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COI - UNIT 4.pptx
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- 2. INTRODUCTION • Many times,courts are seen only as arbitrators in disputes between individuals or private parties. But judiciary performs some political functions also. Judiciary is an important organ of the government. The Supreme Court of India is in fact, one of the very powerful courts in the world. Right from 1950 the judiciary has played an important role in interpreting and in protecting the Constitution.
- 3. INDEPENDENCE OF THEJUDICIARY • Simply stated independence of judiciary means that • the other organs of the government like the executive and legislature must not restrain the • functioning of the judiciary in such a way that it is unable to do justice. • the other organs of the government should not interfere with the decision of the judiciary. • judges must be able to perform their functions without fear or favour.
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- 5. Power/Features of judiciary •The judge have a fixed tenure hold office till reaching the age of retirement • The judges have a of security tenure Only in exceptional cases, judges may be removed This ensures that they work without fear or favour Therefore constitution prescribes a very difficult procedure of removal of judges
- 6. Cont… • Financially independentof executive or legislative • The constitution provides that the salaries and allowances of the judges are not subjected to the approval of the legislature • Judges are immune from personal criticism • The judiciary has the power to penalize those who are found guilty of contempt of court
- 7. • Parliament cannotdiscuss the conduct of the judges except when the proceeding to remove a judge is being carried out • This gives the judiciary independence to adjudicate without fear of being criticized. • Judiciary is accountability to the constitution, to the democratic traditions, and to the country
- 8. THE JUDICIARY • Composition: Art124of the constitution provides that there shall be supreme court of India with consisting of chief Justice and seven judges. Further it says Parliament by law may increase the number of judges. The supreme court of present comprises 25 judges including chief Justice of India. Appointment of Judges: • Art 124 (2) Provides that judge of supreme court shall be appointed by the president of India after consultation with the Judges of the supreme court and of the High courts. In case of chief Justice appointment the president may not consult other judges. After 1993, Supreme Court decision it is now convention that senior most judge of Supreme Court becomes chief Justice of India.
- 9. THE JUDICIARY • Qualificationsfor appointment of Judges: Act 123 provides following qualification a.He must be a citizen of India • b. He has been Judge of a High court for at least five yeas continuously; or he has been on advocate of High court for at least ten years continuously or he is in the opinion of the President of India a distinguished jurist. • Tenure: • A person continues as judge of Supreme Court during his good behaviour or till he attains 65 years, whichever is earlier. • Removal: • Under Article 124 a Supreme Court Judge can be removed on the grounds of misbehavior or incapacity only. The procedure to remove a judge is called impeachment' Any house can initiate impeachment motion and if it is passed by 2/3 rd majority in each house the judge will be removed. • Immunities: • Action and decisions of the judges in their official capacity are immune from criticism. • Under Article 121 conduct of Supreme Court judge cannot be questioned in parliament.
- 10. THE JUDICIARY • Appointmentof Judges • The appointment of judges has never been free from political controversy. It is part of the political process. It makes a difference who serves in the Supreme Court and High Court— a difference in how the Constitution is interpreted. The political philosophy of the judges, their views about active and assertive judiciary or controlled and committed judiciary have an impact • on the fate of the legislations enacted. Council of Ministers, Governors and Chief Ministers and Chief Justice of India — all influence the process of judicial appointment.
- 11. Original jurisdiction • meanscases that can be directly considered by the Supreme Court without going to the lower courts before that. Form the diagram above, you will notice that cases involving federal relations go directly to the Supreme Court. The Original Jurisdiction of the Supreme Court establishes it as an umpire in all disputes regarding federal matters. In any federal country, legal disputes are bound to arise between the Union and the States; and among the States themselves. The power to resolve such cases is entrusted to the Supreme Court of India. It is called original jurisdiction because the Supreme Court alone has the power to deal with such cases. Neither the High Courts nor the lower courts can deal with such cases. In this capacity, the • Supreme Court not just settles disputes but also interprets the powers of Union and State government as laid down in the Constitution.
- 12. Jurisdiction of SupremeCourt • Original Jurisdiction • Original jurisdiction means cases that can be directly considered by the Supreme Court without going to the lower courts before that. Form the diagram above, you will notice that cases involving federal relations go directly to the Supreme Court. T • he Original Jurisdiction of the Supreme Court establishes it as an umpire in all disputes regarding federal matters. In any federal country, legal disputes are bound to arise between the Union and the States; and among the States themselves. • The power to resolve such cases is entrusted to the Supreme Court of India. It is called original jurisdiction because the Supreme Court alone has the power to deal with such cases. Neither the High Courts nor the lower courts can deal with such cases. In this capacity, the • Supreme Court not just settles disputes but also interprets the powers of Union and State government as laid down in the Constitution.
- 13. Jurisdiction of SupremeCourt • Writ Jurisdiction • As you have already studied in the chapter on fundamental rights, any individual, whose fundamental right has been violated, can directly move the Supreme Court for remedy. The Supreme Court can give special orders in the form of writs. The High Courts can also issue writs, but the persons whose rights are violated have the choice of either approaching the High Court or approaching the Supreme Court directly. Through such writs, the Court can give orders to the executive to act or not to act in a particular way.
- 14. Jurisdiction of SupremeCourt • Appellate Jurisdiction • The Supreme Court is the highest court of appeal. A person can appeal to the Supreme Court against the decisions of the High Court. However, High Court must certify that the case is fit for appeal, that is to say that it involves a serious matter of interpretation of law or Constitution. In addition, in criminal cases, if the lower court has sentenced a person to death then an appeal can be made to the High Court or Supreme Court. Of course, the Supreme Court holds the powers to decide whether to admit appeals even when appeal is not allowed by the High Court. Appellate jurisdiction means that the Supreme Court will reconsider the case and the legal issues involved in it. If the Court thinks that the law or the Constitution has a different meaning from what the lower courts understood, then the Supreme Court will change the ruling and along with that also give new interpretation of the provision involved. The High Courts too, have appellate jurisdiction over the decisions given by courts below them
- 15. Jurisdiction of SupremeCourt • Advisory Jurisdiction • In addition to original and appellate jurisdiction, the Supreme Court of India possesses advisory jurisdiction also. This means that the President of India can refer any matter that is of public importance or that which involves interpretation of Constitution to Supreme Court for advice. However, the Supreme Court is not bound to give advice on such matters and the President is not bound to accept such an advice. • What then is the utility of the advisory powers of the Supreme Court? The utility is two- fold. In the first place, it allows the government to seek legal opinion on a matter of importance before taking action on it. This may prevent unnecessary litigations later. Secondly, in the light • of the advice of the Supreme Court, the government can make suitable changes in its action or legislations.
- 16. JUDICIARY AND RIGHTS –First it can restore fundamental rights by issuing writs of Habeas Corpus; mandamus etc. (article 32). The High Courts also have the power to issue such writs (article 226). – Secondly, the Supreme Court can declare the concerned law as unconstitutional and therefore non-operational (article 13).
- 17. JUDICIARY AND PARLIAMENT •There are many other instances in which the Supreme Court actively involved itself in the administration of justice by giving directions to executive agencies. Thus, it gave directions to CBI to initiate investigations against politicians and bureaucrats in the hawala case, the Narasimha Rao case, illegal allotment of petrol pumps case etc. You may have heard about some of these cases. Many of these instances are the products of judicial activism.
- 18. 1st Supreme Courtof India • Calcutta • The Supreme Court of Judicature at Fort William in Calcutta (Kolkata), was founded in 1774 by the Regulating Act of 1773. • Supreme Court of India came into existence on 26th January, 1950 and is located on Tilak Marg, New Delhi.
- 19. Supreme Court • Howmany judges are currently on the Supreme Court? • President Ram Nath Kovind on Thursday appointed nine judges to the Supreme Court, taking its total strength to 33 judges, one short of full strength. Sources told The Indian Express that the judges are likely to be sworn-in on August 31 by Chief Justice of India N V Ramana. • In order to be appointed as a Judge of the Supreme Court, a person must be a citizen of India and must have been, for atleast five years, a Judge of a High Court or of two or more such Courts in succession, or an Advocate of a High Court or of two or more such Courts in succession for at least 10 years .
- 20. FUNCTIONS AND POWERSOF SUPREME COURT • Original Jurisdiction: • Article 131 deals with original jurisdiction. The functions are purely federal in character that may include disputes between Union and the states, Government of India and government of states or between two or more states. The original jurisdiction is exclusive that means such disputes can come only to Supreme Court and not any other court. If a suit is brought against government by private party it cannot be tolerated. • Writ Jurisdiction: • If there is violation of fundamental rights a person under Article 32 can ask the Supreme Court to issue writs. But this applies only if fundamental rights of a person are infringed. • Appellate Jurisdiction: Supreme Court is a court of appeal. When lower or High court gives a judgments the person can appeal to the supreme court against the judgment of the lower court. Appeal to the Supreme Court can be made in three type of cases. – Cases involving interpretation of the constitution – Civil cases, irrespective of any constitutional question – Criminal cases, irrespective of any constitutional question
- 21. FUNCTIONS AND POWERSOF SUPREME COURT • Appeal by special Leave: • There may be some instance where Supreme Court may interfere with the judgment of High Court or tribunals where the question of justice is involved. Such residuary power is given to Supreme Court under Article 136. • Advisory Jurisdiction: • In some circumstance the President may refer the matter to Supreme Court to seek opinion. The president may consider that the matter involves important question of law or public interest, hence it will be appropriate to seek opinion from Supreme Court. • Court of Record: • All the proceedings of the Supreme Court are recorded and assume the form of case law. • Such decisions are binding on all courts in India.
- 22. Article 124: Article 124: •Article 124 deals with the Establishment and constitution of the Supreme Court. It states that there shall be a Supreme Court of India constituting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.
- 23. THE HIGH COURTSIN THE STATES • High Courts for States. • There shall be a High Court for each State. • High Courts to be courts of record. • Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. • Constitution of High Courts. • Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. • Appointment and conditions of the office of a Judge of a High Court. – Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years:
- 24. HIGH COURT • TheHigh Court is the highest court in a state in India. Articles 214 to 231 in the Indian Constitution talk about the High Courts, their organisation and powers. The Parliament can also provide for the establishment of one High Court for two or more states. • 25 High Courts. • For appointment as a judge of a High Court the person must be an Indian citizen who has worked as a judge in any court in India for a period not less than ten years
- 25. Power of superintendenceover all courts by the High Court • Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. • Without prejudice to the generality of the foregoing provision, 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; and – prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. • The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: • Provided that any rules made, forms prescribed or tables settled under • clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
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- 27. SUBORDINATE COURTS • Appointmentof district judges.—(1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. • A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment. • 233A. Validation of appointments of, and judgments, etc., delivered by, certain district judges.—Notwithstanding any judgment, decree or order of any court,— – (i) no appointment of any person already in the judicial service of a State or of any person who has been for not less than seven years an advocate or a pleader, to be a district judge in that State, and – (ii) no posting, promotion or transfer of any such person as a district judge, made at any time before the commencement of the Constitution (Twentieth Amendment) Act, 1966, otherwise than in accordance with the provisions of article 233 or article 235 shall be deemed to be illegal or void or ever to have become illegal or void by reason only of the fact that such appointment, posting, promotion or transfer was not made in accordance with the said provisions; • article 235 shall be deemed to be illegal or invalid or ever to have become illegal or invalid by reason only of the fact that such appointment, posting, promotion or transfer was not made in accordance with the said provisions.
- 28. SUBORDINATE COURTS • Recruitmentof persons other than district judges to the judicial service.— Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. • Control over subordinate courts.—The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court. • Application of the provisions of this Chapter to certain class or classes of magistrates.—The Governor may by public notification direct that the foregoing provisions of this Chapter and any rules made there under shall with effect from such date as may be fixed by him in that behalf apply in relation to any class or classes of magistrates in the State as they apply in relation to persons appointed to the judicial service of the State subject to such exceptions and modifications as may be specified in the notification.