INDIAN JUDICIARY

THE INDIAN JUDICIARY,

PERSPECTIVES OF THE CONSTITUENT ASSEMBLY &
SUPREME COURT OF INDIA.
INTRODUCTION
 Political institutions have developed organic roots in India.
 Decline in ‘the moral credibility’ and ascendancy of other political institutions of the
Indian democracy.
 The judicial system of independent India appears to be a compromise between the two
distinct perspectives of judiciary under the parliamentary and federal systems of
government.
 Indian judicial system like the political system is an amalgam of certain features prevalent
in both the systems.
PERSPECTIVES OF THE CONSTITUENT ASSEMBLY
 Constituent Assembly aspired to idealize the courts for the two plausible reasons:
 giving force to the fundamental rights and
 acting as guardians of the Constitution itself.
 Adopted the tone and tenor of a strong and independent Supreme Court with the
responsibility of maintaining the federal nature of the polity and also protecting the
fundamental rights of the people.
 Framers made effort to make the judicial provision of the Constitution congruent with the
broad contours of the parliamentary democracy in the country, with well-placed system of
checks and balances.
 Paramount question of ensuring the independence of judiciary.
 Safeguarding the independence of judiciary by toughening the amendability provisions.
PERSPECTIVES OF THE CONSTITUENT ASSEMBLY
 Elucidating the need of cordial functioning of three organs of the government, Alladi
Krishnaswamy Ayyar pointed out:
 While there can be no two opinions on the need for the maintenance of judicial independence,
both for the safeguarding of individual liberty and the proper working of the
Constitution, it is also necessary to keep in view one important principle. The doctrine of
independence is not to be raised to the level of a dogma so as to enable the judiciary to
function as a kind of super-legislature or super-executive.
SUPREME COURT
 The Constitution provides for the establishment of unified integrated judicial
system the courts at the various levels, with the Supreme Court standing at the head
of the system.
 Article 124: Establishment and constitution of Supreme Court.
 Article 124(3): A person shall not be qualified for appointment as a Judge of the
Supreme Court unless he is a citizen of India and—
 has been for at least five years a Judge of a High Court or of two or more such Courts in
succession; or
 has been for at least ten years an advocate of a High Court or of two or more such Courts
in succession; or
 is, in the opinion of the President, a distinguished jurist.
SUPREME COURT
 The judges of the Supreme Court are appointed by the President in consultation with such other
judges of the Supreme Court.
 Article 129: Supreme Court to be a court of record.
 Controversy over the appointment of the Chief Justice of the Supreme Court beginning 1973.
JURISDICTION OF THE SUPREME COURT
 Jurisdiction of the Supreme Court includes both the original and the appellate domains by
the Constitution.
 The original jurisdiction of the SC extends to the issues of protecting the fundamental
rights of the people as well as adjudicating the issues relating to the federal structure of the
Constitution.
 Article 131. Original jurisdiction of the Supreme Court.—Subject to the provisions of this
Constitution, the Supreme Court shall have original jurisdiction in any dispute—
 between the Government of India and one or more States; or
 between the Government of India and any State or States on one side and one or more other
States on the other; or
 between two or more States.
 Article 32: Remedies for enforcement of rights conferred under the Part IV.
JURISDICTION OF THE SUPREME COURT
 Matters on the election of the President and Vice-President of India.
 Article 132: Appellate jurisdiction of Supreme Court in appeals from High Courts in
certain cases.
 Article 136: Special leave to appeal by the Supreme Court.
 Article 137: Review of judgments or orders by the Supreme Court.—Subject to the
provisions of any law made by Parliament or any rules made under article 145, the Supreme
Court shall have power to review any judgment pronounced or order made by it
 Article 141: Law declared by Supreme Court to be binding on all courts.
 Article 143: Power of President to consult Supreme Court.
HIGH COURTS
 The position of the high courts in India differ from the position of the high courts or the
state courts as existing in other federations of the world.
 Article 214: High Courts for States- There shall be a High Court for each State.
 Article 215. High Courts to be courts of record.
 Article 216. Constitution of High Courts.—Every High Court shall consist of a Chief
Justice and such other Judges as the President may from time to time deem it necessary to
appoint.
 Article 217 (1). Appointment and conditions of the office of a Judge of a High Court.-
Every Judge of a High Court shall be appointed by the President [on the recommendation
of the NJAC referred to in article 124A], and 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.
HIGH COURTS
 Article 217(2): A person shall not be qualified for appointment as a Judge of a High Court
unless he is a citizen of India and—
 has for at least ten years held a judicial office in the territory of India; or
 has for at least ten years been an advocate of a High Court or of two or more such Courts in
succession.
JURISDICTION OF THE HIGH COURTS
 Enjoys jurisdiction of original and the appellate nature.
 Presently, the original jurisdiction of the high courts have been confined only in the matters of admiralty,
probate, matrimonials, contempt of Court, enforcement of the fundamental rights, and cases ordered to be
transferred from a lower court involving the interpretation of the Constitution to their own file.
 Article 226. Power of High Courts to issue certain writs.
 Article 227. Power of superintendence over all courts by the High Court.
 Article 228. Transfer of certain cases to High Court.
 Article 229. Officers and servants and the expenses of High Courts
JUDICIAL REVIEW
 The notion of judicial review refers to the power of the Court to examine the
constitutional validity of the laws made by the legislature and the orders issued by the
executive.
 Designed to facilitate the Court to act as the guardian and protector of the Constitution.
 No explicit mentioning of this power of courts in the constitution, and has acquired
through the interpretation of its provisions.
 Limited scope of the power of judicial review in India as compared to the US.
 The founding fathers manifestly circumscribed the areas where the courts would be well within
their rights to exercise the powers of judicial review.
 The question of constitutional soundness of the laws and executive orders arises when
they are challenged in the competent courts on the grounds of incompetence of the
legislature to pass such a law, repugnancy to the provisions of the Constitution, and the
infringement of the fundamental rights.
JUDICIAL REVIEW
 The notion of judicial review refers to the power of the Court to examine the
constitutional validity of the laws made by the legislature and the orders issued by the
executive.
 Landmark cases: Shankari Prasad vs Union of India (1951), Sajjan Singh vs State of Rajasthan,
Golak Nath vs State of Punjab (1967), Keshvanand Bharti vs State of Kerala (1971), Minerva Mills
Ltd. vs Union of India (1980).
 Constitutional validity of the Ninth Schedule of the Constitution.
 Expanding horizons of judicial review and its impact on legislative and executive branches.
 Adoption of following maxims to be responsible in weighing the constitutional validity of
the laws:
 There is a presumption in favour of constitutionality, and a law will not be declared
unconstitutional unless the case is so clear as to be free from doubt, and to doubt the
constitutionality of a law is to resolve it in favour of its validity.
PUBLIC INTEREST LITIGATION
 PIL was a new technique of seeking the redressal of grievances through judicial
intervention.
 PIL emerged as the means of standing for the cause of others because the petitions can
be filed by a third party on behalf of the aggrieved or deprived people who are not in a
position to seek the intervention of judiciary to right the wrongs done to them.
 PILs are filed to get the judicial prodding for the executive or the legislature to take certain
steps, which they have failed to take, causing a harm or deprivation to the people.
 PILs are characterized by relaxation of the rule of locus standi, flexibility in normal judicial
procedure, innovative and proactive interpretation of legal and fundamental rights of the
people, and remedial flexibility marked by ongoing judicial participation and supervision.
 PIL is intended to promote and vindicate public interest that demands that violations of
constitutional and legal rights of a large number of people who are poor, ignorant or in a
socially or economically disadvantaged position should not go unnoticed or unredressed.
PUBLIC INTEREST LITIGATION
 PIL has been criticized by some people on the counts like interfering in the domains of
the executive and the legislature, setting back the pace of development, and burdening the
courts with superfluous matters.
 The existence of the courts becomes meaningful only when they act as institutions to
redress the grievances of the people, as the grave issues of constitutional and theoretical
nature become absurd for them.
JUDICIAL ACTIVISM
 Judicial activism refers to the practical manifestation of the outcome of the adjudication
on the PILs.
 The act wherein courts the courts step out of their conventional jurisdiction or domain to
seemingly act, if not interfere, in the domains of the other organs of the government, it is
construed to be an activist role of the judiciary, known as judicial activism.
 Judicial activism led to a number of innovations to meet the unconventional challenges
placed before them through the PILs.
 Interventions in the domain of the executive, including policy decisions.
 The process raised concerns on two fronts:
 whether the judicial orders are allowed to replace what should normally be conducted by the
administrative authorities.
 Dangers of aggravation in the inactivism of the administrative authorities.
JUDICIAL REFORMS
 Degeneration of Indian institutions and organizations of varying degrees due to inherent
and extraneous factors.
 The broad limitations of the judiciary as experienced over the years relate to:
 The slowness and inaccessibility of the judicial process.
 The antiquated nature of court procedures and management practices.
 Flaws in procedural laws, lack of effective control of court proceedings, and availability of
multiple remedies at different rungs of the judicial ladder that enables dishonest and recalcitrant
suitors to abuse the judicial process.
 The lowered standards of conduct, character, and competence of the legal profession and
judges.
JUDICIAL REFORMS
 Suggested judicial reforms falls into two categories:
 creation of an alternative system of delivering justice, and
 reforms in the structures and functioning of the mainstream judicial system of the
country.
CHANGES IN THE APPOINTMENT PROCEDURES

Appointment of CJI 1950-1973

 Until 1973, there existed a consensus between the Government of the day and the Chief
Justice of India.
 A convention was formed where the senior-most judge of the Supreme Court was to be
appointed as the Chief Justice of India.
 In 1973 and 1977, Chief Justices were appointed by superseding other senior most judges
in the SC.
 This resulted in a clash between the Executive and the Judiciary.
First judges case, 1982
 A petition was filed in 1982 in the Supreme Court of India and this case came to known
as the S. P. Gupta Case or First Judges case.
CHANGES IN THE APPOINTMENT PROCEDURES

 When asked the Supreme Court of India whether the word “consultation” in the
constitutional article 124 mean “concurrence”; the Supreme court overruled this and
denied saying that Consultation does not mean concurrence.
 This implied that the President was not bound to make a decision based on the
consultation of the Supreme Court.
 In this case, there was a part where the Supreme Court decided that a High Court Judge
can be transferred to any other high court of a state even against his/her will.
Second judges case,1993
 Another petition was filed in 1993 by the Supreme Court Advocates on Record
Association (SCARA).
 In this case, the Supreme court overruled its earlier verdict and changed the meaning of
consultation to concurrence.
CHANGES IN THE APPOINTMENT PROCEDURES
 This judgement resulted in the birth of the Collegium System paving way for the primacy
of the SC over the executive with respect to the appointments judges of Supreme Court.
Third Judges Case, 1998
 The last judgement in the series, the 1998 third judges case, cleared things up after the
President asked the Supreme Court to do so.
 In this case, the SC came up with nine guidelines on how the collegium system should
function.
 This cemented the supremacy of the judiciary in the appointment and transfer of judges.
 The Collegium system is one in which the Chief Justice of India and a forum of 4 senior-
most judges of the Supreme Court recommends appointments as well as transfers of
judges.
NJAC DEBATE
 The National Judicial Appointments Commission Bill, 2014 was introduced in the Lok
Sabha on August 11, 2014 which called for the establishment of the National Judicial
Appointments Commission (NJAC).
 The Bill provides for the procedure to be followed by the NJAC for recommending
persons for appointment as Chief Justice of India and other Judges of the Supreme Court
(SC), and Chief Justice and other Judges of High Courts (HC).
NJAC DEBATE
 On 16 October 2015, in a 4-1 majority verdict, the Supreme Court held that both the
Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial
Appointments Commission (NJAC) Act, 2014, were unconstitutional as it would
undermine the independence of the judiciary.
 NJAC is a body responsible for the appointment and transfer of judges to the higher
judiciary in India. NJAC Bill sought to replace the collegium system of appointing the
judges of Supreme Court and High Courts with judicial appointments commission
wherein the executive will have a say in appointing the judges.
 A new article, Article 124A, (which provides for the composition of the NJAC) was to be
inserted into the Constitution.
 The Bill provided for the procedure to be followed by the NJAC for recommending
persons for appointment as Chief Justice of India and other Judges of the Supreme Court
(SC), and Chief Justice and other Judges of High Courts (HC).
NJAC DEBATE
 According to the bill the commission will consist of the following members:
 Chief Justice of India (Chairperson, ex officio)
 Two other senior judges of the Supreme Court next to the Chief Justice of India – ex officio
 The Union Minister of Law and Justice, ex-officio
 Two eminent persons (to be nominated by a committee consisting of the Chief Justice of India,
Prime Minister of India and the Leader of opposition in the Lok Sabha).
 NJAC was established to achieve greater transparency and accountability for the
appointment of judges.
 But it was struck down by the Supreme Court on the grounds that it was against the
“Independence of Judiciary” i.e Principles of Basic Structure since it involved the Political
Executive in the appointment of Judges.
REFERENCES
 https://lawcorner.in/procedures-for-selection-of-judges-in-hc-sc/
 https://byjus.com/free-ias-prep/collegium-system/#Appointment%20of%20CJI%201950-1973
 https://legislative.gov.in/sites/default/files/COI_English.pdf
THANK YOU!