In a political system based on constitutional Government , the functions of rule making, rule enforcement and rule interpretation are separated into the three institutions of the legislature, the executive and the judiciary. A judiciary that is independent of and acting as a check on arbitrary exercise of legislative and executive power is an essential feature of a constitutional itself means. In a federal system, the judiciary also serves as a tribunal for the final determination of disputes between the union and its constituent units.
Given the tremendous importance of the role and functions of the Supreme Court & High Courts, various measures have been adopted to ensure the independence of the judiciary. The judiciary in India is paradoxical institution. On the one hand courts are extraordinarily powerful on the other, its working seems manipulated by the executive. Through a creative interpretation of the constitution, courts have not only exercised their power of judicial review but also have to managed to place the limits on the power of parliament to amend the constitution.
There are 20 million case pending in Indian courts, of which 3. 2 million are in the High Courts. THE SUPREME COURT The entire judicature has been divided into three tiers. At the top there is a Supreme court (apex), below it is the High Court and the lowest rank is occupied by session’s court. The supreme Court is the highest court of law. The constitution says that the law declared by the supreme court shall be binding on all small courts within the territory of India(Art. 141). Below the Supreme Court, are the High Courts located in the states.
Under each High Court there are District Sessions Courts. Subordinate Courts and Courts of Minor Jurisdiction called Small cause courts. Given the importance of the judiciary in a federal system resting on limited government , The Supreme Court was designed to make it the final authority in the interpretation of the constitution . While framing the judicial provisions, the constituent assembly gave a great deal of attention of the courts, the power of the supreme court and the issue of judicial review. PRIVILEDGES OF SUPREME COURT
The Constitution makes sure that the Supreme Court is independent as much as possible. Eligibility -The person must be a citizen of India -Judge of a High Court or of two or more such Courts in succession for at least five years, or -An Advocate of a High Court or of two or more such Courts in succession for at least ten years, or -The person must be, in the opinion of the President, a distinguished jurist. -A Judge of a High Court or retired Judge of the Supreme Court or High Courts may be appointed as an ad-hoc Judge of the Supreme Court. Appointment:
Though the President has the appointing authority with the advice of his Council of ministers the appointment of the Supreme Court Judge has been lifted from the realm of pure politics by requiring the President to consult the Chief Justice of India in the matter. Salary: The salary and allowances of a judge cannot be reduced after appointment. the salaraies of the judges are fixed by the constitution and providing that though the allowances,leave and pension may be determined by law made by the Parliament,these shall not be varied to the disadvantage of a judge during his term of office except may be during a ‘financial emergency’.
the adminstrative expenses of the Supreme Court,the salaries and allowances of the Judges and staff of the Supreme Court shall not be subjected to vote in Parliament and would be charged on the ‘Consolidated Fund of India’. Contempt of court: The Constituion allows the Supreme Court to punish anyone for contempt of any law court in India,under Articles 129 and 142.
The Supreme Court perforemed an unprecedneted action when it directed a sitting minister of the state of Maharashtra,Swaroop singh Naik,to be jailed for one month incharge of contempt of court on 12 May 2006. This was the first time a serving minister was ever jailed. He was sentenced for allowing an illegal saw mill to run in a forest in Vidarbha near Tadoba santuary when he wa the Maharashtra forest minister. The court had directed in 1997 to the state ministers to not renew the licenses of sawmills in the forest areas. Violation of Laws:
The Supeme Court has the right to invalidate any law made by the Parliament if it violates the “Basic Stucture” of the constituion or if it violates any of the fundamental rights of the citizens. On 24th April,1973 the Supreme Court in the ‘Kesavananda Bharti v/s The state of Kerela’ case responded to the Parliament that although the amendments made were constituional the court still reserved for itself the discretion to reject any constituional amendments passed by Parliament declaring that the amendments cannot change the Basic Structure. Removal:
The judge cannot be removed from office before time except by an order of the president passed in the Lok Sabha and Rajya Sabha supported by a majority of the total membership of that house and by a majority of not less than two thirds oh the members present and voting,and presented to the president in the same session for such removal on the ground of proved misbehaviour or incapacity. There were two judges who were removed by this process the first was Justice V. Ramaswami:He was the Punjab and Haryana High Court chief justice of the year 1993 when he was impeached by the Lok Sabha by 196 votes because of his incapacity to do work.
The Supreme Court charged him for his failure to do complete justice. The second was that of Justcice Soumitra Sen. He was the Calcutta High Court chief justice,the justice of India K. G Balakrishnanhad recommended him for impeachement to the Parliament because he had misappropriating rs. 22. 83 lakh than on than on 2009 a three member committee was set up and investigation was staretd and he was found guilty and finally on 17th August 2011 he was impeached by Rajya Sabha.
JURISDICTION OF THE SUPREME COURT The Supreme Court has original, appellate and advisory jurisdiction. Its exclusive original jurisdiction extends to any dispute between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between two or more States, if and insofar as the dispute involves any question (whether of law or of fact) on which the existence or extent of a legal right depends.
In addition, Article 32 of the Constitution gives an extensive original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. It is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them. The Supreme Court has been conferred with power to direct transfer of any civil or criminal case from one State High Court to another State High Court or from a Court subordinate to another State High Court.
The Supreme Court, if satisfied that cases involving the same or substantially the same questions of law are pending before it and one or more High Courts or before two or more High Courts and that such questions are substantial questions of general importance, may withdraw a case or cases pending before the High Court or High Courts and dispose of all such cases itself. Under the Arbitration and Conciliation Act, 1996, International Commercial Arbitration can also be initiated in the Supreme Court.
The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the High Court concerned under Article 132(1), 133(1) or 134 of the Constitution in respect of any judgement, decree or final order of a High Court in both civil and criminal cases, involving substantial questions of law as to the interpretation of the Constitution. Appeals also lie to the Supreme Court in civil matters if the High Court concerned certifies : (a) that the case involves a substantial question of law of general importance, and (b) that, in the opinion of the High Court, the said question needs to be decided by the Supreme Court.
In criminal cases, an appeal lies to the Supreme Court if the High Court (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or (b) has withdrawn for trial before itself any case from any Court subordinate to its authority and has in such trial convicted the accused and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or (c) certified that the case is a fit one for appeal to the Supreme Court.
Parliament is authorised to confer on the Supreme Court any further powers to entertain and hear appeals from any judgement, final order or sentence in a criminal proceeding of a High Court. The Supreme Court has also a very wide appellate jurisdiction over all Courts and Tribunals in India in as much as it may, in its discretion, grant special leave to appeal under Article 136 of the Constitution from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India.
The Supreme Court has special advisory jurisdiction in matters which may specifically be referred to it by the President of India under Article 143 of the Constitution. The supreme court is vested with the power to render advisory opinions on any question of fact or law that may be referred to it by the president. The advisory role of the supreme court is different from orinary jurisdiction in three senses. ·There is no litigation between two parties ·The advisory opinion of the court is not binding on the govt.
·It is not executable as a judgement of the court. The practice of seeking advisory opinion of the supreme court helps the executive as a judgement of the court. It gives a soft opinion to the indian govt. on some politically difficult issues. As in case of Babri Masjid complex and Ayodhya. The govt. decided to refer aspects of the dispute to the supreme court for an opinion. Since there was no legal point at issue, the referral to the supreme court had the potential for politicizing the judiciary instead resolving. PUBLIC INTEREST LITIGATION
Although the proceedings in the Supreme Court arise out of the judgments or orders made by the Subordinate Courts including the High Courts, but of late the Supreme Court has started entertaining matters in which interest of the public at large is involved and the Court can be moved by any individual or group of persons either by filing a Writ Petition at the Filing Counter of the Court or by addressing a letter to Hon’ble the Chief Justice of India highlighting the question of public importance for invoking this jurisdiction.
Such concept is popularly known as ‘Public Interest Litigation’ and several matters of public importance have become landmark cases. This concept is unique to the Supreme Court of India only and perhaps no other Court in the world has been exercising this extraordinary jurisdiction. A Writ Petition filed at the Filing Counter is dealt with like any other Writ Petition and processed as such. In case of a letter addressed to Hon’ble the Chief Justice of India the same is dealt with in accordance with the guidelines framed for the purpose.
AMICUS CURIAE If a petition is received from the jail or in any other criminal matter if the accused is unrepresented then an Advocate is appointed as amicus curiae by the Court to defend and argue the case of the accused. In civil matters also the Court can appoint an Advocate as amicus curiae if it thinks it necessary in case of an unrepresented party; the Court can also appoint amicus curiae in any matter of general public importance or in which the interest of the public at large is involved.
As in case of Kasab, A bench of justices Aftab Alam and C K Prasad dismissed 25-year-old Kasab’s plea against his conviction and death sentence confirmed by the Bombay high court, saying he was given free[->0]and fair trial in the case. “Kasab’s confessional statement was very much voluntary except a very small portion,” the bench held. It also dismissed Kasab’s contention that the trial was not fair because the government did notprovide[->1] him advocate during the time when he was arrested and put on trial.
The apex court said the trial court had made repeated attempts o provide Kasab with a lawyer but he had spurned the offer initially and said he did not want to accept Indian lawyers. The judges said that in the totality of facts, evidences and circumstances the court had no option but to impose death sentence on Kasab. The bench also observed that going by the evidence, it was clear that the conspiracy and planning of the 26/11 attack was hatched in Pakistan. HIGH COURTS The High Court stands at the head of a State’s judicial administration.
There are 18 High Courts in the country, three having jurisdiction over more than one State. Among the Union Territories Delhi alone has a High Court of its own. Other six Union Territories come under the jurisdiction of different State High Courts. Each High Court comprises of a Chief Justice and such other Judges as the President may, from time to time, appoint. The Chief Justice of a High Court is appointed by the President in consultation with the Chief Justice of India and the Governor of the State. The procedure for appointing Judges is the same except that the Chief Justice of the High Court concerned is also consulted.
They hold office until the age of 62 years and are removable in the same manner as a Judge of the Supreme Court. To be eligible for appointment as a Judge one must be a citizen of India and have held a judicial office in India for ten years or must have practised as an Adovcate of a High Court or two or more such Courts in succession for a similar period. Each High Court has power to issue to any person within its jurisdiction directions, orders, or writs including writs which are in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of Fundamental Rights and for any other purpose.
This power may also be exercised by any High Court exercising jurisdiction in relation to territories within which the cause of action, wholly or in part, arises for exercise of such power, notwithstanding that the seat of such Government or authority or residence of such person is not within those territories. Each High Court has powers of superintendence over all Courts within its jurisdiction. It can call for returns from such Courts, make and issue general rules and prescribe forms to regulate their practice and proceedings and determine the manner and form in which book entries and accounts shall be kept.
Qualification A person shall be qualified for appointment as a judge of the High Court if (a) he is a citizen of India, (b) has for at least ten yeas held a judicial office in the territory of India, or (c) has for at least ten years been an advocate of a High Court, or of two or more such courts in succession. Every judge of the High Court before entering upon his office shall make and subscribe before the Governor of the state, an oath of affirmation in the form[->2] prescribed by the Constitution. Removal of judges
A judge of the High Court shall hold office until he attains the age of 62 years. A judge may resign from his office by writing under his hand to the president of India. He can also be removed by the President of India on the ground of proved misbehavior or inefficiency if a resolution to that effect is passed by both the Houses of Parliament by a two-thirds majority of the total members present and voting, supported by a majority of the total membership of each house. Salary The Chief Justice and the judges draws attractive salaries, apart from various other allowances.
The service conditions of the judges cannot be altered to their disadvantages during the course of their service except in the case of Financial Emergency. Like the judges of Supreme Court the judges of the High Court have been given complete[->3] security of service. A High Court Judge may be transferred from one High Court to another by the President after consultation with the Chief Justice of India. Jurisdiction The High Court has Original jurisdiction in such matters as writs and Appellate jurisdiction over all subordinate courts in their jurisdiction.
Every High court has the power to issue to any person or authority including any government within its jurisdiction, direction, or orders including writs which are in the nature of habeas corpus, mandamus prohibition, qua-warranto and certiorari or any of them for enforcement of fundamental rights conferred by part III of the constitution and for any other purpose. Election petitions challenging the elections of Members of Parliament or member[->4] of State Legislative Assembly or other local bodies can be filed in the concerned High Court.
The High Courts have Appellate jurisdiction in both civil and criminal cases against the decisions of lower courts. They can decide revenue cases also. Appeal can be filed against the decision of a session judge if the accused has been sentenced to imprisonment for 7 years or more. Capital punishment given by sessions judge is not executed unless it is confirmed by the High Court. Under Revisory jurisdiction, the High Court is empowered to call for the records of any court to satisfy itself about the correctness of the legality of the orders passed.
This power may be exercised on the petition of the interested party or it can suo moto call for the records and pass necessary orders. The High Court may withdraw a case from a lower Court if it is satisfied that the case involves a substantial question of law as to the interpretation of the Constitution, the determination of which is necessary for the disposal of the case. The High Court can after delivering judgement send back the case to the court of hearing which proceeds on the lines of the judgement of the High Court. All Courts excepting tribunals dealing with the Armed forces, are under the supervision of the High Court.
This power is enjoyed under Art 227 of the Constitution. Thus administration of the state’s judiciary is the essential function of the High Court. It is consulted while appointments are made to the lower courts. It forms rules and regulations regarding the working of the subordinate courts in the state. It also determines the number of cases to be dealt with by each of the lower courts during a period of time. Every High Court is a court of record. Subordinate Courts are bound to follow the decisions of the High Courts. It’s proceedings and decisions are referred to in all future cases. It*has the power to punish for contempt of court.
Judicial Accountability in India Though the phase Judicial Review does not find place in the text of the constitution yet the Supreme Court of India has the power of Judicial Review. In the exercise of power the Supreme Court can determine the constitutionality or otherwise of all legislation passed in India by the Parliament States Legislatures. Our constitution has adopted a synthesis of the British Principles of Parliamentary Sovereignty and the American system of Judicial Supremacy. The notion that the American Doctrine of judicial review has a limited connotation in the Indian context does not seem to be correct because of two reasons.
First, like the Legislature and the executive, the judiciary has also been given its due place of honor to help the three things work in close[->5] co-operation. Secondly, the Supreme Court also the interpreter and guardian of the constitution how can it then afford to ignore the socio-economic and political trends of the times and the process check the contradictory forces work. According to our constitution, Parliament is supreme in enacting laws and amending the constitution but the Supreme Court is supreme in deciding whether the laws enacted and the amendments made by Parliament are within the ambit of the constitution.
Despite these specified limitation the struggle between the Supreme Court and the Executive began soon after the commencement of the constitution in 1950. The struggle continued in a series of cases about the meaning of compensation. Basically the struggle was carried on in terms of the clams to supremacy of Judicial Review vs. Parliamentary Sovereignty in interpreting and defining the constitution. One of the principal grounds on which the struggle was fought was the meaning of limitation on the right[->6] to property. The issue was seriously started for the first time in the famous Golaknath case decided in 1967.
It held that Parliament had no power to amend Fundamental Rights. The Govt. responded through the 24th amendment to the constitution in 1971 by adding clause 4 to Art 13 which sought to give blanket powers to Parliament to amend the constitution including the Fundamental Rights. This was repulsed by the Supreme Court in the famous Keshab Anand Bharati Case. While agreeing that Fundamental Rights were subject to amendment the Supreme Court held in the Keshab Anand Bharati Case1973 that the constitution had a basic stricture.
Parliamentary amendment that attacked the constitution’s basic structure would be held unconstitutional. Another stronger attempt was made by the Government in 1976 through the 42nd Amendment. It not only gave limitless power of amendment to parliament but also put it beyond the reach of the judiciary. Section 4 of this amendment gave primacy to Directive Principles over Fundamental Rights. In the Minerva Mill case AIR 1980 the Supreme Court has reiterated that Parliament does not have an unfettered power of amendment. It can amend the constitution within the limits of its basic structure.
The Fundamental Rights thus continue to have Precedence over the Directive Principles. Need For Judicial Accountability “All power is a trust – that we are accountable for its exercise – that from the people and for the people, all springs and all must exist”. In a ‘democratic republic’ power with accountability of the individual enjoying it, is essential to avert disaster for any democratic system. The accountability must be comprehensive to include not only the politicians, but also the bureaucrats, judges and everyone invested with power.
Power and position in a democracy is depicted as attendant with responsibility, and every incumbent of a public office must remain constantly accountable to the people, who are the repository of political sovereignty. The judicial system deals with the administration of justice through the agency of courts. Judges are the human stuff which presides over the courts. They are not merely visible symbols of courts; they are actually their representatives in flesh and blood. The manners in which judges discharge their duties determine the image of courts and the creditability of judicial system itself.
In India from time immemorial judges have been held in high esteem and revered as super humans but coming across recent incidents in Bihar (like killing of an under trial in the court itself and lynching a suspected thief to death) depicts that frustrated by the failure to get justice, people are slowly losing faith in judiciary and are taking law into their hands. This is highly deplorable. A need definitely is there to make judiciary accountable, as derogation of values in judiciary is far more dangerous than in any other wing of the government as judiciary has to act as the guardian of our constitution.
Judicial accountability and answerability of the judges is not a new concept. Several countries in their constitutions have already provided for ensuring accountability of judiciary. This to prevent concentration of power in the hands of a single organ of the state especially in countries where judicial activism interferes with and invades into the domain of other organs. But at the same time Judicial independence is a pre- requisite for every judge whose oath of office requires him to act without fear or favour, affection of ill- will and to uphold the constitution and laws of the country.
(D) Lack Of judicial Accountability In India The framers of the Indian Constitution would not have imagined that within 60 years of the framing of the Constitution, the Indian Judiciary would emerge as the most powerful institution of the State. The Constitution established the High Courts and the Supreme Court as watchdog institutions, independent of the executive and the legislature, to not merely dispense justice, but also to ensure that the executive and the legislature did not exceed the authority conferred upon them by the Constitution.
Thus, the Judiciary was given the powers to interpret the laws and the Constitution, and also to strike down executive action which violated any law or the fundamental rights of citizens. It was also the authority to examine whether laws framed by Parliament conformed to the Constitution and declare them void if they violated it. By a creative interpretation of the provision authorizing the Parliament to amend the Constitution, the Supreme Court in 1973 also acquired the power to strike down even constitutional amendments which were held by the Court to violate the basic structure of the Constitution.
Many laws and some constitutional amendments have been struck down by the Courts during this period. Through all this, the superior courts in India have emerged as perhaps the most powerful courts in the world, exercising virtually Imperial & unchecked powers. While executive action and even legislation could often be struck down by the courts, the directions of the courts, sometimes issued without even notice to the affected parties, were beyond question, and had to be obeyed by all executive officers on pain of contempt of court.
Of course, often these powers were wisely exercised to correct gross executive inaction. While the Court was acquiring these powers, by an even more inventive (called purposive) interpretation of the provision regarding appointment of judges by the government, it took over the power of appointment of judges. Thus judges of the High Court and Supreme Court are now appointed by a collegium of senior judges of the Supreme Court.
The judiciary has thus become like a selfperpetrating oligarchy. There is no system followed in the selection of judges and there is no transparency in the system. In particular, no regard is given to examining the record or credentials of judges in their ideological adherence to the constitutional ideals of a secular, socialist democratic republic or their understanding of or sensitivity towards the common people of the country who are poor, marginalized and unable to fight for their rights in the courts. Contempt Of Court (Case Files) Recently, the judiciary has been greatly in the news, but for all the wrong reasons.
A string of judicial scandals have erupted in the recent past, starting with Chief Justice Sabharwal’s case, and then going on to the Ghaziabad district court Provident fund scam, the 15 lakh cash-at-judges-door scam of Chandigarh, and the Justice Soumitra Sen case of Calcutta. Some of these have arisen due to the lack of transparency in the selection and appointment of judges. In many cases, persons of doubtful integrity come to be appointed and confirmed through a totally secretive, ad hoc, arbitrary and non-transparent process of selection and appointment through a Collegium of judges of the High Court and the Supreme Court.
Unfortunately however, we are finding that these rotten eggs who come to be appointed, get confirmed, even when they are found by the Collegium to have been of doubtful integrity, and are not removed even when a judge’s committee has found them guilty of criminal misappropriation and criminal breach of trust, and even after the Chief Justice of India has recommended their impeachment selection, appointment and removal of judges. A historic non-impeachment 1. Case Of Justice V. Ramaswami.
May 11, 1993 will be remembered as a black day for Parliament and for the judiciary in this country. For on that day, 205 Lok Sabha members belonging to the Congress(I) and its allies sabotaged the impeachment mo tion against Justice V. Ramaswami of the Supreme Court by abdicating their constitutional duty of voting for or against and thus defeating the motion by ensuring that it did not receive the support of an absolute majority of the total membership of the House. Each one of the 196 MPs, who voted, all belonging to the Opposition parties, voted for the removal of the judge.
Thus, despite the motion for removal being passed unanimously by the members who voted, it failed, bringing to a close the more-than-two-year old proceedings for the removal of Ramaswami. The result, therefore, is that despite a high-power inquirycommittee of three eminent judges having come to the conclusion that Ramaswami was guilty of several acts of gross misbehaviour which warranted his removal, the judge is still entitled to discharge judicial functions from the highest court of the land.
It is another matter that after the impeachment mo tion failed, Ramaswami was persuaded to resign by the Congress(I) which belatedly realised that it would have to pay a heavy price for being seen to have supported a corrupt judge. The failure of the motion, especially after the tortuous course it went through, raises several grave issues for the future of the administration of justice in this country and indeed for probity in public life in general. 2. The Case Of Justice Ashok Kumar.
In the case of Justice Ashok Kumar, who was appointed an additional judge in April 2003, the Collegium of three senior judges of the Supreme Court unanimously decided not to confirm him as a permanent judge in August 2005 because of adverse reports regarding his integrity. Despite this, he was given extensions as additional judge, and finally came to be confirmed in February 2007 on the Chief Justice’s recommendation, which was made without consulting other members of the Collegium of judges, in complete violation of several judgements of the Supreme Court.
These had clearly laid down that in a matter of appointment of judges, the Chief Justice cannot act alone and must go along with the majority view of the Collegium of senior judges of the Supreme Court. The 9 Judge judgments also provided that an appointment made without consulting the Collegium was challengeable and could be struck down in a judicial proceeding.
The memorandum of procedure lay down by the law ministry also made it abundantly clea
