Judiciary

SC and the HC;

ADR; PIL; Judicial Activism &
Adventurism.
 Introduction...
• One of the most essential organs of the State.
• Traditional vs Modern role.
Doctrine of Limited Government...
 Judiciary in Federal Polity...
• In federal polity, where the powers of the
Govt are not only limited vis-a-vis the rights of
the citizens but are also divided between two
sets of Govt’s – Central and the State, the
judiciary assumes vital and specific status.
Comparison with USA Model
 Supreme Court
Judges, Issues, Concerns and the
way forward...
Establishment and constitution of SC
• Article 124 (1): There shall be a SC of India
consisting of CJI and not more than 7 judges.
 Qualifications:
• Citizen of India,
a) 5 years experience as a Judge of a HC or two or
more such courts; or
b) 10 years experience as an advocate of a HC or
two or more such courts; or
c) In the opinion of the President, a distinguished
jurist.
 Appointment...
• 124(2): Every judge of the SC shall be appointed
by the President after consultation with such of
the judges of the SC and of the HCs in the States
as the President may deem necessary for the
purpose and shall hold office until he attains the
age of sixty-five years.
• Provided in case of a judge other than the CJI,
the CJI shall always be consulted.
 Towards a conflict...
• After the retirement of CJI Sikri, Justice AN Ray
was appointed as the CJI superseding 3 judges.
• The 3 Judges resigned.
• On the retirement of CJI Ray, senior most judge
Justice Khanna was superseded and Justice Beg
was appointed as the CJI.
• Justice Khanna resigned in protest.
1 st Judges Case (SP Gupta, 1981)
2 nd Judges Case (SCARA, 1993)
Re Appointment of Judges (1998)
Criticism of the Collegium System
• 45 per cent of the positions of High Court
judges are vacant.
• Lacks transparency and accountability.
• Violates the Constitution.
 Suraz India Trust(2010)...
• Will the two decisions of this court (1993 and 1998) really amount
to amending Article 124 (2) of the Constitution?
• Is there any ‘collegium’ system in the Constitution for appointing
Supreme Court or High Court judges?
• Can the Constitution be amended by a judicial verdict or only by
Parliament in accordance with Article 368?
• In the constitutional scheme, can the judges be appointed by
discussions and consensus between the judiciary and the executive,
or can the judiciary alone make the appointments?
• Does the word ‘consultation’ in Article 224 mean ‘concurrence’?
• By judicial interpretation, can words in the Constitution be made redundant, as
appears to have been done in the aforesaid two decisions which have made
consultation with High Court judges redundant while appointing a Supreme Court
judge despite the fact that it is permissible on the clear language of Article 124(2)?
• Can the clear language of Article 124(2) be altered by judicial verdicts and instead
of allowing the President to consult such judges of the Supreme Court (including
even junior judges) as he deems necessary, can only the CJI and four senior most
judges be consulted while appointing a Supreme Court judge?
• Is there any convention that the President is bound by the advice of the CJI and
(assuming there is one) can it prevail over the clear language of Article 124(2)?
Has the CJI’s opinion any primacy in the appointments?
• Should the two decisions be overruled by a larger Bench?
NJAC...
 Independence of the Judges...
• When drafting the Constitution, the Constituent Assembly took great efforts to
ensure that the judiciary was independent of any coercive political influence. To
that end, it introduced a number of significant provisions in the Constitution:
a) the judges of the Supreme Court and the High Courts serve not at the pleasure
of the President, but until they attain a fixed age;
b) salaries and allowances of the judges are charged on the Consolidated Fund of
the State;
c) discussion in the Parliament/State legislatures on the conduct of any judge is
expressly barred;
d) powers are conferred on the High Court to punish for contempt of itself; and,
significantly,
e) judges of the higher judiciary can be removed only through a complicated
process of removal by Parliament.
• But, as valued as judicial independence was to
the Assembly, it did not see the vesting of the
ultimate power of appointing judges on the
executive as an infraction of that principle; on
the contrary, it viewed such power as a vital
cog in the checks and balances required to
ensure a proper separation of powers.
• Parliament merely sought to realign the process of
appointments in consonance with a general principle
of separation of powers.
• Given that the originally enacted Constitution placed
overriding power on the executive to make judicial
appointments, it is unfathomable how the proposed
system, which accords the judiciary not merely a
consultative role but a determinative one, can be
found to infringe the independence of the judiciary.
Vacancy/Removal...
 Article 126...
• Acting CJ: When the office of CJI is vacant or
when the CJI is 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.
 Article 127...
• Ad hoc Judges: In absence of a quorum, the CJI may,
with the previous consent of the President, and after
consultation with the CJ of the HC concerned, request
in writing the attendance at the Court of an ad hoc
judge.
• {The constitution makes no provision for the
appointment of temporary or acting judges of the
SC.Instead the system of appointing ad hoc judges has
been adopted}
 Article 128...
• Attendance of retired judges at the sittings of the SC:
• This article enables the retired judges of the SC and the
HCs to sit and act as judges of the SC when so
requested by the CJI.
• It will be necessary for the CJI to obtain the previous
consent of the President before inviting any such
person to act a judge of the SC.
• But there can be no compulsion on the retired judges
to accept the invitation.
 Article 130...
• Seat of the Supreme Court: The SC shall sit in
Delhi or in such other place or places, as the
CJI may, with the approval of the President,
from time to time, appoint.
 Court of Record...
a) The judgements, proceedings and acts of the
SC are recorded for perpetual memory and
testimony. These records cannot be
questioned when produced before any court.
b) The SC has the power to punish for its
contempt.
 Powers
Jurisdiction of the SC
Original Jurisdiction
Meaning and Exceptions.
 Article 131...
• The SC has the original jurisdiction in any
dispute –
a) between the Govt of India and one or more
States; or
b) between the Govt of India and any State or
States on one side and one or more other States
on the other; or
c) between two or more States.
• A court has original jurisdiction when it has
authority to hear and determine a case in the
first instance.
• It has exclusive jurisdiction when it has the
authority to hear and determine a case which
no other court can hear or determine.
 Exceptions...
• Treaty of pre-constitutional era.
A dispute involving interpretation of these
documents has evidently been left within the
exclusive discretion of the Executive.
• Article 262.
• Matters related to the Finance Commission.
• Adjustment of certain expenses between the
Union and the States (Article 290).
 Appellate Jurisdiction
Civil, Criminal and Constitutional
cases.
Constitutional Matters...
Civil Matters...
Criminal Matters...
Special Leave Petition...
Advisory Jurisdiction
Revisory Jurisdiction
Review & Curative Petition.
Public Interest Litigation (PIL)
Concept & Origin; Rules; Purposes;
Criticism; New Rules.
 Judicial Activism
Activism or Adventurism?
Alternate Dispute Resolution (ADR)

Arbitration; Gram Nyayalayas; Lok

Adalats.
• Financial constraint was one of the reasons for not
setting up village courts, which the legislation had
promised would be set up in every panchayat
headquarters.
• Gram Nyayalayas were expected to function like mobile
courts and visit villages to dispense speedy justice
.............................................................
 High Courts
Composition & Structure.
Conclusion
 Why is justice delayed?
• According to a 2014 report there are more than 44 lakh
cases pending in the country's high courts.
• This figure touches three crore if we take into account
all the courts of India.
• Why is there such a huge backlog of cases in the
Indian judicial system? The problem that plagues the
Indian judicial system and slows it down can be broken
down into three areas of concerns.
• Firstly, there are too many lacunas and gaps in
Indian laws and acts resulting in filing of several
frivolous cases, thus, increasing the number of
litigations.
• For example, the property rights and the related
tenancy rights in India are so ill-defined that
there are large numbers of litigations surrounding
property disputes.
• Secondly, the legal proceedings are themselves, so
complicated and ill-defined that the rate of clearing of
cases is abysmally slow.
• In a case of 50 hearings, on an average, there would be 10-
15 adjournments on inconsequential grounds. Then, the
judge would be absent for another 10 of those hearings.
Thus, the number of effective hearings in a case is quite
low.
• Also, the gap between the dates of hearing extends to
several months increasing the pendency of cases.
• Thirdly, there is an acute shortage of judges in Indian
courts. According to the Press Information Bureau,
2016, there are 464 vacancies of judges in Indian high
courts and Supreme Court. India has only 10.5 judges
per million of population which is quite a poor ratio,
when compared to other countries. The impact of
such low ratio is reflected in the choking of India's
judicial system with a high number of pending cases
and new litigations being filed every day.
 Global best practices
• In the Scandinavian countries, before a person
files an appeal in the court of law, he/she has to
seek redressal of their grievance through
alternate dispute resolution (ADR) mechanisms.
• ADR is an extra-judicial body that resolves
grievances through mediation, thus reducing the
number of cases filed in the court of law.
• In Australia, there is provision for electronic filing of cases,
unlike in India, where there is huge amount of paperwork
involved.
• Use of technology in the judicial system can make the
entire system much more efficient and aid in speedy trials.
• Certain countries have adopted 'discovery system' where
each litigating party must disclose its evidences to the
other party, so that both the parties are able to examine
the evidences. This system also reduces the number of
cases reaching the court of law.
• Over the years, the various commissions/committees
have given innumerable suggestions to reform the
judicial system such as:
I. constituting more number of benches,
II. increasing the judges ratio from 10.5 to 50
judges/million of population,
III. computerising the entire judicial process,
IV. bunching of similar cases and conducting their
hearing under one bench etc.
 High Courts
The jurisdiction of our high courts
has been subject to relentless attack