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CONSTITUTIONAL LAW-II Unit-lI

Paper III:

CONSTITUTIONAL LAW-II

Unit-lI

Q.1: Discuss the composition, appointment, and qualifications of judges of the Supreme Court of India under the Constitution.

Introduction

The Supreme Court of India is the apex judicial authority in the country, established under Part V, Chapter IV (Articles 124 to 147) of the Indian Constitution. It acts as the guardian of the Constitution, the final court of appeal, and protector of fundamental rights. The provisions relating to its composition, appointment, and qualifications of judges are enshrined primarily in Article 124 of the Constitution.

1. Composition of the Supreme Court

As per Article 124(1):

  • The Supreme Court shall consist of:
    • One Chief Justice of India (CJI), and
    • Other judges as may be fixed by Parliament from time to time.

🔹 Originally, the total number of judges (including the CJI) was 8, but through subsequent amendments and legislation, this number has increased.
🔹 As of 2023, the sanctioned strength is 34 judges (1 CJI + 33 other judges), as per The Supreme Court (Number of Judges) Amendment Act, 2019.

2. Appointment of Judges

The process of appointment of judges to the Supreme Court is governed by Article 124(2), which states:

  • Every judge of the Supreme Court shall be appointed by the President of India, after consultation with:
    • The Chief Justice of India, and
    • Such other judges of the Supreme Court and High Courts as the President may deem necessary.

Collegium System

Although the Constitution provides for “consultation”, the Supreme Court Advocates-on-Record Association (SCARA) case, 1993 and Presidential Reference, 1998 led to the evolution of the Collegium system, which is now followed in practice:

  • The Collegium is headed by the Chief Justice of India and includes the four senior-most judges of the Supreme Court.
  • It recommends names to the President for appointment.
  • The President generally follows the recommendation of the Collegium, though he may seek reconsideration once.

Recent Developments

Attempts were made to replace the Collegium with the National Judicial Appointments Commission (NJAC) through the 99th Constitutional Amendment Act, 2014, but the Supreme Court struck it down in 2015, holding it unconstitutional and reaffirming the Collegium.

3. Qualifications of Judges (Article 124(3))

To be eligible for appointment as a judge of the Supreme Court, a person must:

  1. Be a citizen of India; and
  2. Must have been:
    • A judge of a High Court (or of two or more such courts in succession) for at least 5 years, or
    • An advocate of a High Court (or of two or more such courts in succession) for at least 10 years, or
    • A person who is, in the opinion of the President, a distinguished jurist.

📝 Note: The “distinguished jurist” clause has rarely been used.

4. Oath of Office (Article 124(6))

  • Before entering office, a Supreme Court judge must make and subscribe to an oath or affirmation before the President of India, pledging to:
    • Faithfully perform duties,
    • Uphold the Constitution,
    • Preserve the sovereignty and integrity of India.

5. Tenure and Retirement (Article 124(2) Proviso)

  • Judges of the Supreme Court hold office until they attain the age of 65 years.
  • They may resign by writing to the President.
  • They may also be removed by the President on grounds of proved misbehaviour or incapacity by a special majority of Parliament, as per Article 124(4) (i.e., the process of impeachment).

6. Significance of the Appointment Process

  • Ensures judicial independence, which is a basic structure of the Constitution.
  • The Collegium system, though criticized for lack of transparency, has helped insulate judicial appointments from political interference.
  • The process balances executive consultation and judicial self-regulation.

Conclusion

The Supreme Court’s composition and appointment process reflect a delicate balance between constitutional provisions, judicial independence, and executive authority. Over time, the judiciary has evolved mechanisms like the Collegium to maintain its autonomy. However, continued calls for reform and greater transparency suggest the system must adapt while preserving the core values of the Constitution.

Q.2: Examine the original, appellate, and advisory jurisdiction of the Supreme Court of India. How does Article 131 differ from Article 136 and Article 143?

Introduction

The Supreme Court of India, established under Part V, Chapter IV of the Constitution (Articles 124 to 147), is the highest constitutional court in the country. It acts as the final interpreter of the Constitution and protector of fundamental rights. The Court exercises three main types of jurisdiction:

  1. Original Jurisdiction
  2. Appellate Jurisdiction
  3. Advisory Jurisdiction

These are specifically provided under Articles 131, 132–136, and 143 respectively.

1. Original Jurisdiction (Article 131)

🔷 Meaning:

Original jurisdiction means the power of the Supreme Court to hear a case for the first time, not on appeal.

🔷 Article 131 – Exclusive jurisdiction:

It deals with disputes involving:

  • The Government of India and one or more States;
  • The Government of India and one or more States on one side and one or more other States on the other side;
  • Two or more States.

✅ Example:
If there is a dispute between Karnataka and Tamil Nadu over river water sharing, it falls under Article 131.

❌ Exclusions:

  • It does not cover disputes arising out of a contract or commercial relationship.
  • Private parties cannot invoke Article 131.

2. Appellate Jurisdiction (Articles 132–136)

Appellate jurisdiction allows the Supreme Court to review and correct the decisions of lower courts.

🔸 (A) Constitutional Appeals – Article 132:

Appeals lie to the Supreme Court from High Court judgments involving a substantial question of law relating to the Constitution.

🔸 (B) Civil Appeals – Article 133:

Civil cases can be appealed to the Supreme Court if:

  • A substantial question of law is involved, and
  • The High Court certifies that it needs to be decided by the Supreme Court.

🔸 (C) Criminal Appeals – Article 134:

Appeals in criminal cases lie when:

  • High Court has reversed an acquittal and sentenced the accused to death, or
  • It has withdrawn the case from a subordinate court and imposed a death sentence, or
  • High Court certifies the case is fit for appeal.

🔸 (D) Special Leave Petition (SLP) – Article 136:

  • This is a residual and discretionary power of the Supreme Court.
  • It empowers the Court to grant special leave to appeal from any judgment, decree, or order passed by any court or tribunal (except military courts).
  • It can be used in both civil and criminal matters.

✅ Significance: Article 136 has made the Supreme Court a universal court of appeal, though not as a matter of right but discretion.

3. Advisory Jurisdiction (Article 143)

🔷 Meaning:

Under Article 143, the President of India can seek the opinion of the Supreme Court on:

  • Any question of law or fact of public importance, or
  • Any dispute arising out of treaties, agreements made before the commencement of the Constitution.

🔷 Nature:

  • The opinion given by the Supreme Court is advisory, i.e., not binding on the President.
  • However, it carries great moral and legal weight.

✅ Examples:

  • In the Berubari Union Case (1960) – Reference regarding transfer of land to Pakistan.
  • In the Ayodhya Case (1993) – Reference about the construction of a temple.

4. Comparison: Article 131 vs 136 vs 143

Aspect Article 131 (Original) Article 136 (Appellate – SLP) Article 143 (Advisory)
Nature of Power Original jurisdiction Discretionary appellate power Advisory power
Who can initiate State(s) or Union Government Any aggrieved party with permission President of India only
Binding effect Binding judgment Binding on parties involved Not binding (advisory only)
Type of Matter Federal disputes between Union and States Any civil/criminal/constitutional/tribunal matters Questions of public importance or treaty interpretation
Purpose Resolve inter-governmental disputes Provide justice in specific appeals Assist executive in decision-making

Conclusion

The Supreme Court’s original, appellate, and advisory jurisdictions together make it the guardian of the Constitution and the ultimate protector of rights and justice in India. Articles 131, 136, and 143 serve distinct purposes but collectively empower the Court to function as a multi-faceted judicial authority in a federal and democratic setup.

Q.3: Critically analyse the powers of judicial review and judicial activism exercised by the Supreme Court under the Constitution.

Introduction

The Supreme Court of India, as the guardian of the Constitution, plays a vital role in upholding constitutional supremacy and protecting fundamental rights. Two key tools through which the Court performs this role are:

  1. Judicial Review, and
  2. Judicial Activism

While judicial review is a constitutional power, judicial activism is more of a judicial philosophy or approach. Both have shaped the legal and political landscape of India and continue to evoke debate and criticism.

1. Judicial Review: Meaning and Constitutional Basis

🔷 Definition:

Judicial review is the power of the judiciary to review laws and executive actions to determine whether they are consistent with the Constitution. If found unconstitutional, the court can strike them down.

🔷 Constitutional Provisions:

Though not explicitly mentioned, judicial review is implied in several Articles, especially:

  • Article 13(2) – Laws violating fundamental rights are void.
  • Article 32 and 226 – Empower courts to enforce fundamental rights.
  • Article 131, 136, 143, 145 – Provide the Supreme Court with various powers that imply judicial review.

🔷 Origin in India:

Inspired by Marbury v. Madison (1803) in the U.S., the concept has been firmly adopted by Indian courts since the early constitutional cases.

2. Judicial Activism: Meaning and Nature

🔷 Definition:

Judicial activism refers to the proactive role of the judiciary in interpreting laws and taking a stand on social, political, and economic issues, especially in the absence or failure of the legislature or executive.

🔷 Features:

  • Expands the scope of fundamental rights (especially Article 21).
  • Uses tools like Public Interest Litigation (PIL) and epistolary jurisdiction.
  • Often fills legislative or administrative gaps.

🔷 Examples of Judicial Activism:

  • Maneka Gandhi v. Union of India (1978) – Expanded Article 21.
  • Vishaka v. State of Rajasthan (1997) – Guidelines for workplace harassment.
  • MC Mehta series – Environmental activism.
  • 2G Spectrum, Coal Allocation cases – Addressed corruption.

3. Distinction between Judicial Review and Judicial Activism

Feature Judicial Review Judicial Activism
Nature Constitutional power Judicial approach/philosophy
Purpose Strike down unconstitutional laws/executive acts Fill legislative gaps, ensure justice
Scope Limited to Constitution Broader, often policy-influencing
Example Striking down NJAC Act Laying down Vishaka Guidelines
Control Well-defined by law Often seen as discretionary or creative

4. Judicial Review: A Critical Analysis

✅ Positive Aspects:

  • Safeguard of Fundamental Rights
  • Check on arbitrary power of the legislature and executive
  • Promotes constitutionalism and rule of law
  • Strengthens democracy by ensuring that all actions conform to the Constitution

❌ Criticism:

  • Sometimes considered undemocratic, as unelected judges overrule laws made by elected representatives
  • May be perceived as judicial overreach if used excessively or politically
  • Lack of objective standards to measure constitutionality in complex policy matters

5. Judicial Activism: A Critical Analysis

✅ Positive Aspects:

  • Brings justice to marginalized sections of society
  • Activates state machinery in cases of government inaction
  • Encourages responsive governance and transparency
  • Protects environment, women’s rights, and human dignity

❌ Criticism:

  • Seen as encroachment into legislative/executive domain (violates separation of powers)
  • May lead to judicial overreach
  • PILs sometimes misused for publicity or political motives
  • Can destabilize policies or delay reforms if used imprudently

6. Landmark Judgments Reflecting Both Powers

Case Name Judicial Power Used Significance
Kesavananda Bharati v. State of Kerala (1973) Judicial Review Propounded the Basic Structure Doctrine
Minerva Mills v. Union of India (1980) Judicial Review Balanced fundamental rights and DPSPs
Vishaka v. State of Rajasthan (1997) Judicial Activism Framed guidelines for sexual harassment
MC Mehta v. Union of India (1986 onward) Judicial Activism Environmental protection
I.R. Coelho v. State of Tamil Nadu (2007) Judicial Review Even Ninth Schedule laws are reviewable

Conclusion

Judicial review and judicial activism are both essential to ensure justice, accountability, and constitutional supremacy. However, the line between activism and overreach is thin and must be tread carefully. The judiciary must balance its duty to uphold the Constitution with respect for the separation of powers. A restrained yet responsive judiciary is the cornerstone of a vibrant democracy.

Q.4: Explain the structure, powers, and jurisdiction of High Courts under the Indian Constitution. How is the High Court a court of record?

Introduction

High Courts are the highest courts at the State or Union Territory level in India. They are established under Part VI, Chapter V (Articles 214 to 231) of the Indian Constitution. Every state (or group of states) has a High Court which exercises judicial authority and supervises subordinate courts under its jurisdiction.

The High Court not only ensures justice at the state level but also acts as a protector of fundamental rights and a court of record, playing a significant role in India’s federal and democratic setup.

1. Structure of High Courts

🔷 Establishment:

  • Article 214 provides that there shall be a High Court for each State.
  • However, Parliament can establish a common High Court for two or more States or Union Territories (Article 231).

✅ Examples:

  • Bombay High Court serves Maharashtra, Goa, and Union Territories of Dadra & Nagar Haveli and Daman & Diu.
  • Guwahati High Court serves several northeastern states.

🔷 Composition:

  • The High Court consists of:
    • Chief Justice, and
    • Such other judges as appointed by the President from time to time.
  • There is no fixed minimum or maximum number of judges; it varies by state based on workload and population.

2. Appointment of Judges (Article 217)

  • Judges are appointed by the President of India in consultation with:
    • The Chief Justice of India,
    • The Governor of the State, and
    • The Chief Justice of the High Court concerned (for judges other than Chief Justice).
  • The Collegium system also applies to the appointment of High Court judges.

3. Qualification of Judges (Article 217(2))

To be appointed as a judge of a High Court, a person must:

  1. Be a citizen of India; and
  2. Have held a judicial office in India for at least 10 years, or
  3. Been an advocate of a High Court (or two or more such courts) for at least 10 years.

4. Powers and Jurisdiction of High Courts

High Courts possess wide-ranging powers and jurisdictions, which can be categorized as follows:

A. Original Jurisdiction

  • High Courts have original jurisdiction in:
    • Writ jurisdiction under Article 226, for the enforcement of fundamental rights and for other legal purposes.
    • Matters of contempt of court.
    • Election petitions under the Representation of the People Act.

✅ Example: High Court can directly hear a case where a citizen alleges violation of fundamental rights.

B. Appellate Jurisdiction

  • High Courts can hear appeals from:
    • Civil cases from subordinate courts (District Courts).
    • Criminal cases involving sentences of more than seven years or death.
    • Tribunals and quasi-judicial bodies in certain cases.

C. Writ Jurisdiction (Article 226)

  • High Courts can issue writs like habeas corpus, mandamus, certiorari, prohibition, and quo warranto.
  • Wider than the Supreme Court’s writ jurisdiction (Article 32), because High Courts can issue writs not just for fundamental rights but also for any other legal right.

D. Supervisory Jurisdiction (Article 227)

  • High Courts have the power to supervise the functioning of all subordinate courts and tribunals within their territorial jurisdiction.
  • Ensures that lower courts function within legal bounds.

E. Control Over Subordinate Judiciary (Article 235)

  • High Courts have control over the posting, promotion, leave, and discipline of members of district and subordinate judiciary.

5. High Court as a Court of Record (Article 215)

🔷 Meaning:

According to Article 215, every High Court shall be a Court of Record. This implies:

  1. Its judgments, proceedings, and records have permanent evidentiary value and cannot be questioned in any court (except by the Supreme Court).
  2. It has the power to punish for contempt of itself and of subordinate courts.

✅ Significance:

  • Helps maintain the authority and dignity of the High Court.
  • Acts as a precedent for subordinate courts.

6. Transfer of Judges (Article 222)

  • The President, after consultation with the Chief Justice of India, may transfer a judge from one High Court to another.
  • This power is used administratively and strategically to ensure impartiality and integrity in the judiciary.

7. Tenure and Removal of Judges

  • A High Court judge holds office until the age of 62 years.
  • Can resign by writing to the President.
  • Can be removed by the President through impeachment (as per Article 217 read with Article 124(4)) on the grounds of proved misbehaviour or incapacity.

Conclusion

High Courts play a pivotal role in the Indian judicial system as guardians of constitutional and legal rights at the state level. Their jurisdictional flexibility, writ powers, and status as courts of record make them integral to the delivery of justice and enforcement of rule of law. A robust and independent High Court system is essential for maintaining federal balance and upholding democratic values in India.

Q.5: Discuss the process of appointment and transfer of High Court judges. What is the role of the Collegium system and how has it evolved?

Introduction

The independence of the judiciary is a basic feature of the Indian Constitution, and one of its cornerstones is the process of appointment and transfer of judges. High Court judges play a crucial role in the justice delivery system at the state level. The process of their appointment and transfer is provided under Articles 217 and 222 of the Constitution. Over the years, the Collegium system has evolved as the dominant mechanism in this process.

1. Constitutional Provisions

🔷 Appointment of High Court Judges – Article 217

  • Appointing Authority:
    The President of India appoints judges of the High Court.
  • Consultation Requirement:
    The President shall consult:

    • The Chief Justice of India (CJI)
    • The Governor of the State concerned
    • The Chief Justice of the High Court concerned
  • Eligibility Criteria (Article 217(2)):
    A person shall be qualified for appointment as a judge of a High Court if:

    • They are a citizen of India, and
    • Have held a judicial office in India for at least 10 years, or
    • Been an advocate in a High Court (or two or more such courts) for at least 10 years.

🔷 Transfer of High Court Judges – Article 222

  • The President, after consultation with the Chief Justice of India, may transfer a judge from one High Court to another.
  • This provision is intended to:
    • Maintain judicial integrity,
    • Avoid local pressures, and
    • Ensure administrative efficiency.

2. The Evolution of the Collegium System

Initially, appointments were made primarily at the discretion of the Executive, with limited say of the judiciary. However, over time, the Supreme Court reinterpreted the “consultation” requirement to mean “concurrence”, thereby shifting the balance in favour of the judiciary.

🔹 First Judges Case (1981) – S.P. Gupta v. Union of India

  • Held that consultation does not mean concurrence.
  • Gave primacy to the executive in judicial appointments.

🔹 Second Judges Case (1993) – Supreme Court Advocates-on-Record Association v. Union of India

  • Overruled the First Judges Case.
  • Held that CJI’s opinion must have primacy, and it should be formed in consultation with a plurality of judges.
  • This gave birth to the Collegium system.

🔹 Third Judges Case (1998) – Presidential Reference

  • Clarified the composition of the Collegium:
    • For High Court judges: CJI + two senior-most Supreme Court judges
    • For Chief Justice of High Court: CJI + four senior-most Supreme Court judges

3. Collegium System in Practice

🔷 For Appointment of High Court Judges:

  • Step 1: Initiation at High Court level by Chief Justice of the concerned High Court.
  • Step 2: Recommendation forwarded to the Governor and then to the Union Law Ministry.
  • Step 3: The recommendation is reviewed by the Supreme Court Collegium.
  • Step 4: The file is sent to the President for final appointment.

🔷 For Transfer of High Court Judges:

  • The Chief Justice of India, after consulting senior colleagues in the Collegium and affected judges, recommends the transfer.
  • The President finalizes the transfer based on this advice.

4. Criticism and Challenges of the Collegium System

❌ Lack of Transparency:

  • No defined criteria for selection or rejection.
  • Decisions are taken behind closed doors.

❌ No Representation for Civil Society or Executive:

  • Entirely a judiciary-driven process.
  • Critics argue it violates the principle of checks and balances.

❌ Delays and Vacancies:

  • Despite recommendations, long delays occur in appointments and transfers.
  • High Courts often function with less than their sanctioned strength.

5. The NJAC Attempt and its Failure

🔷 99th Constitutional Amendment Act, 2014:

  • Established the National Judicial Appointments Commission (NJAC) to replace the Collegium system.
  • Proposed a 6-member body with representation from the judiciary, executive, and civil society.

🔷 Struck Down by the Supreme Court (2015):

  • The Supreme Court, in the Fourth Judges Case, held NJAC unconstitutional as it violated the independence of judiciary, which is part of the basic structure doctrine.

6. Suggestions for Reform

  • Greater transparency in Collegium proceedings.
  • Well-defined criteria for selection and rejection.
  • Use of technology and databases for tracking judges’ performance.
  • Balanced involvement of executive and civil society, while preserving judicial independence.

Conclusion

The process of appointment and transfer of High Court judges is crucial to ensuring an independent and competent judiciary. Though the Collegium system has safeguarded judicial independence, its opaque and exclusive nature has attracted criticism. A reformed system that combines transparency, accountability, and independence is the need of the hour to strengthen public trust in the judiciary.

Q.6: Describe the composition and functions of Subordinate Judiciary in India. How is it controlled and supervised by the High Courts?

Introduction

The Subordinate Judiciary, also known as the Lower or District Judiciary, is the foundation of the judicial system in India. It deals directly with the general public and handles the bulk of civil and criminal cases. It operates under the control and supervision of the High Courts and plays a vital role in ensuring justice at the grassroots level.

The structure, composition, powers, and control mechanisms of subordinate courts are primarily governed by:

  • Part VI, Chapter VI of the Constitution (Articles 233 to 237)
  • Code of Civil Procedure, 1908
  • Code of Criminal Procedure, 1973
  • Various State Judicial Service Rules

1. Composition of Subordinate Judiciary

The Subordinate Judiciary comprises different levels of civil and criminal courts. These may vary slightly from state to state but generally include the following:

🔷 A. District and Sessions Court

  • Highest court in a district.
  • Headed by a District Judge (civil jurisdiction) and Sessions Judge (criminal jurisdiction).
  • Appointed by the Governor in consultation with the High Court (Article 233).

🔷 B. Civil Courts Hierarchy

  1. District Judge / Additional District Judge
  2. Civil Judge (Senior Division)
  3. Civil Judge (Junior Division)

🔷 C. Criminal Courts Hierarchy

  1. Sessions Judge / Additional Sessions Judge
  2. Chief Judicial Magistrate (CJM)
  3. Judicial Magistrate First Class / Second Class
  4. Executive Magistrate (functions under the executive, not judiciary)

🔷 D. Family Courts / Labour Courts / Consumer Courts

  • Special courts established under respective special laws.

2. Functions of Subordinate Judiciary

Subordinate Courts perform a wide range of judicial functions, including:

✅ A. Adjudication of Civil and Criminal Cases

  • Decide disputes between individuals, corporations, or the government.
  • Handle criminal trials ranging from petty offences to serious crimes like murder (tried in Sessions Court).

✅ B. Execution of Decrees and Orders

  • Implement and enforce court judgments and orders passed in civil suits.

✅ C. Recording of Evidence and Conduct of Trial

  • Conduct full trials, take evidence, issue warrants, summons, and pass interim or final orders.

✅ D. Magistrates’ Powers under CrPC

  • Grant bail, search and seizure warrants, remand of accused, record confessions, etc.

✅ E. Special Jurisdictions

  • Family Courts handle matrimonial disputes.
  • Labour Courts deal with industrial and employment disputes.
  • Small Causes Courts deal with minor civil matters.

3. Control and Supervision by High Courts

🔷 Constitutional Basis – Article 235

  • High Courts exercise control over the subordinate judiciary in the State.
  • Includes matters relating to:
    • Posting
    • Promotion
    • Leave
    • Disciplinary action
    • Transfers
    • Service conditions

✅ The High Court acts as a supervisory and disciplinary authority, ensuring:

  • Independence and integrity of subordinate courts.
  • Accountability and efficiency.

🔷 Judicial Superintendence – Article 227

  • High Courts have supervisory jurisdiction over all courts and tribunals (except military courts) within their territorial jurisdiction.
  • Can:
    • Call for records of subordinate courts.
    • Issue directions, orders, and writs.
    • Correct errors and ensure compliance with law and procedure.

🔷 Inspection and Monitoring

  • High Courts regularly conduct administrative inspections of subordinate courts.
  • District Judges also report on the performance of subordinate judicial officers to the High Court.

4. Recruitment and Appointment

🔷 Direct Recruitment (Article 234)

  • Conducted by State Public Service Commissions and High Courts for:
    • Civil Judges (Junior Division)
    • Judicial Magistrates

🔷 Promotions

  • From Civil Judge to Civil Judge (Senior Division), and eventually to District Judge.

🔷 Eligibility

  • As per State Judicial Services Rules:
    • Must possess a law degree, and
    • Have relevant years of experience (for promotion).

5. Challenges Faced by Subordinate Judiciary

  • Huge case backlog and delays
  • Vacant posts and inadequate staff
  • Infrastructure deficiencies
  • Pressure of high pendency
  • Corruption and political interference in some cases

Conclusion

The subordinate judiciary is the backbone of India’s justice delivery system. Its effective functioning ensures access to justice for common citizens. The High Courts’ control and supervision, as mandated by the Constitution, aim to maintain discipline, efficiency, and accountability within this tier. Strengthening the subordinate judiciary through better infrastructure, timely appointments, and training is essential for the overall health of the Indian judicial system.

Q.7: Evaluate the concept of independence of judiciary in India. What constitutional provisions ensure the independence of judges?

Introduction

The independence of the judiciary is a cornerstone of the democratic framework of India. It ensures that the judiciary can deliver impartial justice, safeguard the Constitution, and protect the fundamental rights of citizens without fear, favour, or interference. The framers of the Constitution considered judicial independence essential for maintaining the rule of law, separation of powers, and constitutional supremacy.

The Constitution of India provides various provisions, mechanisms, and safeguards to ensure that the judiciary—especially the Supreme Court and High Courts—remains free from executive and legislative control or influence.

1. Meaning and Importance of Judicial Independence

🔷 Meaning:

Judicial independence means that judges must be free to decide cases fairly and impartially, without any external pressure or influence, especially from the legislature, executive, or powerful individuals.

🔷 Importance:

  • Upholds constitutional values and supremacy
  • Guarantees fair trials and justice
  • Protects individual rights and liberties
  • Acts as a check on the abuse of power by the other organs of the state
  • Ensures public confidence in the legal system

2. Constitutional Provisions Ensuring Independence of Judiciary

The Constitution provides institutional, procedural, and financial safeguards to secure judicial independence:

🔷 A. Security of Tenure

  • Supreme Court (Article 124(4)) and High Court (Article 217) judges cannot be removed from office except by impeachment on grounds of proved misbehaviour or incapacity.
  • The process requires a special majority in both Houses of Parliament, making it very stringent and rare.

🔷 B. Fixed Service Conditions

  • Judges’ salaries, allowances, privileges, and pensions are charged on the Consolidated Fund of India (Article 112, 202) and cannot be altered to their disadvantage during their term (Article 125 and 221).

🔷 C. Separation from Executive (Article 50 – DPSP)

  • Although not enforceable in court, Article 50 directs the state to separate the judiciary from the executive in the public services of the state.

✅ This has largely been achieved in criminal justice administration, particularly at the subordinate level.

🔷 D. Appointment Process (Articles 124 & 217)

  • Judges of the Supreme Court and High Courts are appointed by the President, but only after consultation with the Chief Justice of India and other senior judges.
  • This evolved into the Collegium system, which gives primacy to the judiciary in appointments and transfers, minimizing executive influence.

🔷 E. Prohibition on Practice After Retirement (Article 124(7))

  • A retired Supreme Court judge cannot plead or act in any court or before any authority in India.
  • This avoids conflict of interest and preserves the dignity and neutrality of judicial office.

🔷 F. Contempt Power (Articles 129 & 215)

  • The Supreme Court (Article 129) and High Courts (Article 215) are courts of record and have the power to punish for contempt of court.
  • This ensures that their dignity and authority are respected and not undermined.

🔷 G. Transfer of Judges (Article 222)

  • Though the President can transfer High Court judges, the opinion of the Chief Justice of India is mandatory.
  • It protects judges from being punished or pressured by arbitrary transfers.

🔷 H. Judicial Review (Articles 13, 32, 226)

  • The power of judicial review empowers courts to strike down unconstitutional laws and executive actions.
  • It strengthens the judiciary’s role as the protector of the Constitution and the rights of the people.

3. Judicial Interpretation Strengthening Independence

The judiciary has also interpreted the Constitution in a way that protects and enhances its own independence:

  • Kesavananda Bharati v. State of Kerala (1973): Judicial independence declared part of the basic structure of the Constitution.
  • Second and Third Judges Cases (1993 & 1998): Established the Collegium system, emphasizing judicial primacy in appointments and transfers.
  • SP Gupta Case (1981): Though initially against judicial control, it was later overruled to favour independence.

4. Threats and Challenges to Judicial Independence

❌ Executive Pressure and Political Influence

  • Attempts to influence judicial appointments or transfers.

❌ Post-retirement Appointments

  • Judges accepting political or government posts post-retirement may affect perceived impartiality.

❌ Judicial Overreach Allegations

  • Sometimes judiciary is accused of interfering with legislative or executive functions, leading to tension.

❌ Delay in Collegium Recommendations

  • Executive delays in approving judicial appointments also undermine independence.

Conclusion

The independence of the judiciary is essential for upholding constitutional values, ensuring justice, and maintaining people’s faith in the legal system. The Constitution of India provides a comprehensive framework to safeguard this independence through tenure, financial security, separation of powers, and control over appointments. However, the real strength of the judiciary lies not just in constitutional provisions, but in the integrity, impartiality, and fearlessness of the judges themselves. Continuous reforms and institutional transparency are key to strengthening judicial independence in a modern democracy.

Q.8: What do you understand by Judicial Accountability? Examine the need for judicial accountability and suggest reforms to improve transparency and responsibility in the Indian judiciary.

Introduction

The judiciary is one of the three pillars of Indian democracy and plays a crucial role in upholding constitutional values, protecting fundamental rights, and ensuring justice. While judicial independence is essential for impartial decision-making, it must be balanced with judicial accountability to ensure that judges act responsibly, ethically, and within the framework of law.

Judicial accountability refers to the obligation of judges to explain and justify their actions, decisions, and conduct to the public, the law, and constitutional norms.

1. Meaning of Judicial Accountability

Judicial accountability means that judges are answerable for their decisions and conduct to:

  • The Constitution
  • The laws of the land
  • The people
  • Institutions such as Parliament or judicial bodies

It includes:

  • Transparency in functioning
  • Responsibility for judicial decisions
  • Ethical conduct and integrity
  • Disciplinary mechanisms for misconduct or incapacity

2. Need for Judicial Accountability

✅ 1. Maintain Public Confidence

  • Courts must inspire public trust through fairness, impartiality, and integrity.
  • Lack of accountability may lead to loss of faith in the justice delivery system.

✅ 2. Prevent Misconduct and Corruption

  • Allegations of judicial corruption, nepotism, and favouritism highlight the need for mechanisms to investigate and address such behaviour.

✅ 3. Balance with Judicial Independence

  • Unregulated independence may lead to arbitrariness. Accountability ensures that independence is not misused.

✅ 4. Address Delay and Pendency

  • Judges should be accountable for delays in delivering justice, a major problem in the Indian judiciary.

✅ 5. Strengthen Democracy and Rule of Law

  • Judges must be accountable for upholding constitutional morality, democratic values, and judicial discipline.

3. Existing Mechanisms of Judicial Accountability in India

🔷 A. Impeachment under the Constitution (Articles 124(4), 217)

  • A judge of the Supreme Court or High Court can be removed for proved misbehaviour or incapacity.
  • Requires special majority in both Houses of Parliament.
  • Extremely difficult and rare – only one impeachment motion (Justice V. Ramaswami) reached voting stage and failed.

🔷 B. In-House Procedure (1997)

  • Developed by the Supreme Court, this allows internal inquiry against judges by a committee of senior judges.
  • However, it lacks statutory backing and transparency.

🔷 C. Contempt of Court Law

  • Used to prevent criticism that may undermine judicial authority.
  • However, it is sometimes seen as a shield against accountability.

4. Challenges to Judicial Accountability

Challenge Explanation
❌ Lack of Transparency Collegium system functions in secrecy without public scrutiny.
❌ No Code of Conduct No enforceable judicial ethics code for superior judiciary.
❌ No Effective Complaint Mechanism No independent body for investigating complaints against judges.
❌ Post-Retirement Appointments Judges accepting political posts raises concerns of bias and conflict of interest.

5. Suggested Reforms for Enhancing Judicial Accountability

✅ 1. Judicial Standards and Accountability Bill (JSAB)

  • Introduced in 2010 (but lapsed), this bill aimed to:
    • Lay down enforceable standards of conduct for judges.
    • Set up a National Judicial Oversight Committee.
    • Require judges to declare assets and liabilities.
  • A revised version or alternative independent regulatory body is urgently needed.

✅ 2. Reforming the Collegium System

  • Make Collegium proceedings transparent, publish reasons for selection or rejection.
  • Include external representation (like a Judicial Appointments Commission) without compromising independence.

✅ 3. Code of Conduct and Ethics

  • Develop a clear and enforceable code of ethics for judges.
  • Regular training and sensitization on judicial behaviour, integrity, and impartiality.

✅ 4. Transparent Disciplinary Mechanism

  • Set up an independent judicial complaints authority with powers to investigate complaints and recommend action.
  • Ensure due process, natural justice, and public confidence.

✅ 5. Encourage Reasoned Judgments and Timely Delivery

  • Promote reasoned, clear, and well-written judgments that demonstrate accountability.
  • Fix guidelines for timely disposal of cases and publishing of judgments.

✅ 6. Asset Disclosure and Declaration

  • Make it mandatory for judges to declare assets and liabilities annually.
  • Publish this information for public scrutiny.

6. Global Perspective

  • United States: Federal judges can be impeached by Congress; they also face public scrutiny.
  • United Kingdom: Judges are expected to follow Guidelines on Judicial Conduct, and complaints are addressed by the Judicial Conduct Investigations Office.
  • India needs similar institutional mechanisms to balance independence and accountability.

Conclusion

While judicial independence is essential, it should not become judicial supremacy or immunity. Judicial accountability must be institutionalized through transparent procedures, effective disciplinary mechanisms, and ethical standards. Only then can the judiciary function as a truly impartial and trustworthy guardian of the Constitution and rights of the people. A reformed, transparent, and accountable judiciary is not a threat to its independence—it is, in fact, its strongest shield.

Q.9: Compare and contrast the powers and jurisdiction of the Supreme Court and the High Courts under the Constitution. In what ways are they similar and different?

Introduction

The Supreme Court of India and the High Courts are the two main constitutional courts established under Part V and Part VI of the Indian Constitution respectively. While both courts are entrusted with the responsibility to interpret and uphold the Constitution, they differ in terms of hierarchical authority, territorial jurisdiction, and nature of powers.

This answer outlines and compares the powers and jurisdiction of both courts with reference to constitutional provisions, similarities, differences, and key case laws.

1. Constitutional Basis

Court Articles in Constitution Nature
Supreme Court Articles 124 to 147 (Part V, Chapter IV) Apex Court of India
High Court Articles 214 to 231 (Part VI, Chapter V) Highest court in a State

2. Similarities in Powers and Jurisdiction

✅ A. Constitutional Courts

  • Both are courts of record (Articles 129 & 215).
  • Both protect and interpret the Constitution of India.
  • Both can issue writs for the enforcement of fundamental rights (Articles 32 and 226).

✅ B. Judicial Review

  • Both have powers of judicial review, i.e., to declare laws and executive actions ultra vires the Constitution.

✅ C. Independence

  • Both enjoy functional, financial, and administrative independence.
  • Judges have security of tenure, and their salaries are charged on the Consolidated Fund.

✅ D. Contempt Powers

  • Both courts can punish for contempt of themselves (Articles 129 for SC and 215 for HC).

3. Differences in Powers and Jurisdiction

Basis Supreme Court High Courts
Position in Hierarchy Apex court – highest judicial authority Highest court at the State or UT level
Territorial Jurisdiction Jurisdiction extends over entire India Jurisdiction limited to State or UT where it is located
Original Jurisdiction Article 131 – Disputes between Centre and States Original jurisdiction in civil, criminal, and writ matters under Article 226
Writ Jurisdiction Article 32 – Writs for Fundamental Rights only Article 226 – Writs for Fundamental Rights and any other legal right
Appellate Jurisdiction Broad – in constitutional, civil, criminal, and special leave cases (Art. 132–136) Mainly appellate over subordinate courts and tribunals
Advisory Jurisdiction Article 143 – President can refer matters for advice No advisory jurisdiction
Binding Nature of Judgments Decisions are binding on all courts in India (Art. 141) Binding only within its territorial jurisdiction
Court of Record Article 129 – SC is a Court of Record with contempt powers Article 215 – HC is also a Court of Record with contempt powers
Appeal from Court Final appellate court – no appeal beyond SC Appeals from HC can lie to SC
Review and Curative Powers Can review (Article 137) and entertain curative petitions High Courts do not entertain curative petitions
Control over Subordinate Judiciary No direct control Exercises administrative and judicial control over subordinate courts (Art. 235)

4. Key Case Laws

🔷 Kesavananda Bharati v. State of Kerala (1973)

  • Supreme Court laid down the Basic Structure Doctrine.

🔷 L. Chandra Kumar v. Union of India (1997)

  • High Courts’ power under Article 226/227 is part of the basic structure and cannot be excluded.

🔷 A.R. Antulay v. R.S. Nayak (1988)

  • Emphasized the binding authority of Supreme Court’s decisions on all courts.

5. Complementary Role of Supreme Court and High Courts

Despite differences, both courts work in tandem to deliver justice and uphold constitutional values:

  • High Courts act as the first constitutional courts for citizens.
  • Supreme Court corrects errors, ensures uniform interpretation, and settles constitutional disputes.

They are not in conflict, but rather complement each other in the hierarchical structure of Indian judiciary.

Conclusion

While the Supreme Court is the final interpreter of the Constitution and the highest appellate authority, the High Courts serve as the guardians of fundamental rights at the state level. Both courts have overlapping powers, but differ in extent, reach, and hierarchy. The balance and coordination between them ensure the smooth functioning of the federal judicial system in India. A strong and independent Supreme Court and High Courts are essential for the survival of constitutional democracy.