The Judiciary

The Supreme Court

▸ The Indian Constitution has established an integrated Judicial system which places Supreme Court at the top and the High Courts below it, followed by a hierarchy of subordinate courts.
▸ The Constitutional provisions related to the Supreme Court are contained in Part V from Articles 124 to 147.
Initially, there was a Chief Justice and seven other Judges in the Supreme Court and now the number has increased to 31 judges including the Chief Justice of India in 2009. The Parliament has given the power to increase the number of Supreme Court judges, according to the needs and circumstances.

Chief Justice of India

▸ The Chief Justice of India (CJI) is the highest judicial officer of the country. The post is one of esteem and dignity, requires consummate jurisprudential calibre as well as personal stature to occupy the office.
▸ The nature of work of CJI is largely administrative and that includes allocating work amongst the judges of the Supreme Court.
Acting Chief Justice of India
▸ According to Article 126, when the office of Chief Justice of India is vacant or when the Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose.

Qualifications for Supreme Court Judges

▸ A person shall not be qualified for appointment as a Judge of the Supreme Court unless he/she
— is a citizen of India, and — has been for atleast five years a judge of a High Court or a two such Courts in succession; or has been for atleast ten years an advocate of a High Court or of two or more such Courts in succession;
— is, in the opinion of the President, a distinguished jurist.
▸ Every person appointed to be a Judge of the Supreme Court shall, before he/she enters upon his/her office, make and subscribe before the President an oath of affirmation according to the form set out in the Third Schedule of the Constitution.
▸ The Constitution does not prescribe minimum age limit for a judge to occupy his/her office.
▸ A Judge of the Supreme Court continues to hold the office till he/she attains the age of 65 years. A Judge of the Supreme Court may tender his/her resignation to the President even before he/she reaches age of 65 years.
▸ A Judge of Supreme Court, after retirement, shall not do legal practice in any court in the territory of India and shall not plead before any authority under the Government.

Appointment of Supreme Court Judges

▸ The Judges of the Supreme Court are appointed by the President.
▸ The Chief Justice is appointed by the President after consultation with such Judges of the Supreme Court and High Court as he/she deems necessary.
▸ The other judges are appointed by the President after consultation with the Chief Justice and such other judges of the Supreme Court, and High Courts as he/she deems necessary.
▸ The consultation with the Chief Justice is obligatory in the case of appointment of a judge other than Chief Justice.

Removal of a Supreme Court Judge

▸ According to Article 124 (4), A Judge of the Supreme Court shall not be removed from his/her office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
Process of Impeachment
▸ The judges Enquiry Act (1968) regulaters the procedure relating to the removal of a judge of the Supreme Court by the process of impeachment:
▸ A motion for removal supported by at least 100 members in Lok Sabha or 50 members in Rajya Sabha is required for admission of motion for removal of the judge.
▸ The Presiding officer of Loksabha or Rajya sabha constitutes a inquiry committee to verify the charges of accusation.
▸ If the inquiry committee is satisfied that the judge has been guilty, it may recommend for removal of that judge.
▸ Both the Houses shall have to pass a resolution to this effect by a special majority in the same session.
▸ The judge stands evicted by an order of the President.
* No case of removal of SC judge has happened so far. The case of Justice V. Ramaswamy in (1991-93) was not passed because of absence of majority in Lok Sabha when Congress MPs abstained from voting.

Adhoc and Retired Judges

▸ Article 127 says that if at any time there may not be a quorum of the Judges of the Supreme Court available to hold or continue any session of the Court, the Chief Justice of India can apoint a Judge of a High Court as an adhoc Judge of the Supreme Court for a temporary period. He can do so only with the previous consent of the President and after consultation with the Chief Justice of the High Court concerned.
▸ The Judge so appointed should be qualified for appointment as a Judge of the Supreme Court.
▸ It shall be the duty of the Judge who has been so designated, in priority to other duties of his office, to attend the sittings of the Supreme Court at the time and for the period for which his attendance is required, and while so attending he shall have all the jurisdiction, powers and privileges, and shall discharge the duties, of a Judge of the Supreme Court.

Retired Judges

Article 128 says that the Chief Justice of India may at any time, with the previous consent of the President, request a retired judge of the Supreme Court or a Retired Judge of High Court who is duly qualified for appointment as a judge of the Supreme Court, to act as a Judge of the Supreme Court for a temporary period. Such judge while so sitting and acting be entitled to such allowances as the President may determine and has all the jurisdiction, powers and privileges of a Judge of Supreme Court. But he/ she will not otherwise be deemed to be a Judge of the Supreme Court.

Salaries and Allowances of Supreme Court Judges

▸ The Parliament has the power to regulate the salaries allowances , privileges leave and pension of the Judges during his/her term of office. The only exception is that during Financial Emergency, the salaries and other allowances of the Judges can be reduced. The salaries and other allowances of the Judges are charged upon the Consolidated Fund of India.
▸ The Chief Justice of India will now get a monthly salary of 2.8 lakh per month, as oppossed to 1 lakh earlier. Similarly, the Judges of SC will get a monthly salary of 2.50 lakh.
Seat and Benches of the Supreme Court
Article 130 says that the Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time-to-time, decide.
▸ To dispose off the cases before Supreme Court, the matters are placed before various benches of Supreme Court. The bail applications in appeals are heard by single Judge. Most of the matters are decided by division benches of the Supreme Court consisting of two Judges. If the two Judges disagree (which is rare), the view of the Senior Judge prevails. Priority matters are placed before three Judges bench.
▸ All cases involving Constitutional interpretation and presidential references are placed before a 5 Judge Bench, popularly known as a Constitutional Bench.
The largest bench so far was the 13 Judge Bench that delivered the Kesavananda Bharati Case verdict in 1973.

Jurisdiction of the Supreme Court

▸ The Jurisdiction of the Supreme Court are four fold viz Original, Writ, Appellate and Advisory.
Original Jurisdiction
▸ According to Article 131, subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute
— between the Government of India and one or more States;
— 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, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.
▸ Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.
▸ There are certain provisions in the Constitution which exclude from the Original Jurisdiction of the Supreme Court, Disputes specified in the provision to Article 363(1).
— Complaints as to interference with Inter-State water supplies, referred to the statutory tribunal mentioned in Article 262 (since the Parliament has enacted the Inter-State Water Disputes Act 1956).
— Matters referred to the Finance Commission (Article 280).
— Adjustment of certain expenses between the Union and the State (Article 290).
Writ Jurisdiction
▸ Article 32 imposes duty on the Supreme Court to enforce the Fundamental Rights. Under this Article, every individual has a right to move the Supreme Court provided there has been any infringement on his/her Fundamental Rights.
▸ The Writ Jurisdiction sometimes is referred to as the Original Jurisdiction of the Supreme Court, but in the strict sense, Original Jurisdiction relates to the federal character of the Constitution.
▸ The Supreme Court is empowered to issue writs, including Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari to enforce Fundamental Rights.
Appellate Jurisdiction
▸ The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the High Court concerned under Article 132(1), 133(1) or 134 of the Constitution, in respect of any judgement, decree or final order of a High Court in both civil and criminal cases, involving substantial questions of law as to the interpretation of the Constitution.
Constitutional Appeals
▸ In the Constitutional matters, an appeal lies to the Supreme Court if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. If the High Court refuses to give the certificate, the Supreme Court may grant special leave for appeal if it is satisfied that the case does involve such a question.
Civil Appeals
▸ In civil cases, an appeal lies to the Supreme Court if a High Court certifies that the value of the subject matter of the dispute is not less than ` 20000 or that the case is fit for appeal to the Supreme Court. The appellate jurisdiction of the Court in civil cases can be enlarged if the Parliament passes a law to that effect.
Criminal Appeals
▸ In the criminal cases, an appeal lies to the Supreme Court if the High Court
— has on appeal, reversed the order of acquittal of an accused and sentenced him to death; or
— has withdrawn for trial before itself any case from any subordinate and has in such trial convicted the accused and sentenced him to death; or
— certifies that the case is fit for appeal to the Supreme Court.
Appeal by Special Leave
The Supreme Court under Article 136 enjoys ro the power of granting special leave to appeal from any Judgement, decree, order or sentence in any case or matter passed by any Court or tribunal except court martial.
* Under the Arbitration and Conciliation Act, 1996, International Commercial Arbitration can also be initiated in the Supreme Court.
* Parliament is authorised to confer on the Supreme Court any further powers to entertain and hear appeals from any judgement, final order or sentence in a criminal proceeding of a High Court.
Advisory Jurisdiction
▸ One of the Salient features of the Supreme Court is its consultative role (Article 143). The President can refer to the Court either a question of law or a question of fact, provided that it is of public importance. However, it is not compulsory for the Court to give its advice.
▸ The President is empowered to refer to the Supreme Court for its opinion, disputes arising out of any treaty, agreement etc., which had been entered into or executed before the commencement of the Constitution.
Transfer Petitions
▸ The Supreme Court has the power to transfer the cases from one High Court to another and even from one District Court of a particular state to another District Court of the other state.
▸ In such transfer cases, the Supreme Court transfer only those cases if they really lack appropriate territorial jurisdiction and those cases which were otherwise supposed to be filed under the transferred jurisdiction. The Supreme Court often looks at the real ground/reason for such transfer.
Revisory Jurisdiction
▸ The Supreme Court under Article 137 is empowered to review any judgement or order made by it with a view to remove any mistake or error that might have crept in the judgement or order.

Judicial Independence

▸ The Constitution seeks to ensure the independence of Supreme Court Judges in various ways. Judges are generally appointed on the basis of seniority and not on political preference.
▸ A Judge of the Supreme Court cannot be removed from office except by an order of the President passed after an address in each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of members present and voting, and presented to the President in the same Session for such removal on the ground of proved misbehaviour or incapacity.
▸ The salaries and allowances of a judge of the Supreme Court cannot be reduced after appointment.
▸ A person who has been a Judge of the Supreme Court is debarred from practising in any court of law or before any other authority in India.
▸ As per the Article 142 the Supreme Court of India is not constrained in the exercise of its powers by laws made by the Indian Parliament.

A Court of Record

Article 129 states that the Supreme Court of India shall be a Court of Record. As a Court of Records, the Supreme Court has two powers.There are as follows :
▸ The judgements, proceedings and acts of the Supreme Court are recorded for perpetual memory and testimony. These are recognised as legal precedents and legal references.
▸ The Supreme Court has power to punish for contempt of court, either with simple imprisonment for a term upto 6 months or with fine up to ` 2,000 or with both.
Contempt of Court
Contempt of Court may be two types i.e. Civil contempt, Criminal contempt.
Civil Contempt
It means wilful disobedience to any judgement, order, writ or other process of a court or wilful breach of an undertaking given to a court.
Criminal Contempt
It means the publication of any matter or doing an act which
— Scandalises or lowers the authority of a court, or
— Prejudices or interferes with the due course of a judicial proceeding or
— Interferes or obstructs the administration of justice in any other manner.
Judicial Review
Judicial review is the power of the judiciary to review the laws made and executed by the legislature and executive to make sure they are in line with Constitution and the Statues enacted. If they contravene and provision, the Judiciary strikes them down.
Judicial Activism
Judicial activism is phenomena wherein the Judiciary assumes an extraordinary position of directing the executive to undertake such policies and measures as the judiciary deem fit citing insufficient policies or administrative lacunae.
Judicial Overreach
When Judiciary in exercise of its Judicial activism, encroaches the domain of the executive and legislature, it is called judicial overreach.
Public Interest Litigation (PIL)
Although the proceedings in the Supreme Court arise out of the judgements or orders made by the Subordinate Courts including the High Courts, but of late the Supreme Court has started entertaining matters in which interest of the public at large is involved and the Court can be moved by any individual or group of persons either by filling a Writ Petition at the Filling Counter of the Court or by addressing a letter to Hon'ble the Chief Justice of India highlighting the question of public importance for invoking this jurisdiction. Such concept is popularly known as 'Public Interest Litigation' and several matters of public importance have become landmark cases. This concept is unique to the Supreme Court of India only and perhaps no other Court in the world has been exercising this extraordinary jurisdiction. The concept of PIL emerged for the first time in the Mumbai Kamgar Sabha case where Justice Krishna Iyer allowed the petition even if the litigant had no locus standi in the case. Justice Bhagawati later give much momentum to the PIL movement. A Writ Petition in the form of PIL filed at the Filling Counter is dealt with like any other Writ Petition and processed as such. In case of a letter addressed to Hon'ble the Chief Justice of India the same is dealt with in accordance with the guidelines framed for the purpose.

Judiciary Executive Relations

▸ After some of the courts overturned state laws redistributing land from zamindar (landlord) estates on the grounds that the laws violated the Fundamental Rights, the Parliament of India passed the First Amendment to the Constitution in 1951 followed by the Fourth Amendment in 1955 to protect its authority to implement land redistribution. The Supreme Court countered these amendments in 1967 when it ruled in Golaknath vs State of Punjab that Parliament did not have the power to abrogate Fundamental Rights, including the provisions on private property.
▸ Similarly other laws were declared null and void. They include, On 1st February, 1970, the Supreme Court invalidated the government sponsored Bank Nationalisation Bill that had been passed by Parliament in August 1969. The Supreme Court also rejected as unconstitutional a presidential order of 7th September 1970, that abolished the titles, privileges and privy purses of the former rulers of India's old Princely States.
Response from Parliament
▸ In reaction to the decisions of the Supreme Court, in 1971 the Parliament of India passed an amendment empowering itself to amend any provision of the constitution, including the Fundamental Rights. The Parliament of India passed the 25th Amendment, making legislative decisions concerning proper land compensation non-justiciable.
▸ The Parliament of India passed an amendment to the Constitution of India, which added a constitutional Article abolishing princely privileges and privy purses.
Counter-response from the Supreme Court
▸ On 24 April 1973, the Supreme Court responded to the parliamentary offensive by ruling in Kesavananda Bharati Case. The State of Kerala that although these amendments were constitutional, the court still reserved for itself the discretion to reject any constitutional amendments passed by Parliament by declaring that the amendments cannot change the constitution's 'basic structure', a decision piloted through by Chief Justice Sikri. The Court ruled that the basic structure of the constitution cannot be altered for convenience.
Distinctions between Supreme Court of India and Supreme Court of America (USA)

Indian Supreme Court USA Supreme Court Its original jurisdiction is confined to federal cases. Its original jurisdiction covers not only federal cases, but also cases to naval forces, maritime activities etc. It has advisory jurisdiction. It has no advisory jurisdiction. Its scope of Judicial Review is limited. Its scope of Judicial Review is very wide. It defends the rights of citizen as per procedure established by law. It defends the rights of citizen as per ‘due process of law’. It has power of Judicial superintendence and control over State High Courts due to integrated Judicial system. It has no such power due to double or separated Judicial system.

Various Doctrines

▸ Various Doctrines used by the Judiciary while pronouncing Judgments are:
— Doctrine of Double Jeopardy No person shall be prosecuted and punished for the same offence more than once.
— Doctrine of Liberal Interpretation The provisions of Constitution have to be interpreted liberally and not in a narrow sense.
— Doctrine of Pith and Substance Any jurisdiction conflict between the Union and the States in regard to their legislative competence can be settled by the court ascertaining the substance of the matter relating to an item in one list or another.
— Doctrine of Progressive Interpretation. The Supreme Court while interpreting the Constitution takes into account the ever changing socio- economic situation in the country.
— Doctrine of Severability While interpreting the statute the court has to decide whether a part or the law as a whole are constitutional. If only a part is unconstitutional and the rest of the law can stand on its own than it can be held as applicable.
— Doctrine of Prospective Overruling An interpretation given by the court and law declared by it may not be given retroactive operation.
— Doctrine of Eclipse A law in operation before the commencement of the Constitution if it violates the Fundamental Rights then it does not become dead altogether but only comes under eclipse. If and when the provisions which it violates are removed, the law will come into force again.
— Doctrine of Implied Power The rights and duties of a legislative body or organisation are determined from its functions and purposes as specified in its Constitution or charter and developed in practice.
— Doctrine of Colourable Legislation It is based on the maxim that what cannot be done directly can also not be done indirectly. When a legislature has no powers to legislate on a particular subject but it frames the legislation in such a way that it appears that it has the powers to legislate then such a legislation will be regarded as Colourable Legislation.

Important a Supreme a Court a Cases

AK Gopalan Case, 1950
▸ The case corresponds to the charges of violation of Fundamental Right to freedom under the Preventive Detention Act. The court was approached over the validity of the act.
▸ The Supreme Court held that the constitutional validity of a law cannot be verified by the Judiciary and the Judiciary has only the capacity to verify whether the 'procedure according to the law' has been followed.
Champakam Dorairajan Case, 1951
▸ The case challenged the reservations given to backward classes in educational institutions in Tamil Nadu.
▸ The Supreme Court overruled the caste based reservation as unconstitutional citing right against discrimination as given in Article 15.
Shankari Prasad Case, 1952
▸ The first Constitution Amendment Act, providing for reservations, was challenged that it violated Fundamental rights. The court held that Parliament has power to amend the Constitution.
Berubari Case, 1960
▸ While ceding a part of Indian Territory to an alien state the court in an advisory opinion held that such process cannot take place unless a Constitution amendment to that effect is made.
Keshav Singh Case, 1964
▸ One journalist Keshav Singh was held for contempt of legislature for making scathing criticism and often denigrating on a law passed. He was sentenced to jail.
▸ The Supreme Court held that the contempt power of Parliament to issue warrants against individuals must comply with the due process requirements under Article 21.
Sajjan Singh Case, 1965
▸ The case related to the validity of 17th Constitutional Amendment Act which provided for land acquisition contrary to right to property. The Supreme Court upheld that Fundamental Rights can be amended within the purview of Article 368.
Golaknath Case, 1967
▸ The Supreme Court while reversing the ruling made in Shankari Prasad and Sajjan Singh case held that constitutional amendment cannot be extended to infringement of Fundamental Rights.
Kesavananda Bharati Case, 1973
▸ For the first time the Supreme Court propounded the Basic Structure Doctrine and held that certain basic features of the Constitution cannot be amended while others can be done so without having a sweeping change in the Constitution.
Maneka Gandhi Case, 1978
▸ The Supreme Court overruled the AK Gopalan case and mooted the 'due process of law' doctrine according to which the procedure according to the law as well as the reasonableness and validity of the law can be questioned by the Judiciary.
Minerva Mills Case, 1980
▸ The Supreme Court held that Fundamental Rights and Directive Principle of State Policy are complementary to each other and if any law enacted to implement the Directive Principle not totally contravening the Fundamental Rights is valid.
Shah Bano Case, 1985
▸ The Supreme Court held that muslim women also have right to get maintenance from their husbands when they are divorced although such practice is not permitted under muslim traditional laws.
St Stephen's College Case, 1992
▸ The Supreme Court held that atleast 50% of seats in minority institution should be reserved for non- minority students.
Indira Sawhney Case, 1993
▸ The Supreme Court upheld the 27% reservation made for OBCs in public employment but subjected to a cap of 50% of reservations. The Supreme Court also mooted the Creamy Layer concept to identify the well off groups within the backward classes.
Bommai Case, 1995
▸ The Supreme Court held that federalism is a part of basic structure and State Governments cannot be arbitrarily dismissed by a Governor and any such test of confidence of the Executive must be done on the floor of the Assembly.
Chandra Kumar Case, 1997
▸ TheSupremeCourt upheld that JudicialReviewis a part of BasicStructureDoctrine.
TMA Pai Case, 2002
▸ The Supreme Court held that the right to administer minority educational institution is not absolute and the state can regulate the institutional affairs to educational standards.
Inamdhar Case, 2005
▸ The Supreme Court declared that the reservations for SCs/STs in private educational institutions null and void. To overcome this judgement the Government passed 93rd Constitutional Amendment in private institutions.
Bihar Assembly Dissolution Case, 2006
▸ The Supreme Court held that the Governor of a State does not enjoy absolute immunity from judicial review and the courts can invalidate any malafide actions of the Governor.
IR Coelho Case, 2006
▸ The Supreme Court ruled that the 9th Scheduled of the Constitution is subjected to judicial review.
Ashok Kumar Thakur Case, 2007
▸ The Supreme Court upheld the 93rd Constitutional Amendment Act providing for reservation for SC/STs OBCs in Central Universities as well as private institutions but subject to a cealing of 50% of total seats for reservation.
Transgender as 'Third Gender' 2014
▸ The Supreme Court created the Third Gender status for higras or transgender.
National Judicial Appointments Commission 2015
▸ On 16th October, 2015, the Constitution Bench of Supreme Court by majority upheld the collegium system and struck down NJAC as unconstitutional.
Triple Talaq Case, 2017
▸ The Supreme Court of India has declared the practice of Triple Talaq as unconstitutional by 3:2 majority and hereby direct the Union of India to consider appropriate legislation, particularly with reference to talaq-e-biddat (three pronouncements of talaq at one and the same time). In this verdict, the Supreme Court also declared that this form of Talaq is violate the Article 14 of the Indian Constitution.
Right to Privacy is a Fundamental Right
▸ The Supreme Court held that Right to Privacy is protected under Article 21 of the Constitution. In an unanimous decision, a 9-Judges Constitutional Bench over ruled the judgements in MP Sharma and Kharak Singh case and declared that Right to Privacy is protected as intrinsic part of Right to Life and Liberty.
Passive Euthanasia is Permissible
▸ The Supreme Court has given legal sanction to passive euthanasia in a landmark verdict permitted 'living will' by patients on withdrawing medical support if they slip into irreversible coma. The Supreme Court in 2011, recognised passive euthanasia in Aruna Shanbaug Case for which it had permitted withdrawal of life-sustaining treatment from patients who are not in a position to make an informed decision.
Sex with Minor Wife is Rape
▸ A two judge Bench of Supreme Court held that sexual intercourse with minor (below 18 years) Wife is rape and Section 198 (6) of the CRPC will apply to cases of rape of wives. The age of consent has been made 18 from 15 in these cases.

The High Courts

▸ The High Courts stands at the head of the judiciary in a State. There shall be a High Court for each State (Article 214). The Judiciary in the States consists of a High Court and the Subordinate Courts.
▸ The Parliament can, however, establish by law, a common High Court for one or more State(s) and one or more Union Territory (Article 231).
▸ Every High Court shall be a Court of Record (Article 215). The High Courts in India find their roots in the British Period when three High Courts namely Bombay, Madras and Calcutta were setup in 1862.
Qualifications for Judges
▸ The qualifications required under the Constitution for a person to be appointed as a Judge of a High Court
— must be a citizen of India; and — must have held a judicial office in the territory of India for at least ten years; or
— must have been an advocate of a High Court or two or more such courts in succession for at least ten years.
Appointment of the Judges
▸ Every High Court consists of a Chief Justice and such other Judges as appointed by the President from time to time (Article 216).
▸ The Constitution, unlike in the case of the Supreme Court, does not fix any maximum number of Judges for a High Court.
▸ Apart from appointing the Judges of the High Courts, the President has the power to appoint
— Additional Judges for a temporary period, not exceeding two years, for the clearance of arrears of work in a High Court.
— An acting Judge, when a permanent Judge of a High Court (other than a Chief Justice) is temporarily absent or unable to perform his duties or is appointed to act temporarily as the Chief Justice.
* An acting Judge holds office until the permanent Judge resumes his office. Neither an additional nor an acting Judge can hold office beyond the age of 62 years (now 64 years).
* While appointing a Judge of a High Court, the President is to consult the Chief Justice of India, the Governor of the State and the Chief Justice of that High Court in the matter of appointment of a Judge other than the Chief Justice.
Removal of Judges
▸ Removal of a High Court Judge is Governed by Articles 217 (1) (b) and 218 of the Constitution on the ground of proven misbehaviour or incapacity. The words misbehaviour or incapacity have neither been defined nor clarified in the Constitution.
▸ The complaint about misbehaviour or incapacity against a judge has to be probed under the Judges (Inquiry) Act, 1968.
Justice Soumitra Sen Case
Justice Soumitra Sen of Calcutta High Court was held guilty of misappropriation of public funds he received in his capacity as receiver appointed by the High Court of Calcutta and misrepresenting facts with regard to it by a committee of three judges set up by former CJI K. G Balakrishnan in 2007. A year later, Justice Balakrishnan recommended his impeachment to the PM, after which a legal opinion obtained by the law ministry endorsed the judges' committee report. In 2009, Rajya Sabha moved a motion for impeachment of Calcutta High Court Judge Soumitra Sen for his involvement in financial misappropriation.
Justice Dinakaran Case
In September 2009, allegations were made against Dinakaran by several members of the Bar Council of India stating that he had huge assets and land acquisitions in his Hometown Arakkonam more than what was fixed by the Tamil Nadu Land reforms. The lawyers requested Chief Justice of India and Union Law Minister not to appoint Dinakaran as Supreme Court Judge and initiate an enquiry process regarding the allegation. In 2009 the Chairman of the Rajya Sabha admitted a motion seeking his removal on charges of corruption and abuse of his judicial office. The Supreme Court collegium headed by Chief Justice KG
Balakrishanan had decided to replace Justice Dinakaran with Uttarakhand High Court Chief Justice JS Khehar, and recommended transfer of Dinakaran to the Sikkim High Court. Facing impeachment on charges of corruption and judicial misconduct, he resigned from the post of Sikkim High Court Chief Justice on 29th July, 2011 expressing ''lack of faith and confidence'' in the three-member inquiry committee probing charges against him.
Transfer of a Judges between High Courts
▸ A Judge of a High Court can be transferred without his/her consent by the President (Article 222).
— Consultation with the Chief Justice of India must be full and effective.
— All relevant facts relating to the transfer of a Judge of a High Court must be provided to the Chief Justice of India.
— The opinion provided by the Chief Justice shall have primacy and is binding on the President.

Jurisdiction of the High Courts

Original Jurisdiction
▸ In their judicial capacity, the High Courts of the Presidency towns (Bombay, Calcutta and Madras) have both original and appellate jurisdictions, while other High Courts have mostly appellate jurisdiction.
▸ Only in matters of admiralty, probate matrimonial and contempt of Court, they have original jurisdiction. The Presidency High Courts have original jurisdiction in which the amount involved is more than ` 2000 and in criminal cases which are committed to them by the Presidency Magistrates.
Appellate Jurisdiction
▸ As Courts of appeal, all High Courts entertain appeals in civil and criminal cases from their subordinate courts as well as on their own.
▸ They have, however, no jurisdiction over tribunals established under the laws relating to the Armed Forces of the Country.
Writ Jurisdiction
▸ Under Article 226 of the Constitution, the High Courts are given powers of issuing writs not only for the enforcement of the Fundamental Rights, but also for other purposes. In exercise of this power, a Court may issue the same type of writs, orders or directions which the Supreme Court is empowered to issue under Article 32.
▸ The jurisdiction to issue writs under this Article is larger in the case of High Courts, for which the Supreme Court can issue them only where a Fundamental Right has been infringed, a High Court can issue them not only in such cases, but also where an ordinary legal right has been infringed.
A Court of Record
Every High Court shall be a Court of Record (Article 2015). As a court of record, a High Court has two powers. There are as follows:
▸ The Judgements, proceedings and acts of the High Courts are recorded for perpetual memory and testimony. These records are admitted to be of evidentiary value and connot be questioned when produced before any subordinate Court.
▸ It has power to punish for contempt of Court, either with simple imprisonment or with fine us with both.
Administrative Functions
▸ The High Courts control and supervise the working of the courts subordinate to them and frame rules and regulations for the transaction of their business. Under Article 227, every High Court has the power of superintendence over all the Courts and tribunals except those dealing with the Armed Forces functioning within its territorial jurisdiction.
▸ In exercise of this power, the High Court may
— call for returns from such Courts;
— make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts;
— prescribe forms in which books and accounts shall be kept by the offices of any such Courts, and — transfer cases from one Court to another.
▸ Under Article 235, the High Courts exercise control over the District Courts and the subordinate courts in matters of posting, promotion etc. According to Article 229 of the Constitution, every High Court has been ensured a complete control over the members of its staff. The Chief Justice of the High Court is empowered to appoint officers and servants of the Court.
Control Over Subordinate Courts
Apart from above Jurisdiction the High Court also enjoys supervisory Jurisdiction over the subordinate Courts.
These includes followings :
▸ Governor in consultation with High Courts appoints the district judges.
▸ The administrative control of the High Courts over the District Courts and other lower courts is full in as much as postings, promotions and grant of leave etc., to any person belonging to the judicial service of a state and holding any post inferior to the post of judges is vested in High Court.
▸ Article 236 is the interpretation clause and explains terms like district judge, judicial service etc.
▸ The High Court's Law is binding on all subordinate Courts functioning within its territorials Jurisdiction in the same sense as the law declared by the Supreme Court is binding on all courts in India.
Plea Bargaining
▸ It was introduced in India by the Criminal Law (Amendment) Act, 2005. Under Plea Bargain, criminal defendant and prosecutor reach an agreement subject to court approval. The accused admits guilt without a trail and in return is given a lighter punishment.
▸ This is allowed for cases where maximum imprisonment is seven years. Socio-Economic offences like Sati are also excluded. Offences committed against a woman or child below the age of 14 years are also excluded.

Independence of the High Court

The Constitution seeks to secure the independence of Judges of the High Courts in the following ways:
— A Judge of a High Court can only be removed by the President on an address of each House of the Parliament, passed by not less than two-third of the members present and voting and by a majority of that House only on the ground of proved misbehaviour or incapacity.
— After retirement, a Judge of a High Court cannot serve in any Court or before any authority in India except in the Supreme Court and a High Court other than the High Court in which he had held the office.
— Their salaries and allowances cannot be changed to their disadvantage after their appointment except during a Financial Emergency.
— Their salaries and allowances are charged on the Consolidated Fund of State and are not subject to vote in the State Legislature.
— The conduct of the Judges of the High Courts cannot be discussed in the Parliament, except on a resolution for the removal of the Judges.
Comparison between Superme Court and High Court

Supreme Court High Court The Supreme Court is a Federal Court. Its only seat is located at Delhi. There is a provision for a High Court in each State and Union Territories or one or more States or Union Territories may establish a High Court. The Supreme Court is not bound to abide by the decision of the High Courts. The High Courts are bound to abide by the decisions of the Supreme Court. The Judges of Supreme Court cannot be transferred nor can they be demoted in office. The Judges of the High Court can be transferred from one court to other High Court and may be promoted as the Judges of the Supreme Court. The salaries and the allowances of the Judges of the Supreme Court are charged upon the Consolidated Fund of India. Salaries and allowances of the Judges of the High Court are charged upon the Consolidated Fund of the States. The cases involving the interpretation of the Constitution are decided only by the Supreme Court. The cases involving the interpretator of the Constitution are not decided by the High Court. The Supreme Court can issue writs only for the enforcement of Fundamental Rights. High Court can issue writs not only for the enforcement of Fundamental Rights, but also for any other purpose. A remedy under Article 32 is in itself a Fundamental Right and hence, the Supreme Court may not refuse to exercise its writ jurisdiction. A remedy under Article 226 is discretionary and hence, a High Court may refuse to exercise its writ jurisdiction.

Subordinate Courts

▸ Under Article 235 of the Constitution of India, administrative control over members of the Subordinate Judicial Service rests with the concerned High Courts. Further, in exercise of powers conferred under provision to Article 309
read with Articles 233 and 234 of the Constitution, State Government frames rules and regulations in consultation with the High Court in their state to administer Subordinate Courts. Members of the State Judicial Services are Governed by these rules and regulations.
▸ As per the direction of the Supreme Court in the All India Judges Association case a uniform designation has been given to be Subordinate Judiciary’s judicial officers all over the country, viz. District or Additional District Judge, Civil Judge (Senior Division) and Civil Judge (Junior Division) on the civil side and on criminal side, Session Judge, Additional Sessions Judge, Chief Judicial Magistrate and Judicial Magistrate, etc., as laid down in the Code of Criminal Procedure (CrPC) 1973.

Gram Nyayalayas Act, 2008

▸ This act, came into force from 2nd October, 2009 to provide for the establishment of Gram Nyayalayas at the grass roots level for the purpose of providing access to justice at the doorsteps of citizens.
▸ The Central Government will meet the non-securing expenditure of the establishment of Courts. More than 5000 Gram Nyayalayas are expected to be setup.
High Courts of State/ Union Territory

S.No. Court Names Jurisdictions Benches 1. Allahabad High Court Allahabad Lucknow 2. Andhra Pradesh High Court Amravati 3. Bombay High Court Maharashtra, Goa, Dadra and Nagar Haveli, Daman and Diu Mumbai Nagpur, Panaji, Aurangabad 4. Calcutta High Court West Bengal, Andaman and Nicobar Islands Kolkata Port Blair (Circuit Bench) 5. Chhattisgarh High Court Bilaspur 6. Delhi High Court National Capital Territory of Delhi 7. Guwahati High Court Arunachal Pradesh, Assam, Nagaland, Mizoram Guwahati Kohima, Aizwal and Itanagar 8. Gujarat High Court Ahmedabad 9. Himachal Pradesh High Court Shimla 10. Jammu and Kashmir High Court Srinagar and Jammu 11. Jharkhand High Court Ranchi 12. Karnataka High Court Bengaluru Gulbarga and Dharwal 13. Kerala High Court Kerala, Lakshadweep Kochi 14. Madhya Pradesh High Court Jabalpur Gwalior, Indore 15. Madras High Court Tamil Nadu, Pondicherry Chennai Madurai 16. Manipur High Court Imphal 17. Meghalaya High Court Shillong 18. Odisha High Court Cuttack 19. Patna High Court Patna 20. Punjab and Haryana High Court Punjab, Haryana, Chandigarh Chandigarh 21. Rajasthan High Court Jodhpur Jaipur 22. Sikkim High Court Gangtok 23. Tripura High Court Agartala 24. Uttarakhand High Court Nainital 25. Telangana High Court Hyderabad

▸ They are expected to reduce by 50% the pendency of cases in Subordinate Courts.
▸ Some salient features of this Act are as folows:
— aimed at providing inexpensive justice to people residing in rural areas.
— it shall be a Court of the Judicial Magistrate of first class and the presiding officer (Nyayadhikari) will be appointed by the State Government in consultation with the High Court.
— Nyayadhikans to be strictly judicial officers
— Gram Nyayalaya to be a Mobile Court and shall exercise the powers of both criminal and Civil Courts
— it will try to settle disputes as far as possible by bringing about conciliation between the parties.
— it will not be bound by Rules of Evidence in Indian Evidence Act, 1872 but it will be bound by principles of natural justice.
— a person accused of an offense may file an application for plea bargaining.

Alternative Dispute Resolution

▸ It encompasses arrange of means to resolve conflict without formal litigation, It seeks to reduce cost and delay and avoid the adversarial nature of litigation. ADR today falls into two broad categories- Court-driven options and community based dispute resolution mechanisms (Lok Adalats)
— Court-driven options include mediation/conciliation where a neutral third party assists disputants in reaching a mutually acceptable solution. (i) Conciliation is an informal process designed to create an environment where negotiations can take place. If the parties fail to reach an agreement the case is referred to mediation. (ii) Mediation is a voluntary and confidential process where a neutral third party assists negotiations. The parties are responsible for reaching an agreement and the negotiator cannot impose settlement. If the mediation fails to reach agreement, the case is referred to arbitration. (iii) Arbitration is a form of private adjudication where a mutually acceptable third party hears arguments from either side in a dispute, and renders a judgment. The judgment known as and award is confidential and binding.
Lok Adalat
Community-driven resolution mechanism (Lok Adalat) literally means Peoples Court. It is an alternative dispute settlement Mechanism which settles disputes through conciliation and mediation. It helps in quick disposal of cases and the process is simple and carries no fees. Lok Adalats are statutory forums since the enactment of the Legal Services Authorities Act, 1987.
▸ All legal disputes pending in civil, criminal, revenue courts and tribunals can be taken to a Lok Adalat for amicable settlement except criminal cases which are non-compoundable.
▸ The Lok Adalat is presided over by a sitting or retired judicial official or an other person of respect and legal knowledge as the chairman, with two other members.
▸ Lok Adalats generally consist of judicial member a legal-practitioner and a social worker.
▸ The first Lok Adalat was held on 14 March, 1982 , at Juragarh in Gujarat.
▸ They follow their own procedure. They have the power of Civil Court in respect of summoning of evidence, examination of witnesses, requisitioning of public records etc. No lawyers are involved in the process.
▸ The awards passed have to be complied within a month.
▸ In the State of Punjab vs Jalour Singh (2008) case verdict the Supreme Court ruled that Lok Adalats have no adjudicatory or judicial functions and they are not courts. Their functions relate purely to conciliation.
▸ A Lok Adalat persuades the parties to come to an understanding and settlement and puts its seal of confirmation in terms of the compromise or settlement.
▸ These awards are final as there does not lie any appeal against the awards passed by a Lok Adalat.

All India Judicial Service (AIJS)

▸ The 42nd Constitutional Amendment Act, 1976 inserted All India Judicial Service into the Article 312. The Act says that AIJS shall not include any post inferior to that of a district judge as defined in Article 236. Subordinate Courts Subordinate Judiciary is a State subject.
▸ A resolution passed by the Rajya Sabha with two-thirds majority is necessary to enable the creation of an All Indian Service under Article 312.

e-Governance in Judiciary

▸ The Supreme Court took up the e-courts project under the national e-governance plan for linking about 15000 courts in the country. From the time the case is filed till its is disposed of with judgment, the entire process must take place electronically.
▸ Courtis Project taken up by the National Informatics Centre (NIC) has streamlined registries at various courts. With the implementation of the system the number of pending cases in the Supreme Court has come down.
▸ Courtnic Is an information system designed to provide the information on the status of cases in the Apex Court to a wide variety of users from anywhere in the country. Computerisation of all 24 High Courts and its 14 benches has been done on the lines of Apex Courts Computerisation. All High Courts cause list are also available on the internet.
▸ Case Status This website provides Supreme Courts pending and disposed case status information to litigants/advocates on internet.
▸ Judis NIC brought out Judgement Information System (JUDIS) on CD-ROM containing all Supreme Court judgements from 1950 to 2000. Judgements after this are available on the internet.
▸ Daily Orders of High Courts and Supreme Courts are now available on the internet immediately after they are signed by the judges.
Judicial Impact Assessment
▸ The Task Force Under the chairmanship of Justice M Jagannadaha Rao on the feasibility of Judicial Impact Assessment submitted its report in 2008.
▸ The committee recommended that Judicial Impact Assessments must be made on a scientific basis for the purpose of estimating the extra case-load which any new legislation may add to the burden of the courts and the expenditure required for the adjudication of such cases.
▸ If implemented this will introduce a system in India which is already in vogue in USA.

Judges Standards and Accountability Bill, 2010

▸ This Bill requires judges to declare their assets, lays down judicial standards and establishes processes for removal of judges of Supreme Court and High Court. Judges will be required to declare the assets and liabilities of themselves as well as their spouse and children.
▸ The Bill envisages the creation of National Judicial Oversight Committee, the complaints scrutiny panel and an investigative committee. Any person can make a complaint to the oversight committee on grounds of 'misbehaviour'. These complaints will then be forwarded to the scrutining panel and will then be investigated b the investigative committee. A motion for removal of a judge can also be moved in Parliament. Such a motion will be referred to oversight committee for further inquiry. Complaints and inquires against judges will be confidential and frivolous complaints will be penalised.
▸ The oversight committee on completion of investigation may issue advisories or warnings to judges and also recommend their removal to the President.
The Bill also includes:
— Focus on Human Resource development such as filling of vacancies, training of public prosecutors etc.
— Leveraging Information and Communication technology better for justice delivery
— Improving infrastructure such as physical infrastructure at district and Subordinate Courts and creation of special courts such as morning/evening courts etc.
— Infrastructure development for the Subordinate judiciary is the major thrust area of the national mission.

National Legal Services Authority (NALSA)

▸ To monitor and implement the legal aid programme, NALSA has been constituted. Its aim to secure the free and comprehensive legal services to the weaker sections of the society, Under the legal service Authorities Act 1987, Which is passed in 1994 and further amended in 2002.
▸ To provide free legal aid to the eligible person this act comes up with the composition, of the Supreme Court legal service committees, the High Court legal service committees, State legal service committees, the district legal service committees and the Taluka legal service committees.
▸ As per the act, every person whose annual income doesn't exceed ` 9000 is eligible for free legal aid in the cases before the High Courts and the other subordinate courts. In cases coming before Supreme Court, the limit has been fixed at ` 12000 per annum.
▸ The above limits don't apply in the cases relating to SCs, STs, women, children, handicapped etc. This limit can be increased by State Governments. NALSA not only monitors and evaluates the implementation of the legal aid schemes and programmes but also takes necessary steps for followings:
— promoting legal itinerary.
— setting up of legal aid clinics in universities and law colleges.
— training of para-legal personnel and holding legal aid camps and the lok adalats/Permanent Lok Adalat.
Mobile Court
The mobile court means a court set up in a – vehicle, which can move from one place to another. It will be great relief to the rural people as it would provide cost effective and speedy justice to the poor. With an endeavour to make the judicial system accessible to remove and backward areas, the country's first mobile court was inaugurated in the Mewat district Haryana.