Chapter 5 JUDICIARY

Independence of the Judiciary:

(i) Meaning : The Constitution has provided for a single hierarchy of courts with the Supreme Court at the Apex. The Supreme Court is the Guardian of and the protector and theguarantor of the rights of the individuals. It is considered as a sentinel on the 'qui vive'.Independence of the judiciary is one of the cardinal principles of democracy and our Constitution has placed the Supreme Court at the highest pedestal as the final interpreter of the law and of the Constitution. It’s decisions are binding on all the Courts in India (Art. 141). Independence means freedom from interference of the Legislature and the Executive. This is in contradiction to the'Committed Judiciary', where the judges decide, subject to certain circumscribed limitation.


(ii) Origin : One historical incident in England which hastened the independence of the judiciary is relevant. Charles I, rushed to the House of Lords, when it was hearing a case and put three questions to the Judges. All the judges, agreed to the first two questions. Then the king asked 'know ye thou the judges, that whatever we sayeth and do is law!'All Judges agreed. But, Chief Justice Coke said that he would decide that when it came to the Bench!. The consequence was that he was dismissed. But, this had such a tremendous impact that in the few years to come, the judiciary became free from the Executive.


(iii) India : The Constitution makers provided for the independence of the judiciary by making suitable provisions in the Constitution.


(a) Appointment: Art 124—Judges of the Supreme Court and of the High Courts are appointed by the President of India. In appointing a Supreme Court Judge, the president consults the Chief Justice of India and the Judges of the Supreme Court and of the High Courts as he may deem necessary.


(b) Qualification: These are prescribed in the Constitution and not left to the will of the Executive. The person must be:

(1) a judge of a High Court for at least 5 years; (2) an Advocate for 10 years or,

(3) a distinguished jurist.

(c) Tenure: Every judge holds his position until he reaches the age of 65 (in case of Supreme Court) and 62 (in case of High Courts).

(d) Salaries etc. : The salaries are fixed and prescribed in the schedule to the Constitution and are charged on the Consolidated Fund of India. This is not a subject to vote in the Parliament.

(c) Removal: Art. 124(4)—The procedure for removal of a judge on the ground of proved misbehaviour or incapacity is as follows. Each House of the Parliament with a 50% strength of its total membership and with a 2/3 majority must decide by presenting an address to remove the judge, and the President must issue the order for removal of the judge, in the same session. Parliament may make law as to how the investigation and proof of the misbehaviour or incapacity is to be proved.

(f) Conduct of the judge should not be discussed in any State Legislature (Art. 211), or by the Parliament (Art. 121). (g) Restriction: After retirement, no judge of the Supreme Court should plead or act in any Court or before any authority in India. These provisions have made the judiciary independent. The judges may deliver judgements in a free and calm atmosphere, without aspiring for any favour of the Government. Recent Development : The seniority-rule followed in appointing the Chief Justice of India was deviated in appointing Judge Ray as the Chief Justice, ignoring the seniority of the 3 judges of the Supreme Court (1973). The consequence was that the 3 senior most Judges Hegde, Grover and Shelat resigned. There was a nation-wide resentment to the attitude of the Central government in the appointment of the Chief Justice.Transfer of Judges Case (1982) is a landmark case. The Supreme Court interpreting Art.222 stated that the President may after consulting the Chief Justice of India, transfer a judge from one High Court to another. This must be for public interest and not by way of punishment. Personal inconvenience, language problem of the concerned Judge should be considered. Prior consent of the judge for transfer was held not necessary. The Court has held that the concept of the independence of the judiciary is one of the cardinal values of our Constitution. Hence, it has a status free from capricious and whimsical interference from outside.


In 1977, Mr. Justice Khanna was superseded and his junior Mr. Justice Beg was appointed as Chief Justice of the Supreme Court. Criticism mounted against this. Mr. Palkivala said the judge had to pay his price for his integrity and independence. When Janata Government came to power, it revived 'seniority rule' and is followed since then.



The Lok Sabha, on March 2012 passed The Judicial

Standards and Accountability Bill, [Constitutional 114th Amendment Bill, 2010,] This is yet to be passed by the Rajya SabhaIt provides for accountability of judges, and, to establish credible and expedient mechanism for investigating into individual complaints for misbehavior or incapacity of a judge of the Supreme Court or of a High Court. It also provides to regulate the procedure for such investigation; and for the presentation of an address by parliament to the president in relation to proceeding for removal of a judge and for matters connected with such matters.The standing Committee , recommendation that seeks to "restrain" judges from making "unwarranted comments" against other constitutional bodies or personsThe author opines that the proposed Amendment is against the independence of the Judiciary which is part of the basic structure of the Constitution.


Jurisdiction of the Supreme Court:

The jurisdiction of the Supreme Court is the largest compared to any other Supreme Court including the U.S. Supreme Court.

Its jurisdiction:

(i) Original jurisdiction—Arts.32 (Writs) and 131. (ii) Appellate Jurisdiction:

(a) Interpretation of the Constitution—Art. 132.

(b) Civil Appellate Jurisdiction—Art. 133.

(c) Criminal Appellate Jurisdiction—Art. 134.

(d) Special Leave to appeal—Art. 136.

(iii) Advisory Jurisdiction—Art. 143.

(iv) Contempt of Court Jurisdiction—Art. 131.


Original Jurisdiction: Art. 131. The Supreme Court has exclusive Original Jurisdiction in

(a) Disputes between Government of India and any one or more States.

(b) Disputes between the Government of India and any one or more States on the one side, and one or more States on the other.

(c) Disputes between two or more States.This is confined to Inter-State disputes. State of Bihar V Union of India. State of Bihar had filed nine suits for short supply of Iron caused by the Railways. It had filed against Union Government as first defendant and, Hindustan Steels or Iron and Steel Co. Ltd. as second defendant. Held, the suit would not lie to the Supreme Court underArt. 131, as it is confined only between Union and States. If one of the defendants is a person, firm or association, the suit would not lie. State of West Bengal V. Union of India. In this case under the Coal Bearing Areas Act, the Union had the power to acquire coal bearing land including lands belonging to the States in India. The Supreme Court held the Act was valid. The suit could be entertained under this Article.


Civil Appellate Jurisdiction : Art. 133.

This was amended in 1972 (30th Constitutional Amendment Act).An appeal lies to the Supreme Court from any judgment, decree or final order in a Civil proceeding of a High Court, if the High Court certifies :

(a) that the case involves a question of law of general importance and


(b) that in its opinion the said case needs to be decided by the Supreme Court. Certificate of fitness may be granted by the High Court, on its own motion, if it deems fit to do so. It may certify even on an oral application made by the aggrieved party, after passing the decree, judgment or final order. The appellant may urge as one of the grounds that a substantial question of law as to the interpretation of the Constitution is involved. No appeal lies to the Supreme Court from the judgment,decree or final order of a Single Bench of the High Court. Before 1972 : Before the 30th Amendment, the value of the subject matter was Rs.20,000/- or above. The consequence was that there was an automatic right to appeal to the Supreme Court. But now me certification by the High Court which is discretionary and unless it certifies, no appeal is allowed under this Article. This has, in fact, reduced the number of appeals.




Criminal Appellate Jurisdiction: Art. 134.

This has been enlarged by the Enlargement of Criminal Appellate Jurisdiction Act 1970. An appeal lies to the Supreme Court from any judgment, final order or sentence of the High Court, in the following cases:


(a) When the Sessions Court acquits, and on appeal by the State, the High Court reverses the order of acquittal and sentences the accused to death, or life imprisonment or imprisonment for 10 years and above, an appeal lies to the Supreme Court.


(b) If the High Court has withdrawn the case for trial before itself, and has in such cases sentenced the accused to death, life imprisonment, or 10 years imprisonment and above, an appeal lies to the Supreme Court.


(c) If the High Court certifies that the case is a fit one for appeal to the Supreme Court.

Under Art.l34A, the High Court may, on its own motion, issue a certificate in suitable cases. It may also issue a certificate, on an oral application of the appellant, after the passing of its decree, final order or sentence.The Supreme Court Rules have provided for a detailed procedure.


Special Leave Jurisdiction: Art. 136.: S. L. P. (Special Leave Petition)

The Supreme Court, in its discretion, may grant special leave (permission) to appeal from any judgment, decree, sentence or order in any cause or matter passed by any court or tribunal in India.


Exception : Cases covered under the Armed Forces.

In Pritam Singh's Case, the Supreme Court laid down that special leave would be given in only exceptional circumstances and when grave injustice is done.

In this case special leave was not granted as the conviction was based on the concurrent findings of the two lower courts.


There was no violation of natural justice.

Mohinder Singh V. State (1953): M had been convicted by the Sessions and sentence confirmed by the High Court. But, the High Court had expressed doubt whether the murder was with a Gun or Rifle. Thus, there was doubt about a material evidence. Hence Special Leave was granted.


Advisory Jurisdiction : Art. 143.

Under Art. 143(1), the President may refer a question to the Supreme Court for its Advisory Opinion, and the Court may after such hearing as it thinks fit, report its opinion to the President.The question of law or fact which has arisen (or likely to arise), must be of such a nature and of such importance that it must be expedient to get the opinion of the Supreme Court. The Court's jurisdiction is discretionary [Art. 143(1)]. Art. 143(2): If there is any dispute arising out of any treaty, agreement, covenant or sanad or other similar instrument, made before the commencement of the Constitution, then the President;may ask for an advisory opinion. The Supreme Court shall give its opinion in such cases [Constitution 7th Amendment1956].


Under Clause (1), the Supreme Court has given Advisory opinions in a number of cases :

1. In re Kerala Education Bill;

2. In re U. P. Tangle Case;

3. In re Special Courts;

4. In re Beruberi Union;

5. In re Presidential Election etc.

6 In re Keshav Singh Case 1964

7 In re Cauvery Dispute 1998

8 In re 2 G case 2012


Nature of Advisory Opinion:The question whether the Advisory opinion is binding on the President is not clearly answered.The American Supreme Court does not render advisory opinions at all. The Australian High Court and Canadian Supreme Court have declined to give advisory opinions as such opinions might prejudice the rights of future litigants.Our Supreme Court has given its advisory opinion in all cases referred to so far. As to its binding nature it is a declaration of law per Bhagavathi J. : In Mehta V. Gujarat Legislative Assembly.In re Special Courts, the Supreme Court said that the opinion was binding on all the Courts in India. Such a'considered opinion', cannot be a mere recommendation, and prudence demands that the advice is followed.



1 view0 comments

Recent Posts

See All

“Education Is The Most Powerful Weapon Which You Can Use To Change The World “

    • Blogger
    • Instagram
    • Twitter
    • YouTube
    © 2021 by www.lawtool.net Copyright™