Alternative Dispute Resolution(ADR) includes dispute resolution processes and techniques short of litigation like Lok Adalats.
Various Provisions of Alternative Dispute Resolution
Historical Approach: Panchayats in India are the earliest known Alternative Dispute Resolution mechanism.
Constitutional provision: The mechanism finds its basis in the
Article 14 (Equality before Law)
Directive Principles of State Policy (DPSP) for Equal Justice and Free legal Aid under Article 39A.
Legal Provisions
Gram Nyayalayas Act,2009
Legal Services Authorities Act (1987) (established Lok Adalat System)
Committees
Justice Malimath Committee (1989- 90) suggested the need for establishing Alternative Dispute Resolution mechanism
Justice BN Srikrishna Committee
Need of Alternate Dispute Resolution Mechanisms?
In country like India, where there is huge backlog (3.2 crore) , Alternative Dispute Resolution can play a huge role in making justice available to all
Right to timely justice is an implicit part of the fundamental Right to Life and liberty.
Alternative Dispute Resolution can also be implicitly related to the Directive Principles of State Policy for Equal Justice and Free legal Aid under Article 39A.
Judicial proceedings in India not only take time but are also expensive . Alternative Dispute Resolution is way to provide inexpensive justice to people.
Alternative Dispute Resolution allows the parties to come up with more creative solutions that a court may not be legally allowed to impose.
Arbitration , Mediation and Conciliation
Three main types of Alternative
Dispute Resolution
are
Arbitration : Very close to court but instead
of Court , there will be some third party to decide issue . Process of arbitration can start only if
there exists a valid arbitration agreement between the parties prior to
the emergence of dispute. Both parties agree to abide by decision
beforehand .
Mediation : Third party is catalyst helping them to reach at some middle ground.
Conciliation : Same like Arbitration in which third party
will give verdict but that is not binding .
Important Notes
Alternative Dispute Resolution processes conform only to civil disputes.
Mahatma Gandhi Tanta Mukti Abhiyaan : Scheme of Maharashtra to resolve small disputes in villages by way of Arbitration within Village . United Nations has recognised this Scheme for bringing harmony
Lok Adalats
Legal Services Authorities Act, 1987
Hindrances to Access to Justice
Poverty of claimant => can’t hire Advocate and can’t afford to attend court proceedings by skipping his daily wages .
Delay in disposal of justice as it take decades for case to reach its logical conclusion.
Legal
Services Act was enacted to take care of such problems
To check above hindrance , two things done under Legal Services Authorities Act
Legal Services Authorities at the National, State and
District levels to provide free & competent legal services
to the weaker sections of society
Lok Adalats : For faster disposal of Justice (explained below)
Lok Adalat = People’s Court
Overview
Organiser = The National Legal
Service Authority (NALSA) .
Idea of Lok Adalat was advocated by Justice P.N. Bhagwati, a former Chief
Justice of India.
It is Non-adversarial system, whereby mock courts (called
Lok Adalats) are held by the National (NALSA), State ,
District Authority etc
Lok Adalat is
presided by sitting or retired judicial officer as chairman, with two other
members, usually lawyer & social worker.
There is no Court Fee.
procedural
laws and the Evidence Act are not strictly followed
Can deal with all Civil Cases
– Matrimonial Disputes, Land Disputes,
Property Disputes etc.
First Lok Adalat was held in 1982 in Gujarat.
LEGAL SERVICES AUTHORITY ACT 1987 , gave statutory status to Lok Adalat.
Main condition of the Lok Adalat
is that both
parties in dispute should agree for settlement. The decision of Lok Adalat is
binding on the parties to the disputes and its order is capable of
execution through legal process. No appeal lies against the order of the Lok
Adalat.
How Lok Adalat is different
Less expensive & fast
Focus on compromise. When no compromise
is reached, the matter goes back to the court & if a compromise is reached, an award is
made and is binding on the parties.
Disputing parties plead their case themselves . No
advocate or pleader is allowed
No court fees levied
Award has
same effect as of a Civil Court decree
Limitations of Lok Adalat
Lok Adalats are not suitable for complex cases because repeated sittings at short
intervals with same judge are not possible
Lack of Confidentiality – Lok Adalat proceedings are
held in the open court
Lok Adalats
are criticized for being in hurry. It should be kept in mind that ‘Justice
should not only be done, it must also be seen to be done’
Article 39 A calls for equal justice . But Lok
Adalats don’t provide this.
Therefore Lok Adalats can at most supplement the legal redressal mechanism rather than being an alternative to the formal institution of Judiciary
Other things done for Alternate Dispute Redressal
Arbitration
and Conciliation Act amended
Justice BN Srikrishna
Committee to
review Arbitration Mechanism in India which has called for
Making
Arbitration Promotion
Council of India (APCI) to improve quality of arbitration in India
Amend National Litigation Policy to declare that PSU Litigations will be solved via
Arbitration instead of Courts
Special Commercial Courts have been made for speedy
disposal of Commercial disputes above ₹1 cr
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
Shortage of Judges : Existing system has led to shortage of judges. There are always 20 % vacancies in the courts.
In present system , Talent not attracted leading to low quality Subordinate Judiciary
It will provide lot of highly professional judges to be selected for High Court and Supreme Court .
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’
Good example of other All India Services working well (eg : IAS, IPS etc)
Creation of highly professional Judiciary of All India Character
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
“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.
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
Where rights of all citizens are getting violated
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
Vehicle to bring social revolution through constitutional means.
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.
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.
Through PIL, judiciary filled legislative gaps in important areas. For example –Vishaka guidelines on sexual harassment at workplace.
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.
An unanticipated increase in the workload of the superior courts. There is huge backlog of cases already and PILs further increases that workload.
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
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.
Violation of separation of power: Courts make Laws which is function of Legislature and is against Separation of Power .
Ineffective implementation: Due to plethora of PILs, it becomes difficult for court to ensure effective implementation of its orders, which leads to credibility erosion.
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 .
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
Near collapse of responsible government when the Legislature and Executive fail to discharge their functions => judiciary has to become savior of last resort.
Judicial Enthusiasm : judges like to participate in the social reforms
Legislative Vacuum – There may be certain areas which have not been legislated upon.
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
He approach court in case where rights of all citizens are getting violated
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
Supreme Court judgement regarding ban of Alcohol Sale within 500 m radius from National & State Highways.
Madras High Court imposing a dress code in temples in Tamil Nadu
Banning on traditional practices like Jalikattu,
Total ban on diesel taxis in Delhi at the cost of affecting the livelihood of certain section of the population.
Chandigarh High Court ordered, What Rate of tolls should be charged at a toll plaza in Gurgaon.
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
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)
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 consultationwith 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
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.
Lacks Transparency: Collegium system is non-transparent and closed in nature as there exists no system of checks and balances
Uncle Judges Syndrome: Sons and nephews of previous judges or senior lawyers tend to be popular choices for judicial roles.
Disturbs balance of power between Executive and Judiciary and destroys the Checks and Balances
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
Words ‘Proved Misbehaviour’ or ‘Incapacity’ has not been defined anywhere in the Constitution
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
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
The Judge under investigation is not prohibited from discharging his duties in court of law.
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
As Federal Court , it decides disputes between Indian Federation & this is exclusive & original jurisdiction
Center & one or more states
Center & any state or states on one side
Between two or more sides
But this doesn’t extend to any dispute arising from
Preconstitution treaty & agreement
Interstate water disputes
Matter referred to Finance Commission
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)
Delhi Laws Act in 1951
Kerala Education Bill in 1958
Berubari Union in 1960
Sea Customs Act in 1963
Keshav Singh’s case relating to the privileges of the Legislature in 1964
Presidential Election in 1974
Special Courts Bill in 1978
Jammu and Kashmir Resettlement Act in 1982
Cauvery Water Disputes Tribunal in 1992
Rama Janma Bhumi case in 1993
Consultation process to be adopted by the chief justice of India in 1998
Legislative competence of the Centre and States on the subject of natural gas and liquefied natural gas in 2001
The constitutional validity of the Election Commission’s decision on deferring the Gujarat Assembly Elections in 2002
Punjab Termination of Agreements Act in 2004
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
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.
Contempt of court law is hangover from British rule & derived from an era when king used to decide the case himself.
Even England, in 2014, after a recommendation by its Law Commission, the country altogether abolished this act.
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.
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.
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.
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
He maintains order & decorum of the house
He is final interpreter of provisions of Constitution & Rules of Procedure and Conduct of Business of Legislative Assembly within the house
He adjourns the house or suspends it in absence of Quorum
He can’t cast vote at first instance but in case of tie, he can vote
He can allow secret sitting of house on request of Leader of the house
He decides whether bill is money bill or not and his decision is final
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)
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.
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
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
To discharge the functions of Governor
Conserve , Protect and Preserve the Constitution of India
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 –
Give assent
Withhold assent
Send back for Reconsideration. But if Assembly send it back with or without amendments he has to give assent
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.