Polity notes · Chapter 11 of 19

Judiciary

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Judiciary

CaseYearDetailsCJI's RolePresident's Role
1st Judges Case1982Consultation means exchange of views.CJI's advice not binding.Not binding
2nd Judges Case1993Consultation means concurrence.CJI's advice binding; must consult two senior-most judges.Binding
3rd Judges Case1998Consultation means concurrence.CJI's advice binding; must consult four senior-most judges.Binding
4th Judges Case2015In 2015, Govt. amended Constitution. SC ruled that NJAC is unconstitutional.
NJAC = CJI + Union Law Minister + Two senior-most judges + Two eminent persons		BindingBinding
AttributeSupreme Court JudgeHigh Court Judge
Appointed byPresidentPresident
Resigns toPresidentPresident
Oath administered byPresidentGovernor
Retirement age6562
TermNo fixed termNo fixed term
Salary sourceConsolidated Fund of IndiaConsolidated Fund of State
Pension sourceConsolidated Fund of India
Amount decided byParliament
Can salary be reduced?Only during financial emergency
High CourtNumber of JurisdictionsJurisdictions Covered
Gauhati4Assam, Arunachal Pradesh, Mizoram, Nagaland
Punjab & Haryana3Punjab, Haryana, Chandigarh
Bombay3Maharashtra, Goa, D&N Haveli and Daman & Diu
J&K & Ladakh2J&K, Ladakh
Calcutta2West Bengal, Andaman & Nicobar Islands
Kerala2Kerala, Lakshadweep
Madras2Tamil Nadu, Puducherry

Check yourself

Appointment of judges
  • Regarding appointment of Supreme Court Judges, Article 124 (2) says: "in the case of appointment of a Judge other than the Chief Justice, CJI shall always be consulted".
  • What does "consulted" mean?
  • 1st Judges Case — 1982 — Consultation means exchange of views. — CJI's advice not binding. — Not binding
  • 2nd Judges Case — 1993 — Consultation means concurrence. — CJI's advice binding; must consult two senior-most judges. — Binding
  • 3rd Judges Case — 1998 — Consultation means concurrence. — CJI's advice binding; must consult four senior-most judges. — Binding
  • 4th Judges Case — 2015 — In 2015, Govt. amended Constitution. SC ruled that NJAC is unconstitutional.
    NJAC = CJI + Union Law Minister + Two senior-most judges + Two eminent persons — Binding — Binding
Qualification to be SC Judge
  • Indian citizen, and
  • HC judge for 5 years, or
  • HC advocate for 10 years, or
  • Distinguished jurist in opinion of President
Qualification to be HC judge
  • Indian citizen, and
  • HC advocate for 10 years, or
  • Held judicial office in India for 10 years
  • There is no minimum age to become SC/HC Judge
  • Strength of SC decided by - Parliament
  • Strength of HC decided by - President
  • Current sanctioned strength of SC is 34 including CJI
  • Which of the following are correct?
  • ✓ Originally, Constitution fixed number of SC judges
  • ✓ Parliament can increase number of judges of SC without amending the constitution.
Transfer of HC judge · part 1
  • President consults CJI;
  • CJI consults:
  • – 4 senior most SC judges
  • – CJs of the two HCs
  • Basis for transferring a HC judge?
  • Transfer can be only in 'public interest' for 'better administration of justice'.
  • It cannot be a punitive measure.
  • Appointed by — President — President
  • Resigns to — President — President
  • Oath administered by — President — Governor
  • Retirement age — 65 — 62
  • Term — No fixed term — No fixed term
  • Salary source — Consolidated Fund of India — Consolidated Fund of State
  • Pension source — Consolidated Fund of India —
  • Amount decided by — Parliament —
  • Can salary be reduced? — Only during financial emergency —
Transfer of HC judge · part 2
  • ✓ Article 214: There shall be a HC for each State
  • ✓ Each State/UT has a HC
  • ✗ Each State/UT has a HC in its territory
  • ✓ There are 25 High Courts in India
  • Gauhati — 4 — Assam, Arunachal Pradesh, Mizoram, Nagaland
  • Punjab & Haryana — 3 — Punjab, Haryana, Chandigarh
  • Bombay — 3 — Maharashtra, Goa, D&N Haveli and Daman & Diu
  • J&K & Ladakh — 2 — J&K, Ladakh
  • Calcutta — 2 — West Bengal, Andaman & Nicobar Islands
  • Kerala — 2 — Kerala, Lakshadweep
  • Madras — 2 — Tamil Nadu, Puducherry
Removal of SC/HC Judges
  • Constitutional provisions:
  • Proved misbehavior or incapacity [not defined]
  • Special majority in both houses
  • Parliament to frame process [Judges (Inquiry) Act, 1968]
  • Removal procedure (Judges Inquiry Act, 1968)
  • – Removal motion signed by 100 Lok Sabha MPs (or 50 Rajya Sabha MPs) is given to the Speaker / Chairman
  • – Speaker / Chairman may admit or reject the motion
  • – If admitted, a three-member committee is formed: CJI or an SC judge, a HC Chief Justice and a distinguished jurist
  • – Committee finds the judge not guilty → motion drops; guilty → the House takes up the motion
  • – Passed by special majority in both Houses → judge removed by the President
Which of the following statements regarding judiciary in India are correct?
1. Supreme Court of India is free from the control and influence of legislature and executive
2. Subordinate courts are at the head of the judicial hierarchy of the state.
3. Chief Justice and other judges of High Court are appointed by Governor in consultation with C.J.I.
4. A High Court can withdraw a case from a subordinate court and can deal with the case itself if it is satisfied that the case involves a substantial point of constitutional law
Select the correct answer using the codes given below: PYQ 1992
  1. 1 and 2
  2. 1 and 3
  3. 1 and 4
  4. 2, 3 and 4

Answer: 1 and 4

HC judges are appointed by the President, and the High Court (not subordinate courts) heads the state judiciary.

Consider the following statements:
1. The motion to impeach a judge of the Supreme Court of India cannot be rejected by the Speaker of the Lok Sabha as per the Judges (Inquiry) Act, 1968.
2. The Constitution of India defines and gives details of what constitutes 'incapacity and proved misbehavior' of the judges of the Supreme Court of India.
3. The details of the process of impeachment of the judges of the Supreme Court of India are given in the Judges (Inquiry) Act, 1968.
4. If motion of impeachment of a judge is taken up for voting, the law requires the motion to be backed by each house of the parliament and supported by a majority of total membership of that house and by not less than two-thirds of total members of that House present and voting.
Which of the statements given above is/are correct? PYQ 2019
  1. 1 and 2
  2. 3 only
  3. 3 and 4 only
  4. 1, 3 and 4

Answer: 3 and 4 only

The Speaker may reject the motion, and the Constitution does not define ‘incapacity’ or ‘proved misbehaviour’.

With reference to the constitution of India, prohibition or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on the constitutional powers under Article 142. It could mean which one of the following? PYQ 2019
  1. Decisions taken by ECI while discharging its duties can not be challenged in any court of law.
  2. Supreme Court is not constrained in the exercise of its powers by laws made by the parliament.
  3. In the event of grave financial crises in the country, the President of India can declare Financial Emergency without the counsel from the cabinet.
  4. State Legislatures can not make laws on certain matters without concurrence of Union legislature.

Answer: Supreme Court is not constrained in the exercise of its powers by laws made by the parliament.

Art. 142 powers are not constrained by ordinary laws of Parliament.

Supreme Court

Check yourself

Supreme Court
  • Custodian of Constitution
  • Parliament can extend, not curtail SC’s jurisdiction and powers
  • CJI has freedom to appoint staff of SC and prescribe conditions of their service
  • All expenses are charged on Consolidated fund of India (Parliament can discuss, not vote)
  • Removed by President only after special majority in Parliament (proven misbehavior or incapacity)
  • Ban on pleading or acting in any Court or authority in India after retirement
  • Note: Retired HC judge can plead only in SC and other HCs
Article 131
  • SC has original & exclusive jurisdiction in inter-govt disputes (Centre vs States;
  • States vs States)
  • It does not cover inter-govt disputes due to pre-Constitutional agreement or river water sharing
  • Original: one can directly move SC
  • Exclusive: no other court can decide such dispute
  • Original and exclusive: inter-govt dispute; Dispute in election of President and VP
  • Original but not exclusive: enforcement of FRs, issue of writs, judicial review, etc.
  • Note: inter-govt dispute in the above is in the context of constitutional relation, not commercial disputes between the governments. Article 131 was first invoked by West Bengal in 1961.
Advisory Jurisdiction
  • By Article 143 President can seek opinion of SC on
  • ✓ any question of law or fact of public importance (SC can refuse)
  • ✓ dispute due to any pre-Constitution agreement etc. (SC must tender its opinion) In either case SC advice is not binding on President.
Article 136: Special Leave Petition
  • ✓ Any judgment in any matter passed by any court or tribunal in the country
  • (except military tribunal and court martial)
  • ✓ It is a discretionary power and hence, cannot be claimed as a matter of right
Consider the following statements:
1. The Parliament cannot enlarge the jurisdiction of the Supreme Court of India as its jurisdiction is limited to that conferred by the Constitution
2. The officers and servants of the Supreme Court and High Courts are appointed by the concerned Chief Justice and the administrative expenses are charged on the Consolidated Fund of India.
Which of the statements given above is/are correct? PYQ 2005
  1. 1 only
  2. 2 only
  3. Both 1 and 2
  4. Neither 1 nor 2

Answer: Neither 1 nor 2

Parliament can enlarge SC jurisdiction; HC administrative expenses are charged on the State's Consolidated Fund.

Constitution Bench

Check yourself

Constitution Bench
  • SC bench of 5 or more judges
  • Article 145(3) → Minimum 5 judge bench for:
  • – case involving substantial question of law to interpret Constitution
  • – hearing any reference under Art. 143 (President seeking SC opinion)
  • CJI constitutes the bench, but may not be a part of it.
  • 2017 Puttaswamy case (Right to privacy) was heard by 9 judge bench.
  • Largest ever was 13 judge bench for Kesavananda Bharati case.
  • Dispute in election of President and VP
  • – Must be decided by SC (Article 71)
  • – By a Constitution bench of at least 5 judges (Rules)

Judicial Review

Check yourself

Judicial Review
  • "Judicial review" & "independence of judiciary" borrowed from? US Constitution
Ninth Schedule
  • a) Article 31B: laws in 9 th schedule can’t be challenged in courts
  • b) Added by 1st amendment 1951 to protect zamindari abolition laws
  • c) Has both central & state laws; initially 13 laws, currently 284.
I. R. Coelho case 2007
  • 9th schedule not immune to judicial review (part of basic structure)
  • Law placed in 9th schedule is unconstitutional if: → it violates any FR, and → it violates basic structure
In India, Judicial Review implies PYQ 2017
  1. power of Judiciary to pronounce upon the constitutionality of laws and executive orders
  2. power of Judiciary to question the wisdom of the laws enacted by the Legislatures
  3. power of Judiciary to review all legislative enactments before they are assented by President
  4. power of Judiciary to review its own judgements given earlier in similar or different cases

Answer: power of Judiciary to pronounce upon the constitutionality of laws and executive orders

Judicial review = power to decide the constitutionality of laws and executive orders.

Consider the following statements:
1. Parliament can place a particular law in 9th Schedule of the Constitution of India
2. Validity of a law placed in 9th Schedule cannot be examined by any court and no judgment can be made on it.
Which of the above statements are correct? PYQ 2018
  1. 1 only
  2. 2 only
  3. Both 1 and 2
  4. Neither 1 nor 2

Answer: 1 only

Parliament can place laws in the 9th Schedule, but they remain open to review (I.R. Coelho, 2007).

Contempt of Court

Check yourself

Contempt of Court · Article 129
  • Does not define what is contempt
  • Article 129: SC can punish for its contempt
  • Article 215: HC can punish for its contempt
  • Article 19(2): CoC is reasonable restriction on freedom of speech & expression
  • Consent for “Criminal” contempt cases:
  • SC: Attorney General / Solicitor General
  • HC: Advocate general / Lower court
  • Consent not needed for suo-motu cases
  • Contempt of Courts Act, 1971:
Contempt of Court · part 2
  • Contempt:
  • Disobey court order
  • Breach of undertaking given to court
  • Interfere with judicial proceedings
  • Scandalize the court
  • Not contempt:
  • Fair criticism of judgment
  • Mere criticism of court (PN Dua case 1988)
  • Defaming judge but not interfering with proceedings
  • Justification by truth is valid defense (2006 amendment)
Contempt of Court · part 3
  • Contempt:
  • Disobey court order
  • Breach of undertaking given to court
  • Interfere with judicial proceedings
  • Scandalize the court
  • Not contempt:
  • Fair criticism of judgment
  • Mere criticism of court (PN Dua case 1988)
  • Defaming judge but not interfering with proceedings
  • Justification by truth is valid defense (2006 amendment)
All 19 chapters of Polity notes
  1. Making of the Constitution1 sections
  2. Preamble3 sections
  3. Union & its Territory2 sections
  4. Citizenship2 sections
  5. Fundamental Rights8 sections
  6. Fundamental Duties3 sections
  7. Directive Principles8 sections
  8. Amendment & Basic Structure4 sections
  9. Parliamentary System1 sections
  10. Federal System3 sections
  11. Judiciary5 sections
  12. Parliament & the President2 sections
  13. Houses, Council of Ministers & PM5 sections
  14. Parliamentary Business6 sections
  15. Committees & State Legislature4 sections
  16. Centre–State Relations1 sections
  17. Inter-State Relations1 sections
  18. Emergency Provisions1 sections
  19. Constitutional & Statutory Bodies2 sections