VAJIRAM & RAVI

(A unit of Vajiram & Ravi IAS Study Centre LLP)

POLITY HANDOUT
BY Mr. Abhilash M R

2024-25
VAJIRAM & RAVI
(INSTITUTE FOR CIVIL SERVICES EXAMINATION)
(A UNIT OF VAJIRAM & RAVI IAS STUDY CENTRE LLP)
9-B, Bara Bazar Marg, Old Rajinder Nagar, New Delhi- 110060
Phone: 08062206330
New No. 62, P Block, 6th Avenue, Anna Nagar, Chennai - 600040
Chennai, Tamil Nadu 600006
Phone: 044 4330 2121
 ORGANISATION OF SUPREME COURT
According to article 124 (1), the Supreme Court is comprised of Chief Justice of India and 7
other judges. However, Parliament by law may increase the number of judges. As per the
Supreme Court (Number of judges) Amendment Act, 2019, the court is comprised of Chief
Justice of India and not more than 33 judges.

APPOINTMENT OF JUDGES
Under article 124 (2), the President appoints Chief Justice of India after consulting as many
Supreme Court and High Court judges as he may think fit. While appointing a judge other than
Chief Justice of India, he shall consult Chief Justice of India.

Under article 217 (1), the President appoints Chief Justice of High Court after consulting Chief
Justice of India and the Governor of the state. While appointing a judge other than Chief Justice
of High Court, he shall consult Chief Justice of High Court.

Under article 222 (1), the President has power to transfer a High Court judge in consultation with
the Chief Justice of India.

The meaning of the term ‘Consultation’ had been debated resulting in the following
judicialpronouncements which are also known as Judges Cases.

First Judges Case/ S.P. Gupta v/s Union of India, 1982: A seven Judges Constitution bench
ruled that the President is not bound by the opinion expressed by the Chief Justice of India as the
Constitution required him to only consult the Chief Justice and consultation does not mean
concurrence. However, consultation shall be full and effective requiring the President to furnish
all the material details available so as to enable the Chief Justice to form an informed opinion.
However, the President is not bound by the same. It was also ruled that a judge can be
transferred against his will.

Second Judges Case (Supreme Court Advocates-on-record Association v/s Union of India,
1993)

A nine judges bench of Supreme Court over ruled its previous decision and pronounced that the
opinion of the Chief Justice is finally binding on the President. However, the opinion of the
Chief Justice of India shall not be his personal opinion instead the opinion of judiciary
formulated in consultation with 2 senior most judges of the Supreme Court, who shall constitute
the Collegium. Within the Collegium, the opinion of the Chief Justice of India shall have
primacy. The President has power to send an opinion back to collegium for reconsideration with
cogent reasons recorded and the Chief Justice shall initiate consultation afresh and afterwards if
he reiterates the recommendations, the President is bound by it.

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Appointment of Judges, it was held, is an integrated participatory consultative process to select
the best and the most suitable person for appointment as judges. In this exercise, both executive
and judiciary have a complementary role to play. It was also ruled that as far as possible,
seniority principle shall be the guiding criterion while appointing the Chief Justice of India.

Special Reference No.1 of 1998 : In response to a Presidential reference under article 143, a 9
judges bench was constituted to clarify the 1993 decision and they pronounced the law in
following terms.
• The Chief Justice of India shall consult 4 senior most judges instead of 2 while
appointing the Supreme Court judges and transferring High Court judges. While
appointing High Court judges, the Chief Justice of India should consult only 2 senior
most judges.
• If, at any point of time, it is known that none of the judges in the collegium is likely to
succeed the Chief Justice of India, then the judge who is likely to succeed the Chief
Justice under the seniority principle shall also be included in the collegium.
• Though the opinion of the Chief Justice of India shall continue to have primacy, if 2 or
more judges of collegium oppose a proposal, the Chief Justice shall recommend the
same. However no opinion unsupported by the Chief Justice shall be recommended on
behalf of Collegium.
• While making an appointment in relation to a High Court, Chief Justice of India shall
also consult the senior most Supreme Court Judges who are conversant with the affairs of
the High Court on account of them having served the High Court in the past (These
judges are often known as consultee judges)
• While transferring High Court judges, the Chief Justice of India shall consult the Chief
Justice of High Court which are parties to the transfer and these Chief Justices shall
formulate their opinion in consultation with 2 senior most judges of their courts so that
the opinion tendered to the Chief Justice of India shall be the opinion of the concerned
high court.
• If the procedure stipulated is not followed, then the President is not bound by such a
recommendation.
• Judicial Review also is available in case of non-compliance of procedure.

The Constitution (99 Amendment) Act, 2014.

1. Article 124 (2), article 217 (1) and article 222 (1) were amended to replace the word
‘consultation’ with ‘[on the recommendation of NJAC referred to in article 124(A)]’.

2. Article 124 A was inserted in the Constitution. Under article 124 (A) (1), there shall be
National Judicial Appointments Commission consisting of,
• The Chief Justice of India as the ex-officio chairperson.
• 2 senior most judges next to the CJI as members ex- officio.

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 • Union minister for law and justice as ex-officio member.
• 2 eminent persons nominated by a committee comprising of Prime Minister,
leader of opposition and the Chief Justice of India, for a non- renewable term of 3
years as ex-officio members.

3. Article 124 B was added by which the duty of the commission was prescribed which
included the power to recommend names for appointment of Chief Justices and judges of
Supreme Court and High Court, as well as to recommend the transfer of high court
judges.
4. Article 124 C was added by which the Parliament was given the power to regulate the
proceedings of NJAC by enacting law.

5. Article 127, article 128, article 224 and article 224 (A) were amended to enable NJAC to
recommend the appointment of ad-hoc judges in the Supreme Court, attendance of retired
judges in the Supreme Court, appointment of additional and backing judges of high court
and attendance of retired judges in high court respectively.

6. NJAC Act was also simultaneously passed under article 124 (C).

Fourth Judges Case/ Supreme Court Advocates on record Association v/s Union of India,
2015: The court ruled that any change made to Article 124 (2), article 217 (1) and article 222 (1)
shall comply with the Law of Primacy of the opinion of the judiciary as pronounced in 1993
because it is integral to the independence of judiciary which is a part of basic structure.

Article 124 (A) formed the constituent of all changes made under the Constitutional (99th
amendment) Act, 2014. If Article 224 (A) is rendered unconstitutional, the entire amendment act
would have been unconstitutional.

Article 124 (A)(a)(b) are unconstitutional as they provided for the judicial component of NJAC
which is comprised of 3 members out of 6 members commission. Hence, it is violative of law of
primacy of opinion of judiciary.

Article 124 (A) (1) (c) is unconstitutional as it provided for union law minister who represents
Union of India which happens to be the largest litigant. Allowing litigant to hand pick judges is
unconstitutional.

Article 124 (A) (1) (d) is unconstitutional as the term “eminent persons” is vague, leaving open
thepossibility of persons having no eminence in law/ judicial affairs getting appointed as
members of NJAC and hence unconstitutional.

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 Court of Record and Contempt of Court
The concept of Court of Record basically originated in England. Indian Constitution’s Article
129 and Article 215 declare the Supreme Court and High Courts respectively as Courts of
record.

A Court of Record is the one whose

1. Records including Judgments, orders, directions and other proceedings are meant to be
preserved.
2. Judgments, orders, directions and other proceedings are admissible as evidence in all
courts thorough out the country and their admissibility cannot be challenged when they
are produced .
3. It has the power to punish individuals for its contempt.

According to Supreme Court of India, a Court of Record is one whose acts and judicial
proceedings are enrolled for perpetual memory and testimony and which has the authority to fine
and imprison a person for contempt of itself as well as of subordinate courts (A.K.Ghose V
Arabinda Bose,1953).

While the contempt jurisdiction of subordinate courts are kept with the concerned High Courts
by virtue of a 1971 law of Parliament , the contempt jurisdiction of High Courts and Supreme
Courts are inherent in them by virtue ofArticle 129 and Article 215.

Contempt of Courts Act, 1971

In order to regulate contempt jurisdiction, Parliament had enacted the act which classifies
contempt of court as civil and criminal,

Civil contempt means any willful disobedience of any judgment, order, direction or decree or
other process of any court or willful breach of undertaking given to a court.

Criminal Contempt happens when an individual

1. Scandalizes the judiciary

2. Tends to scandalize the judiciary
3. Lowers the authority of any Court
4. Tends to lower the authority of any Court
5. Interferes or tends to interfere with the due course of any judicial proceedings
6. Obstructs or tends to obstruct the administration of justice in any manner.

The punishment prescribed for both civil and criminal contempt is simple imprisonment for a
term which may extend to six months, or with fine which may extend to two thousand rupees, or
with both.

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According to SCI, the object of the 1971 Act is to protect the seat of justice, not the judge.
Therefore under the Act, even a judge can be held responsible for contempt of her own Court .

The use of Criminal contempt jurisdiction by Superior Courts has been a debatable issue because
it is “seen” by some as going against principles of natural justice and interferes with the
freedom of speech and expression by the citizens.

In re Arundhati Roy, 2002 , SCI held that the expressions such as “ Court displays disturbing
willingness to issue notice on an absurd despicable entirely unsubstantiated petition” or the
“Court notice was intended to silence criticism and muzzle dissent” did not fall in the category of
fair criticism and the contemnor therein was convicted and sentenced to a day’s imprisonment.

The 2006 Amendment

In 2006 , the parliament made an amendment to the 1971 Act, which provided that the Court
“may “ allow justification by truth as valid defence in contempt proceedings if it is satisfied that
the alleged statement was made bonafide and in public interest.

274th Report of 21st Law Commission of India (April 2018)

The law commission was asked to look into whether invoking criminal contempt jurisdiction on
the ground of “scandalising the court “ be done away with by amending the Act, in the light of
Countries like UK doing away with the same. The law Commission headed by Justice (retd)
B.S.Chauhan recommended against such a move on the ground that it wont dilute the power
available to Superior Courts as they derive the same from the constitution. On the other hand, it
may drastically affect the functioning of subordinate judiciary, the protection of which is
currently ensured by the statute.

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 SUPREME COURT
The Supreme Court is a multi-jurisdictional court and the diversity of its jurisdiction defines its
powers.

ORIGINAL JURISDICTIONS

1. Writ jurisdiction: Under article 32 (2), the Supreme Court has power to issue writs or
ordersin the nature of habeas corpus, mandamus, Prohibition, certiorari and quo-
warranto to enforce Fundamental rights. Under Article 32 (1) the right to approach
Supreme Court through appropriate proceedings is a fundamental right. Though under
Article 32(3), Parliament by law has the power to confer confer writ jurisdiction to any
other court so that it can issue writs within its local jurisdiction, no such law is enacted
till date.

2. Original suits: Under article 131, the Supreme Court has original and exclusive
jurisdiction to adjudicate the disputes between,

a) Union of India on one side and 1 or more states on the other side.
b) Union of India and state/states on one side and one or more states on the other side.
c) Between 2 or more states.

Exceptions:
• Pre-Constitutional agreements or treaties.
• Inter-state river water dispute as provided under article 262 read with section 11
of the River Water Dispute Act, 1956.
• Matters referred to the Finance Commission (Article 280).
• Expenditure adjustment between Centre and State Governments.

3. Transfer jurisdiction:
• Under article 139(A) (1), the Supreme Court has power to transfer one or more
cases pending before one or more High Courts to itself if it contains a substantial
question of law of general importance, so that Supreme Court can conclusively
settle the law and thereafter can either dispose those cases by itselfor can remand
those cases to the concerned High Courts for disposal in the light of the law
declared by the Supreme Court. Such can transfer can be made by the Court
either suo motu or on the application of the Attorney General or on the
application of any of the parties to such a case.
• Under Article 139(A) (2), the Supreme Court has power to transfer a case from
one High Court to another in the interest of justice.
Note- In addition to these, Supreme Court also has the power to transfer a civil
case pending in one subordinate court in one state to another in another state under
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 Section 25 of the Civil Procedure Code. Likewise a criminal case pending in one
subordinate court can be transferred to another under Section 406 of Criminal
Procedure Code.

4. Election jurisdiction: Under Article 71, the Supreme Court has exclusive
jurisdiction to adjudicate disputes arising from election of the President and the
Vice-President. Either a candidate or not less than twenty voters of the electoral
college in the case of Presidential election and not less than 10 voters can file
such a petition.

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APPELLATE JURISDICTION:

1. Appeal provided under the Constitution:

• Under article 132, an appeal shall lie before the Supreme Court against a
judgment/ final order passed by a High Court in a civil, criminal or any other
case, if the High Court certifies that the case contains a substantial question
of law as to the interpretation of the Constitution which needs to be decided
by the Supreme Court.
• Under article 133, an appeal shall lie before the Supreme Court against a
judgment/ final order passed by a High Court in a civil case if the HighCourt
certifies that the case contains a substantial question of law of general
importance which needs to be decided by the Supreme Court.
• Under article 134, an appeal shall lie before the Supreme Court against a
judgment/ final order passed by High Court in a criminal case if the HighCourt
certifies that the case is fit to be appealed before the Supreme Court.

2. Appeal by Special Leave: Under article 136, the Supreme Court has power to entertain
appeal in its discretion against a judgment/order passed by any court/ tribunal in the
territory of India except those constituted a law relating the armed forces. However, it
is the discretionary power of Supreme Court to decide whether to entertain an appeal
or not. Supreme Court may even dismiss a case without detailed hearing. If leave is
granted by the Court in course of hearing, the Special Leave Petition will be
converted to a Civil Appeal or Criminal Appeal as the case may be. Petitions under
Article 136 happen to be the reason behind the huge workload of Supreme Court.
Nevertheless, Article 136 plays a very important role in delivering substantive justice.
Supreme Court had declared that sky is the limit of its power while exercising power
under Article 136. Supreme Court also ruled that it has the power to initiate
proceedings suo motu under Article 136.

3. Statutory Appeal: If the Parliament creates a mechanism to adjudicate a

dispute/complaint and/or provides for appeal to the Supreme Court by way of a
legislation, it becomes a statutory appeal.
E.g.: Section 22 of National Green Tribunal Act, 2010
Section 67 of Consumer Protection Act, 2019
Section 30 of Armed Forces Tribunal Act, 2007

ADVISORY JURISDICTION:

Under article 143, the President has the power to seek the advice of the Supreme Court on a
question of law or fact of public importance which has arisen or is likely to arise. The court after
conducting such hearing as it may think fit, may advise the President. It is neither mandatory for
court to advise, nor it is obligatory on the President to abide. However, if the opinion sought is
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on a pre-Constitutional agreement or treaty, the court shall tender its advice. Every reference
under article 143 shall be heard by a bench comprising of not less than 5 judges as mentioned
under article 145.After such hearing , Supreme Court pronounces its judgment in open Court
and the opinion expressed thereunder is communicated to President by the Registrar of Supreme
Court.

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REVIEW JURISDICTION:

Under article 137, the Supreme Court has power to review its own judgments and orders in
accordance with the law enacted by the Parliament and rules laid down under article 145 Under
the Supreme Court Rules,2013., which were formulated under article 145, a review petition is
required to be filed within 30 days and shall be circulated in the chambers of the same judges
who decided the case, as far as practicable. In most cases review petitions are dismissed in the
chambers only. However, if the Supreme Court decides to issue notice in the petition and directs
listing in the open court, then limited oral arguments of parties are heard.

In 2014, the Supreme Court had held that a review petition on death sentence shall be heard in
open court by a bench comprising not less than 3 Judges and limited oral arguments shall also
be permitted {Mohammed Arif v. Registrar, Supreme Court of India (2014)}

CURATIVE PETITION:

A Constitution bench in Rupa Ashok Hurra v/s Ashok Hurra, 2002 declared that the Supreme
Court has the power to entertain curative petition by the exercise of its inherent powers so as to
prevent the abuse of the process of the court, as well as to cure gross miscarriage of justice.
Violation of Principles of Natural Justice, failure of judge to disclose his personal interest in one
of the parties of the case leading to allegation of bias, can be the grounds to prefer curative
petition.

The petition shall be circulated in the chambers of 3 senior most judges, along with thejudges
who originally decided the case, if they are in service. As far as practicable, there is no often
hearing or oral arguments. The Supreme Court in Yakub Menon v/s State of Maharashtra
(2015) clarified that the curative bench comprising of 3 senior most judges is not required to
include the judges who were part of review bench in case the original benches got retired. In
other words, a bench comprising of 3 senior most judges would be sufficient to hear the case.

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 National Court of Appeal-A Constitutional Necessity?
The need to establish a National Court of Appeal has been debated for long. India’s Supreme
Court's jurisdiction is so expansive that thousands of appeals are being filed in the top court
every month, most of them under Article 136 of the Constitution. Way back in 1986, a five
judge constitution bench of Supreme Court had expressed the desire of establishing a National
Court of Appeal so that constitutional court would not be overburdened by the burden of appeal
cases and requested the government to take steps {Bihar Legal Support Society v. Chief
justice of India(1986)}. However, no such initiative for amending the constitution was
undertaken.

V. Vasantha Kumar v. H. C. Bhatia and Ors. (2016)

In the aforementioned public interest litigation filed before Supreme Court, the relief sought
was a direction to the government to introduce a bill in parliament to amend the Constitution
so as to establish a National Court of Appeal having seats at four regions of the country namely
Calcutta, Mumbai, Delhi and Chennai or Bangalore or Hyderabad for the southern region.

The following are the benefits that may arise out of such an establishment. It is found that
geographical remoteness is turning out to be a deterrent to litigants residing in remote regions
of the country, resulting in relatively less number of appeal cases filed in Supreme Court,
compared to States which are geographically proximate to Delhi. Further, establishing National
Court of Appeal regionally would bring down litigation expenses to affordable level. Likewise,
having a dedicated National Court of Appeal may result in more liberal audience to litigants.
Lastly, having a dedicated Constitutional Court would facilitate speedy adjudication of
constitutional cases and constitutional issues resulting in more judicial pronouncements in
public law.

However, the proposal has its own share of share of criticisms and concerns. It is alleged that
having National Court of Appeal at various regions may end up in adding to the burden on
judiciary as it my open up flood gates of casual appellate litigation arising out of ease and
convenience.Further, it is apprehended that extensive amendments required in the Constitution
may be found violative of doctrine of basic structure, due to the special powers conferred on
the Supreme Court. It was held by a seven judge Constitution bench of Supreme Court in
L.Chandrakumar v. Union of India (1997) that Article 136 is integral to judicial
independence, which is a constituent of the basic structure of the Constitution that is not
amenable to amendment under Article 368.

Eighteenth Law Commission (2009) headed by Justice A.R. Lakshmanan was of the view that
though National Court of Appeal is a desirable step, the practical difficulties in establishing the
same may promote the idea of regional benches of Supreme Court, as it does not require
amendments to the Constitution. Under Article 130, Supreme Court shall sit in Delhi or at or
at any other place outside Delhi as decided by the Chief Justice of India with the prior consent
of the President of India. Hence it requires only an administrative decision to establish benches
of Supreme Court at four regions.

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 Judicial Reforms : The Way Ahead

The greatest challenge to Indian judiciary is the enormous pendency of cases. As on 06.05.2023
a total of 4,95,96,134 cases are pending before Indian Judicary (As on 06.05.2023) .Out of
these 4,34,51,494 cases are pending in subordinate courts (As on 06.05.2023) 6075793 cases
are pending in High Courts (As on 06.05.2023) and 68,847 (As on 1.04.2023) cases are pending
in Supreme Court. In brief, nearly 5 crore cases are pending.

Some of the Steps Taken

1. Plea Bargaining : Way back in 2005, A system of Plea bargaining was introduced in
the code of criminal procedure to encourage the accused to plead guilty in appropriate
cases and save the court time in conducting trial. Chapter XXI A was introduced by
amending CrPC. Plea Bargaining means that in the pre-trial stage , upon agreement by
the victim, accused and the prosecution, the accused pleads guilty in exchange for a
lenient sentence. If minimum sentence is provided under law, the court may impose
half of the sentence. If there is no minimum sentence, the court may impose, one fourth
of the punishment provided under law. Plea bargaining is allowed only in cases where
maximum sentence up to seven years of imprisonment. Further, plea bargaining cannot
be introduced in socio-economic offence and crime against women and children.

2. National Court Management System (2012) : Supreme Court has taken steps by
setting up NCMS for addressing the issues of case management, Court Management,
Setting measurable standards for performance of the courts and the national system of
judicial statistics in the country. There will be multiple systems including National
Framework of Court Excellence, Case Management System, National System of
Judical Statistics etc. The administrative and technological backbone of these systems
are maintained at the Supreme Court.

3. National judicial Data Grid : Launched in 2015, NJDG enables real time monitoring
of progress of cases in the courts so that remedial action can be taken to ensure speedy
dispensation of justice. As a part of it, there is a public access portal as well which
facilitates the demystification of the process for the ordinary citizen and what ails the
justice delivery system across the country. With this, ambitious efforts to digitise court
system through the e-Courts Project has reached the public, encouraging the litigants
and the general public to watch the pendency graphs and, may be in the future, suggest
solutions against justice delayed.

4. Fast Track Courts (FTC) : The Eleventh Finance Commission allocated Rs.502.90
crores under Article 275 of the Constitution for the purpose of setting up of 1734
Courts in various States to deal with long pending cases, particularly, Sessions cases
and cases of under trial prisoners. As allocation of funds made by the Finance
Commission stipulated time bound utilization within a period of five years, various

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 State Governments were required to take necessary steps to establish such Courts. The
Eleventh Finance Commission recommended the creation of 1734 FTCs.

The term of scheme on the Fast Track Courts which were recommended by the Eleventh
Finance Commission ended on 31st march, 2005. The Supreme Court, which is
monitoring the functioning of Fast Track Courts through the case of Brij Mohan Lal
Vs UOI & Ors observed that the scheme of Fast Track Courts should not be disbanded
all of a sudden and in its order dated 31st march, 2005, directed the Union of India to
continue the Fast Track Courts. The 14th Finance Commission endorsed the proposal
for setting up 1800 FTCs at a cost of Rs.4144.00 crore. It also urged the State
Governments to utilize the enhanced devolution of central taxes from 32% to 42% to
fund this effort. As on 31.12.2018, 699 FTCs are functional across the country dealing
cases pertaining to heinous crimes and cases related to women, children, senior citizens,
disabled and litigants affected with terminal ailments etc. and Civil natured Cases
pertaining to property disputes that are 5 years old.

5. Gram Nyayalayas: The Gram Nyayalya Act, which was enacted by Parliament in 2008
and came into effect in October 2009, mandates setting up of village courts. The Act
seeks to make justice easily accessible to the rural population. For the purpose of
exercising the jurisdiction and powers conferred on a Gram Nyayalaya, the State
Government, after consultation with the High Court, may, establish one or more Gram
Nyayalayas for every Panchayat at intermediate level or a group of contiguous
Panchayats at intermediate level in a district or where there is no Panchayat at
intermediate level in any State, for a group of contiguous Gram Panchayats. The State
Government in consultation with the High Court, shall specify the territorial
jurisdiction of a Gram Nyayalaya and may, alter such limits later. A person shall not
be qualified to be appointed as a Nyayadhikari (The Judge) unless he is eligible to be
appointed as a Judicial Magistrate of the first class. The Nyayadhikari is required to
periodically hold mobile courts and conduct proceedings in villages. Gram Nyayalayas
have jurisdiction over both civil and criminal cases.
6. Commercial Courts: The enactment of the Commercial Courts, Commercial Division
and Commercial Appellate Division of the High Courts Act, 2015, seeks to make
litigation less cumbersome and expeditious. The Act affirms similar principles of law
reflected in various statues of developed countries which ensure a speedy legal
recourse. It envisages setting up of a Commercial Court at District level and a
Commercial Division in the High Court, having ordinary original civil jurisdiction to
deal with Commercial Dispute of a Specified Value, not being less than
Rs.1,00,00,000 or such higher value as may be notified by the Central Government. All
appeals would lie before the Commercial Appellate Divisions to be set-up in all High
Courts.

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 Steps Ahead

1. Increase Judge-Population Ratio : India has a Judge Population ratio of 21.It implies
21 judges per million people (Feb 2022).In a written reply to Rajya Sabha, Law
Minister, said to calculate the judge-population ratio for per million population in a
particular year, the Department of Justice in the ministry uses the population as per
Census 2011 and as per available information regarding sanctioned strength of
judges in Supreme Court, the high court and district and subordinate courts in the
particular year. The judge population ratio (judge per million population) with
respect to sanctioned strength of judges is 21.03 as on December 31 2021," he said.
The sanctioned strength of the apex court is 34 while it is 1098 for the 25 HCs.
India has abysmally low judge-population ratio compared to other legal systems
like US, Canada and UK , the Judge-population Ratio is 107, 75, 51 respectively
per million.
All India Judges Association v. Union of India, 2002- Though Supreme Court
had directed the central government to increase Judge-population ratio to 50 per
million, no substantial progress resulted.
2. Need for New Litigation Policy - Government litigation constitutes nearly half of
the all litigation in judiciary. (However there is no government sources to confirm
the actual quantum of its litigation). National Litigation Policy,2010 was launched
by Union Government to transform the government into a responsible and efficient
litigant. But NLP has failed as an initiative due to ambiguity. Replete with rhetoric
and generic phraseology. Failed to provide a yardstick for determining efficiency.
No measurable outcome or implementation mechanisms. Mandates suitable action
against the officials violating the policy but the policy does not define what is
suitable action. All States should also bring out their litigation policies. Rajasthan,
Haryana, Madhya Pradesh etc have their litigation policies.
3. Women in Judiciary - Women on an average constitute only around 30 per cent
of the judges in lower judiciary. Some states have a good number of women judges,
whereas in other states the representation is abysmal," In High Courts, the
percentage of women judges is mere 11.5 per cent, while in the Supreme Court there
are three sitting women judges (J Hima Kohli, J B.V. Nagaratna and J Bela Trivedi)
out of 33 in office, the Chief Justice of India said. The situation of women lawyers
in the country is not any better. Out of 1.7 million advocates registered, only 15 per
cent are women. Inadequate infrastructure is a barrier to women entering legal
profession. Most courtrooms are small, crowded and cramped. Further, absence of
restrooms, childcare facilities, etc. further add the troubles. As per available
Statistics, nearly 22 per cent of courts in the country did not have washroom
facilities. Further, there is an apprehension that women face bias from their
colleagues or litigants. This bias reportedly affects not just women advocates, but
also those on the Bench. This creates a completely unwelcome atmosphere inside
courtrooms for women. It is the duty of all lawyers and judges to ensure that a
friendly environment is created in courtrooms. the inclusion of women as judges

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 and lawyers in the country will substantially improve the justice delivery system.
Women can bring a different perspective to the law which will enrich the legal field
as their experiential base is different.
4. Promoting ADRs: Arbitration, Conciliation, Mediation and Lok Adalats are the
most prominent of the alternative dispute resolution mechanisms. Among these,
Lok Adalats are the most popular and successful.As the details of each of the above
were discussed in the class, they are not repeated.

It may be noted that in M.R.Krishnamurthy v. New India Assurance Co.

Limited, 2019 Supreme Court requested the government to examine the feasibility
of enacting Indian Mediation Act so as to lay down a procedure governing the
process of mediation and to make mediation an effective instrument of dispute
resolution.

Mediation Bill, 2021: The Bill aims to promote mediation, especially institutional
mediation, to resolve disputes, commercial and otherwise. While proposing
mandatory mediation before litigation, it safeguards the rights of litigants to
approach competent courts for immediate interim relief.The outcome of the
mediation process in the form of a Mediation Settlement Agreement (MSA) will be
legally enforceable and can be registered with the State/district/taluk legal
authorities within 90 days to ensure authenticated records of the settlement. The
Bill establishes the Mediation Council of India. The mediation process will be
confidential and immunity is provided against its disclosure in certain cases. The
Bill is criticised form making pre-litigation mediation mandatory, as such a step
might be found violative of Article 21 which guarantees access to justice. The
Parliamentary standing committee on personnel, public grievances, law and justice
in its report criticised that making pre-litigation mediation mandatory may actually
result in delaying of cases and may prove to be an additional tool in hands of
litigants to delay the disposal of cases.Likewise, as per Clause 26 of the Bill, court-
associated mediation, including pre-litigation mediation, will be conducted in
accordance with the directions or rules framed by the Supreme Court or High
Courts. However, the Committee objected to this. It stated that Clause 26 went
against the spirit of the Constitution. In countries that follow the Common Law
system, it is a healthy tradition that in the absence of statutes, apex court judgments
and decisions carry the same weight. The moment a law is passed however, it
becomes the guiding force rather than the instructions or judgments given by the
courts.

5. Increase the retirement age of Supreme Court and High Court Judges : As the
age of retirement for HC and SC judges had been kept 62 and 65 respectively at
the time of the commencement of the Constitution ,when life expectancy was very
low, it is suggested to increase the retirement age of HC and SC judges to 65 and
70 respectively taking note of the strides in life expectancy we achieved as also

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 taking note of the retirement age of advanced countries like UK , Canada and
Ireland where the age of retirement is 75, 75 and 70 respectively.
6. Prohibit Strikes by Lawyers : Lawyers must not resort to strike under any
circumstances and must follow the decision of the Constitution bench of the
Supreme Court in Harish Uppal (Ex Capt) V. Union of India(2003). 21st Law
Commission headed by Dr. B.S.Chauhan also recommended that Advocates Act be
amended so as to take disciplinary action against the advocates who resort to strike.
7. All India Judicial Service : 166th report of law Commission headed by D.A.Desai
recommended the creation of AIJS in 1986. According to available data, there is a
shortfall of approximately 4000-5000 judicial officers in the district courts of the
country. AlJS will help quickly fill vacancies. Talented youngsters can be attracted
to judiciary as a career destination and that will in turn enhance the quality of justice
delivery as there would be a centralized mechanism of recruitment at national level.
As of now District judges are recruited from subordinate judicial service by
promotion and limited competitive examination within the serving judicial officers
as well as from practicing lawyers having 7 years of experience in the bar(Article
233).
8. Non-Transferable High Court Chief Justice: As recommended by 18th Law
Commission, the post of High Court Chief Justice may be made non-transferable.
This practice was introduced in our country during the Indira government of late
1970s. An outsider as the administrator of the state judiciary may not be a good
idea as he/she may not have better comprehension of the litigational landscape of
the state and the subordinate judiciary. If the Chief Justice is from the same High
Court, he will be in a better position to not only control lower judiciary but also
assess the persons both from the bench and the bar for elevation to the High Court.
9. Curtail Court Vacations : Considering the staggering arrears, vacations in the
Higher judiciary must be curtailed by at least 10-15 days. The superior courts as
well as civil courts in the country have vacations both of which may be trimmed
taking into account crores of pending cases.
10. Deliver Judgments in reasonable time : Judges must deliver judgments in
reasonable time and in that matter, guidelines given by the apex court in Anil Rai
v. State of Bihar (2001) must be observed. The Supreme Court had requested the
High Courts to pronounce judgments within three months of the conclusion of the
arguments.

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 Removal of Judges
Under Article 124(4), 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 the same
session for such removal on the ground of proved misbehaviour or incapacity.

Under Article 124(5), Parliament may by law regulate the procedure for the presentation of an
address and for the investigation and proof of the misbehaviour or incapacity of a Judge under
clause (4).

Under Article 217 (1 ) (b ),a Judge may be removed from his office by the President in the manner
provided in clause ( 4 ) of Article 124 for the removal of a Judge of the Supreme Court.

Parliament had passed The Judges (Inquiry) Act in accordance with Article 124(5 ).

The Judges (Inquiry) Act, 1968

It is meant to regulate the procedure for the investigation and proof of the misbehaviour or
incapacity of a judge of the Supreme Court or of a High Court and for the presentation of an
address by Parliament to the President.

If notice is given of a motion for presenting an address to the President praying for the removal
of a Judge signed,- (a) in the case of a notice given in the House of the People, by not less than
one hundred members of that House; (b) in the case of a notice given in the Council of States, by
not less than fifty members of that Council; then, the presiding officer , after consulting such
persons,, if any, as he thinks fit and after such materials, if any, as may be available to him,
either admit the motion or refuse to admit the same.

It the motion is admitted, the presiding officer shall keep the motion pending and soon constitute
for the purpose of making the inquiry, a Committee consisting of three members of whom- (a)
one shall be chosen from among the Chief Justice and other Judges of the Supreme Court ; (b)
one shall be chosen from among the Chief Justices of the High Courts; and (c) one shall be a
person who is, in the opinion of the Speaker or, as the case may be, the Chairman, a
distinguished jurist.

If such motion is introduced in one house , the other house is barred from introducing the
same type of motion , until procedure gets completed in the first house. In case motions
are introduced on the same day, the presiding officers of the houses shall jointly constitute
the committee of inquiry.

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 After the Committee is constituted post the introduction of the motion, it shall frame definite
charges against the Judge on the basis of which the investigation is proposed to be held. Such
charges together with a statement of the grounds on which each such charge is based shall be
communicated to the Judge and he shall be given a reasonable opportunity of presenting a
written statement of defence within such time as may bespecified in this behalf by the
Committee.

Where it is alleged that the Judge is unable to discharge the duties of his office efficiently due to
any physical or mental incapacity and the allegation is denied, the Committee may arrange for
the medical examination of the Judge by such Medical Board as may be appointed. If the Judge
refuses to undergo medical examination considered necessary by the Medical Board, the Board
shall submit a report to the Committee stating therein the examination which the Judge has
refused to undergo, and the Committee may, on receipt of such report, presume that the Judge
suffers from such physical or mental incapacity as alleged.

If the report of the Committee contains a finding that the Judge is not guilty of any misbehaviour
or does no suffer from any incapacity, then, no further steps shall be taken in either House of
Parliament in relation to the report and the motion pending in the House or the Houses of
Parliament shall not be proceeded with.

If the report of the Committee contains a finding that the Judge is guilty of any misbehaviour or
suffers from any incapacity, then, the motion shall together with the report of the Committee, be
taken up for consideration by the House or the Houses of Parliament in which it is pending. Ifthe
motion is adopted by each House of Parliament, then, the misbehaviour or incapacity of the
Judge shall be deemed to have been proved and an address praying for the removal of the Judge
shall be presented in the prescribed manner to the President by each House of Parliament in the
same session in which the motion has been adopted.

Drawbacks of the Present Scheme

1. No statutory platform is made available to the citizens/ litigants to raise complaints against
corruption/misbehaviour. Having such a body would enormously empower citizens as there
would be transparency and accountability.

2. Neither the Constitution nor the 1968 Act defines what is misbehaviour.

The Judicial Standards and Accountability Bill(2010)

It was a meaningful initiative to address the drawbacks of the present dispensation by proposing
a set of judicial standards and an accountability mechanism so that litigants can redress their
complaints regarding corruption in judiciary.

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The judicial standards laid down includes annual mandatory disclosure of assets of the Judges,
barring close relatives who are advocates from appearing, bar on sharing residence with close
relatives who are practising advocates, limitations on addressing media etc.

The accountability segment of the bill sought to create a National Judical Oversight Committee
comprising of the following;

1. Former CJI (Chairperson)

2. A Supreme Court Judge as nominated by CJI

3. A High Court Chief Justice as nominated by CJI

4. Attorney General

5. An eminent citizen as nominated by the President if India.

The committee can receive complaints and can constitute committee to enquire into the
allegations. If proof is found against the judge and misbehaviour is not grave, the judge can be
given appropriate warning. If the misbehavior is serious, the Judge can be asked to resign and if
he refuses to resign, the NJOC can send report to the government recommending action in
parliament to remove the judge.

Criticisms

1. The scope of the bill is beyond the limited mandate of Article 124(5).

2. Presence of Attorney General in the committee may not be desirable.

3. Instead of “eminent citizen”, “eminent jurist” would be more preferable.

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