INDIAN JUDICIAL STRUCTURE & ROLE OF NJAC

By Shivangi Khanna-

The Indian judicial system is one of the oldest legal system in the world today. It consists of customs, precedents and legislature. The constitution of India was adopted on 26^th January 1950, lays down the law of the land. The Indian constitution was drafted with elements from Irish, French, America and British laws. The constitution is the source of law in India.

Functions of judiciary & its importance–

• To give the justice to the people
• Interpretation and application of laws
• Role in law making
• Equity legislation
• Protection of rights
• Guardian of the constitution
• Power to get  its decision and judgement enforced
• Running of the judicial administration
• Advisory function
• Custodian of fundamental rights

STRUCTURE OF JUDICIARY IN INDIA–

Supreme court

Supreme Court at the apex of the Indian Judiciary is the highest authority to uphold the constitution of India, to protect the rights and liberties of citizens, and to uphold the values of rule of law. Hence it is known as the guardian of our Constitution. Article 124(1) and amendment act of 2008 states that there shall be a supreme court of India consisting of 34 judges including the CJI.    

Article 124(2) states that every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Courts in the states.

Qualification for appointment as supreme court judge

Article 124 (3) of the constitution prescribes that for appointment as a judge of the Supreme Court a person must be

• (a) a citizen of India,
• (b) has been a judge of any High Court for at least 5 years, or
• (c) has been an advocate in a High Court for 10 years or is in the opinion of the President a distinguished jurist.

Tenure –There is no fixed tenure of service for a judge. He continues in service till the completion of 65th year of age.

Powers of supreme court–

• original jurisdiction-

The following are the original jurisdiction of the SC:

1.As per article 131 of the Constitution, the SC functions as original jurisdiction over matters where the disputes are either between the Central government and the state government or between two or more state governments.
2. As per article 139 of the Constitution, the SC have the power to issue writs, order, or direction.
3. As per section 32 of the Constitution, the SC also has the authority to enforce Fundamental Rights.
4. As per Article 139A of the Constitution, the SC on its discretion or at the advice of the Attorney General of India can take up the cases during the pendency of the matter from the high courts if the same issue is to be disposed of by the SC that is related to the question of law. And it can also transfer the pending cases, appeal or other proceedings to give justice from one HC to another HC.

• Appellate Jurisdiction: 

As per article 132, 133, 134 of the Constitution, the SC has appellate jurisdiction in matters that are related to civil, criminal, or Constitution. Also, as per article 136, the SC has the power to issue special leave that is being by any tribunal courts in India but this does not apply to Army courts.

• Advisory Jurisdiction:

As per article 143 of the Constitution, the SC can advise the President of India that is related to the question of law, and the nature of the matter is associated with the public importance. And the President can also seek opinion in the matters that are related to Article 131 of the Constitution.

•  Review Jurisdiction: 

As per article 137 of the Constitution, the SC has the power to review any laws that are being passed by the legislature.

Functions of supreme court-

• The Supreme court gives the final verdict against an appeal from the other subsidiary courts i.e., High courts.
• It acts as an institution where issues from the different governmental bodies, central government, and the state government matters are resolved.
•  As per Article 141 of the Constitution, laws passed by the Supreme court, apply to all courts within the Indian Territory.
• In some matters, the Supreme Court also acts on its own and can pass suo moto.

Removal of supreme court judge- . Article 124(4) mentions those Removal regulations of the Supreme Court judge as follows:

• A judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the president in same session for such removal on the ground of proved misbehaviour or incapacity.

High court-

High Courts are the highest courts in a state. Presently, there are 25 High Courts in India, with some states having a common High Court. They are an important part of the judicial system in India.  Article 214 says that there shall be a high court for each state. However, the parliament be law establish a common high court for two or more states and a union territory. Every high court of a state consists of a chief justice and other judges as the president of india may deem it necessary for that state. At present there are 25 high courts. The Madras High Court in Chennai, Bombay High Court in Mumbai, Calcutta High Court in Kolkata and Allahabad High Court in Prayagraj are the oldest four high courts in India.

Qualification for a high court judge–

 A person shall not be fit for appointment as a Judge of the High Court unless

• He is a citizen of India
• He should have held a judicial office in the territory of India for ten years
• He has been for at least 10 years an advocate of High Court.

Jurisdiction & Powers of high court-

• Original Jurisdiction

In several matters high court has power to hear the dispute in first instance, not by way of appeal. This is called original jurisdiction. Supreme Court can issue writs only for the enforcement of fundamental rights and not for other purposes. The power of high courts to issue writs in nature of habeas corpus cannot be curtailed even during emergency.

• Writ Jurisdiction

Article 226 empowers the High Court with writ jurisdiction for the enforcement of fundamental rights as well as any other matter within the territory of its jurisdiction. The difference between Supreme Court (article 32) and High Court (article 226) is that while Supreme Court can issue writs only for enforcement of fundamental rights, high court can issue writs for other matters also.

• Appellate Jurisdiction

The High Court hears the appeals against the subordinate courts in both civil and criminal matters.

• Supervisory Jurisdiction

High court has the power of superintendence over all courts and tribunals within its territorial jurisdiction except military courts or tribunals. It also has power to transfer the cases from other subordinate courts in the state to itself.

• Court of record–

1. High Courts are also Courts of Record (like the Supreme Court).

2. The records of the judgements of the High Courts can be used by subordinate courts for deciding cases.

• All High Courts have the power to punish all cases of contempt by any person or institution.

• Administrative powers–

1. It superintends and controls all the subordinate courts.
2. It can ask for details of proceedings from subordinate courts.
3. It issues rules regarding the working of the subordinate courts.
4. It can transfer any case from one court to another and can also transfer the case to itself and decide the same.
5. It can enquire into the records or other connected documents of any subordinate court.
6. It can appoint its administration staff and determine their salaries and allowances, and conditions of service.
7. Power of judicial review–     

High Courts have the power of judicial review. They have the power to declare any law or ordinance unconstitutional if it is found to be against the Indian Constitution.

Removal of HC judge-

A judge of a state High Court can be removed by the President on grounds of proven misbehavior or incapacity when each House of the Union Parliament passes a resolution (impeachment resolution) to this effect. Such a resolution has to be passed by each House by a majority of its total membership and a 2/3rd majority of members present and voting.

District courts & Sessions court-

The highest court in each district is that of the District and Sessions Judge.  The district court is also a court of sessions when it exercises its jurisdiction on criminal matters under the Code of Criminal procedure. The district court is presided over by a district judge. The judge appointed by the state governor with on the advice of chief justice of that high court. In addition to the district judge there may be a number of additional district judges and assistant district judges depending on the workload. The additional district judge and the court presided have equivalent jurisdiction as the district judge and his district court. The district judge is also called “metropolitan session judge” when presiding over a district court in a city which is designated “metropolitan area” by the state. The district court or additional district court exercises jurisdiction both on original and appellate side in civil and criminal matters arising in the district. On the criminal side, jurisdiction is exclusively derived from the criminal procedure code. As per this code the maximum sentence a sessions judge of district court may award to a convict is capital punishment. They administer justice in India at a district level. These courts are under administrative control of the High Court of the State to which the district concerned belongs. The decisions of District court are subject to the appellate jurisdiction of the High court.

The court of sessions, commonly referred to as sessions court, has been established be the state government for every sessions division and it is presided over by a sessions court judge.

Metropolitan courts-

 Metropolitan Courts are to be established at such places in every metropolitan area having population of ten lakhs or more. It has jurisdiction throughout such metropolitan area. The presiding officers of such courts shall be appointed by the High Court. The High court appoints Chief Metropolitan Magistrate for every metropolitan court. The High court may also appoint Additional Chief Metropolitan Magistrate for an area, with all or any of the powers of a Chief Metropolitan Magistrate, as may be directed by the High Court. Other than Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate, there are also Metropolitan Magistrates also known as Magistrate of the first class who work as subordinates of Chief Metropolitan Magistrate. According to Section 29 of the CRPC, a Metropolitan Magistrate may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding ten thousand rupees.

Subordinate courts-

Subordinate Courts are the Courts which are under authority or control of another Court. In civil jurisdiction every Small Causes Court is subordinate to the High Court and District Court. The District Court is subordinate to the High Court. The provisions related to subordinate courts are provided in the 6th part of the Indian Constitution. Articles 233-237 deal with the subordinate courts. The High Court can with draw a case pending before any subordinate court, if it involves the substantial question of law. The structure and functions of subordinate courts are more or less uniform throughout the country. These Courts hear civil cases, criminal cases and revenue cases, respectively.  These Courts deal with disputes of Civil or Criminal nature as per the Powers Conferred on them. 

COLLEGIUM SYSTEM–

It is a system under which appointments and transfers of judges are decided by a forum of the chief justice of India and four senior most judges of the supreme court. it has no place in the Indian constitution.

The collegiums system has its genesis in a series of three judgments that is now clubbed together as the THREE JUDGES CASE.

1. SP GUPTA VS UNION OF INDIA-

• The SP Gupta case (1981) is called “THE FIRST JUDGES CASE”.
• It is ruled by majority of 4-3, that consultation does not mean concurrence. Process is mere exchange of idea.
• It declared that the “primacy” of the CJI’s recommendation to the president can be refused for “cogent reasons”.

Ultimate power of accepting recommendation of CJI in regard to appointment lies with executive, law ministry + PMO and not judiciary.

• This brought a paradigm shift in favour of the executive having primacy over the judiciary appointments for the next 12 years.

• S.C ADVOCATES ON RECORD ASSOCIATION VS UNION OF INDIA-1993

• In second judges case famously called supreme court advocates-on record Association Vs UOI, a larger bench of SC ruled by majority of 7-2, that consultation means concurrence.
• This was what ushered in the collegium system. The majority verdict written by justice JS Verma said “justiciability” and “primacy” required that the CJI be given the primal role in such appointments. In case of conflict of opinion on matters of appointment, CJI view will have primacy over president’s view.
• It overturned the SP Gupta judgment, saying “the role of CJI is primal in nature because this being a topic within the judicial family, the executive cannot have as equal say in the matter.
• The constitution of india has given a different position to the CJI. He has the ‘primus inter pares’ – first among equals position in the judiciary. He is the administrative head.
• Emergence of collegium system– Not the CJI alone but CJI should consult two senior most judge of SC before sending recommendation of union government. 

In this case SC itself, that senior most judge alone can be made CJI.

• THE SUPREME COURT OF INDIA VS CIVIL ADVISORY JURISDICTION-

• In this case president K.R Narayanan issued a presidential reference to SC under article 143 as to what the term “ consultation” really  means in articles 124, 217 & 222 of the constitution.
• The question was if the term “ consultation” requires consultation with a number of judges in forming the CJI’s opinion or whether the sole opinion of the CJI constituted the meaning of the articles.
• In reply, the SC laid down nine guidelines for the functioning of the coram for appointments / transfers , this came to be the present form of the collegium.
• Besides, a judgment dated October 1998, written by justice SP Bharucha at the head of the nine-judge bench, used the opportunity to strongly reinforce the concept of “primacy” of highest judiciary over the executive.
• Size of Collegium expanded, include two additional judges ie. collegiums would now consist of CJI + 4 senior most judges of SC.
• Other than appointment of SC & HC judges, collegiums also decided on transfer of judges.
• President can return recommendation to collegium once.

 NJAC-

National Judicial Appointments Commission (NJAC) was a proposed body which would have been responsible for the appointment and transfer of judges to the higher judiciary in India. The Commission was established by amending the Constitution of India through the ninety-ninth constitution amendment with the Constitution (Ninety-Ninth Amendment) Act, 2014 or 99th Constitutional Amendment Act-2014 passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014.

Composition-

As per the amended provisions of the constitution, the Commission would have consisted of the following six persons:

• Chief Justice of India (Chairperson, ex officio)
• Two other of senior judges of the Supreme Court next to the Chief Justice of India – ex officio
• The Union Minister of Law and Justice, ex-officio
• Two eminent persons

These (two) eminent persons would have been nominated by a committee consisting of the

• Chief Justice of India,
• Prime Minister of India, and
• Leader of Opposition in the Lok Sabha (or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in Lok Sabha), provided that of the two eminent persons, one person would be from the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a woman. The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination.

FUNCTIONS OF COMMISSION–

• Recommending persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts.
• Recommending transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court.
• Ensuring that the persons recommended are of ability, merit and other criteria mentioned in the regulations related to the act.

• CASE – SUPREME COURT ADVOCATES ON RECORD ASSOCIATION VS UNION OF INDIA

Issue – whether the 99^th constitutional amendment act 2014 and the NJAC act 2014,violative of the ‘ principles of separation of powers’ or not?

• The court struck down the 99^th constitutional amendment act 2014, declaring it to be unconstitutional and void with majority of 4:1.
• It stated that it would compromise the independence of the judiciary and give primacy to the executive.
• Right to appointment of judges lay at the core of the independence of the judiciary and formed a part of the basic structure of the Indian constitution. The landmark judgments were binding and could not be over-ruled by amending the constitution. The court also rejected the respondent’s plea for reference to a larger bench for reconsideration. The 1993 judgment was the basis on which a five-judge constitutional bench declared the NJAC 2014 as unconstitutional.

Conclusion-

• Mr. Ram Jethmalani  termed the National Judicial Appointments Commission (NJAC) an “evil absurdity” on the first day of his arguments against the proposed panel.

He made the argument before a five-judge bench of the Supreme Court, while challenging the validity of NJAC.                                                                                                        

Questioning the need for the NJAC, Ram Jethmalani said, “This is an evil absurdity. What kind of exigency has arisen that such a change is demanded? Unless the state of affairs is disastrous, I predict that such adoption will not see good consequences in the future.”

He further claimed that it was bound to raise a reasonable suspicion in the minds of the litigants that the judges appointed by this system may not be wholly impartial.

• Senior advocate Harish Salve said the Supreme Court’s verdict declaring the National Judicial Appointments Commission unconstitutional is “unacceptable”, saying most of the arguments of the court were “fallacious”.

“Constitution isn’t about just one branch working independently, but rather all three arms (Legislature, Executive, and Judiciary) working together in harmony,” said the former Solicitor General in an interview to Karan Thapar.

Suggesting that NJAC can be brought back with certain changes in its composition, Salve insisted that the provision for veto given to any two members of the panel must be retained.