UNIT-III

Appointment and Transfer of Judges of SC & HC.

INTRODUCTION: u/a 124 & 216 Appointment of SC&HC judges are done
only by the President. Indian Constitution says President shall consult C J of India
and Governor of respected concerned States for the appointment of HC judges.

If there is a vacancy in SC, CJI will initiate and consult with two senior judged of
the SC and send the recommendation to the Law Ministry. If there is a vacancy in
HC,CJ of the concerned state HC with consultation of two most senior judges will
send the recommendation to the Governor of the state. He will send the
recommendation to the Union Law Ministry, then union law ministry will send
this to collegium of SC. (collegium of SC consist CJI and two more senior judges
of SC in appointment of HC judges) Collegium of SC after finalizing they send
the recommendation to the central government. CG sends the recommendation to
the President then President appoints the judges of the SC&HCs.

QUALIFICATIONS:

• He shall be a citizen of India

• Has been for at least five years a judge of a HC or
• Has been for at least ten years an advocate of a HC or
• Is , in the opinion of the President, a distinguished jurist.
Shall holds the office until he attains the age of 65 years.

S.P.Gupta v. UOI
The majority opinion was that, “the opinion of CJI and opinion of CJ of HC were
merely consultative and that power of appointment solely resides in the CG”.

Transfer of Judges (art. 222)

Art.222(1) empowers the President to transfer a judge from one HC to another
after consulting CJI.
Here article makes it clear that neither the consent of the judge is necessary to
his transfer nor is the CJ binding on the CG.
India v. Sankalchand Himatlal Sheth
The judge of the Gujarat HC was transferred to the AP HC without his consent.
The judge challenged his transfer. In its judgment the SC acknowledged that; the
executive could use the power of transfer of HC judges to undermine judicial
independence.
Majority of the judgment took a mere literal view of the art.222 and held that
art. 222 doesn’t require consent of a judge to his transfer from one to another HC.
But the SC also held that;
As a safeguard against miss use of power by the executive, the consultation
with the CJI as envisaged by art.222 to be ‘full and effective consultation’ and not
a mere formality. The proposal to transfer a judge should be initiated only by the
CJI and that transfer could be resorted to only as an exceptional measure and only
in public interest.

S.P.Gupta v. UOI
The question of transfer of HC judges was raised again in this case. The majority
view held that;
The consent of the judge was not necessary for the purpose of his transfer. But
the power of transfer vested n the CG was not absolute and it was subject to two
conditions;
1. public interest
2. effective consultation with the CJI.

It was emphasized that transfer of a judge couldn’t be made for

punishing him or reward.

CONCLUSION: In the opinion of the former CJI Raman “Judges appointing

judges a myth”. The majority opinion was that, “the opinion of CJI and opinion of
CJ of HC were merely consultative and that power of appointment solely resides
in the CG”. In case of transfer of judges also the consent of the CJI is not binding
on the government.
Discuss the original jurisdiction of The SC
INTRODUCTION: The SC of India has extraordinary original jurisdiction in case
of disputes relating to election of President and Vice- President. In case of inter-
governmental disputes also only the SC has an original jurisdiction, it means these
disputes relating to federal system are decided only by the SC.

Under Art. 131, the SC has exclusive original jurisdiction in any dispute between-

(i) the Centre and a State;

(ii) the Centre and a State on one side, and a State on the other side;
(iii) two or more State.

A dispute u/a 131 should involve a question of law or fact. The jurisdiction of
SC u/a 131 is subject to two limitations;

(i) as to the parties

(ii) as to the subject-matter

The Indian Constitution sets up a federal polity, where intergovernmental

dispute often arise. It therefore becomes necessary to set up a forum for resolving
such disputes. Art. 131 does so by authorizing the SC to settle intragovernmental
disputes.

State of Rajasthan v. UOI

The question was whether the term ‘state’ in Art. 131(a) includes within its
scope “state government”. The SC held that if it raised the question of legal right
and not a political issue then, state government and the central government could
not be thrown out as falling outside the purview of Art. 131. J. Bhagawati
explained that the state government is the agent through which the state exercises
its executive powers.

UOI v. State of Rajasthan

The court pointed out that Art. 131 is attracted only when a dispute arises
between or amongst the States and the Union in the context of the constitutional
relationship that exists between them and the powers, rights, immunities,
disabilities etc flowing therefrom.
CONCLUSION: The original jurisdiction of the SC u/a 131 may be restricted by
other provisions of the Constitution. The reference may be made in this
connection to Art. 363 which excludes the disputes arising out of any treaty,
agreement, convention, engagement, sanad. Art. 262(2), parliament may by law
exclude SC jurisdiction in adjudication of inter- state water disputes. The decision
of the water Tribunal is final but the enforcement of the decision of the Tribunal
was held maintainable u/a 131.

Briefly explain the appellate jurisdiction of the SC of India.

INTRODUCTION: SC is primarily a court of appeal and enjoys extensive
appellate jurisdiction u/a 132. Under this provision an appeal lies to the SC from
any judgment, decree or final order, whether in a civil, criminal or other
proceeding, of a HC if it certifies that the case involves a substantial question of
law as to the interpretation of the Constitution.

The implication of Art. 132(3) is that the appellant who comes before the SC
under this article is not entitled to challenge the proprietary of the decision
appealed against on a ground other than that on which the HC granted the
certificate. If, however, on appeal, a question is sought to be raised before the SC,
other than the one on which the HC has granted the certificate, it is necessary to
seek the permission of the SC.

Any party in the case may appeal to the SC. Such appeal can be granted if the
following conditions are fulfilled;

• An appeal lies only from “any judgment decree or final order” of a HC.
• The case ought to involve a question of law as to interpretation of the
constitution.
• The question involved must be a “substantial question”.
• Contempt of court ; for exercise of disciplinary jurisdiction.

CONCLUSION: Technically, the SC can hear an appeal from the decision of a

single HC judge on grant of the necessary certificate by him. In very exceptional
cases where a direct appeal is necessary. In ordinary circumstances, an appeal
from a single judge should first be taken to a Division Bench of the HC and then
an appeal can be brought before the SC on grant of the necessary certificate by the
Divisional Bench.

Explain whether parliamentary privilege is an anti-thesis to equality

before law. Or
Discuss the powers, privileges and immunities of the members of
parliament.
INTRODUCTION: To enabling Parliament to act and discharge its functions
effectively, without any interference or obstruction, without fear or favor, certain
privileges and immunities are attached to each House collectively and to the
members thereof individually. The privileges of a House have two aspects; (i)
external and (ii) internal. They refrain anybody from outside the house to interfere
with its working. Following are the privileges.

1.Freedom of speech: In a democratic country Parliamentary decision should be

free, frank and fearless. It enables members to express themselves freely in the
house. Art.105 safeguards freedom of speech in Parliament.

Tej Kiran Jain v. Sanjiv Reddy

Referring to Art. 105(1), the court emphasized that whatever is said in

Parliament during the sitting of Parliament and in the course of the business of
Parliament is immunized from proceedings in any court.

P.V. Narsimha Rao v. State.

The majority judges insisted that to enable members to participate peerlessly in

Parliamentary debates, members need the wider protection of immunity against all
civil and criminal proceedings.

Art. 105(2) confers immunity in relation to proceedings in court. The word

‘proceedings’ means any proceedings civil, criminal or even writ proceedings.
Nothing said within a House is actionable or justifiable.
2.Publication under parliamentary authority

u/a 105(2) doesn’t protect publication made without the authority of the House.
Immunity extends to the proceedings of the House and not to an ‘article or
comment’ on the proceedings.

3.Rule making power

Each House of the Parliament is authorized to make rules for regulating its
own procedure and conduct of business. But a rule made by the House is not valid
if it infringes any provision of the Constitution. (Art. 118(1)).

4.Internal autonomy

Each house has freedom from judicial control in its working.

5.Other privileges.

1.Freedom from arrest

A member cannot be arrested on civil proceedings within a period of 40 days

before and 40 days after a session of the House. Object of this privilege is to
secure the safe arrival and regular attendance of the member. A detenu has no
right to attend meetings of parliament.

2.Inquiries

If he breaches privileges, House has power to inquiry.

3.Disciplinary powers over members and power to punish

House has power to enforce discipline and to punish its members for contempt.

4.Freedom from jury service

Members may decline to give evidence and appear as a witness in a court of law
when Parliament in session.
CONCLUSION: Members of the Parliament have been given somewhat wider
personal liberty and freedom of speech than an ordinary citizen enjoys for the
reason that a House cannot function effectively the unimpeded and uninterrupted
use of their services. But this right is not absolute one. According to Art. 121- no
discussion can take place in any House with respect to the conduct of a SC & HC
judge.

Speaker of Lok Sabha: Election , Tenure, Powers and Functions

INTRODUCTION: The Speaker and Deputy Speaker are both elected under
Article 93 of the Indian Constitution. The Lok Sabha elects the Speaker from
among its members, and when the position becomes vacant, the Lok Sabha elects
a new member to fill it. The President sets the date for the Speaker election.

The Speaker is in office from the day of their election till the first Lok Sabha
session that takes place after the one they were elected to. When the Lok Sabha is
dissolved, the Speaker is no longer considered a member of the House.

POWERS AND FUNCTIONS

• The fundamental duty and ultimate authority in this matter is to keep the
House in good order and decorum while it is doing business and governing its
activities.
• In the absence of a quorum, he or she adjourns the House or suspends the
meeting. One-tenth of the House’s total membership must be present for a quorum
to be present at a House meeting(Art. 100(4))
• He does not cast a vote in the first round, but shall exercise, a casting vote in
the case of an equality of votes(1000(2))
• He oversees a joint session of the two Houses of Parliament and, upon the
Leader of the House’s request, may permit a private session of the House.
• He makes the final determination of whether a bill is a money bill or not.
The Speaker signs his certificate indicating a bill is a money bill when it is sent to
the Rajya Sabha for recommendation and presented to the President for approval.
• He makes decisions about a Lok Sabha member’s disqualification for
defection under the terms of the Tenth Schedule.
• He serves as the ex-officio head of the Indian Parliamentary Group, a
conduit between the Parliament of India and other parliamentary bodies
throughout the world.

REMOVAL

Speaker removal will occur if a resolution is approved by the Lok Sabha’s

members with an absolute majority in accordance with Articles 94 of Constitution.

CONCLUSION: The Speaker serves as the Lok Sabha’s head, its representative,
and the protector of the members’ rights and privileges as well as those of the
entire body and its committees. As the main representative of the House,has the
final say on all matters pertaining to the Parliament

Write a note on Protem Speaker

INTRODUCTION: The Constitution doesn’t expressly use the term Protem
Speaker. Protem Speaker is a temporary speaker appointed for a limited period to
conduct the proceedings in Parliament or State Legislature.

Under the proviso of Art. 94 and Art. 179 of the Constitution, whenever the LS is
dissolved or State Legislature the Speaker shall not vacate his office until
immediately before the first meeting of the after the dissolution.

President may appoint Protem Speaker u/a 95(1) and Governor may appoint
Protem Speaker u/a 180(1).

When the Speaker of the Lok Sabh before the start of the newly elected Lok
Sabha’s first session, the President appoints a member of the Lok Sabha as a
protem speaker.

When the Speaker of the State Legislature before the start of the newly elected
State Legislature’s first session, the Governor appoints a member of the State
Legislature as a protem speaker.
CONCLUSION: The Protem Speaker administers the oath to the newly elected
House members. He possesses all of the Speaker’s power. However, once the new
Lok Sabha Speaker is selected, his term expires. He appointed for limited period.

Discuss the powers and jurisdiction of courts

INTRODUCTION: In any country, the judiciary plays the important role of
interepreting and applying and adjudicating upon controversies between citizens,
between citizen and state, between centre and state, between states. Art. 124(1)
establishes the SC of India. It is standing at the apex. Justice Untwala has
compared the Judiciary to “a watching tower above all the big structures of the
other limbs of the state”, as to whether they are working in accordance with the
law and the Constitution.

Following are the powers and jurisdiction of SC court

1. Original Jurisdiction(Art. 131)

2. Appellate Jurisdiction(Arts.132-134)
3. Writ Jurisdiction(Art. 32)
4. Revisory Jurisdiction(137)
5. SC as Court of Records(Art. 129)
6. Power of Judicial Review(Art.129)
7. Advisory Jurisdiction(Art. 143)

1. Original Jurisdiction: Under Art. 131, the SC has exclusive original

jurisdiction in any dispute relating to federal system are decided only by the
SC. The dispute between-
(i) the Centre and a State;
(ii) the Centre and a State on one side, and a State on the other side;
(iii) two or more State

2. Appellate Jurisdiction: SC is primarily a court of appeal and enjoys

extensive appellate jurisdiction u/a 132. Under this provision an appeal lies to
 the SC from any judgment, decree or final order, whether in a civil, criminal or
other proceeding of a HC. Appellate Jurisdiction is the power by which, if a
person is not satisfied by with the decision of a lower court, he may appeal in a
higher court. SC is the final court of appeal.

3. Write Jurisdiction: write can be issued by SC&HC to enforce fundamental

rights. There are five writes; Habeas Corpus, Mandamus, Prohibition,
Certiorari, Quo-Warranto.

4. Revisory Jurisdiction: SC can review and change its own decision or

orders as time and circumstances changes. It can remove any mistakes or errors
that might have crept in the judgement.

5. SC as Court of Records: According to Art. 129 SC shall be a court of

records and it shall have powers to punish for contempt of courts.

6. Judicial Review: The power of judicial review was first time introduced in
the SC of U.S. in the case of Marbury v. Madison, in which the powers of the
SC was established by declaring the Statute unconstitutional.

In India, power of judicial review is not specifically mentioned in the

constitution. But this power is vested with the SC & HC in Art. 13. Where there is
no effective means of challenge, judicial review is available. In India Judicial
Review covers three aspects; judicial review of Legislative action, judicial review
for judicial decision, judicial review of administrative action.

7. Advisory Jurisdiction: u/a 143 President can ask advise from SC, on
question of fact or law. President can forward for the SC’s opinion, questions
regarding the validity of a draft Bill.

CONCLUSION: SC is standing at the apex. Justice Untwala has compared the

Judiciary to “a watching tower above all the big structures of the other limbs of
the state”, as to whether they are working in accordance with the law and the
Constitution. The need for judicial independence becomes more necessary in India
as judicial review is regarded as the ‘fundamental feature’ of the Indian
Constitution. In the words of CJI N.V. Ramana ; “ If the judiciary doesn’t have
all power of judicial review, then the functioning of democracy in this country
would be unthinkable”.

Examine whether the anty-defaction law is a suppression of healthy

party dabate and dissent.
Can speaker functioning under 10th schedule review his decision as to
disqualification?
Write a note on Anti-defection Law
INTRODUCTION: Defection means floor crossing by a member of one political
party to another party .Defection causes government instability. Due to the
defection of some of its supporters to the opposition party converting it from
majority into minority party.

Defection is undemocratic as it negates the electoral verdict. A party which

fails to get majority in the election may yet be able to a majority in the House and
form the government by inducing defections from other party. Thus the party
which may have own a majority through election, and got the mandate from the
people to form the government, may yet fail to do so because a few of its
members defection from the party.

To suppress the vice of defection the constitution Fifty second Amendment Act
changed four articles; 101(3)(a), 102(2), 190(30(a) and 191(2), and added the
Tenth Schedule thereto. This Amendment often referred to as anti-defection law.

u/a 102920 a person is disqualified to be a member of either Houses of

Parliament if he is so disqualified under the tenth schedule.

Kihota Hollohan case SC held that Under tenth schedule, if a member

voluntarily gives up his membership of, or votes or abstains from voting, in the
House against the direction issued by, the party on whose symbol elected, then he
or she would be liable to be disqualified from membership.
 Under this schedule the final authority to take a decision on the question of
disqualification of a member of the House vests with the chairman or the speaker
of the House. A serious question to think about is whether the power to disqualify
a member on the ground of defection should continue to vest in the Speaker, or
should it be vested in some independent body outside the House. It appears from
the SC decision that it may not accept vesting of such decision –making power
solely in the Speaker. The court has ruled that the speaker’s order of disqualifying
a member of the House on the ground of defection is subject to judicial review.

Jagjit Singh v. St. of Haryana, challenged the decision of the speaker to

disqualifying a member for defection without complying with the principles of
natural justice, as the member was not granted sufficient time to file a reply to
meet the case against him was repealed. The SC accepted the arguments of the
applicant.

CONCLUSION: here the important point to note that, to avoid defection

parliament has amended provisions of the constitution and added 10th schedule.
Under this schedule speaker has power to disqualify the members of the Houses
on the ground of defection. But the speaker is a political creature may not be able
to deal with the situation in an objective manner. Under anti-defection law instead
of vesting adjudicatory function with the speaker, it should be vested with the
Election Commission. On the line of Arts 102 and 192, the president in case of
parliament, and the Governor in case of State Legislature, may refer the matter to
the Election Commission.

“Jurisdiction of the SC cannot be barred”. Discuss.

INTRODUCTION: If the jurisdiction of the SC is barred , then the democracy
would be unthinkable. The power of judicial review was first time introduced in
the SC of U.S. in the case of Marbury v. Madison, in which the powers of the SC
was established by declaring the Statute unconstitutional.

In India, power of judicial review is not specifically mentioned in the

constitution. But this power is vested with the SC & HC in Art. 13. Where there is
no effective means of challenge, judicial review is available.
Judicial review of administrative action

In L.Chandrakumar v. UOI, SC stated that, the judges of higher court have to

interprete legislation up to this end that the constitutional values are not to be
interrupted.

Indira Gandhi v. Raj Narian, in this case SC has decided the question, whether
power of judicial review extends to constitutional amendments? Court held that,
judicial review is considered as basic structure of the constitution. The court
struck down , the 39th amendment as it was illegal.

Minerva Mills v. UOI, in this case court held that, the exclusion of judicial
review is void.

S.R.Bommai v. UOI, in this case SC held that, even presidential proclamation is

not immune from judicial review.

judicial review of administrative actions

there are three main grounds of judicial review;

1. Illegality
2. Procedural unfairness
(a) A person should not be the judge in his own case
(b) The person should hear the other person also
3. Irrationality

CONCLUSION: The concept of judicial review embedded in the basic structure

of the constitution. It helps the courts to keep a check and balance upon the other
two organs of the government so that, they can’t misuse the power and work in
accordance with the constitution.
Write a short note on advisory jurisdiction.

INTRODUCTION: The framers of the Constitution inserted this provision as a

means to obtain expert legal advice on matters of public importance. U/A. 143
President can ask advise from SC, on question of fact or law. President can
forward for the SC’s opinion, questions regarding the validity of a draft Bill.

Since the constitution came into force, several references have been made to
the SC u/a 143(1) examples;
1. DELHI LAWS ACT
The SC’s pronouncement in the Delhi Laws Act case gave timely guidance
to the central government regardind the scope and extent of its legislative
power under this Act.
2. KERALA EDUCATION BILL
The SC’s opinion on the constitutional validity of the Kerala Educational
Bill saved the central government from political embarrassment and helped
in the removal of the lacunae in the Bill which the SC pointed out its
opinion.
3. SEA CUSTOMS
The president forwarded for the SC’s opinion questions regarding the
validity of provisions of a draft Bill seeking to amend certain provisions of
the Sea Customs Act, 1878 , and the court was thus able to clarify a knotty
problem of Centre State relationship

CONCLUSION: The purpose of advisory jurisdiction is to assist in decision-

making and provide guidance on complex legal issues. The opinions issued under
advisory jurisdiction are not enforceable or binding but can carry significant
persuasive weight.
Discuss the special leave of appeal u/a 136
INTRODUCTION: Art. 136(1) empowers the SC to grant, in its discretion,
special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the
territory of India.

The power given to the SC by Art. 136 (1) is in the nature of residuary power.
The Art. does not define the nature of proceedings from which the SC may hear
appeals, and, therefore, it could hear appeals in any kind of proceedings whether
civil, criminal or relating to income tax, revenue or labour disputes.

The SC has observed in Pritam Singh v. The State, that the power u/a 136 is
to be exercised in exceptional and special circumstances exist, that substantial and
grave injustice has been done.

Art. 136 empowers the SC to hear appeals from judgment given not only by the
HC’s but even by a subordinate court, if the situation demands that its order
should be quashed or reversed even without going through the usual procedure of
filing an appeal in the HC.

Art. Confers on the SC to hear appeals from orders and determination of any
tribunal other than a military tribunal. The SC may hear an appeal even where the
Legislature declares the decision of a court or tribunal as final.

Under this Art, the SC may hear appeal even though the ordinary law
pertaining to the dispute makes no provision for such an appeal.

M.C.Mehta case court opined that, judicial discretion has to be exercised in

accordance with law and set legal principles.

CONCLUSION: The scope of this Art. is very flexible. To grant the special leave
of appeal lies within the complete discretion of the SC and the only limit upon it is
the “wisdom and good sense of the judges” of the courts, as said by the SC in
Balakrishna Iyer v. Ramaswami.