ in the ‘Keshavanad Bharati case’(1973) by which Supreme Court further extended the scope of Judicial Review, incorporation of due process of law instead of procedure established by law, collegium system, institutionalization of PIL, banning smoking in public places based on PIL, the order by Supreme Court in 2001 to provide mid-day meals to schoolchildren, the order passed by the National Green Tribunal (NGT) banning diesel trucks older than 10 years in Delhi etc.

Judicial Overreach

The line between Judicial activism and Judicial Overreach is very narrow. In simple terms, when Judicial activism crosses its limits and becomes Judicial adventurism it is known as Judicial Overreach. When the judiciary oversteps the powers given to it, it may interfere with the proper functioning of the legislative or executive organs of government.

  • From where does the power of Judicial Overreach come from: Nowhere. This is undesirable in any democracy.
  • Judicial Overreach destroys the spirit of separation of powers.
  • Examples of Judicial Overreach: What makes any action activism or overreach is based upon the perspective of individuals. But in general, striking down of NJAC bill and the 99th constitutional amendment, the order passed by the Allahabad High Court making it compulsory for all Bureaucrats to send their children to government school, misuse the power to punish for contempt of court etc. are considered as Judicial Overreach.
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