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Nikaalo Prelims

Prelims Spotlight: Functions/powers of Judiciary

Dear Aspirants,

This Spotlight is a part of our Mission Nikaalo Prelims-2022.

You can check the broad timetable of Nikaalo Prelims here

Session Details

Morning 12 PM  – Prelims Spotlight Session

Evening 06 PM  – TIKDAM/MCQs Session

Evening 08 PM  – Tests on Alternate Days

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14th Mar 2022

Appointments:

  1. Parliament decide the number of judges of supreme court while president decide the numbers in high courts
  2. Both supreme court and high court judges are appointed as well as removed by president
  3. Salaries of high court judges is charged on CFS while pension is charged on CFI
  4. Appointment by collegium system (CJI plus 4 senior most supreme court judges) after 3rd judges case
  5. District judges are appointed by governor in consultation with high courts
  6. Both SC and HC judges need 10 year practice in high court but SC judge need 5 year judgeship in high court while HC judge needs 10 years of judgeship
  7. A distinguished jurist can be appointed as judges of supreme court but not high court
  8. Removal by special majority of parliament on grounds of proved misbehavior or incapacity
  9. SC judges can’t practice w/i india post retirement: high court judges can in supreme court or other high courts <but there is no bar on further appointments such as chairperson or members of NHRC etc>
  10. Constitution provided for 1 high court for each state but 7th amendment allowed parliament to establish common high courts

Jurisdictions of courts

Exclusive (original by default) Original <concurrent with high courts> Appellate Advisory
Petition only in supreme court (directly by default) Directly in supreme court Appeals from high court President refers(art 143)
Federal disputes, inter state matters, disputes regarding election of president, VP Writ under art 32 Appeals, SLP Not necessary to tender opinion except on pre constitutional matters

Types of Writs

Writ Habeas Corpus Mandamus Prohibition Certiorari Quo Warranto
Meaning -To produce the body

-Against arbitrary detention

-We command

-to perform Official duty

-To forbid

– from exceeding jurisdiction

– to be certified

-transfer a case or quash an order

-by what authority

-legality of claim to public office

Issued against public as well as private authority Public official, court, tribunal Judicial, quasi Judicial Judicial, quasi Judicial and administrative authorities Substantive public office created by constitution or statute
Can’t be issues against Lawful detention private Private, administrative, legislative Private, legislative Ministerial, private
Who can file Aggrieved person Aggrieved person Aggrieved person Aggrieved person Any person

Writ jurisdiction of Supreme court v/s High Court

Court Supreme court High Court
Article 32 226
Scope Only for FRs FRs plus legal rights

Powers of High Court and Supreme Court

There are different types of jurisdictions and powers of the Supreme Court. Some of them are listed below :

1. Original Jurisdiction

Being a Federal court, the Supreme Court decides disputes between –

  • Two or more states
  • Centre and the state/states
  • Centre and states on one side and the other states on the other side

In any of the above-mentioned disputes, the supreme court has the exclusive original jurisdiction.

However, this jurisdiction does not apply to the following cases-

  • A dispute that arose out of any pre-Constitution treaty, agreement, covenant, engagement, and or any other similar instruments.
  • Any Inter-state water disputes.
  • Matters that are referred to the Finance Commission.
  • Recovery of the damages by a state against the Centre.
  • An ordinary dispute that is commercial between the Centre and the states.
  • A dispute that arose out of any treaty, agreement, etc., which specifically provides that the said jurisdiction does not extend to such a dispute.
  • An adjustment of certain expenses and pensions between the Centre and the states.

2. Writ Jurisdiction

The Supreme Court is granted the power to issue writs, like habeas corpus, mandamus, prohibition, quo-warranto, and certiorari for the enforcement of the fundamental rights of an aggrieved citizen.

However, this jurisdiction of the Supreme Court is not exclusive as the High Courts are also granted the power to issue writs for the enforcement of the Fundamental Rights.

3. Appellate Jurisdiction

Several appeals can be made in the Supreme Court of India. These appeals can be broadly classified into four categories, that are, Constitutional Matters, Civil Matters, Criminal Matters, and Special Leaves.

4. Advisory Jurisdiction

Under Article 143, the President of India has the right to seek the advice of the Supreme court when any question of law or fact of public importance which has arisen or is likely to arise or if any dispute is arising out of any pre-constitution treaty, agreement, covenant, engagement, or other similar instruments.

5. Court of record

Herein, the Supreme Court of India has two powers, that are –

  • It is given the authority to punish for the contempt of court, either with simple imprisonment for a term up to six months or with fine up to 2,000 or both.
  • The judgments, proceedings, and acts of the Supreme Court are recorded for perpetual memory and testimony and they are recognized as legal precedents and legal references.

Some of the Powers that are granted to the High Court are the following –

1. Original Jurisdiction

The high courts are empowered to issue writs to enforce fundamental rights, as and when needed. Adding to this, they have original jurisdiction in cases that are related to will, divorce, contempt of court, and admiralty. Furthermore, election petitions can also be heard in the High Court.

2. Appellate Jurisdiction

An appeal can be made to the High Court against a district court’s decision, in the civil cases. If the dispute involves a value that is higher than Rs. 5000/- or on a question of fact or law, then an appeal can be made from the subordinate court, directly.

A person can move to the High Court if he has been awarded imprisonment of seven years and above under a criminal case. Appeals on constitutional matters can also be taken up in the High Court.

3. Administrative Powers

The high court is the controller of all the subordinate courts. It also has the right to ask for the details of the proceedings from the subordinate courts. The rules regarding the working of the subordinate courts are also issued by the High court.

The High Court can also appoint its administration staff and determine their salaries and allowances, and conditions of service.

 

4. Power of Judicial Review

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

5. Power of Cancellation

A High Court alone can choose to certify the cases that it feels are fit for an appeal before the Supreme Court of India.

Qualification and Appointment

The Qualification that is needed to be a Judge in the Supreme Court of India are that he/she –

  1. Should be a citizen of the country.
  2. Should have been the judge of one of the high courts of the country for at least 5 years.
  3. The president of the country shall consider him to be a distinguished jurist.
  4. Should have been an advocate in any one of the high courts of the country for a period of 10 years.

It shall be noted that no minimum age of a Judge of the Supreme Court has been mentioned in the Indian Constitution.

The Qualification that is needed to be a judge in the Judge in the high court of the country is that he/she should –

  1. Have held a judicial office in the Indian territory for 10 years, OR
  2. Have been an advocate of the high court(s) for a minimum period of ten years.

Removal procedure

  1. A Supreme Court or a High Court Judge shall be removed from his post concerning an order passed by the President of the Country. However, this order of removal can only be issued after the Parliament presented and addressed him on the same matter.
  2. The address in the parliament shall need a majority of two-thirds of the members that are present and voting in the house.
  3. The two grounds on which a Supreme Court or a High Court judge shall be removed are proved misbehavior or incapacity.
  4. The procedure relating to the removal of a judge of the Supreme Court or the High Court is regulated by The Judges Enquiry Act (1968).
  5. It must also be noted that to date, no judge of the Supreme Court of India has been impeached by the Parliament and the President.

Constitutional Provisions

Articles 13, 32, 131-136, 143, 145, 226, 246, 251, 254, and 372 are the constitutional provisions that guarantee judicial review of legislation.

  1. Article 13 considers any law void which contravenes any of the provisions of the part of Fundamental Rights.
  2. Article 372 talks about the judicial review of the pre-constitution legislation.
  3. Both Articles 32 and 226 entrusts the roles of the protector of the constitution and guarantor of fundamental rights to the Supreme and the High Courts.
  4. Article 246 (3) makes sure that of the state legislature’s exclusive powers on matters that are about the State list.
  5. Article 245 of the Indian Constitution says that the powers of both Parliament and State legislatures are subject to the provisions of the constitution.
  6. All Articles from 131 to 136 entrusts the Indian court with the power to adjudicate the disputes between the individuals, between the individuals and the state, between the states and the union. However, the court may be required to interpret the provisions of the constitution and the interpretation that is given by the Supreme Court becomes the law that shall be honored by all courts of the land.

Recent Controversies

  1. Back in the year 2016, Justice Nagarjuna Reddy of the High Court of Andhra Pradesh and Telangana got all lights on him when 61 Rajya Sabha members moved a petition for his impeachment on charges of him misusing his position to “victimize” a “Dalit” judge. However, later, nine of the 54 members of the Rajya Sabha, who proposed the initiation of proceedings against him, withdrew their signatures.
  2. On 20 April 2018, a petition seeking impeachment of CJI Dipak Misra was submitted by seven opposition parties to the Vice President, Venkiyah Naidu. The petition was rejected by the Vice President.
  3. On 19 April 2019, a junior court assistant and a former employee in CJI Gogoi’s office sent a complaint-letter attached with a detailed affidavit to 22 Judges of the Supreme Court of India, narrating a series of events, spelling out how CJI Gogoi had allegedly sexually harassed her.

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