Y3ASHS5LN8PPT_RKG.ppt

I. T. S ENGINEERING COLLEGE
GREATER NOIDA
DEPARTMENT OF
APPLIED SCIENCE & HUMANITIES

I. T. S ENGINEERING COLLEGE
GREATER NOIDA
Facilitator – Rakesh Kumar Garg
Paper – Constitution of India, Law and Engineering
Paper Code – KNC-501
Semester – 5th

Lecture-08
Judiciary and Judicial Activism

Indian Judiciary
The Constitution of India provides for a unified judiciary. Unlike the
American Federation, the Indian Constitution provides for a single
judiciary common to the union and the States. The Supreme Court
remains at the apex of the judicial hierarchy in India.

THE SUPREME COURT OF INDIA
• The constitution provides for Supreme Court in the Part 4, Chapter
IV between Articles 124 and 147. Article 124 (1) establishes the
Supreme Court of India.
• The Supreme Court comprises the Chief Justice of India and other
judges.
• The constitution sanctions nine judges to the Supreme Court and
confers the power to increase the number of judges to the Parliament
• Parliament may increase the number of judges from time to time.
• At present, after enactment of the Supreme Court (Number of
Judges) Amendment Act, 2019, the number of judges in the Supreme
Court excluding of the Chief Justice (CJ) is 33.
• According to Article 130, the seat of the Supreme Court is in Delhi.
However, the court may sit in such other place or places, as the Chief
Justice of India (CJI) may from time to time, appoint, with the
approval of the President.

Supreme Court: A Court of Record
Article 129 declares that the Supreme Court is a court of record.
According to the Law Dictionary, ‘A court of record is a court whose
records are admitted to be evidentiary value and are not questioned when
they are produced before the court.’ The attributes of a court of record
are that:
• Its judgments and proceedings are enrolled for perpetual memory and
testimony. Its record has evidentiary value and cannot be questioned
when produced in a court. It is conclusive evidence of what is contained
in it.
• A court of record has the power to punish for contempt. Article 129
confers the power to punish for its contempt. According to Contempt of
Court Act, there are two types of contempt namely civil contempt and
criminal contempt.
Article 142 (2) provides that the Supreme Court has ‘all and every power
to make any order for the investigation or punishment of any contempt of
itself, subjected to the provisions of any law made by Parliament’.

Appointment of Judges
According to Article 124 (2), the power to appoint the judges of
Supreme Court is vested in the President. A judge of Supreme Court is
appointed by the President by a warrant under his hand and seal.
The President, in appointing the judges has to consult ‘such of the
judges of the Supreme Court and of the high courts in the States as the
President may deem necessary’.
There are two important issues in relation to the appointment of the
judges of Supreme Court namely:
1. Appointment of Chief Justice of India
2. Appointment of other judges.
Appointment of Chief Justice of India
The senior most judge of the Supreme Court by age is appointed as the
Chief Justice of India. This is followed as a convention since the
commencement of the constitution.

• However, in 1956 the Law Commission in its report was critical of
this practice and recommended that seniority should not the criterion
and ‘the experience of the person as a judge, his administrative
competence and merit’, must be considered for the appointment of
the Chief Justice. However, the government rejected this
recommendation and the practice of appointing the senior most judge
of Supreme Court as Chief Justice was continued.
• In 1973, the government accepted the recommendation
retrospectively and appointed Justice A. N. Ray as the Chief Justice,
superseding three senior judges. However, the government justified
its stand stating that Article 124 confers discretion on the President to
appoint the Chief Justice.
• In the first 22 years of the commencement of the constitution the
President had chosen not exercise the discretion.
• However, this reasoning was deplored by the constitutional experts
on the following grounds:
• The principle of seniority followed in the appointment of the Chief
Justice, was not a mere practice but had been an established

• The Law Commission recommended for considering the merit of the
judge but the merit is not in the view of the executive. The
supersession of the three senior judges was not on the reason of their
merit determined by the Law Commission. They were superseded,
for they had decided the Keshavananda Bharti case against the will
of the government.
• It was argued the social philosophy of the judges must be taken into
account while appointing the judges. This means the judges must be
subscribing to the view of the executive. This would be a kind of
spoils system which would amount to packing of judiciary.
The event of superseding the judges had been viewed as a blow on the
independence and impartiality of the judiciary.
After the general elections 1977, the Janata Party came to power. The
Janata Party was against the supersession of the judges and once
coming to power the party revived the practice of appointing the senior
most judge of the Supreme Court as Chief Justice. Hence, the practice
of appointing the senior most judge as Chief Justice was restored.

Appointment of Other Judges:
• Article 124 lays down that the President ‘shall consult the Judges of
the Supreme Court and of the high courts in the States
as the President may deem necessary’. In case of the appointment of
a judge other than the Chief Justice ‘the Chief Justice shall always be
consulted’ [Article 124(2)].
• The term ‘consult’ in Article 124 became the bone of contention
between the executive and the judiciary. In 1977, in the Sankalchand
Seth case, the Supreme Court ruled that the President has to consult
the constitutional functionaries, but the advice was not binding on
the President. The President can differ with the opinion of the
constitutional functionaries and take contrary view.
• Later, in 1982 in the S. P. Gupta versus Union of India case (Judges
Transfer Case), the Supreme Court unanimously agreed with the
Sankalchand view and ruled that the consultation is not binding on
the President. It implies that the power of appointing the judges is the
sole prerogative of the Union government.

In 1993, in the SCARA versus Union of India case, the Supreme Court
overruled the Sankalchand Seth case judgement. The court held that the
Chief Justice must have supremacy in matters of the appointment of
judges.
In 1998, the President referred to the Supreme Court, nine issues
relating to the appointment of Supreme Court judges and transfer of
high court Judges for its opinion exercising his power under Article
143. The President sought clarification on the consultation process
relating to judge’s appointment and transfer. The court ruled as follows:
1. The President has to consult the Chief Justice while appointing a
judge of Supreme Court and the consultation is binding.
2. The consultation process requires ‘consultation of plurality of
judges’. The sole opinion of the CJI does not constitute the
‘consultation’ process.
3. Therefore, the Chief Justice of India should consult a collegium of
four senior most judges of the Supreme Court before giving his
opinion. The CJI should not send the recommendation to the
government, even if two judges give an adverse opinion.

4. ‘The collegium should make the decision in consensus and unless the
opinion of the collegium is in conformity with that of the Chief Justice
of India, no recommendation is to be made’.
5. Regarding the transfer of high court judges, in addition to the
collegium of four senior most judges, the Chief Justice of India was
obliged to consult the Chief Justice of the two high courts (one from
which the judge was transferred and the other receiving him).
6. In regard to the appointment of high court judges, the CJI was
required to consult only two seniors most judges of the apex court.
7. The transfer of judges of the high courts was judicially reviewable,
only if the CJI had recommended the transfers without consulting four
senior most judges of the apex court and two Chief Justices of the high
courts concerned.
8. The requirement of consultation by the CJI with his colleagues does
not exclude consultation with those judges who are conversant with the
affairs of the high court.
9. Strong and cogent reasons must exist regarding a person’s name not

Removal of the Judge of Supreme Court
A judge of Supreme Court is removed by the process of impeachment.
Article 124 and the Judges (Inquiry) Act, 1968, provide for the
procedure:
1. A judge of Supreme Court can be removed only on the ground of
‘proved misbehaviour’ or ‘incapacity’.
2. A motion to remove a judge, addressed to the President must be
submitted to the Speaker of Lok Sabha or Chairman of Rajya
Sabha. The motion has to be signed by at least 100 members of Lok
Sabha or 50 members of Rajya Sabha.
3. On the receipt of the motion a three member committee comprised
of two judges of Supreme Court and one distinguished jurist is
constituted to investigate the charges.
4. If the report of the committee contains a finding that the judge is
guilty of any misbehaviour or suffers from any incapacity, then, the
motion together with the report of the committee, shall be taken up
for consideration by the House or the Houses of Parliament.

JURISDICTION OF THE SUPREME COURT
Under the Indian constitution, jurisdiction of the Supreme Court can be
classified as five types namely:
(i) Original jurisdiction
(ii) Appellate jurisdiction
(iii) Writ jurisdiction
(iv) Advisory jurisdiction
(v) Revisory jurisdiction
However, the jurisdiction of the Supreme Court can be enlarged in
accordance with Article 138. Article 138 provides that the Parliament
can enlarge the jurisdiction of the Supreme Court by conferring powers
and jurisdiction with respect to the matters in the Union List in
Schedule 7.
Further, the Parliament can confer upon the Supreme Court, such
powers and jurisdiction in accordance with any international or
bilateral agreements to which India is signatory

JUDICIAL REVIEW
The original and appellate jurisdiction of the Supreme Court between
Articles 131 and 136 also provide for judicial review. The scheme of
dividing the legislative powers between the Parliament and the state
legislatures is provided in Article 246.
It is the power of the judiciary to review and determine the validity of
any law. If the court is satisfied that the law conflicts with the
constitution, the court has the powers to declare the law as ultra vires
the constitution and therefore, void. The power of judicial review
serves the following purposes:
• It seeks to protect the private rights (fundamental rights) of the
individuals.
• It legitimizes the government actions.
• It helps in upholding the Rule of Law.
• It helps to ensure that provisions of the constitution are abided by.
• It prevents arbitrary us e of power or action.

Public Interest Litigation
Sometimes, a Government or a Public Body violates the law, or
indulges in suppressing or exploiting the citizens. Any citizen affected
by such violations may directly complain to the Court. Such a letter of
complaint is taken up as Public Interest Litigation by the Court.
Without charging any Court fees, the Court inquires into the complaint.
A writ petition under Public Interest Litigation can be filed by any
public spirited individual or a social action group for the enforcement
of the constitutional or legal rights of some other person or group of
persons disadvantageously placed.
A writ petition under Public Interest Litigation is entertained by a High
Court under Article 226 of the Indian Constitution or in the case of
breach of any fundamental right by the Supreme Court under the
Article 32 of the Indian Constitution. For filing a case under Public
Interest Litigation, it is not necessary to file a regular writ petition
where a case is filed through a lawyer. Sometimes, judges themselves
have taken initiative in the cases, depending upon the reports in the
newspapers or television.

The field of Public Interest Litigation is quite vast. The following are
the possible areas where a Public Interest Litigation can be filed:
• Where a factory / industrial unit is causing air pollution and people
nearly are getting affected.
• Where, in an area / street, there are no street lights causing
inconvenience to the commuters.
• Where some ‘Banquet Hall’ plays a loud music, in nights causes
noise pollution.
• Where poor people are affected because of the State Government’s
decisions to impose heavy taxes.
• For abolishing child labour, and bonded labour.
• Where rights of working women are affected by sexual harassment.
• For maintaining roads, sewages, etc in good conditions.
• For removal of big hoarding and signboards from the busy roads to
avoid traffic problems.

Judicial Activism
Judicial activism means any action of the judiciary which is beyond its
constitutional mandate or expanding the jurisdiction of the courts or
the courts acting ‘suo moto,’ taking up cases on its own without being
moved by any aggrieved person.
The Golak Nath case and Kesavananda Bharti case are examples of
judicial activism.
In Golak Nath case, the Supreme Court by a majority view ruled that
the fundamental rights are ‘immutable and beyond the reach of the
amendatory process’.
In Kesavananda Bharati case, this judgment was overruled by a
majority of seven against six. The Supreme Court held that by Article
368 of the Constitution the Parliament has powers amend to any part
of the constitution including the Preamble and the fundamental rights.
But the power cannot be exercised in the manner to alter the ‘basic
structure or framework of the constitution’. The court propounded the
‘Doctrine of Basic Features’, which was never discussed or envisaged

The Lokpal and Lokayuktas Act 2013
The Lokpal and Lokayuktas Act, 2013, commonly known as The
Lokpal Act, is an anti-corruption Act of Indian Parliament in India
which "seeks to provide for the establishment of the institution
of Lokpal to inquire into allegations of corruption against certain
important public functionaries including the Prime Minister, cabinet
ministers, members of parliament, Group A officials of the Central
Government and for matters connecting them".
The Bill was tabled in the Lok Sabha on 22 December 2011 and
was passed by the House on 27 December as The Lokpal
and Lokayuktas Bill, 2011. It was subsequently tabled in the Rajya
Sabha on 29 December. After a marathon debate that stretched until
midnight of the following day, the vote failed to take place for lack of
time. On 21 May 2012, it was referred to a Select Committee of the
Rajya Sabha for consideration. It was passed in the Rajya Sabha on 17
December 2013 after making certain amendments to the earlier Bill
and in the Lok Sabha the next day. It received assent from
President Pranab Mukherjee on 1 January 2014 and came into force

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