Union Judiciary & State Judiciary Chapter IV {The Union Judiciary} Article 124 {Establishment and Constitution of Supreme

e Court} Article 125 {Salaries, etc., of Judges} Article 126 {Appointment of acting Chief Justice} Article 127 {Appointment of ad hoc Judges} Article 128 {Attendance of retired Judges at sittings of the Supreme Court} Organisation of SC Maximum Strength: In February 2009 the strength of the Supreme Court was raised from 26 to 31 including CJI. Appointment of judges: Judge of SC is appointed by the President after consultation with the Judges of the Supreme Court and High Courts in states, the president may deem necessary for the purpose. U/A 142 (2) President if thinks necessary, can consult the Judges of the High Courts of States to appoint a supreme court Judge. Issues regarding appointment: in First Judges case (1982), SC held that consultation doesnt mean concurrence and only implies exchange of views. But, in Second Judges case (1993), SC held that advice tendered by CJI is binding on president in appointment matters. But, CJI would tender advice on matter after consulting 2 of his seniormost colleagues. In Third judges case (1998), SC opined that consultation by CJI requires consultation of plurality of judges, that he should consult collegium of 4 seniormost judges of SC and even if 2 judges give an adverse opinion, he shouldnt send recommendation to govt. SC held that if CJI doesnt follow the process then recommendations arent binding on govt. Qualifications of the Judges of the Supreme Court: no minimum age 1. Citizen of India 2. a)Must have been the judge of HC for a period of 5 years b)or an advocate of HC for at least 10 years c) or in view of the President a distinct Jurist of the country.

Retirement Age of the Supreme Court Tenure and High Court Judges Presently, SC judges retire at 65 and HC judges at 62. Constitution (114th Amendment) Bill 2010 seeks to raise retirement age of only HC judges from 62 to 65, which was tabled in in December 2011 but not as yet passed. Enhancing the retirement age of HC judges to 65 will have many advantages. One factor deterring a competent lawyer from accepting judgeship is retiring age at 62. Increasing it to to 65 may induce competent lawyers to seek appointment as judges of HC. Secondly, with a larger tenure, judges may acquire more maturity, learning and experience so necessary for a judge. Thirdly, with retirement at 65, a judge may be less anxious about looking for employment after retirement, by way of an appointment to a Tribunal or Commission by govt. Fourthly, today Chief Justices and most senior judges of HC, nearing their retirement at 62, sometimes aspire unbecomingly to being selected judges of SC not only for prestige of post but also to obtain another three-year stint in SC. If retirement age is increased to 65 on a par with that of SC judges, senior judges may be content with remaining in their own HC rather than seek an additional three-year stint, in SC. The CJI and other Judges of the Supreme Court of India hold the office until they attain the age of 65 years. A Judge can relinquish the office by addressing the resignation to President of India. A retired Judge of SC is prohibited from practicing law before any court or authority within territory of India, however, there is no constitutional prohibition that a retired judge gets appointed for some specialized work of Government. Removal: can be removed before age of retirement by President on basis of a resolution passed by both houses of on grounds of proved misbehaviour or incapacity. Judges inquiry act (1968): regulates removal procedure: says removal motion signed by 100 (in case of LS) or 50 (RS) is to be given to speaker/chairman. Speaker/chairman will constitute a 3 member committee to investigate charges, consisting of CJI/ SC judge, CJ/judge of HC, distinguished jurist. If committee finds guilty, house can take up motion. Once motion is passed by each house, an address is presented to president, who then passes order for removal. Power for investigation and proof of such misbehaviour or incapacity is vested in the parliament. Each house will have to pass a resolution which is supported by 2/3rd of members present and voting and majority of the total membership of the house. President can issue removal order only after an address by has been presented to him in same session for removal. Salary: salary and pension of SC Judges is a Non-votable expenditure charged from Consolidated. Salary of HC Judges is charged from Consolidated Fund of States while pension of HC Judges is charged from the consolidated fund India.

U/A 126 acting CJI: Any other Judge of the Supreme Court is appointed by the President as Acting Chief justice. When office of CJI is vacant, or CJI is temporarily absent, or CJI is unable to perform duties. U/A 127 ad hoc judge: can be appointed in SC by Chief Justice of India with prior consent of President, if there is no quorum of judges available to hold and continue session of court. Only the persons who are qualified as to be appointed as Judge of the Supreme Court can be appointed as ad hoc judge of the Supreme Court. Can appoint judge of HC as ad hoc, but only after consultation of CJ of concerned HC with previous consent of president. The judge under consideration should be qualified to be SC judge. U/A 128 retired judge: CJI, with previous consent of President, request a retired Judge of SC/HC, who is duly qualified for appointment as Judge of SC, to act as a Judge of SC. salary & allowance of such judge are decided by president. Retired Judge who sits in such a session of SC has all jurisdiction, powers and privileges of Judges but are not deemed to be a Judge. Article 129 {Supreme Court to be a court of record} Article 130 {Seat of SC} is Delhi but authorizes CJI to appoint other place or places (only president approval needed). Article 131 {Original jurisdiction of the Supreme Court} Article 132 {Appellate jurisdiction of Supreme Court in appeals from High Court in certain cases} Article 133 {Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters} Article 134 {Appellate jurisdiction of Supreme Court in regard to criminal matters} Article 134A {Certificate for appeal to the Supreme Court} Article 135 {Jurisdiction and powers of the Federal Court under existing law to be exercisable by the Supreme Court} Article 136 {Special leave to appeal by the Supreme Court} Article 137 {Review of judgements or orders by the Supreme Court} Article 138 {Enlargement of the jurisdiction of the Supreme Court} Article 139 {Conferment on the Supreme Court of powers to issue certain writs} Article 139A {Transfer of certain cases} Article 140 {Ancillary powers of Supreme Court} Article 141 {Law declared by Supreme Court to be binding on all courts} Article 142 {Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc} Article 143 {Power of President to consult Supreme Court} Article 144 {Civil and judicial authorities to act in aid of the Supreme Court} Article 144A {Special provisions as to disposal of questions relating to constitutional validity of laws} Article 145 {Rules of Court, etc} Article 146 {Officers and servants and the expenses of the Supreme Court} Article 147 {Interpretation} Jurisdiction and powers of SC U/A 131 Original Jurisdiction: original Jurisdiction as a federal court in any dispute that arises between 1. Government of India and one or more states 2. Government of India and State(s) on one side and State(s) in other side 3. State(s) and State(s) In above said matter SC has exclusive original jurisdiction, no other court can decide on such matters, by original it means that power to hear such disputes is in first instance, not by way of appeal.

Dispute should involve a question whether of law or fact on which depends existence of a legal right, thus political questions are excluded. Also a suit brought before SC by private citizen against centre or state cannot come under this. Matters excluded: any dispute arising out of pre - treaty, out of agreement which specifies that said jurisdiction doesnt apply to it, inter state water disputes, matters referred to finance commission, ordinary dispute of commercial nature between CG&SG, recovery of damages by state against centre. U/A 139 Writ jurisdiction: has original jurisdiction, not exclusive coz HC are also empowered to issue writ in case of FR. SC V/S HC: concurrent in case of FR. Further, SC can issue writ only for FR, while HC can issue writ for other purposes also, thereby writ jurisdiction of HC is wider. Moreover, HC can refuse to entertain writ on FR, SC cannot. Appellate jurisdiction U/A 132 certain matters: such that, appeal can be made against order of HC where case involves substantial question of law that requires interpretation of constitution. HC has to provide a certificate to party for appeal. U/A 133 civil matters: if HC certifies a) case involves substantial question of law of general importance, and b) question needs to be decided by SC. U/A 134 criminal matters: if HC, a) has on appeal, reversed order of acquittal of an accused person and sentenced him to imprisonment for life or 10 years, or b) has taken before itself any case from any subordinate court and convicted the accused and sentenced him for life or 10 years. U/A 136 by special leave: SC is authorised to grant in its discretion a special leave to appeal from any judgment in any matter passed by any court/tribunal (except military/court martial) has 4 aspects: 1. Discretionary power, hence cannot be claimed as a right. 2. Can be granted in any judgment whether final or interlocutory. 3. May be related to any matter constitutional, civil, criminal, income tax etc. 4. Can be granted against any court/tribunal (except military/court martial). U/A 143 advisory/consultative jurisdiction : authorizes president to seek opinion of SC in 2 categories: 1. Question of law of fact of public importance which has arisen or likely to arise. 2. Any dispute arising out of any pre - treaty etc. In first case SC can refuse, in 2nd it cannot. Further, advice isnt binding on president. U/A 129 court of record: a) judgments, proceedings and acts of SC are recorded for perpetual memory and testimony, can be admitted to be of evidentiary value and cannot be question if produced before any court, are recognized as legal precedents; b) power to punish for contempt of court, further power to punish isnt only for itself but can also punish for contempt of HC, subordinate courts and tribunals functioning in entire country. What is contempt: may be civil or criminal. Civil entails willful disobedience to any judgment, order, writ or willful breach of an undertaking given to court. Criminal entails a) act which scandalizes of lowers authority of a court; or b) prejudices or interferes with due course of judicial proceedings, or c) interferes or obstructs administration of justice. U/A 137 power of JR: power to examine constitutionality of legislative enactments and executive orders. If found to be violative of constitution (ultra vires), they can be declare null and void. JR is needed a) to uphold principle of supremacy of constitution, b) maintain fedral equilibrium beween centre and states, c) protect FR. Constitutional validity can be checked by SC on 3 grounds: a) it infringes on FR, b) it is outside competence of authority which framed it, c) if it is repugnant to constitutional provisions. Curative Petition: petition filed, for reconsideration of a final judgment/order, passed by the Supreme Court.

Part VI: Judiciary in Indian States: The High Courts Chapter V {The High Courts in the States} Article 214 {High Courts for States} Article 215 {High Courts to be courts of record}

Article Article Article Article Article Article Article Article Article Article

216 {Constitution of High Courts} 217 {Appointment and conditions of the office of a Judge of a High Court} 218 {Application of certain provisions relating to Supreme Court to High Courts} 219 {Oath or affirmation by Judges of High Courts} 220 {Restriction on practice after being a permanent Judge} 221 {Salaries, etc., of Judges} 222 {Transfer of a Judge from one High Court to another} 223 {Appointment of acting Chief Justice} 224 {Appointment of additional and acting Judges} 224A {Appointment of retired Judges at sittings of High Courts}

U/A 217 Appointment of the Judges of High Courts: CJ of HC is appointed by President in consultation with CJI as well as the Governor of the state in question. In appointment of the other judges, CJ of HC is also consulted. In case of common HC of 2 or more states all concerned governor are consulted. Issue: in 3rd judges case (1998), SC held that for appointment of HC judges, the CJI should consult a collegium of 2 very senior SC judges. Thus, sole opinion of CJI doesnt constitute consultative process. Qualifications for HC judge: citizen, should have held judicial office in India for 10 years, or advocate of HC for 10 years. So no minimum age, as well as no provision for distinguished jurist to become HC judge. Tenure: holds office till age of 62, can resign by writing to president, removal by president on recommendation of parliament, vacates office when appointed as SC judge or transferred. Removal: same as judge of SC, Article 218 says that certain provisions of clauses (4) and (5) of article 124 shall apply in relation to a High Court as they apply in relation to the Supreme Court. U/A 222 Transfer of the Judges: by President in consultation with the following: Chief justice of India whose opinion is formed by senior most judges of the Supreme Court. Chief Justice of the High court from where transfer is to take place. Chief Justice of the High Court to where the transfer is to take place U/A 223 acting CJ: president can appoint when; a) office of CJ is vacant, b) temporary absence, c) unable to perform. Article 225 {Jurisdiction of existing High Courts} Article 226 {Power of High Courts to issue certain writs} Article 226A {Constitutional validity of Central laws not to be considered in proceedings under article 226} Article 227 {Power of superintendence over all courts by the High Court} Article 228 {Transfer of certain cases to High Court} Article 228A repealed Article 229 {Officers and servants and the expenses of High Courts} Article 230 {Extension of jurisdiction of High Courts to Union territories} Article 231 {Establishment of a common High Court for two or more States}

Jurisdiction and powers U/A 226: Power to issue writs or orders for the enforcement of Fundamental rights and some other purposes. Other purpose refers to enforcement of an ordinary legal right. Can issue writ outside its territorial jurisdiction if cause of action lies within its jurisdiction. U/A 227: Power of superintendence over all other state courts. The High Court exercises the supervision of all the other courts and tribunals in the state. U/A 228: power to transfer the cases from other subordinate courts in the state to itself. U/A 229: Power to appoint the officers and servants of the High Courts. Subordinate courts Chapter VI {Subordinate Courts} Article 233 {Appointment of district judges}

Article 233A {Validation of appointments of, and judgments, etc. delivered by, certain district judges} Article 234 {Recruitment of persons other than district judges to the judicial service} Article 235 {Control over subordinate courts} Article 236 {Interpretation} Article 237 {Application of the provisions of this Chapter to certain class or classes of magistrates} U/A 233 appointment, posting and promotion of DJ: done by governor of state in consultation with HC