Contempt of Court
Constitution empower Supreme Court & High Court power to punish for its contempt.
The expression ‘contempt of court’ has not been defined by the Constitution.
The Contempt of Courts Act, 1971 defines both civil and criminal contempt.
Criticism of court judgement on fair and factual ground is allowed.
Judicial Review
Judicial Review can’t be curtailed or removed by Constitutional Amendment.
Judicial Review = Basic structure.
Judicial Review make Indian Parliament not Sovereign in true sense.
Term ‘Judicial Review’ has nowhere been used in the Constitution.
Judicial Review can be used against both Legislative and executive decisions.
Both Supreme Court and High Court have power of Judicial Review.
Supreme Court
Parliament is authorized to increase size of Supreme Court judges.
Centre –state dispute and state-state disputes are exclusive original jurisdiction of Supreme Court.
Enforcement of Fundamental Right under Article 32. (this is original but not exclusive power of SC as HC can also enforce FR under Art 226)
No minimum age required for appointment as a judge of the Supreme Court. ( Not CJI)
Eminent jurist can become Supreme Court Judge but not High Court judge.
No joint session of parliament for removal of Supreme Court and High Court judges, it has to pass separately by each house with special majority.
Speaker/Chairman has full discretion whether to allow or not allow removal motion in house.
President can appoint a judge of the Supreme Court as an acting Chief Justice of India.
Retired Judges can also be appointed as SC judge with all the jurisdiction, powers and privileges of a judge of Supreme Court but will not be considered as SC judge.
The Constitutional cases or references made by the President under Article 143 are decided by a Bench consisting of at least five judges.
Except impeachment motion, Conduct of Judge can’t be discussed into Parliament or State Legislature.
Retired Judge can’t practice or take up any work after retirement except post of Governor.
Parliament can extend power of SC by simple majority but to reduce require constitutional amendment (Special majority in LS and RS+ Half of the states)
High Court can also interpret constitution but Supreme Court can override High Court decision as Supreme Court is final interpreter.
President can ask Supreme Court to advise on certain matter this is called advisory jurisdiction/ Presidential reference/ consultative jurisdiction.
Advise of SC is not binding on President to Comply.
Supreme Court decide on electoral dispute of President and Vice President.
For MPs and MLA electoral dispute is decided by High Court first, subjected to appeal in Supreme Court.
Only the Fundamental Rights guaranteed by the Constitution can be enforced under Article 32 and not any other right like non-fundamental constitutional rights, statutory rights, customary rights.
When the Fundamental Rights of a citizen are violated, the aggrieved party has the option of moving either the high court or the Supreme Court directly.
The Supreme Court can issue writs only for the enforcement of fundamental rights.
High court can issue writs not only for the enforcement of Fundamental Rights but also for any other purpose like legal rights.
Supreme Court can issue writs against a person or government throughout the territory of India.
High court can issue writs only within territorial boundaries of state.
Supreme Court cannot refuse to exercise its writ jurisdiction while High Court can refuse, since Supreme Court is guarantor of Fundamental Rights and High Court is not.
Quo-Warranto can’t be issued against minister but Mandamus can.
In Quo warranto any individual can seek remedy but under Mandamus only aggrieved individual can seek remedy.
Article 33 empowers the Parliament to restrict or abrogate the fundamental rights of the members of armed forces, para-military forces, police forces, intelligence agencies.
Supreme Court can take judicial review of Pardoning decision of President and can overturn in case of excessive delay in decision making.
Supreme Court can pass special leave (Article 136) to appeal from any judgement of lower court/tribunal etc. except military court towards itself.
Special Leave Power is a discretionary power of SC, thus, can’t be claimed as matter of right.
Special Leave Power can be used by SC in any matter.
Supreme Court can punish an individual not only for contempt of Supreme Court but for any other court as well.
High Court can punish for contempt of High Court or any other subordinate court.
Office of the CJI has been brought under the RTI. But, the Supreme court has rejected bringing the working of the collegium under the RTI.
PIL
Dispute between two Private individual can’t be considered under PIL.
Any body can file PIL on behalf of community whose interest is at stake.
PIL can be filed in Supreme Court or High Court.
It is pure discretion of court to entertain any PIL or reject it.
Court is not duty bound to consider cases under PIL.
Court can punish the person filing PIL on frivolous ground.
PILs can be filed either in the High Court or in the Supreme Court.
Tribunals
Enjoy constitutional status under art 323 A and 323 B.
Decisions of tribunals can’t be challenged directly into SC. (One has to go to HC first)
Tribunals function on principle of natural justice.
Tribunals have power to punish for its contempt.
One can challenge contempt decision of tribunal only in SC and not High court.
Tribunals can be created by Union and also the state legislature.
High Court
Parliament can establish a common high court for two or more states or for two or more states and a union territory.
State legislature can’t establish High Court.
Delhi is the only union territory that has a high court of its own.
Only Parliament and not state legislature have the power to extend territorial jurisdiction of High Court.
Strength (total number of judges) of High Court is decided by President and of Supreme Court is decided by Parliament.
No minimum age for qualification.
Unlike Supreme Court , Eminent jurist can’t be made Judge of High Court.
Procedure for removal of High Court judge is same to that of a Supreme Court judge.
President and not Governor can transfer High Court Judge. (Consultation of CJI)
President can appoint High Court judge as Chief Justice of High Court.
Governor can transfer, appoint District judges in consultation with HC.
President can appoint duly qualified persons as additional judges of a high court for a temporary period.
Salary of sitting judge is charged on Consolidated fund of State.
Pension of retired judge is charged on Consolidated fund of India.
Jurisdiction of High Court can be increased by Parliament and State Legislature, however can’t be reduced.
To reduce jurisdiction of High Court, Constitutional amendment Process is required and passed with special majority in Parliament and ratified by half of the states.
High Court is the Protector of the Fundamental Rights of the citizens in state.
High Court along with Supreme Court is vested with the Power to interpret the Constitution.
High Court can make Judicial review of laws made by Parliament as well as state legislature.
Death sentence by session court has to be confirmed by High Court before execution.
Any judgement by District court more than 7 years of imprisonment have automatic appeal to High Court.
Military Court does not fall under High Court Supervision.
All courts and tribunals in state falls under supervision of High Court.
Governor has to consult High Court in matter of promotion, appointment and transfer of District Courts.
Power of Judicial Review applies to both Legislative action as well as Executive actions.
Judicial activism
Origin: USA.
Meaning: assertive role played by the judiciary to force the other two organs of the government (legislature and executive) to discharge their constitutional duties.
India this trend was witnessed during 1970s.
Judicial Activism has no constitutional articles to support its origin.
Contributing factors for Judicial Activism = PIL, Due process of law, Basic structure doctrine, creative interpretation of Article 21, article 142, Article 136.
Judicial Overreach= when Judicial activism crosses its limits + judiciary oversteps the powers given to it, it may interfere with the proper functioning of the legislative or executive organs of government.
Judicial Overreach destroys the spirit of separation of powers.
CBI
Created: 1963.
Santhanam committee recommendation.
Draw its power from DSPEA (1946)
Under Ministry of personnel not MoHA.
Neither constitutional nor statutory body.
Have its own court as well.
Power of investigation and prosecution.
Member of INTERPOL.
CBI Director has 2 years of tenurial security.
Need state Govt. approval to investigate any case in state jurisdiction.
Does not have its own cadre.
Personnel are on deputation from various state police services and IPS.
‘Minority’ in India
Minority word is mentioned in Constitution but not defined.
Central Government can notify minority status at National level and state governments at state level.
NCM Act, 1992 are Christians, Sikhs, Muslims, Buddhists, Parsis and Jains.
Special Officer for Linguistic Minorities. He is to be appointed by the President of India.
There is no provision for Special Officer for Religious Minorities in our Constitution.
Our constitution recognize linguistic minorities only and not religious one.
All India Judicial Services
Need:
- Pendency of cases.
- poor quality of recruits.
- Nepotism and favouritism.
- Huge pendency of cases.
Thus, AIJS can help in:
- ensure uniformity in the standard of selection and to attract the bright and young talent in judiciary so that fair trial and speedy justice could be made available to every citizen throughout the country.
- Uphold Integrated judiciary model of India.
- Quality of Judgement.
- Poor judges= shift responsibility= delay in justice delivery.
- Attract best talents, as best talents join Bar and work as Advocate instead of joining as judicial member.
Challenges:
- Law commission report support this.
- The Constitution of India was amended in 1977 to provide for an All-India Judicial Services under Article 312.
- opposition from High Court Chief Justices who labelled this an infringement of their rights.
- Opposition from state Governments.
Present System:
- Judicial members are recruited by respective state examinations.
- Law Commission observed: “One reason why meritorious young men or young practitioners of some standing keep away from the judicial service is the comparative inferiority of the status of district judicial officers vis-a vis officers of the district executive. Formerly, the district judge, like the district magistrate, used to be a member of the Indian Civil Service and his position in the district was superior to that of the district magistrate. Under the present system, the district magistrate is a member of the Indian Administrative Service which is a service of an all-India character, while the district judge is a member of the higher judicial service which is a State service.”
Argument against AIJS:
- There will be an issue of local laws differences.
- Local languages and dialects would be a problem.
- The conflict between Centre and State would start.
- Poor Status of Legal education in India.
- There is low district judge representation in the High Courts, as less than a third of seats in the High Courts are filled by judges from the district cadre. The rest are appointed directly from the Bar.
- Coaching institutes etc would flourish and education would be commercialized.
- It will be against the Independence of Judiciary as some other body will have a control in appointment
Balanced approach:
- Establishment of AIJS makes a strong case because, if Civil servants can learn the local language of the state they are posted in, even a judicial service officer can. Thus, the language shouldn’t be a barrier.
- UPSC like non partisan body should be entrusted with responsibility of recruitment.
- Provided sufficient training to handle the job. A meritocratic judiciary is the need of the hour which is possible with a competitive recruitment process.
Judicial Accountability and Judicial Reforms
Background: The Indian Judiciary plays an increasingly important role in the life and the governance of this country..
Recently CJI as the master of the roster with the sole prerogative to determine which Bench of judges gets to hear which cases comes under question.
Four senior judges of supreme court came in public and organized a press conference to tell that everything is not going fine inside the judiciary, they were mainly pointing on the CJI that he is allocating case to benches in arbitrary manner
Flaws in present Judicial System
- Nepotism.
- Substandard quality of Judges.
- Snail paced justice delivery.
- Lack of accountability.
- Misuse of Contempt power.
- Issue of Deepak Mishra, Saumitra Sen, Ramaswami etc.
- Judiciary as guardian of our constitution: Judicial accountability is more important, as
- decline of values in judiciary is far more dangerous than in any other organ of the
- government as judiciary has to act as the guardian of our constitution.
- So, who guard the Guardian??
- The Judicial Standards and Accountability Bill tries to lay down enforceable standards of
- conduct for judges.
- It also requires judges to declare details of their and their family members' assets and
- liabilities.
- It creates mechanisms and procedures to allow anyone to complain against judges on
- grounds of their misbehaviour or incapacity in performance of duties.
- The Judicial Standards and Accountability Bill, 2010 requires judges to declare their assets,
- lays down judicial standards, and it also establishes processes for removal of judges of the
- Supreme Court and High Courts.
- Judges will be required to declare their assets and liabilities, and also that of their
- spouses and children.
Functioning:
- The Bill establishes the National Judicial Oversight Committee, the Complaints Scrutiny
- Panel and an investigation committee.
- Any person can make a complaint against a judge to the Oversight Committee on grounds
- of ‘misbehaviour’.
- Currently any action against a sitting judge of SC or HC is taken by Parliament only.
National Judicial Oversight Committee:
- The Oversight Committee shall have supervisory powers regarding investigation into complaints against judges.
Scrutiny Panel:
- The Panel shall conduct an initial investigation into the merits of a complaint made against a judge. It shall also have the power to report frivolous or vexatious complaints.
Investigation Committee:
- Will be set up by Oversight Committee to enquire into complaints.
- The investigation committee will be set up if the Scrutiny Panel recommends that an inquiry should be carried out to investigate a complaint.
NALSA
NALSA has been constituted under the Legal Services Authorities Act, 1987, to provide free legal services to weaker sections of society.
The aim is to ensure that opportunities for securing justice are not denied to any citizen by reasons of economic or other disabilities.
Chief Justice of India shall be the Patron-in-Chief.
Important functions performed by NALSA:
Organise Lok Adalats for amicable settlement of disputes.
Identify poor and needy who are looking for justice.
Provide free legal aid in civil and criminal matters.
Lok Adalats
Background:
- Inspired from Ancient Indian system of Panchayats.
- The term ‘Lok Adalat’ means ‘People’s Court’ and is based on Gandhian principles.
- Under Alternative Dispute Redressal mechanisms, it aims at making faster, cheaper and accessible justice.
- The first Lok Adalat camp was organised in Gujarat in 1982 as a voluntary and conciliatory agency without any statutory backing for its decisions.
- In view of its growing popularity over time, it was given statutory status under the Legal Services Authorities Act, 1987.
Composition:
- Lok Adalat consists of a judicial officer as the chairman and a lawyer (advocate) and a social worker as members.
Jurisdiction:
- Can adjudicate on pending case if both parties agree.
- Matters such as matrimonial/family disputes, criminal (compoundable offences only) cases, land acquisition cases, labour disputes, workmen’s compensation cases, bank recovery cases, etc. are being taken up in Lok Adalats.
- Lok Adalat shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure (1908).
- Award made by a Lok Adalat shall be final and binding on all the parties to the dispute. No appeal shall lie to any court against the award of the Lok Adalat.
Advantages:
- Speed of settlement and most cases are disposed of in a single day.
- No strict application of procedural laws such as the Code of Civil Procedure, 1908, and the Indian Evidence Act, 1872. So the Lok Adalats are fast due to flexibility.
- There is no court fee.
- One can directly present the case to the judge.
Disadvantages:
- Lok Adalat is purely conciliatory, and it has no adjudicatory or judicial function.
- Generally, compromises are imposed on the poor who often have no choice but to accept them as in a majority of cases, litigants are pitted against entities with deep pockets, such as electricity boards, insurance companies, banks, etc.
- Lack of awareness.
- Poor Budgetary autonomy.
- Summary adjudication.
Gram Nyayalayas:
Purpose:
- Decentralized model of Justice delivery.
- Rule of Law+ equality before law+ equal access to Law.
- Access to justice to the citizens at their doorsteps.
- Ensuring justice is not denied to any citizen due to social, economic or other disabilities (Art 39A- free legal aid to the poor and weaker sections of society)
- Deburdening of Judiciary.
History:
- Formal judicial system or even Lok Adalats, presided over by retired judges, were also not effective in reaching speedy justice to village areas at appropriate times.
- The Gram Nyayalayas Act, 2008 has been enacted to provide for the establishment of Gram Nyayalayas at the block level in the country, as the lowest tier of the judiciary for rural
- areas.
Features of Gram Nyayalayas Act, 2008:
Nyayadhikari: appointed by State Government in consultation with HC.
Jurisdiction:
- Only certain cases on the criminal and civil in nature, as provided in the Schedules to the
- Act.
- It shall be a mobile court.
- Accused of an offence may file an application for plea bargaining.
- Appeal against its decision lie in the district court.
- It shall function on principles of Natural justice.
- Both centre and state government can alter its power.
Issues with the act:
- Judges are not chosen through merit-based examinations.
- Absence of a regular cadre of Gram Nyayadhikari.
- Nyayadhikaris, being state appointees, violate principle of separation of power and also dilutes the autonomy.
- Lack of budgetary autonomy.
- Issues of summary adjudication.
- Many states are yet to constitute Gram Nyayalayas.
- Lack of proper secretarial assistance to aid Nyayadhikari in adjudicating cases amicably.
- No such provisions for Urban areas.
- Ambiguities regarding jurisdiction due to the parallel existence of alternate dispute mechanisms, tribunals, adalats etc. leading to overlapping.
- Some Gram Nyayalayas are located at cities and towns which doesn’t provide any utility to villagers.
- Inadequate awareness amongst various stakeholders.
Way forward:
- Regular cadre+ awareness+ clear demarcation of jurisdiction+ budgetary autonomy+ use of local language.
Important judicial doctrines
Doctrine of Colourable Legislation:
- If anything is prohibited directly then it is also prohibited indirectly.
- Under the colour or guise of power given for one particular purpose, the legislature cannot seek to achieve some other purpose which it is otherwise not competent to legislate on.
- If a subject matter is in the State List, then Union cannot legislate upon such matter; and if a subject matter is in the Union List, then State cannot legislate upon such matter.
Doctrine of Repugnancy:
- Deals with conflict between two pieces of legislation which when applied to the same facts produce different results.
- Repugnancy arises when the provisions of two laws are so inconsistent and irreconcilable that it is impossible to do one without disobeying the other.
- Article 254 of the Indian Constitution firmly entrenches the Doctrine of Repugnancy in India. This doctrine deals with the conflict of law arises between Center and States.
- Article 254(1) states that if any provision of law or law made by the legislature of the State is repugnant to the any provision of law or law made by the Parliament, then the law made by Parliament will prevail over State enacted Law.
Doctrine of Pith and substance:
- Pith denotes the ‘essence of something’ or the ‘true nature’, while substance states ‘the most significant or essential part of something’.
- The Doctrine of Pith and Substance places emphasis on the fact that it is the real subject matter which is to be challenged and not its incidental effects on another field. It denotes the true nature of law. The power granted to legislatures to formulate a statute under three lists of the seventh schedule in the Constitution of India is bound to overlap at certain points but this can’t be used as a reason to make the whole statute null and void.
- Therefore, incidental effects or encroachments are permissible under Constitutional Law while determining the competence of particular legislatures to the extent of subject
- matters in the three lists is in question.
Doctrine of severability:
- The doctrine of severability states that any provision of law in a Statute or an Act which is inconsistent or offensive with the fundamental rights of the Indian Constitution then such offending part shall be declared as void and not the whole Statute or an Act.
- It is interlinked from the Article 13 because the doctrine through the Article 13 of the Indian Constitution opens the doors for the judicial review on any law or part of it that is found unconstitutional or violative of fundamental rights.
- This doctrine's basic moto is to remove only the bad provision which is violative of the fundamental rights under the Indian Constitution from the whole Statute or Act, not the whole Statute.
Doctrine of essentiality:
- The doctrine of “essentiality” was invented by a seven-judge Bench of the Supreme Court in the ‘Shirur Mutt’ case in 1954.
- It created division between essential and non-essential religious practices.
- Only essential practices are covered under Fundamental rights.
- It’s purely discretion of Court to decide what is essential and what not.
Use:
- by using articles like Articles 14, 15, 21 and 25 of the Constitution, SC gave given following verdicts.
- In Sabrimala case judgement untouchability was declared non-esssential and thus, allowed women to entre sanctum-sanctorum.
- Ayodhya case, the Constitution Bench had ruled in 1994 that A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open.
- Using this doctrine SC has banned use of fire crackers on Diwali, immersion of idols in water bodies, banning of triple talaq etc.
- Entry of Muslim women in mosque.
- Allowing Parsi women to entre tower of silence even after marrying non-Parsi.
Issues involved:
- Gives judges the power to decide purely religious questions.
- Inconsistent grounds on determining what is essential and what not. In some cases religious
- scriptures were used and in some empirical behaviour of followers of religion is used.
- Issues of subjectivity and individual judgement while deciding what is integral and what not.
Women in Judiciary:
Background:
Chief Justice of India N.V. Ramana backed 50% representation for women in judiciary. He stated in this regard: “It is your right. It is not a matter of charity...Enough of this thousands of years of suppression, and Women of the world, unite! You have nothing to lose but your chains”.
Factcheck:
In High Courts, women judges constitute 11.5%. Here in the Supreme Court, we currently have four women Justices out of the sitting 33. That makes it just 12%. Of the 1.7 million advocates, only 15% are women.
Reasons for Low Women Representation in judiciary:
Patriarchy: hostile atmospheres within courtrooms. Harassment, lack of respect from members of the bar and bench.
Collegium System: act as glass ceiling and prevent women from moving up from lower to higher judiciary.
Reservation policy: available only at entry level but not in their induction in HC/SC.
Not enough women in Bar.
Lesser women take up law as academic or professional field.
Importance:
Will bring in gender perspective in judicial process.
Motivates More Women to Seek Justice.
Will help in bringing care ethics.
Diversity on the bench would definitely bring in alternative and inclusive perspectives.
Judicial Impact Assessment (JIA)
JIA is assessment of impact caused on Judiciary due to enactment of any law or any amendment to pre-existing law.
Need:
Order to analyse if a law is fulfilling its objective through the ability of enforcement.
Burden of law related litigation on judiciary.
Demand Estimation – Number of cases that are likely to be filed.
Estimate the judicial resources required.
Balance between law enactment-enforcement and redressal.