Courts & Tribunals Notes

Supreme Court

India has the integrated judicial system with the Supreme Court at the top and the High Courts below it. Under a high court, there is a hierarchy of district courts and lower courts. However, in USA, there is a double system of courts – one for centre and other for states.

Article 124 to 147 in part V of the constitution, deals with provisions related to SC.

Appointment

Currently, there are 34 judges in the SC (33 + 1 CJI)
CJI is elected by the President on advice of other judges in the Supreme court and High courts
Other judges are elected by the president after consultation with the CJI and such other judges of the Supreme Court and high courts as the president may deem necessary
Consultation with CJI is obligatory, except in the case of appointment of CJI himself.

Controversy over consultation

First Judges case (1982) - SC held that consultation of president with judges does not mean concurrence and it only implies exchange of views

Second Judges Case (1993)

Reversed the previous ruling and changed the meaning of the word consultation to concurrenc
Hence it ruled that the advice tendered by the CJI to the President of India is binding in matters of appointment of judges of the SC
But the CJI must consult with two of his senior most colleagues in such matter

Third Judges Case (1998)

The SC opined that the process of consultation involves “consultation of plurality of judges” by the CJI and CJI’s opinion alone cannot be constitutional
Hence, the CJI must consult with the collegium of four senior most judges of the SC and even if two judges give an adverse opinion, she must not send it to President as a recommendation.

Collegium system controversy

The 99th amendment act of 2014 and National Judicial appointment commission act 2014 have replaced the collegium system of appointing the judges to the SC and the high courts with a new body, National Judicial Appointments Commission.
However, in 2015, the SC declared both the 99th amendment act and NJAC act as unconstitutional and from then once again, the collegium system came into force.
Appointment of the CJI: The senior most judge of the Supreme Court must be appointed as the CJI by the government

Two instances where this didn’t happen

1973 when AN Ray was appointed the CJI superseding three other judges in the SC - all the 3 judges resigned
1977 when MU Beg was appointed as the CJI superseding the then senior most judge.
The second Judges case in 1993 curtailed this where it ruled that only the senior most judge of the Supreme Court must become the CJI of India.

Qualifications

No minimum age has been prescribed by the SC
Citizen
Judge of High Court >5 years or Advocate of High Court >10 years
A Distinguished Jurist in opinion of the President

Removal

Resignation by writing to the president

Only by President who must present such resolution in an address to the Parliament
Must be passed in each House of the Parliament by Special majority - i.e. majority of the total membership and 2/3rd of the members present and voting.

Grounds: proved misbehaviour and incapacity

A removal motion signed by 100 members in case of LS and 50 members in case of RS is given to the Speaker or the Chairman
Speaker may admit or refuse this motion
If accepted, 3 member committee to be formed by the Speaker
Committee should consist of the 1) CJI or judge of the Supreme Court (2) Chief justice of a high court (3) distinguished jurist
Then passed by each house if consideration is made to the House by the committee
Needs to be passed by both houses in the same session

Note – No judge of SC has been impeached so far. However, the first case of impeachment was initiated against V. Ramaswami but the motion was defeated in Lok Sabha.

Note – The constitution has not provided the fixed tenure of the judges of SC. However, he holds office until he attains the age of 65.

Ad-hoc and Retired judges

Ad-hoc- when there is lack of quorum in SC, CJI may appoint a judge of high court as temporary judge of SC with prior consultation with CJ of high court and consent from President.
Retired- CJI can temporarily appoint a retired judge as judge of SC with prior consent of president.
Acting chief justice – The president of India can appoint a judge of the SC as the acting CJI when –

office of CJI is vacant
CJI is temporarily absent
CJI is unable to perform his duties

Jurisdictions and powers of SC

Original Jurisdiction

Dispute between units of Indian federation are solved by the supreme court under original jurisdiction. This dispute involves –

Centre and one or more states
Centre and any state on one side and one or more states on the other side
Between two or more states

In 1961, the first suit under original jurisdiction was filed by West Bengal against the centre challenging the constitutional validity of Coal Bearing areas act of 1957.

Appellate Jurisdiction

The SC is the highest court of appeal against the judgements of lower courts. The appellate jurisdiction of SC lies in four areas -

Constitutional cases
Civil matters
Criminal matters
Special leave petition

Writ Jurisdiction

For enforcement of FRs, this writ is original but not exclusive. Original means one can directly move to SC. It is not exclusive because High Courts are also empowered to issue writs for the enforcement of FRs. Five types of writs are -

Habeas Corpus
Mandamu
Prohibition
Certiorari
Quo-warranto

Advisory Jurisdiction (Article 143)

In case of Pre-constitutional treaties, supreme court has to provide advisory to the president, when asked to do so
In case of Post constitutional treaties, Supreme court may or may not provide advice to the president

Note – The advice tendered by the SC is not binding on the president.

Judicial Review

Articles 13 and 32 of the constitution confers power of Judicial review on the SC
Under judicial review, the SC can declare any legislation or executive orders as unconstitutional, illegal and invalid, if they are found to be violative of constitution.

Independence of SC

Mode of appointment – There is no absolute discretion of the judiciary on the appointment of SC judges.
Security of tenure – They do not hold their office until the pleasure of president.
Fixed service conditions
Expenses charged on Consolidated fund of India
Conduct of judges cannot be discussed
Power to punish for its contempt
Jurisdiction cannot be curtailed
Separation from executive

High Courts

The constitution of India provides for a high court in each state, but the 7th amendment act of 1956, provided for a common high court for two or more states. Presently there are 25 high courts in India. Delhi is the only UT which has its own high court.

Appointment

The composition of a high court is not fixed. It is on the discretion of president.
The chief justice of high court is appointed by the president after consultation with the CJI and governor of that state.
For appointment of other judges – CJ of the concerned HC is also consulted
In case of common high court, the governors of all the states concerned are consulted.

Second Judges case – No appointment of a judge of HC can be made, unless it is conformity with CJI

Third Judges case – the CJI should consult a collegium of two senior-most judges of the SC.

Qualifications

Citizen of India
Should have held a judicial office for 10 years
Should have been an advocate of high court for 10 years

Transfer, Tenure and Removal

The HC judges can be transferred by the president after consulting the CJI with a collegium of four senior most judges of the SC
HC judges hold office until he attains the age of 62
Removal of HC judges – In the same manner as the SC judges.

Jurisdiction of HC

Original jurisdiction

Power of a high court to hear a case in first instance (Not by the way of appeal). It extends to the following –

Admirality and contempt of court
FRs, election of MPs and MLAs
Revenue matter
Divorce, company laws, marriage

Writ jurisdiction

The HCs can exercise their Writ jurisdiction for enforcement of FRs and for any other purpose (enforcement of any legal right) under article 226. The writ jurisdiction of HCs is wider than those of SC because SC cannot exercise it for any other purpose other than FRs.

Appellate Jurisdiction

The HCs have appellate jurisdiction in both civil and criminal matters

Supervisory Jurisdiction

Power of superintendence over all courts and tribunals functioning in its territorial jurisdiction.

Judicial Review

Articles 13 and 226 of the constitution confers power of Judicial review on a HC
Under judicial review, a HC can declare any legislation or executive orders as unconstitutional, illegal and invalid, if they are found to be violative of constitution.

Independence of High Courts

Mode of appointment – There is no absolute discretion of the judiciary on the appointment of SC judges.
Security of tenure – They do not hold their office until the pleasure of president.
Fixed service conditions
Expenses charged on Consolidated fund of India
Conduct of judges cannot be discussed
Power to punish for its contempt
Jurisdiction cannot be curtailed
Separation from executive

Tribunals

The 42nd amendment act 1976 added a new part XIV – A in the constitution which deals with the “Tribunals”. This part contains two articles 323 A and 323 B

323 – A deals with the administrative tribunals

323 – B deals with tribunals for other matters

Administrative tribunals

The parliament has passed the administrative tribunals act in 1985 which authorises the central government to establish one central administrative tribunal and state administrative tribunals.
These tribunals have the responsibility of adjudication of disputes relating to recruitment and condition of service of persons appointed to public services.

Central Administrative Tribunal

Established in 1985
Principal bench – New Delhi
Jurisdiction:
i) Original jurisdiction in the matters of recruitment and all service matters.
ii) Jurisdiction extends to all India services, central civil services, civil posts under the centre and civilian employees of defence services.
iii) Not covered – members of defence forces, officers and servants of SC and secretarial staff of parliament.
Composition – One chairman and other Members
Appointment – High powered selection committee chaired by a sitting judge of SC, nominated by CJI. After obtaining the concurrence of CJI, the appointments are made with the approval of appointments committee of the cabinet.
Tenure – 5 years or 65 age in case of chairman; 5 years or 62 age in case of members
The CAT is not bound by the civil procedure code 1908. It is guided by the principles of natural justice.

State Administrative Tribunals

Central government is empowered to establish SAT as per the administrative tribunal act 1985.
SATs exercise original jurisdiction in relation to recruitment and all service matters of state government employees.
The chairman and members of SAT are appointed by the president after consultation with the governor of the state concerned.

Tribunals for other matters

Article 323 B, the parliament and state legislatures are empowered to establish tribunals for adjudication of disputes related to

Foreign exchange, import and export
Taxation
Industry and labour
Land reforms
Election to parliament and state legislature
Rent and tenancy rights
Food stuffs
Ceiling on urban property.

Subordinate Courts

These courts work below and under the high court at district and lower levels. Articles 233 to 237 in part VI of the constitution deals with the subordinate courts.

Appointment (A-233) and Qualifications

By the governor in consultation with the high court
A person appointed as district judge

Should not be in the central or state service
Should have been an advocate or a pleader for 7 years
Recommended by the high court

Article 233 A – validation of appointments and judgements delivered by the district judges.
Article 234 - Appointment of judges other than the district judges are made by governor of the state after consultation with state public service commission and the high court
Article 235 – The control over district courts and other subordinate courts is vested in the high court