All India Judicial Services

This topic remains in news frequently. For example, check the following news headlines

• 2018 : NITI Aayog in its Report ‘Strategy for New India @75’ mooted the idea of All India Judicial Services (AIJS)
• 2017 : Prime Minister has asked to review the possibility of recruiting judges through an All India Judicial Service (AIJS).

Historical  background

• Original  constitution  didn’t  provide  for  the  creation  of  an  All India Judicial Services  =>  first  suggested  in  Chief  Justices’  Conference in  1961.
• After  Swaran  Singh  Committee’s  recommendations  in  1976,    42nd  Amendment    provided  for  an All India Judicial Services.   
• Law  Commission  of  India  (LCI)  in  its  14th  Report recommended  the  creation  of  All India Judicial Services. 
• Under this
  • District Judges will be recruited centrally through an All India Examination
  • They will then be allocated to each State on the lines of All India Services

Present system 

Lower court judges are recruited by competitive exams conducted by State Public Service Commissions which are inefficient & lack objectivity by themselves & are marred by corruption , nepotism & influence peddling .

Arguments  in  favour  of  All  India  Judicial  Services

1. Shortage of Judges : Existing  system  has  led  to  shortage  of  judges.  There  are  always  20 % vacancies  in  the  courts.
2. In present system , Talent not attracted leading to low quality Subordinate Judiciary 
3. It will provide lot of highly professional judges to be selected for High Court and Supreme Court .
4. Law Commission & Supreme Court Rulings & Committees recommended this
   • Law  Commission  of  India  (LCI)   .
   • Chief Justices Conference
   • Supreme Court Case => All India Judges Association vs Union of India recommended that  an  All India Judicial Services  should  be  set  up
   • Swaran Singh Committee Report 
   • NITI Aayog in its Report ‘Strategy for New India @75’
5. Good example of other All India Services working well (eg : IAS, IPS etc)
6. Creation of highly professional Judiciary of All India Character
7. France has this type of Judicial System and it works with great efficiency

Arguments  against  All  India  Judicial  Services

Some  states  and  High  Courts  have opposed  its  creation  on  the  following  grounds

• Lack of  knowledge  of  regional  languages  would affect  judicial  efficiency
• This  would  lead  to  an  erosion  of  the  control  of  the  high  courts  over  the subordinate  judiciary
• Against Federalism and will lead to excessive Centralisation
• In SC, ST & OBC quota too, regional lowly represented groups in particular states will get marginalised . It is possible that even in North Eastern States, all the ST candidates from other state can get selected
• Avenues  for  promotion  would  be  curtailed  for  those  who  had  already entered  through  the  state  services;

Without  a  push  from  the  judiciary,  the  All India Judicial Services   will  never  come  to  fruition. The  Prime  Minister  and  the  Supreme  Court  are  in  favour  of  All India Judicial Services.  There  is  no time  better  than  now  to  start  doing  something  about  these  problems.

Other alternative

• Why not set up high quality institutions in every state to train fresh recruits before they start hearing cases

Judicial Backlogs

• “Justice delayed is justice denied“- goes the famous adage. 

Statistics & Magnitude:

• Number of Backlogs
  • 3.20 crore cases are pending before various courts.
  • 60,000 cases in Supreme Court
• Number of Judges in India are low
  • Present – 17 judges per 1 million population
  • Required – Atleast 50 judges per 10 lakh (according to recommendations of Law Commission)
  •  In contrast, US has 151 and China has 170 judges for a million population. 

Causes of huge backlog of cases

• Number of the judges is very low , given the size of our democracy.  There were only 17 judges to a 10 Lakh population when there should be at least 50 judges per 10 lakh.
• Even sanctioned posts are vacant.
  • All India vacancy = 26 %
  • Bihar = 45% sanctioned posts vacant (highest)
• Low budgetary allocation leading to poor infrastructure-  India spends only about 0.09% of its GDP
• Tendency to take appeals till Supreme Court
• Increase in PILs & Special Leave Petitions
• Malpractices by lawyers
• Government & its departments act as Compulsive litigant => in 46% cases, government is Litigant  
• Redundant Case Management System (CMS): There is large amount of paperwork , rigid rules , archaic practices
• Complexity in  Indian law with overlapping provisions in different Acts. In September 2014, government setup Ramanujam Committee to identify central government statutes ready for repeal. It identified 1,741 such old statutes 
• Police lacks training for scientific collection of evidences 
• Lack of infrastructure  : such as inadequate support staff for judges and dearth of basic courtroom facilities.

Impact of backlog of cases

• Fundamental Rights like Equal Protection of Law and Right to life (of under-trials) impinged
• Erosion of the rule of law
• A market-based capitalist system can operate efficiently only if judicial processes ensure a fair enforcement of contracts.
• Huge NPAs as commercial litigations not solved
• Low foreign investment as investors are doubtful about timely justice

Remedies

• 245th Law Commission Report on “Arrears and Backlogs: Creating Additional Judicial manpower” has recommended various measures increasing judges , Alternate Dispute Resolution methods   etc
• Constituting an All India Judicial Service to provide more number of highly competent judges
• Using Alternate Dispute Redressal Mechanisms like Lok Adalats, Tribunals for dispute settlement.
• Improving the Courts Case Management System . Initiatives like the Crown Court Management Services of the UK  may be considered.
• Simplification and repealing of outdated laws.
• Judicial Impact Assessment should be introduced while introducing a legislation.
• Government is the biggest litigant in India. It should take steps at – setting up institutional measures for arbitration and dispute resolution. 

• Setting up more courts in areas having more case-load as ordered by  Supreme Court in Imtiayaz Ahmad vs State of Uttar Pradesh (2012). 
• Institution of evening and morning courts to deal with petty matter like traffic violations/challans
• Promoting research and studies on judicial reforms.

Public Interest Litigation

How it all Started

• Concept of Public Interest Litigation (PIL) originated and developed in USA in 1960s  to provide legal representation to previously unrepresented groups and interests.
• First case of PIL can be said to be of Hussainara Khatoon case on Undertrials but real beginning came from SP Gupta Case in which Supreme Court increased the Locus Standii . 
• Under PIL , Courts accept following cases when approached by any Public Spirited Citizen or Social Organisation
  1. Where rights of all citizens are getting violated 
  2. As representative of poor & disadvantaged persons who can’t approach Court of law  
• Justice PN Bhagwati and Justice VR Krishna Iyer were the pioneers of PIL in India

June 2019 update : Top 5 judges can hear PIL matters. Earlier only Chief Justice of India & 2nd topmost Judge could hear PIL.

Flexibility in Standing , Form and Evidence

To encourage PILs, Supreme Court provided following flexibilities

• Increased Locus Standi
• Development of Epistolary Jurisdiction – Cases can be filed through letters and telegrams too. 
• Aid in Evidence – Supreme Court  reduced norms governing evidence and appoints Amicus Curie 

Recent Issues

Recently,  Supreme  Court   voiced  its  concerns on  the  NGO  becoming  a  “proxy  litigant”  and  a  front  for settling  corporate  rivalry  or  personal  vendetta. 

Phases of PIL

Positive contributions of PIL

1. Vehicle  to  bring  social  revolution  through  constitutional  means.
2. It has also  helped in  expanding  the  jurisprudence  of  fundamental  and  human  rights  in  India. eg : Hussainara Khatun Case protecting fundamental rights of under-trials.  
3. PIL  also  become  an  instrument  to  promote  rule  of  law,  demand  fairness  and  transparency,  fight corruption  in administration
   • Corruption: 2G scam was unearthed by PIL filed by two individuals.
4. Through  PIL,  judiciary   filled  legislative  gaps  in  important  areas. For example  –Vishaka  guidelines  on  sexual  harassment  at  workplace.
5. PIL  has helped the  Indian  judiciary  to  gain  public  confidence  and  establish  legitimacy  in  the  society.

Challenges

Main challenge is where to draw line from Judicial Activism to Judicial Adventurism. The PIL project has been amplified much beyond its original conception , giving rise to legitimate criticism that its true purpose has been lost sight of.

1. An unanticipated  increase  in  the  workload  of the  superior  courts. There is huge backlog of cases already and PILs further increases that workload. 
2. Deviated from original rationale for allowing PILs: PILs have become instruments of contestation  of already powerful and well represented groups eg
   • Dr. Dina Nath Batra of the Shiksha Bachao Andolan Samiti, a front organisation for the RSS, has filed PILs to remove “objectionable material” in NCERT textbooks 
3. Settling Corporate rivalry : Sometimes Companies which lose any corporate battle use NGOs as bate to file frivolous PILs as happened in Reliance Jio Case of 2016. 
4. Violation of separation of power: Courts make Laws which is function of Legislature and is against Separation of Power .
5. Ineffective implementation:  Due to plethora of PILs, it becomes difficult for court to ensure effective implementation of its orders, which leads to credibility erosion.
6. Instrument to gain publicity by lawyers : Some lawyers see PILs to increase their publicity and file PILs not with intention to help poors but to gain cheap publicity and buy some time on national news-channels.

Way to correct

• Supreme Court guidelines (Balwant Singh Chaufal vs State of Uttarakhand) : To qualify as a PIL, certain conditions must be satisfied . e.g., letter addressed by aggrieved person, a public spirited individual etc. 
• Heavy Fine against Frivolous PILs : Fine heavily those NGOs & persons who waste time of Court in guise or Public Interest. Eg : in May 2017 : Supreme Court  imposed ₹25 lakh  on Suraz India Trust,  for filing frivolous PILs
• Social Justice Bench- Special Bench christened as Social Justice Bench has been created which will hear all the cases  relating to Social Justice each Friday .

Judicial Activism 

• According to Doctrine of  Separation of Power , the Judiciary cannot formulate policies or make laws. It’s function is just to ensure that the laws and executive actions do not violate the Constitution
• Judicial Activism implies going beyond the normal constraints applied to jurists &  jurists start to make any legislation or policies

Reasons of Judicial Activism

1. Near  collapse of responsible government when the Legislature and Executive fail to discharge their  functions =>  judiciary has to become savior of last resort.
2. Judicial Enthusiasm : judges like to participate in the social reforms 
3. Legislative Vacuum – There may be certain areas which have not been legislated upon. 
4. Constitution of India has itself adopted certain provisions which gives judiciary enough scope to legislate or play active role.

Arguments against Judicial Activism

• Accountability : Judges evolve policies but they are not accountable to people 
• Ideological  :  Goes against the Doctrine of Separation of Power. 
• Epistemic : Judges don’t have enough knowledge on specialized matters.  
• Management : By increasing Locus Standi , they are increasing Litigation work load
• It can hurt the Federal Structure, when Judges do not adhere to Constitutional Principles while adjudicating complex issues.

Supreme Court itself observed in the Aravali Gold Club Case, if the two organs of the State fail to perform their functions properly, it is for the people to provide a corrective. The remedy is not in the judiciary taking over the legislative or executive functions.

History of Judicial Activism

1950s & 60s	– Courts were conservative except for few cases on Right to Property – On personal liberty, court was highly conservative . Eg in AK Gopalan case (1950) , Supreme Court ruled that personal liberties can be taken away by enacting law .
1970s	– Maneka Gandhi  case => if we read Article 21 in conjugation with Article 14 & 19, it is as good as Due Process of Law – Coming to due process clause through the judicial interpretation is creating the problem of Judicial Activism

Judgments of the Supreme Court showing Judicial Activism

1 . Right to life (Maneka Gandhi case) ,1978

• Right to Life under Article 21 is not merely right to physical existence, but to a life of some quality and dignity.

2. Hussainara Khatoon vs State of Bihar (1979)

• Article 21 includes Right to Speedy Trial
• Under-trials must be freed by following certain process

3. SP Gupta Case (1982)

• Supreme Court expanded the Locus Standii
• Note – In Anglo-Saxon Legal system, only aggrieved person can come to court of law but third person can’t approach (with certain exceptions)
• In this case, Supreme Court expanded the Locus Standii. Supreme Court declared that any citizen has standing if
  1. He approach court in case where rights of all citizens are getting violated 
  2. Can become representative of poor & disadvantaged persons who can’t approach Court of law  (this is known as  Public Interest Litigation Jurisprudence)

4. In case of CBI’s autonomy / Vineet Narayan Case

• It asked the Government, to inform it about the steps it was going to take to enact a law for ensuring CBI’s autonomy.

5. In Vishaka (1997) case

•  Supreme Court was dealing with a Writ Petition for enforcement of fundamental rights of working women under Articles 14, 19(1)(g) (the right to practice any profession etc) and Article 21. There was no national legislation, so Supreme Court laid down norms & guidelines, giving them binding force.

6. In Prakash Singh (2007)

• Court felt compelled to give seven directions with regard to Police Reforms

Judicial Overreach

• Above are the cases , where Judicial Activism can be justified. But in garb of Judicial Activism , sometimes Higher Courts have gone too far resulting in Judicial Overreach .
• Judicial Overreach refers to an extreme form of judicial activism where Judiciary forays into domain of legislature & executive with intention of disrupting the balance of powers between executive, legislature and judiciary in its favour.
• Examples of Judicial Overreach
  1. Supreme Court judgement regarding ban of Alcohol Sale within 500 m radius from National & State Highways. 
  2. Madras High Court imposing a dress code in temples in Tamil Nadu
  3. Banning on traditional practices like Jalikattu,
  4. Total ban on diesel taxis in Delhi at the cost of affecting the livelihood of certain section of the population.
  5. Chandigarh High Court ordered, What Rate of tolls should be charged at a toll plaza in Gurgaon.
  6. Iron ore mining has been banned in Karnataka and Goa.

Judicial Restraint

• Judicial Activism and Judicial Restraint are two alternative judicial philosophies in United States.
• Those who subscribe to Judicial Restraint argue that the role of Judges should be scrupulously limited. Their job is merely to say what the law is . 

Examples of self restraint & not curtailing other’s power

• Madhu Holmagi v. Union of India : one Advocate filed a public interest litigation challenging the “Agreement 123” i.e. Indo-US nuclear treaty . Petitioner contended that court must have to scrutinize the all documents . Court dismissed the petition because question raised by the petitioner is a question of policy decision, which is to be decided by Executive

High Courts

This article deals with ‘High Courts.’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Introduction

• Article 214 to 231 of Part VI
• Below Supreme Court in single integrated judicial system of India & top judicial body in state 
• Originated in 1866 when High Court were established in Calcutta,  Madras & Bombay
• Original Constitution provided for High Court for each state . But after  7th Amendment 1956 –  two or more states & UT can have common High Court.

Number of Judges

• All  High Courts to have Chief Justice & as many Judges as President may deem necessary
• Constitution doesn’t specify their strength & leave it to discretion of President

Appointment of Judges

• Chief Justice of High Court is  appointed by President in consultation with Chief Justice of India & Governor(s) of State(s)  concerned
• Other Judges –  Appointed by President in consultation with  Chief Justice of India . Chief Justice of concerned high court is also consulted.

2nd Judge Case	1993 – No appointment of Judge unless it is in conformity with opinion of Chief Justice of India
3rd Judge case	1998 –  Chief Justice of India should consult with collegium of two senior most judges of Supreme Court & sole opinion of Chief Justice not constitute consultation

Qualification to become Judge of High Court

• He should be citizen of India
• Have held either
  • Judicial office for 10 years or 
  • Advocate of High Court(s) for 10 years

Note

• There is no minimum age criteria.
• No provision for appointment of distinguished jurist as High Court Judge. It is there in case of Supreme Court.

Tenure of High Court Judge

No fixed tenure but following 4 provisions regarding that

• Holds office until he attains age of 62 years
• Resign his office by writing to President
• Can be impeached from office by Parliament
• Vacates his office when he is appointed as Judge of Supreme Court or transferred 

Removal of Judge

• Can be impeached in same way as Judge of Supreme Court
• No judge of High Court has been impeached till date

Transfer of Judges

• President can transfer judge from one High Court to other High Court after consulting Chief Justice of India
• On transfer he is entitled to  compensatory allowance 
• Supreme Court’s Judgements

1997	Transfer could be resorted to only as in exceptional measure & only in  public interest & not as way of punishment
1994	Judicial Review is necessary to check arbitrariness in transfer but only judge who is transferred can challenge it
1998	Chief Justice of India should be consulted in addition to 4 Seniormost judges of Supreme Court & 2 Chief Justice of High Courts concerned

Acting Chief Justice

President can appoint any judge of High Court as acting Chief Justice when

• Office of Chief Justice of High Court is vacant
• Chief Justice of High Court is temporarily absent
• Chief Justice of High Court is unable to perform the duties of his office

Other Judges

Additional judge	President can appoint a person qualified to become judge of High Court when there is temporarily increase in business of High Court or there are arrears of work in High Court
Acting Judge	President can appoint a person qualified to become judge of High Court when any judge of High Court is unable to perform his duties or is acting as Chief Justice of High Court
Retired Judges	– At any time Chief Justice  of High Court can request retired judge of any High Court to act as judge of High Court for temporary period – Previous consent of President & of retired judge necessary – He enjoy all powers & privileges of judge but not deemed to be judge

Provisions to ensure independence of High Courts

• Mode of appointment of judges to maintain independence of judges
• Security of tenure to Judges . Judge don’t hold office in pleasure of President although appointed by him
• Fixed service conditions & cant be reduced to their disadvantage except financial emergency
• All expenses charged on consolidated fund of state and pensions of judges on consolidated fund of India
• Conduct of judges cant be discussed in houses of Parliament or  state legislature  except during impeachment
• Ban on practice after retirement (can’t practice in High Court from where he has retired but can practice in any other High Court & also in Supreme Court)
• Power to punish contempt of court to maintain dignity and honour of High Court
• It’s jurisdiction can’t be curtailed
• Separation from executive i.e. executive don’t have  judicial powers

Jurisdiction of High Court

1 . Original Jurisdiction

• Matters of admiralty, will, marriage, divorce, company laws & contempt of court
• Disputes relating to election of members of Parliament & State Legislature (through Election Petition)
• Regarding revenue matter or an act of revenue
• Enforcement of Fundamental Rights of citizens
• Cases ordered to be transferred from subordinate court involving interpretation of constitution .

2. Writ Jurisdiction

• Article 226 – can issues writs same as Supreme Court for enforcement of Fundamental Rights
• Not exclusive but in concurrent with writ jurisdiction of Supreme Court
• Writ Jurisdiction is wider than Supreme Court because can issue writs for enforcement of Ordinary Rights too

3. Appellate Jurisdiction

3.1 Civil Matters

• First appeals from subordinate courts on both question of law & fact
• Second appeals from subordinate courts only on question of law(not fact)
• Appeals from decisions of Administrative Tribunals  (Supreme Court Judgement 1997- appeal from Tribunals has to pass through High Court before reaching Supreme Court)

3.2 Criminal Matters

• Appeals from subordinate court involving imprisonment of 7 years
• Cases involving capital punishment should be confirmed by HC before execution
• Some specified cases under Criminal Procedure Code(1973)

4. Supervisory Jurisdiction

• Have SUPERVISORY Jurisdiction on subordinate courts & tribunals functioning in its territorial jurisdiction (except military courts or tribunals ) 

5. Advisory jurisdiction

• No advisory jurisdiction

Control over Subordinate Courts

• Consulted by Governor in appointment, posting & promotion of district judges
• It can withdraw case pending in subordinate court if it involves substantial question of law & can dispose itself or dispose question of law & send case back
• Its law are binding on all subordinate courts functioning in its jurisdiction

Court of Record

Two powers under this

• Judgements, proceedings & acts of High Court are recorded for perpetual memory & testimony & cant be questioned when produced before any subordinate court
• Has power to punish for contempt of court with imprisonment of 6 months or fine upto ₹2,000 or both

Contempt of Court has not been defined in constitution & is defined by Contempt of Court Act,1971

Power of judicial review

• Power of High Court to examine constitutionality of legislative enactments & executive orders of both state & center governments . If they are found to be violative of constitution(ultra-vires), they can be declared as illegal & unconstitutional
• Phrase Judicial review is nowhere used in constitution but provisions of several articles confer this power

Number of High Courts in India

• Total number of High Courts in India = 24
• 3 newly constituted = Tripura, Manipur & Meghalaya in Agartala, Imphal & Shillong  in 2012
• Punjab & Haryana common High Court in Chandigarh established in 1875 originally in Lahore then moved to India as Punjab High Court & renamed Punjab & Haryana High Court in 1966.
• Andhra High Court is still Hyderabad. New will be made in Amravati but not yet functional)

Supreme Court

This article deals with ‘Supreme Court.’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Introduction

• Article 124 to 147 of Part V deals with Supreme Court
• Unlike USA (& other Federations) , India has single system of courts for central and state laws with Supreme Court at top
• Single system was adopted from Government of India Act,1935
• Inaugurated on 28/1/1950 , succeeded Federal Court but was different in sense that it has higher jurisdiction and highest Court of Appeal ( earlier British Privy Council was highest court of appeal)
• Supreme Court is final interpreter & guardian of Constitution and guarantor of Fundamental Rights.

Organisation of Supreme Court

• At present, Number of  Judges = 31(1+30) (Originally 8(1+7))
• Number of judges can be changed by Parliament via Act => Supreme Court (number of judges) Act was passed for this

Judges of Supreme Court

Appointment of Judges

• Dealt by Article 124(2) – Chief Justice & Judges to be appointed by President
  • Chief Justice of India (CJI) to be appointed by President after consultation with judges of Supreme Court & High Court.
  • Judges to be appointed by President after consultation with Chief Justice and Judges
• Note : Term used is ‘Consultation’ and not ‘Concurrence’ .  

Till emergency, provisions didn’t present any difficulty and worked smoothly .

Do Consultation means Concurrence + Issue of Transfer of Judges

In Constituent Assembly Debates when motion was moved to replace word Consultation with Concurrence, Dr Ambedkar replied , “We are not giving Veto Power either to the Executive or to the Judiciary. ”

Till emergency , provisions of Constitution presented hardly any difficulty. Problems arose during the Emergency 

Case 1 : SP Gupta vs Union of India (First Judge Case), 1982 : Supreme Court ordered that word used is Consultation and not Concurrence. Hence,  advise of Chief Justice India isn’t binding. 

Case 2 : Advocates on Record Association vs Union of India (Second Judges Case) , 1994 : 9 Judge Bench overruled previous decision 

• Chief Justice India is bound to consult 2 Senior most Judges  => Collegium System established 

Case 3 : Re Presidential Reference (Third Judges Case) , 1998 : In 1994 Judgement, nothing was said about how consultation would take place between Chief Justice of India and 2 Senior Judges . There were allegations that other Judges of Supreme Court were not effectively consulted 

• Chief Justice of India is bound to consult 4 Seniormost Judges of Supreme Court .
• Recommendation of Chief Justice of India & 4 other judges are to be conveyed in writing to President
• For Appointment of Judges of High Court, consultation with 2 Seniormost Judges of Supreme Court 
• If any two or more Judges gave adverse opinion, no recommendation can be made
• Although President can make objection but if same names are again recommended , then President has no discretion.

Appointment of Chief Justice of India

1950-73	Seniormost judge of Supreme Court appointed Chief Justice
1973	AN Ray was made Chief Justice superseding 3 senior judges
1977	MU Beg made Chief Justice superseding a senior judge
2nd judges case	Seniormost judge should be appointed as Chief Justice

Side Topic : Issues with Collegium System

1. Constitutionality:
   • Constituent Assembly after adequate debates rejected the proposal to vest the Chief Justice with veto power over appointments.
   • According to Law commission ,  Collegium is a clear violation of Article 74 of the Constitution which demand President to act on the aid and advice of the Council of Ministers.
2. Lacks Transparency: Collegium system is non-transparent and closed in nature as there exists no system of checks and balances
3. Uncle Judges Syndrome: Sons and nephews of previous judges or senior lawyers tend to be popular choices for judicial roles. 
4. Disturbs balance of power between Executive and Judiciary and destroys the Checks and Balances
5. Collegium system was asserted when we had weak Central governments in the 1990s. Now such situation is not there .

Conclusion : Justice DY Chandrachud had famously said: ‘Above all, sunlight is the best disinfectant.’ The sunlight should also percolate through various layers of the judiciary so that the decisions taken on the administrative side are viewed with complete trust.

Qualification to become Judge of Supreme Court

• Person should be Citizen of India
• Person should be
  • Judge of High Court for 5 years or
  • Advocate of High  Court or 10 years or
  • Distinguished Jurist in President’s opinion 
• No minimum age requirements

Tenure of Supreme Court of India

• Till they attain age of 65 years (62 years in case of HC judges)

Removal of Judges

According to constitution, Judge of Supreme Court can be removed by Parliament with special majority and assent of President on  ground  of  ‘proved misbehaviour’  or  ‘incapacity’

Judges Inquiry Act regulate the procedure

• Removal motion signed by 100 members in case of Lok Sabha or 50 in RS is submitted to Speaker
• Speaker may admit motion or refuse it
• If admitted, then a committee is formed under Chief Justice /Judge of Supreme Court of India ,Chief Justice of High Court and distinguished jurist
• If committee found judge to be guilty then procedure in Parliament starts
• Motion to be passed in both houses by special majority and then assent of President is required

Till now no judge removed and only one case of proceeding of V Ramaswami in 1993 was initiated but failed to get passed by Special Majority.

Issue  with  the  Removal  Process

1. Words ‘Proved Misbehaviour’ or ‘Incapacity’  has not been defined anywhere in the Constitution
2. Difficult to Accomplish (2nd ARC)  : Impeachment provisions have turned out to be impracticable . There are five stages, all of them difficult to accomplish. Inadequacy of the existing mechanism was affirmed in the K Veeraswami case, 1991(Punjab High Court Judge)  and  V Ramaswami even after adverse findings of the Judges’ Committee 
3. It also involves political considerations. For example, the Congress abstained from voting on the resolution when the motion for removal of Justice V. Ramaswami was moved in 1993 . As a result, although 2/3rd present and voting , voted for impeachment but it fell short of 1/2 of total votes
4. The Judge under investigation is not prohibited from discharging his duties in court of law.
5. There is no process short of removal which can be undertaken to make them accountable

Way Forward

• Judicial  Standards  and  Accountability  Bill (JSAB),  2012  could  be  revived.
•  Justice J. S. Verma advised a Model Code of Conduct for judges
• NCRWC headed by Justice Venkatachaliah also spoke against frequent misbehaviours seen in conduct of Judges and need to have mechanism short of impeachment to control it.

April 2019 : group of Opposition MPs  submitted a notice for then Chief Justice Dipak Mishra’s impeachment to the Rajya Sabha Chairman. However, Vice president of India/ Presiding Officer (PO) in Rajya Sabha has rejected the impeachment motion 

Special judges

Ad hoc judge	When there is lack of quorum in Supreme Court , Chief Justice with assent of President can appoint judge of High Court as judge of Supreme Court temporarily. He enjoys all  privileges of Supreme Court judge during this period
Retired judge	Can also appoint retired judge of Supreme Court or High Court to act as  judge of Supreme Court temporarily . Privileges of judge of Supreme Court are given but not deemed to be Supreme Court judge

Seat of Supreme Court

• Constitution declares Delhi to be seat of Supreme Court
• Chief Justice can appoint other places as seat of Supreme Court in consultation with President . But this provision is only optional and not compulsory.

Procedure of court

• Supreme Court can make its own procedures with approval from President
• Constitutional cases & cases referred to Supreme Court by President under Article 143 decided by(minimum) 5 judge bench
• All other cases to be decided by 3 Judge bench
• Judgement delivered in open court by majority vote (although Judge not agreeing with the Majority view is entitled to deliver a dissenting judgement or opinion)

Note : Chief Justice of India is the MASTER OF ROASTER . Bench headed by CJI Deepak Misra gave this judgement in 2018.

Independence of Supreme Court

Balmukand Shah vs State of Bihar (2000) – Independence of Judiciary is part of basic structure of the Indian Constitution.

How it is ensured

• Mode of appointment of judges to maintain independence of judges
• Security of tenure to Judges
• Fixed service conditions & can’t be reduced to their disadvantage except during financial emergency
• All expenses charged on consolidated fund of India
• Conduct of judges can’t be discussed in houses of Parliament except during impeachment
• Ban on practice after retirement
• Power to punish Contempt of Court to maintain dignity and honour of Supreme Court
• It’s jurisdiction cant be curtailed

Jurisdiction of Supreme Court

1 . Original jurisdiction

1. As Federal Court , it decides disputes between Indian Federation  & this is exclusive & original  jurisdiction
   1. Center & one or more states
   2. Center & any state or states on one side
   3. Between two or more sides

But this doesn’t extend to any dispute arising from

1. Preconstitution treaty & agreement
2. Interstate water disputes
3. Matter referred to Finance Commission
4. Ordinary dispute of commercial nature between Center & States

It is called original jurisdiction because the Supreme Court alone has the power to deal with such cases. Neither the High Courts nor the lower courts can deal with such cases.

2. Writ jurisdiction

• Supreme Court is guarantor & defender of Fundamental Rights
• And for that, it can issue writs ie Mandamus, Habeas Corpus, Prohibition, Quo Warrento & Certiorari under Article 32
• Writ Jurisdiction is Original but not exclusive ie High Court can also issue writs
• Writ Jurisdiction of High Court is greater than Supreme Court but Parliament is empowered to confer on Supreme Court power to issue writs for other purposes too
• Supreme Court can depart from ordinary adversarial procedure to prevent procedural technicalities from upholding Fundamental Rights
• Under Writ Jurisdiction, Supreme Court has flexibility of Locus Standi too . Supreme Court has used this to invent Public Interest Litigation.

3. Appellate jurisdiction

In following cases :-

Constitutional Matter	If High Court certifies that case involves substantial question of law that require interpretation of constitution
Civil Matter	If High Court certifies that – Case involves substantial question of law of general importance . – Question needs to be decided by Supreme Court .
Criminal Matter	If High Court has – Reversed the order of acquittal & sentenced him to death/life/10 years imprisonment – Taken before itself any case from subordinate court & accused person & sentenced to death/life/10 years imprisonment – Certified that case is fit for appeal to Supreme Court

4. Advisory jurisdiction

• Article 143 – President can seek opinion of Supreme Court in two matters
  • On any question of law or fact of public importance  which has arisen or likely to be arisen
  • On any dispute arising out of any preconstitution treaty, agreement etc

First time Supreme Court may or may not but second time, it is bound to give advice but advice is not binding on President => so far 15 times this is used (note name of cases for prelims)

1. Delhi Laws Act in 1951
2. Kerala Education Bill in 1958
3. Berubari Union in 1960
4. Sea Customs Act in 1963
5. Keshav Singh’s case relating to the privileges of the Legislature in 1964
6. Presidential Election in 1974
7. Special Courts Bill in 1978
8. Jammu and Kashmir Resettlement Act in 1982
9. Cauvery Water Disputes Tribunal in 1992
10. Rama Janma Bhumi case in 1993
11. Consultation process to be adopted by the chief justice of India in 1998
12. Legislative competence of the Centre and States on the subject of natural
    gas and liquefied natural gas in 2001
13. The constitutional validity of the Election Commission’s decision on
    deferring the Gujarat Assembly Elections in 2002
14. Punjab Termination of Agreements Act in 2004
15. 2G spectrum case verdict and the mandatory auctioning of natural
    resources across all sectors in 2012

Special Leave Petition

Article 136 provides appeal by Special Leave

• Supreme Court can grant in its discretion Special Leave to Appeal from any judgement in any matter passed by any court or tribunal . There are  4 provisions regarding this
  • It is Supreme Court’s discretionary power . It can’t be challenged as matter of right
  • Can be granted in any judgement whether final or interlocutory
  • Can be granted to any matter i.e. constitutional, civil, criminal, labour, revenue
  • Can be granted against any court or tribunal & not necessarily High Court (except military court)
• SC comment –  it is extra ordinary power vested by Constitution in Supreme Court . Hence, should be exercised sparingly & with caution & in special extra ordinary condition

Ill effects of this Provision

• Increased Pendency of Cases in Supreme Court : Supreme Court’s pendency has reached  65,000  in arrears due to accepting cases through Special Leave Petition route .
• Appreciation and Reapprciation of evidences : It might be true that the quality of judgements of the lower courts leaves much to be desired. But there should be some finality somewhere
• The number of appeals entering the court through this gateway has exceeded by far the writ petition route. Moreover, Public Interest Litigation benefit millions of people, who cannot approach the court directly. 

Article 142

• Article 142 : Supreme Court  may pass any decree or make any order as is necessary for doing complete justice 
• Word ‘Complete Justice’ is not defined .

Evolution of Article 142

Early	Supreme Court used it to bring complete justice to various deprived sections of society or to protect environment in cases like 1. Taj Mahal Case : Ordered for cleansing of the Taj Mahal 2. Under-trials Case : Ordered to release under-trials who were rotting in jails
Inflection Point	Bhopal gas tragedy Case : Supreme Court felt a need to deviate from existing law to bring relief  . Ordered that to do complete justice, it could even override the laws made by Parliament . Thus, Supreme Court of India placed itself above the laws made by Parliament
After	Using this article, Supreme Court  has been foraying into areas which had long been forbidden to the judiciary by reason of the doctrine of ‘separation of powers’ 1. Coal block allocation case, 2014 : Allocation of Coal Blocks granted since 1993 were cancelled   2. Ban on the sale of alcohol along national and State highways, 2017

Cause of Concern

• Using it for Unlimited power – This is extraordinary power to be used in extraordinary situations. But SC is using this frequently . 
• Affects rights of citizen –  judgments like Coal Block Allocation , Alcohol Sale Ban on Highways etc affect rights of accused  and render lakhs of people unemployed  
• Against Separation of Power – It is against the doctrine of ‘separation of powers’

Court of Record & Contempt of Court

Two powers are given under Court of Record 

• Judgements, proceedings & acts of Supreme Court are recorded for perpetual memory & testimony. They can’t be questioned when produced before any court
• Has power to punish for contempt of court with imprisonment of 6 months or fine upto ₹2,000 or both .

Side Topic : Contempt of the court

Contempt  of  Courts  Act,  1971 define and  limit the  powers  of  certain  courts   . Contempt  of  court  means  Civil  Contempt  or  Criminal Contempt.

Civil Contempt	Civil  contempt  means  wilful  disobedience  to  any  judgment  or  wilful  breach of  an undertaking  given  to  a  court.
Criminal Contempt	Criminal  contempt  means  the  publication of  which   – Lowers  the  authority  of  any  court;  – Interferes   with the  due  course  of  any  judicial  proceeding; – Interferes    with the  administration  of  justice

Note :  Section 19(2)  establish reasonable restrictions on speech, on various grounds, including contempt of court.

Need of such Powers

• Contempt provisions have been provided to ensure that the Judges do not come under any kind of pressure either from media criticisms or by general public opinion and discharge their duties without any kind of fear and favour 

Criticism of Contempt of Court power

1. Article 19(1)(a) vs Contempt of Court Issue. People have right to know if there is any malfunctioning in Judiciary but Contempt provisions are used to muzzle free speech . Eg : Shillong Times editor  found guilty of contempt of court  for the publication of an article on the perks and facilities for retired judges and their families.
2. Contempt of  court law  is  hangover  from  British  rule & derived from an era when king used to decide the case himself.
3. Even England,  in 2014, after a recommendation by its Law Commission, the country altogether abolished this act.
4. In India, judiciary has been given vast powers which are considered domain of legislature & executive. When judges have such a vast powers , it is difficult to expect people to be silent on these matters.  
5. Pandit Thakur Das Bhargava in the Constituent Assembly spoke against Contempt of Court provisions arguing that it will be used by Courts to muzzle free speech which is the case now.
6. Conflict of Interest : Judges sit in making judgement in which they themselves are involved which is clear case of Conflict of Interest .

Contempt powers should be used in rare cases & in such a way that they don’t violate Right to Freedom of Speech while also ensuring independence of the Judges. Healthy  criticism within limits  is  good for  democracy and  prevents stagnation  in any  democratic  institutions.  

State Legislature

This article deals with ‘State Legislature .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Introduction

• Article 168 to 212 in Part VI of constitution deals with State Legislature
• Although similar to Parliament but some differences as well

Organisation of State Legislature

• No uniformity in organisation- most have Unicameral but some has Bicameral system.
• 22 states have Unicameral & 7 States have Bicameral  Legislature(AP, Telangana , Karnataka, Maharashtra, UP, Bihar & J&K)
• State Legislature consist of Governor & Legislative Assembly(+ Legislative Council )

Provision for Creation & Abolition of Legislative Council

Constitution provide provision for this

• Legislative Assembly of concerned state must pass resolution of same by Special Majority ( only thing where Special Majority of Legislative Assembly is required)
• Parliament then pass it by Simple Majority (& don’t deemed to be Amendment) 

Composition of Legislative Assembly

Strength	– All members are elected directly by Universal Adult Franchise( Legislative Assembly of Sikkim& Nagaland have indirectly elected members too) – Maximum membership – 500 & Minimum – 60 ( Legislative Assembly of Arunachal, Goa, Sikkim, Nagaland & Mizoram have lower membership than 60 provided under various sub-sections of Article 371)
Nominated member	Governor can nominate 1 Anglo Indian if not adequately represented (95th amendment- till 2020 , originally upto 1960)
Territorial Constituencies	– For purpose of holding elections, State divided into constituencies – Such way that ratio of Population of each constituency and number of Seats allotted to it remains constant
Readjustment after census	Same as Lok Sabha.
Reservation of Seats for SC & ST	Reservation in proportion of population ratio in that state (95th Amendment – till 2020 , originally upto 1960)

Composition of Legislative Council

Strength

– Indirectly Elected – Maximum can be 1/3 of Total Strength of Legislative Assembly but not fewer than 40  members

Manner of Election

1. 1/3 elected by Local Bodies 2. 1/3 by members of Legislative Assembly 3. 1/12 elected by Teachers of three years standing 4. 1/12 elected by Graduates of three years standing 5. 1/6 nominated by Governor from persons who have special knowledge of Literature, Science, Art, Cooperative Movement & Social Service   Members are elected by System of Proportional Representation by means of Single Vote Transferable & Governors nomination cant be challenged in court

Duration of Houses

Legislative Assembly	– Not a continuing house  . – Normal Term is 5 years from first meeting after elections (for J&K , it is 6 Years) – Governor authorized to dissolve it at any time – Term can be extended during emergency 1 year at time by act of Parliament
Legislative Council	– Continuing House like Rajya Sabha – 1/3 of its members retire after every 2 years & 6 year term of each member

Membership of State Legislature

Qualification

• Must be citizen of India

Legislative Assembly	Minimum Age –  25
Legislative Council	Minimum Age – 30

• Must have  any qualification prescribed by Parliament . Accordingly Representation of People Act,1951 made by Parliament having following provisions
  • Member of Legislative Council + Governors nomination should be elector from concerned state
  • Member of Legislative Assembly must be elector from concerned state
  • Should be SC/ST if he wants to contest from Reserved Seat for them

Disqualification

• Holds any Office of Profit under Union/State Government (Minister is not office of profit)
• He is unsound & declared so by court or undischarged insolvent
• Not citizen anymore
• Disqualified so in law made by Parliament( Representation of People Act)
• Anti Defection Laws(Schedule 10)

Presiding officers of State Legislature

Each house has its own Presiding Officer

Legislative Assembly	Speaker & Deputy Speaker
Legislative Council	Chairman & Deputy Chairman

1 . Speaker of Assembly

• Elected by Assembly from among themselves

• Holds office during life of Assembly but vacate office in 3 cases
  • Ceases to be a member of Assembly
  • Resigns by writing to Deputy Speaker
  • Removed by resolution passed by majority

• Powers  & Duties of Speaker
  1. He maintains order & decorum of the house
  2. He is final interpreter of provisions of Constitution & Rules of Procedure and Conduct of Business of Legislative Assembly within the house
  3. He adjourns the house or suspends it in absence of Quorum
  4. He can’t cast vote at first instance but in case of tie, he can vote
  5. He can allow secret sitting of house on request of Leader of the house
  6. He decides whether bill is money bill or not and his decision is final
  7. He decides the question of disqualification of MLA arising out of provisions of 10th Schedule  (Supreme Court 1992 Judgement: his decisions subject to judicial review)
  8. He appoints Chairman to the  Committees & himself is Chairman of Business Advisory Committee, Rules Committee & General Purpose Committee

2. Deputy Speaker

• Also elected from among themselves like Speaker
• Remains in office during life of Legislative Assembly except when resigns writing to Speaker , ceases to be MLA or removed by Resolution by Legislative Assembly
• Performs duties of Speaker when Speaker is absent from Legislative Assembly & has all powers of Speaker at that time
• In general situation, he acts as normal member of Legislative Assembly
• When both Speaker & Deputy speaker are absent, then any member from Panel of Chairman nominated by Speaker can act as speaker

3. Chairman

• All provisions same as Speaker but  Speaker has only one more power
• Only he can decide whether Bill is Money Bill or not & his decision on that matter is final

4. Deputy Chairman

• Same as Deputy Speaker of Legislative Assembly

Sessions of State Legislature

Summoning	– Governor can summon each house to meet – Maximum time between each session can’t be more than 6 months
Adjournment	– Suspends work in a sitting for specified time which may be hours or days – Adjournment Sine Die  suspends work for indefinite time – Both powers lie with Presiding officer of the house
Prorogation	– When business of house is completed , then Adjournment Sine Die – After few days Governor issues notification for Prorogation of session
Dissolution	– Only Legislative Assembly & not Legislative Council subject to Dissolution . – Ends very life of existing house.
Quorum	– Minimum number of members that must be present to transact any business – 10 members or 1/10th of members whichever greater
Voting in House	– All matters decided by majority vote of present & voting – Only few matters specified in constitution require Special Majority

Language in State Legislature

• Official Language of State or Hindi or English to be language of transacting business
• Presiding Officer can permit member to address house in mother tongue

Rights of Ministers & Advocate General

Both can participate & has right to speak in either house & any of its committees of which he is named a member, without being entitled to vote .

Legislative Procedures in State Legislature

1 . Ordinary bill

• It can be introduced by any member .
• It can be introduced in any house (in case of Bicameral Legislature).

Process in first house

• Passes through First, Second & Third reading in house
• Transmitted to Second House for consideration & passage

Process in second house

Passes through all the three readings & then put to vote .

When bill passed by Legislative Assembly is send to Legislative Council , later has 4 options

Possibility	What happens
Pass bill without amendment as send by Legislative Assembly	Deemed to be passed & send to Governor
1. Pass bill with Amendment 2. Reject bill altogether 3. Not take any action for 3 months	– Assembly can again pass Bill & send it to Council with or without Amendment – Council can pass Bill, reject it or not take action for 1 month . But then bill is deemed to be passed by both the houses => Council has little power& can only delay Bill by 4 months

Differences with Center polity

• No provision of Joint sitting
• If bill originated in Legislative Council & rejected by Legislative Assembly , bill ends there only

Assent of Governor

Can give Assent	Bill becomes Act
Withhold his Assent	Bill ends & doesn’t become Act
Return Bill for Reconsideration of House(s)	If House(s) again pass Bill with or without Amendment, then Governor must give assent (Suspensive Veto)
Reserve Bill for consideration with President	President may give his assent, withhold assent or send bill for reconsideration . Reconsideration (by State Legislature)  must take place in 6 months & presented again to President . It is  not obligatory for President to give assent

2. Money Bills

Special procedure for passing money bills

Introduction	Can be introduced in Legislative Assembly only with permission of Governor  & only by Minister
In Assembly	Introduced & after passing send to Legislative Council.
In Council	– Limited power & can only make  recommendations + must return bill to Assembly in 14 days – If no action taken within 14 days – Bill is deemed to be passed
Again in Assembly	Can accept or reject recommendations of Legislative Council  & bill is deemed to be passed by both houses

Assent of Governor

Give Assent	Bill becomes Act
Withhold Assent (but cant send for reconsideration)	Generally don’t happen because Bill is introduced after taking his permission
Send to President for consideration	President can give assent or withhold his assent but cant return the bill for reconsideration to state legislature

Debate : Position of Legislative Council

Equal with Legislative Assembly

• Introduction & passage of Ordinary Bill
• Selection of ministers & Chief Minister (can be from any house)
• Consideration of reports of constitutional bodies like State Finance Commission etc   
• Enlargement of jurisdiction of State Public Service Commission            
• Approval of ordinance

Unequal with Legislative Assembly

• Final power of passing an ordinary bill lies with the assembly. At the most, the council can detain or delay the bill for the period of four months (3+1). Council is not a revising body like the Rajya Sabha; it is only an advisory body
• Money Bill can be introduced only in Legislative Assembly
• Cant amend or reject Money Bill
• Final power to decide whether bill is Money Bill lies with Speaker of Legislative Assembly
• Council can only discuss budget but can’t vote on demands for grants
• Cant remove Council of Ministers by passing No Confidence Motion
• Doesn’t participate in election of President of India & Representatives in Rajya Sabha (Note : Rajya Sabha members do participate in election of President and Vice President)
• Council has no say in Constitutional Amendments
• Very existence of Council depends on will of Assembly

Hence, Position of Legislative Council wrt Legislative Assembly is weaker than position of Rajya Sabha wrt Lok Sabha.

Why Legislative Council given very less importance than Rajya Sabha ?

• Rajya Sabha consist of Representatives of States & reflect federal structure of India while no such thing in Legislative Council
• Heterogeneous structure with some elected & other nominated members making its position weak while Rajya Sabha is homogeneous body with elected members
• Position of Legislative Council  is like House of Lords of Britain & it must yield wrt Legislative Assembly which represent popular voice

Importance

• Second House of legislature is considered important for two reasons
  • To  check hasty actions by popularly elected House
  • To ensure that individuals who might not be cut out for the rough-and-tumble of direct elections too are able to contribute to the legislative process.

Against

• Opposition to the idea of Legislative Councils is centered on three broad arguments
  • They can be used to park leaders who have not been able to win an election.
  • They can be used to delay progressive legislation.
  • They would strain state finances.

Question : Unlike Rajya Sabha, which enjoys almost equal powers to that of Lok Sabha, the State Legislative Council is a mere subordinate to the Legislative Assembly. Discuss. (200 Words, 10 Marks)

Answer : Rajya Sabha, also called the Council of States, is almost equal to the Lok Sabha in the Parliament, but the same cannot be said about their corresponding Legislative Councils and Legislative Assemblies in the states

• Rajya Sabha has a stronger ideological role to play as the Representative of the States in the Centre. Thus, this is as powerful as the Lok Sabha
• From Article 80 of the Indian Constitution till Article 121, the Powers, Constitution, Role, Membership, Duties etc., of the Rajya Sabha has been given in detail while the same cannot be said of the Legislative Council
• Final power of passing an ordinary bill lies with the assembly. At the most, the council can detain or delay the bill for the period of four months (3+1). Council is not a revising body like the Rajya Sabha; it is only an advisory body

• Legislative Assembly can create or destroy the Council according to its own wishes. That is not possible with the Rajya Sabha, which is a permanent body.
• Most of the Indian States have chosen not to have an extra body, because it does not serve much purpose, other than as a check on the laws made by the Assembly. 

Thus, the Legislative Council is termed as a mere subordinate to the Legislative Assembly.

Chief Minister

This article deals with ‘Chief Minister .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Introduction

• Chief  Minister –  de facto Head of State
• Governor – de jure Head of State
• Chief Minister is  primus inter pares

Appointment of Chief Minister

Article 164	Chief Minister shall be appointed by the Governor (but he is not free to appoint anybody)
	Generally from Legislative Assembly but if State has Council, then member of Council can also be appointed as Chief Minister
Delhi High Court 1980	Person need not prove his majority before he is appointed as Chief Minister . Governor first can appoint Chief Minister and ask him to prove his majority in Legislative Assembly in reasonable time(1 month now)
Supreme Court 1997	Person who is not Member of any House of State Assembly can also be appointed as Chief Minister & within 6 months he must become Member of any of the House of Assembly

Term of Chief Minister

• Term of Chief Minister is not fixed
• But doesn’t mean he holds office with pleasure of Governor
• He remains in office till he has not lost  majority of Assembly

Powers of Chief Minister

1 . In Relation to Council of Ministers

• Recommends Governor who can be appointed as Minister
• Allocate and reshuffles various portfolios among them
• Presides over the meetings of Council of Ministers
• He can ask Minister to resign or advise Governor  to dismiss him
• He can collapse Council of Ministers by resigning from his office

2. In relation to Governor

Article 167: It is duty of Chief Minister to

• Communicate the Governor, all decisions taken by Council of Ministers relating to administration of the affairs of State
• Furnish such info relating to the administration of affairs of State  & any proposal of Legislation as Governor may call for
• Submit for consideration of Council of Ministers any matter on which decision has been taken by Minister but not considered by Council
• Advise Governor in appointment of Advocate General,State Election Commissioner, Chairman & Members of SPSC

3. Relation to State Legislature

• Advises Governor with regard to Summoning & Proroguing of sessions of Assembly
• Can recommend dissolution of Assembly
• Announces Government’s policies on floor of Assembly

4. Other powers

• Chairman of State Planning Board
• Member of National Development Council,National Integration Council,Inter-State Council  etc
• Chief Spokesman of State Government
• Leader of party in power
• Political head of service

Important Articles wrt Chief Minister

163	Council of Minister to aid and advise Governor
164	Other Provisions as to ministers like collective responsibility, appointment of ministers by governor & ministers holding office till pleasure of governor
167	Duties of CM wrt furnishing of information to Governor

Governor

This article deals with ‘Governor .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Articles related to Governor

• Article 153 to 167 (They deal with State Executive  (not only Governor))
• Under Article 159 of Indian Constitution, Governor takes oath on following things
  1. To discharge the functions of Governor
  2. Conserve , Protect and Preserve the Constitution of India
  3. Devote  to the service and well being of the people of the State

Appointment of Governor

• Governor  is appointed and not elected (unlike President) (In US , Governor is elected directly by people because they have concept of complete federation)
• Although Draft constitution provided election of Governor by Universal Adult Franchise but Constitutional Assembly opted for present system

Governor of India is Modeled on

• Office of Governor in India is modeled on Canadian Model (and not American).
• Governor is Agent of Center at State

Qualifications to become Governor

• He should be Citizen of India
• He should have completed age of 35 years

Only these two and no other condition.

Term of Governor

• Hold office for 5 years but works subject to Pleasure of President
• Supreme Court Ruling :Pleasure of President in this regard is not justiciable under court of law . Governor has no fix term.
• His office can’t fall vacant and there cant be interregnum
• His emoluments & allowances can’t be reduced to his disadvantage throughout his term . These emoluments are decided by Parliament (not Charged on Consolidated Fund of India/State)
• Same Governor can act as Governor of more than one state (after 7th Constitutional Amendment)
• Order of Precedence –  4th within State & 8th outside State

Powers and Functions of Governor

1 . Executive Powers

• All Executive actions taken in his name formally
• He can make rules specifying manner in which orders and other instruments made and executed in his name should be authenticated
• Can make rules for convenient transaction of the Business of State Government
• Appoints Chief Minister & Council of Ministers, Advocate General, State Election Commissioner , Chairman and Members of SPSC and so on
• Should appoint Tribal Welfare Ministers in Chhattisgarh, Jharkhand, MP & Odisha
• He can require Chief Minister to submit for consideration of Council , any matter on which decision has been taken but matter not considered by Council
• He can recommend imposition of Constitutional Emergency in State and during that period enjoys extensive powers and act as agent of President
• He acts as Chancellor of Universities in State and also appoints Vice-Chancellors of  Universities

2. Legislative Powers

• Can Summon or Prorogue State  Legislature and dissolve Legislative Assembly
• Can address Legislative Assembly at commencement of session of each year and new house
• When office of Speaker & Deputy Speaker are vacant, can appoint member to Preside
• Nominate 1/6 members to Legislative Council ( Science, Arts, Literature , Social Science & Cooperative Movement)  (first 4 same for President but Cooperative Movement is addition)
• Can nominate 1 member to Legislative Assembly  from Anglo Indian Community  if not adequately represented.
• Decide on disqualification of any MLA with Election Commission
• Certain type of bills require his permission to be introduced
• Can promulgate Ordinances when house(s) are not in session

• When Bill is passed by both Houses ,it require his assent to become Act. He can do four things –
  1. Give assent
  2. Withhold assent
  3. Send back for Reconsideration.  But if Assembly  send it back with or without amendments he has to give assent
  4. Can reserve bill for consideration of President

• Governor can reserve bill for consideration with President when

Endangers position of High Court  (must)	Opposed to Directive Principle of State Policy
Ultra vires	Against larger interest of country
Of grave National Importance	Dealing with compulsory acquisition of property under Article 31A

• Lays report of State Finance Commission ,SPSC and Auditor General before State Legislature

3. Financial Powers

• Ensure that Annual Financial Statement is laid before State Legislature
• Money Bill can be introduced only after taking his recommendation
• Can make advances out of Contingency Fund of State  to deal with unforeseen condition
• Constitute State Finance Commission after  5 years to review Financial Condition of Municipal Corporations and Panchayats & suggest measures to improve it

4. Judicial Powers

• Consulted by President while appointing judges of concerned State High Court
• Can grant Pardon, Reprieve, Respite , Remission or Commute when punishment is  for offence against  law to which executive power of state extend
• Makes appointments ,postings and promotions of District Judges in consultation with High Court
• Can appoint persons to  Judicial Services of State (other than District Judge ) in consultation with State High Court & SPSC

5. Diplomatic Functions

• Governor has no Diplomatic powers .

6. Military powers

• Governor has no Military Powers
• Protecting the State is duty of Center

7. Pardoning power

• He can pardon, reprieve, respite, remit , suspend or commute any person convicted of any offence against state law
• But He cant Pardon death sentence even if it is given by State Law , although he can   commute death sentence . Governor cant look into cases related to Court Martial

Except these two all other Pardoning Powers of Governor & President are same

8. Special powers of Governor

Certain Special Responsibilities to discharge according to directions issued by President. In these cases, although he has to consult with Council of Ministers but acts finally on his discretion

Maharashtra	Development Board for Vidarbha & Marathwada
Gujarat	Development Board for Saurashtra & Rann of Kutch
Nagaland	Wrt Law & Order in State for so long as internal disturbance in Naga Hills – Tuensang Area continues
Assam	Wrt Administration of Tribal Areas
Manipur	Regarding Administration of Hill Areas in state
Sikkim	For peace & for ensuring social & economic advancement of different sections of Population
Arunachal Pradesh	Wrt Law & Order in State
Karnataka	Establishment of  separate Development aboard for Hyderabad-Karnataka region

9. Other powers

• Constitution contains provision that Ministerial advice is binding on President  but no such Constitutional Provision has been made wrt Governor. Although this is settled matter now dealt by Shamsher Singh vs State of Punjab (but again whether this Judgement extends to Delhi as well is Subjudice)
• Governor too enjoys Veto Powers like President of India
• Ordinance making power of Governor is same like President but only with one difference that if same bill would have been reserved by Governor for consultation with   President then that Ordinance too would require Presidential assent before coming to force

Discretionary Powers of Governor

Discretionary powers of Governor are wider than President

Constitutional Discretion

• Reservation of a Bill for Consideration of the President;
• Recommendation for imposition of President’s Rule in State;
• Special functions in certain states (as mentioned above)
• Sending Bill to Legislative Assembly to reconsider bill once
• Sending advise given by Council of Ministers to reconsider it once

Situational Discretion

• Appointing Chief Minister when no party has acquired clear cut majority in the State Legislative Assembly or when a Chief Minister dies  in office;
• Dissolution of Legislative Assembly in case Council of Minister lose majority

Importance of Governor

Governor has very important role to play in Indian Constitutional Scheme

• Overseeing government formation
• Reporting on the breakdown of constitutional machinery in State 
• Maintaining effective communication between  Center and  State
• Reserving his assent to Bills passed by the State Legislature or Sending it to President for consent.
• Promulgating ordinances if the need arises.
• As a figurehead who ensures the continuance of governance in the State, even in times of constitutional crises,
• Conscience keeper of the community

Issues with working of Governor 

Issue 1

• Governor’s post has not remained centre of controversy from the beginning. It was only post 1967 when Non-Congress Governments were first formed in states that change in role of Governor’s was observed. He stopped being Constitutional Head of State and became  agent of the Centre in State . It can be seen in following instances
  • In 1967, under the leadership of Maharaval Lakshman Singh , Samyukta Morcha performed well in Rajasthan State elections. But when he claimed to form government , Governor Sardar Hukum Singh took shelter under Article 159 arguing that he has took oath to work for welfare of the people of state and this cant happen until Congress Party’s support is present . Hence, he gave first opportunity to form Government to Shri Mohan Lal Sukhadia.
  • In 1970 , in UP Chaudari Charan Singh formed government with Congress support. But due to some conflict, Congress took back support. Charan Singh asked for some time from Governor YV Reddy to prove his majority. But YV Reddy refused to give time to Charan Singh
  • In 1982, in Haryana Lokdal – BJP- Samyukta Dal performed well and when Chaudari Devi Lal claimed to form Government , Governor GD Tapase asked Devi Lal  to parade  all his MLAs. But appointed Congress leader Bhajan Lal as CM one day before this.

In this way, Governors have performed the role of Agent of Centre .

Issue 2

• Post of Governor given as parking spot for burnt out politicians 
• Spoil System in appointing person as Governor.

Issue 3

• Way in which Governors are removed on change of Government is also questioned by many scholars.
  • Governors face arbitrary removal before the expiration of their tenure . Even after Supreme Court Judgement in B.P. Singhal v. Union of India calling for a fixed tenure for Governors to encourage neutrality and fairness in the discharge of their duties, it is not being implemented on ground

Issue 4

• Governors work in Partisan ways (helping Center to impose President’s Rule and destabilise the State Governments)
  • Article 200 and 201 : The Governor has the power to withhold the assent to a bill along with reserving the bill for consideration of President. States allege that this provision has often been misused by the governor who acts on behest of the union government.
  • Article 356 : To recommend the imposition of constitutional emergency in a state. For political gains, this power has been abused by central governments . Supreme Court in the case of S.R. Bommai v. Union of India acknowledged this.
  • Examples are as follows

JP Rajkhowa (Arunachal)	Destabilizing the polity of the state through instigating factionalism
West Bengal	Stifling governance by acting as parallel centers of powers (as accused by TMC government in West Bengal)
Karnataka  (2018)	Governor gave first opportunity to BJP to form government despite the fact that it was not possible for BJP to form government without indulging into Horse Trading and Defections.
Goa	Goa Governor Mridula Sinha ignored the established principle of inviting the single largest party in the wake of a fractured mandate, and appointed BJP leader Manohar Parrikar as chief minister .
Buta Singh	Role of Governor Buta Singh in imposing President’s Rule in Bihar in 2005 by not electing any leader as CM and not trying all possibilities to form Government. He reported to Union Government that stable government couldn’t be formed and Union imposed President’s Rule in Bihar. In the Judgement, SC nullified the actions of Governor & also ordered that facts represented by Governor shouldn’t be taken by Union Government on face value.

Sarkaria commission on Governor

• Recommendations wrt  Governor
  • Governor is lynchpin of Constitutional Apparatus +  Governor assures continuity of Government + it shouldn’t be dispensed with
  • Discretionary powers of Governor should be left untouched

• Person to be appointed as Governor
  • Should be Eminent Person
  • Must be person from outside the state
  • Must not have participated in active politics atleast for some time
• Tenure must be guaranteed & if any action is to be taken against him , he must be given reasonable opportunity

Punchi Commission on Governor

• Given the status & importance conferred by Constitution on office of Governor + no election for seat of governor , it is important that Constitution lays down explicitly the qualifications for being considered for appointment .
• Presently only condition for appointment of Governor is  he should be Citizen of India and above 35 years
• Recommendations of Sarkaria Commission should be adopted strictly
• Governors should be given fixed tenure of 5 years & their removal should not be at will of the Government of India . Necessary to provide for impeachment of Governor on same lines as provided for impeachment of President

Debate on method to remove Governor

Governor has no security of tenure and he works under the  Pleasure of the President (Article 156)

In Constituent Assembly Debates

• Prof KT Shah said in Constituent Assembly debates that we must not leave the Governor to be entirely at the mercy of President . So long as he acts in accordance with advice of Constitutional Advisors of Province, he shouldn’t be removed .
• Ambedkar answered criticisms with this statement : It is quite unnecessary to burden Constitution with all these limitations stated in express terms  . Power of removal although apparently absolute is subject to implied limitations . 

But norms of appointment & credibility of office of Governor deteriorated fast  .

Different developments after Independence

1 . ARC Report,1967

• Opined that the post of Governor came to be treated as consolation prize to burnt out politicians

2. Hargovind Pant Case, 1979

• Governor cant be regarded as an employee of Government of India  .  His is an independent constitutional office which is not subject to control of Government of India 

3. BP Singhal Case, 2010

• 5 Judge Constitutional Bench – objected to removal of 4 NDA appointed Governors immediately after UPA came to power
• Reason given by Government was , ‘they were not in sync with their policies & ideologies.’
• Court held that –  Governor cant be removed on ground that he is out of sync with the policies & ideologies of Union Government nor can he be removed on ground that Union Government has lost confidence in him

4. Punchhi Commission

• Governors should be given fixed tenure of 5 years & their removal should not be at will of the Government of India .
• Necessary to provide for impeachment of Governor on same lines as provided for impeachment of President

Debate : What to do in case no party gets clear majority ?

Constitution of India doesn’t deal with this situation directly . But, there are various cases which have dealt with this issue and given procedure to resolve this issue .

1 . Sarkaria Commission(reaffirmed by Rameshwar Prasad vs Union of India & reiterated by Punchhi Commission) 

• In case there is no single party having absolute majority , order of preference the Governor should follow in selecting a Chief Minister is as follows
  • If there is a pre-poll alliance or coalition, it should be treated as one political party and if such coalition obtains a majority, the leader of such coalition shall be called by the Governor to form the Government.
  • In case no party or pre-poll coalition has a clear majority, the Governor should select the Chief Minister in the order of preference indicated below: 
    • Group  of parties which had pre-poll alliance commanding the largest number.
    • Largest single party staking a claim to form the government with the support of others.
    • A post-electoral coalition with all partners joining the government 
    • A post-electoral alliance with some parties joining the government and the remaining supporting the government from outside.

2. Jagdambika Pal Case / Composite Test

• In Allahabad High Court Judgement of 1998 => go for Composite Floor Test between two contending claimants to Chief Ministership

3. SR Bommai Case

• Majority can be proved only on the floor of house and nowhere else
• Hence, Parties cant parade MLAs in Raj Bhavan to show their majority or support.