Indian Judiciary — Key Characteristics: Structure, Powers & Independence

01 · Distinctive Features

Indian Judiciary — Key Characteristics

Integrated Judiciary

Supreme Court

↓

High Court

↓

Sessions/
District Court

Court of
Appeal

↓

Trial Courts
(Magisterial)

Civil Courts
(Munsif)

        SC at apex — direct jurisdiction over all courts & tribunals in territory of India.
        HC can invalidate executive actions u/a 352.
      

India vs USA — Comparison

Feature	India (SC)	USA (FSC)
Structure	Integrated — one SC supreme	Dual — each state SC supreme in state matters
Case load	~2000 cases/week	~150 cases/year
Judicial Review	Yes — can invalidate executive & legislative acts	Yes — Marbury v Madison, 1803
Appointment	Judges appoint judges (Collegium)	Prez nominates; Senate approval needed
UK SC	Created in 2008 (previously House of Lords)

Superior vs Subordinate Courts

Superior Courts (SC, HCs) — administratively autonomous; enjoy writ jurisdiction; enforce Fundamental Rights; have power of judicial review

Subordinate judiciary functions under administrative control of HC
Civil courts: first appeal lies with District Court; writ judgments from civil courts can be appealed to HC
If quantum of money involved is very high → District Court hears the case

Trial Courts — Civil (Munsif courts, aka Municipal courts in some states) + Magistrate courts. State prosecutes; victim becomes witness only.

Grave offences tried by Sessions Court
Tribunals created under specific enactments (SAT, NGT, etc.)
Tribunals are post-facto courts like most other courts

02 · Jurisdiction of the SC

Four Types of Jurisdiction

Original

Exclusive to SC
Union vs State(s)
State vs State(s)
Writ jurisdiction 32
Election of President & VP 71
Transfer petitions 139A

UTs not included (unless UT has Leg. Assembly → file writ petition before concerned HC)

Appellate

Appeal by Certificate 132 133 134
Appeal by Special Leave 136
Appeal by Statute

132 → substantial question of constitutional law (civil/criminal/other); 133 → civil case; 134 → criminal case; 136 → sky is the limit

Advisory

143 — President can consult SC
Question of law/fact of public importance
Court’s opinion not binding on President
President not bound to seek opinion
Heard by bench of ≥5 judges
15 references made so far

Review

137 — SC reviews its own orders
Filed within 30 days
Circulated in chambers (same judges)
No open-court hearing normally
Death sentence → open court; ≥3-judge bench
Review ≠ Re-hearing

Curative Petition → beyond review stage; Rupa Ashok Hurra v. Ashok Hurra (2002)

Original Jurisdiction — Art.131 (Exclusive)

Disputes between: Union & one or more states; Union + states on one side vs states on other; Two or more states
SC rarely exercises u/a 131 directly unless national & state’s matter is important
Type of dispute must be a question of law or question of fact — political controversies cannot go

        Substantial question of law = a question not yet conclusively answered by SC. e.g., Puttaswamy v Union (2017) on Right to Privacy; Municipal Corporation of Greater Mumbai v Ankita Sinha (2021) — whether NGT has suo motu power
      

Exceptions to Original Jurisdiction

Pre-constitutional treaties & agreements — 500 princely states merged into Union of India; Central Govt interprets their agreements in light of National Interest
Art.262 → Parliament can enact law for inter-state river disputes; other federations don’t allow this; River became inter-state after Inter-State River Water Disputes Act, 1956 → constitutes a Tribunal (SC + HC judges); 2019 Bill to amend — National Tribunal (judicial + expert members)

Transfer Jurisdiction

Art.139A(1) — SC can transfer cases pending before one or more HCs to itself if they contain a substantial question of law of general importance. Added by 42nd CAA.

Transfer can happen: (1) Suo motu; (2) Application by AG; (3) Any party to the case
Art.139A(2) — SC can transfer a case pending before 1 HC to another, if expedient in the interest of justice
Art.138 — Parliament can enlarge powers of SC

        Cauvery Water Dispute — SC could pass order (2017 case) because original exclusive jurisdiction (Art.262 sec.11) stood excluded once tribunal constituted. SC said it can still do so because order was appellate/not exclusive jurisdiction. 2018 — modified Cauvery award.
      

Appellate Jurisdiction — Appeal by Certificate

Art.132 — Appeal against HC judgment in civil/criminal/other proceeding if HC certifies that case involves substantial constitutional question
Art.133 — Only civil cases; HC certifies substantial question of law of general importance that may be decided by SC
Art.134 — Criminal cases; HC certifies case is fit to be appealed to SC. Certificates rarely issued (not generally granted)

          Art.136 — Special Leave Petition (SLP)

          SC has discretionary power to entertain appeal against any judgment, order or determination by any court/tribunal in India, except those constituted under law relating to Armed Forces. SC can also exercise suo motu u/a 136. “Sky is the limit”

          Golden Triangle: Art.32 + Art.142 + Art.136 = SC getting enormous power for substantive justice (not just procedural)
        

Election Jurisdiction — Art.71

SC has exclusive jurisdiction to adjudicate disputes arising from the election of the President or Vice-President. Petition can be filed either by a candidate, or by not less than 20 members of the electoral college (Presidential election), or not less than 10 members (VP election). Such a petition is heard by a bench of at least 5 judges. Exclusive only to Presidential/VP elections.

03 · Writ Jurisdiction

Five Writs — Art.32 (SC) & Art.226 (HC)

    Art.32 — Right to Constitutional Remedies; SC issues writs to enforce Fundamental Rights. Dr. Ambedkar: “Art.32 is like a golden bridge — custodian of the Constitution.” Writ jurisdiction not limited to just 5 writs. Art.32(3): Parliament by law can confer writ jurisdiction to other courts. No such power enacted yet. Art.32 available only to SC; Art.226 is available to HC (broader scope — not just FRs).
  

Habeas Corpus

“You shall have the body”

Challenges illegal detention. Issued to bring a person before court. During Emergency — famously ADM Jabalpur v Shivkant Shukla (4:1) SC ruled President u/a 359 can suspend it. Justice H.R. Khanna — lone dissenter.

Mandamus

“We command”

Commands a public authority to perform its legal duty. SC can also prevent something from happening (negative mandamus). e.g., Dharangadhara v Vasudeva 1995 — engineer not promoted; SC ordered; VS Secretary imprisoned for a month.

Prohibition

“To forbid”

Issued to a lower court or tribunal to stop proceedings that are outside its jurisdiction. Preventive in nature — issued before the lower court acts beyond its powers.

Certiorari

“To be certified”

Issued to a lower court to transfer case to higher court or to quash an order. Both preventive and curative. HC issues this against subordinate courts; SC against HCs. Available in suit jurisdiction also.

Quo Warranto

“By what authority”

Challenges the legality of a person holding a public office. Inquires by what authority a person holds an office. Only writ that can be sought by a private individual even if not personally affected.

⚡ Current Affairs Value Addition

99th CAA, 2014 (NJAC) — struck down under writ jurisdiction itself (Art.32): SC Advocates on Record Association v UOI, 2015
Delhi HC summons Manmohan Singh (ref. from notes) via Special Leave Petition — challenged in HC, then challenged summons in SC
In Puttaswamy v UOI (2017) — writ petition used to establish Right to Privacy as FR
CAA-2019 & NJAC — struck down u/a 32 as violating basic structure

04 · Complete Justice

Art.142 — Power to Do Complete Justice

What is Art.142?

Under Art.142, SC has the power to pass any order to do complete justice to parties in a case pending before it. As the Constitution does not define what is “complete justice,” what amounts to complete justice in a given case is the determination of the Supreme Court.

Can be invoked only in relation to a case pending before the court
Used to grant relief to a party in exception to the general law
Used to fill a legal vacuum which would have otherwise resulted in miscarriage of justice due to silence of law
SC not expected to go against statutory laws u/a 142
As powers are virtually limitless, exercise expected to be judicious

Key Judgments & Invocations

Vishakha v State of Rajasthan, 1997

SC issued Vishakha Guidelines — mandatory to make internal complaints committee; guidelines made legislation; remained in force till 2012 when Prevention of Sexual Harassment at Workplace Act enacted. PIL

Babri Masjid / Ram Janmabhoomi

District Court of Faizabad → first appeal HC → first appeal SC → SC gave public land to one party to compensate from another citizen. 1980s onwards

Subhash Kashinath Mahajan Case, 2018

SC issued guidelines/procedure changing SC/ST Atrocities Act, 1989. Remained in force till 2019. Later recalled when Parliament law enacted (anticipatory bail provision removed).

        Art.144 — All civil and judicial authorities in territory of India shall act in aid of Supreme Court (→ Supremacy of SC). Dharangadhara v Vasudeva, 1995
      

Art.141 — Law declared by SC binding on all courts

The law declared by SC shall be binding on all courts in the territory of India → Doctrine of Precedence. Legal principles declared in SC judgments = binding legal principles.

In 1980 onwards — SC became active on judicial activism front, drawing power coming from Art.142.

05 · Basic Structure Doctrine

Basic Structure of the Constitution

What is Basic Structure?

A technique to test constitutionality of a government amendment to the Constitution. Contents of this can be further added by SC. Socialism added by SR Bommai, 1994

Govt Order?

Basic structure NOT used
Constitution is used as litmus test

Govt Act?

Basic structure NOT used
Constitution used as test

Parliament Amendment?

Basic structure IS used
Only in deciding constitutional amendments

SC Power

SC cannot amend Constitution itself
Can reverse amendments
May direct Parliament to pass amendment/law

Key Points on Basic Structure

SC cannot pick any article and amend it itself — but Parliament can amend
If Parliament has amended the Constitution and that led to disharmony between organs of state government → SC has power to reverse that amendment
SC said: Parliament doesn’t have suo motu powers; Parliament can amend NOT Act; Law says Parliament doesn’t have suo-motu powers — way of circumventing SC power
SC may direct Parliament to pass amendment/law

1973 — KESAVANANDA BHARATI

Basic Structure Doctrine propounded. 13-judge bench. 3 seniormost judges supported basic structure doctrine. PM Indira Gandhi appointed A.N. Ray (against basic structure) as CJI (1973-76). 1st Law Commission report recalled.

1976 — ADM JABALPUR

Next seniormost judge: Justice H.R. Khanna — only dissenting judge on habeas corpus. Emergency period. Justice M.N. Beg appointed CJI instead.

1980s — HC JUDGES TRANSFERRED

HC judges transferred arbitrarily during Emergency fallout.

March 1990 — JUDICIARY CAME BACK

Transferred Chief Justices; cases filed against it.

06 · Contempt of Court

Contempt of Court

Constitutional Provisions

129 — SC shall be a court of record & shall have powers of such a court, including powers to punish for contempt of itself
215 — Every HC shall be a court of record, and shall have the powers of such a court, including power to punish for contempt of itself
142(2) — Parliament is vested with powers to make laws on Contempt of Court
In 1991, SC ruled that it has power to punish for contempt not only of itself, but also of HCs, subordinate courts, and tribunals in entire country

        Punishment: Simple imprisonment up to 6 months, OR fine up to ₹2000, OR both.

        In Oct 2021, SC ruled Parliament can “regulate” contempt powers but NOT “restrict.”

Types of Contempt — Contempt of Courts Act, 1971

Passed in pursuance of HN Sanyal Committee Report. Defines civil & criminal contempt.

CIVIL CONTEMPT

Wilful disobedience to any judgement, order, or writ, or other process of court
Wilful breach of an undertaking given to a court

CRIMINAL CONTEMPT

Publication of any matter, or doing an act which: Scandalises or lowers authority of court
Prejudices or interferes with due course of judicial proceeding
Interferes or obstructs administration of justice

⚡ Current Affairs

While contempt jurisdiction w.r.t. subordinate judiciary is vested with concerned HC, the HC and SC have the power to punish individuals who violate their orders. Act specifies HC have power to punish for contempt of courts subordinate to them.

07 · Appointment of Judges

Appointment of Judges of the SC

Art.124(1) — Composition of SC

Originally: CJI + 7 judges (Constituent Assembly)

1958 Act → CJI + 10

2008 Amendment → CJI + 30 (31 total)

SC (No. of Judges) Amendment Act, 2019 → CJI + 33 (34 total)

All judges of SC are equal with judicial power. CJI has administrative powers — “first among equals” on account of administrative power. CJI → Master of Roster (schedule of jurisdictional subjects allocated among various judges)

Art.124(3) — Eligibility (Who can be SC Judge?)

3 categories:

1. Judge — Person who has been judge of HC in one or more HCs for 5+ years

2. Advocate — Person who has been practising as an advocate in one or more HCs for 10+ years

3. Jurist — A person who in opinion of President is a distinguished jurist can be appointed as judge of SC (In practice: HC lawyers not appointed; from 2016-17, roughly 10% of SC lawyers being appointed)

Constitution doesn’t say anything about SC lawyers. Jurist provision allows appointment from law profession. “Barrister” → term in England for a lawyer in English law practising. “Bar” = Fraternity of lawyers; “Bench” = Judges. Advocate vs Lawyer → person with degree in law.

Art.124(2) — Suitability Process

Every judge of SC shall be appointed by President, by warrant under his hand and seal after consulting as many SC and HC judges as he may think fit. While appointing a judge other than Chief Justice, Prez shall consult CJI.

        Puisne judge = a judge other than CJ of a constitutional court (if 2-judge bench: Presiding judge + Puisne judge)
      

ART.217(1) — APPOINTMENT OF HC JUDGES

Every judge of a HC is appointed by President, by warrant under his hand and seal after consulting CJI, and Governor of the state. While appointing a puisne judge, President shall also consult the HC Chief Justice.

ART.222(1) — TRANSFER OF HC JUDGES

Prez has the power to transfer HC judges in consultation with CJI (also includes CJ of HC). Transfer: → almost akin to opinion of CJI (healthy convention).

08 · Collegium System

The Three Judges Cases & Collegium

FIRST JUDGES CASE — S.P. Gupta v Union of India, 1981

7-judge constitutional bench. Q1: Whether opinion of CJI in course of consultation by President is binding? Ruled: Shall not be binding. Constitution requires Prez to consult only (doesn’t mean concurrence). However, consultation shall be full and effective. President required to furnish all relevant materials regarding candidate to enable CJI to form an informed opinion. But that opinion is not binding on President. Q2: Whether HC judge can be transferred without his consent? Ruled: Yes, HC judge can be transferred against his will.

SECOND JUDGES CASE — SC Advocates-on-Record Association v UOI, 1993

9-judge bench. Modified previous decision. Held: Opinion of CJI shall be finally binding on President. However, the individual opinion of CJI shall not be his individual opinion; instead it is the opinion of judiciary formulated by CJI in consultation with 2 seniormost judges of SC — constituting the Collegium. President who shall consider the recommendation back has power to send it back to Chief Justice for reconsideration. Chief Justice shall consult judges of collegium afresh; if CJI reiterates his opinion thereafter, it shall be binding on President. “Law of primacy of judiciary” in appointment & transfer of judges declared.

1990 PRESIDENTIAL REFERENCE

Advisory jurisdiction. 5-judge bench. SC said “our opinion won’t bind you.” Central govt filed an affidavit, govt pledged. 9-judge bench reconstituted.

THIRD JUDGES CASE — Special Reference No.1 of 1998

SC ruled: CJI (SC judges: A, B, C, D → 4 seniormost judges) for appointing HC judges; if next CJ not in collegium → also included. If 2 judges oppose → can’t go through; if CJ opposes → can’t go through. Relative consensus within collegium needed. While transferring HC judges, CJI shall consult CJ of HCs, 2+ seniormost SC judges concerned with HCs of posting. All communications in writing.

Criticism of Collegium System

Yes, executive is answerable to Parliament — but doesn’t work on appointment of judges on account of constitutional prohibition u/a 121
No discussion of conduct of a judge on floor of Parliament unless motion of removal passed
CJ happens to be one person + Prez advised by COM (Council of Ministers) → plurality
Let CJ consult 2 seniormost judges to handle “single judge factor”

CJI vetoes, on account of personal views — conferring judicial offices on basis of kinship & friendship commitments, relatives appointed, best & most suitable losing opportunity
Collegium is an in-house mechanism in which they decide in collective solitude — Minutes book to record the proceedings
SC interprets RTI → transparency & accountability?? — only given to GoI, not common man
Decisions maybe recorded but minute reasons may not be recorded; 2019 — CJ public office under RTI

09 · NJAC

National Judicial Appointments Commission

99th Constitutional Amendment Act, 2014

‘Consultation’ replaced by ‘on recommendation of NJAC’ in Art.124(2), 217(1), 222(1). New Art.124A added.

NJAC — 6 MEMBERS

(a) CJI — Chairperson ex-officio

(b) 2 seniormost SC Judges — Members ex-officio

(d) 2 Eminent Persons — nominated by committee consisting of: PM + Leader of Opposition in LS + CJI. Non-renewable term of 3 years. else: leader of largest single party in LS.

Art.124B — Functions of NJAC

Recommending names from CJ, SC & HC judges
Transfer of HC judges

Art.124C — Parliament’s Power

Parliament given the power to enact law regulating the procedure of NJAC. NJAC Act, 2019 passed under 124C.

99th CAA Challenged — SC Advocates on Record Assn v UOI, 2015

5-judge constitutional bench
Allegation: violated basic structure
SC ruled: Parliament cannot amend Constitution in such a way which violates judicial independence
Held by 4:1 — 99th CAA null and void

4 reasons to strike down 124A:

Out of 6, only 3 members of judiciary (law of primacy violated)
(b) Union Law Minister — UOI = largest litigant. How can litigant be allowed to sit on panel to appoint judges?
(d) 2 Eminent Persons → vague; people with no expertise of judicial affairs; “Eminent” = vapour

Criticism of Judgement & Way-Out

Do 1, 2, 3 not stand for judicial independence? Every member of NJAC stands for judicial independence
Union Law Minister: speaks on behalf of people. Nowhere in world is executive denied role in appointment of judges
2 eminent persons — will you can interpret & make it clear

        Way-out Options:

        1. Either reforming the collegium system by making it transparent

        2. Or a better path: Amend Constitution again, in line with found judge case; NJAC with 5 members (3 judges + 2 eminent) would ensure transparency; if anything unfair → they can shout it out

        Best way to improve = include outsiders in decision-making process.

        Law Minister — only 1 among 6 (Representative of President). In private sector it’s okay. In NJAC, he is denied.

10 · Removal of Judges

Removal of Supreme Court & HC Judges

Constitutional Provisions

124(4) — Removal of SC judge
217(1b) — Removal of HC judge in the same manner as SC judge
A judge of SC shall not be removed except by an order of President, only on ground proved misbehaviour or incapacity
After passing a motion in each house, by a special majority followed by an address to President, on behalf of houses in the same session

        Provision is more about morale than removal of judges.

        ★ Till date, no judge removed from office.

        Globally → Impeachment for judges; India → technically “removal”; popular media uses the term “impeachment”

Justice Ramaswamy Case, 1993

Justice Ramaswamy sought to be removed. Guilt proved. Defended by Kapil Sibal, as his lawyer. (Motion failed in vote)

Procedure — Judges (Inquiry) Act, 1968

Art.124(5) — Parliament may enact law providing for investigation, proof and address.

A Notice for introduction of motion seeking removal of judges can be introduced in Lok Sabha with support of 100 members
Rajya Sabha — with support of 50 members
It is not necessary for President to accept such motion — has discretionary power to not allow
If allowed → Notice shall be kept pending; committee constituted: SC judge + HC CJ + distinguished jurists → to frame the charges
One motion introduced in one house; cannot be introduced in 2nd house
If both houses consider same day → jointly constitute a panel of enquiry

        2018 — Opposition sought to remove CJI Dipak Misra. Chairman RS refused to allow introduction of Notice. ‘Misbehaviour’ → not defined in the Act. Only gross misbehaviour acted upon.
      

        In-house procedure, devised in 1999 — if CJ of HC receives complaint against fellow judge → primary enquiry; will send to CJI → CJI constitutes committee (2 HC CJs + 1 HC judge) to enquire. If serious, judge asked to step down; if doesn’t, write to PM to initiate proceedings.
      

Justice Soumitra Sen, 2011

JS Dinakaran — CJ of Sikkim HC; resigned. Motion in Parliament on corruption. JS Reaguely → Judge of MP HC; sexual harassment allegations. 2010: UPA govt introduced important legislation — Judicial Standards & Accountability Bill, 2010 — drawbacks of 1968 Act sought to be addressed. Bill couldn’t be passed → it got lapsed.

National Judicial Oversight Committee

Former CJ of India — nominated by CJI
SC judge — nominated by CJI
HC Chief Justice
An eminent citizen/advocate, as nominated by Prez
Attorney General

If prove → judge would be asked to resign. If doesn’t → address to PM to initiate proceeding in Parliament.

11 · High Courts

High Courts — Part VI, Chapter V

Structure & Composition

U/a 214, there shall be a HC for each state. This is subject to Art.231, which states that Parliament by law can establish a common HC for 2 or more states, or for 2 or more states and a Union Territory. Examples: Bombay, Guwahati, Punjab & Haryana HCs have 2 or more states under their jurisdiction. Calcutta, Kerala, Madras & J&K are HCs which have Union Territories attached to their jurisdiction.

25 HCs in country

Each HC governed by its own rules

CJ of HC appointed by Prez after consulting CJI & Governor of state

Jurisdiction of HC

① Original Jurisdiction

Writ jurisdiction u/a 226
Election petition u/s 80 of RPA,1951
Original suit (civil side: indentured disputes before HC; monetary value higher → Calcutta HC 1 lakh pecuniary value)
Contempt jurisdiction
Admiralty jurisdiction → jurisdiction to settle maritime disputes
Letters Patent jurisdiction

② Transfer Jurisdiction

U/a 228, if found that substantial question of law as to interpretation of Constitution is pending in subordinate court, HC shall transfer it to itself
CrPC — HC also has power to transfer subordinate to subordinate; subordinate to itself

③ Appellate Jurisdiction

Civil court decided case → appeal to District Court → Second Appeal to HC (only substantial questions of law)
Criminal: Magistrate → appeal to Sessions (District) → HC
Grave offences (murder, rape) → trial in Sessions; criminal appeal with HC
Revisional Appellate ⟵ Writ Criminal Jurisdiction

④ Supervisory Jurisdiction

Power to HC to supervise subordinate judiciary
Judicial side: State Administrative Tribunal decisions can be challenged before HC
Administrative side: every district has HC judge assigned with supervisory role on jurisdiction side

Benches of HC

Permanent Bench — created by Prez after consulting Governor & CJ of HC; utmost weightage to opinion of CJ HC
Circuit Bench — for Territories that are far away; for judges once or twice an year; CJ of HC with prior permission of Governor can decide for temporary sitting of HC to fix no. of judges in state law from needed (Calcutta HC: Port Blair, Jalpaiguri)

⚡ Current Affairs

British judges recruitment under aegis of HC (as of now)
Benches at Chennai, Bombay, Calcutta on basis of administrative decisions only
34 judges arbitrarily in Delhi to prepare rosters; if allot 8 judges in one zone → all cases of that region heard by them; may affect strength & correctness of SC judgments; currently most suitable roster

12 · Judicial Reforms

Way Ahead for Judicial Reforms

Crisis of Pendency

4.5 crore cases pending (as of Sept 2021)

87.6% pending before subordinate judiciary

56 lakh cases before HCs

70,500 cases pending in SC (as on 1.1.2022)

        Judge:Population ratio — 21 judges per million population in 2022 (earlier it was 15). US: 107/million; Canada: 75/million; UK: 51/million. In 2002, All India Judges Association v UOI → SC passed direction to Centre to no. of judges population ratio to 50 per million (within 5 years).
      

In last 3 Five Year Plans, share of judiciary was 0.07% (total allocation)
Cannot blame govt also for the same — food, literacy
Subordinate judiciary: Sanctioned strength: 24,000; Working strength: 19,000; 4,500 vacancies
Less than 5 hours by judicial officers in courtroom

Proposed Solutions & ADR

National Litigation Policy

To reduce role of govt before the courts. 2010 policy — but couldn’t be transformed to outcome. No strategies were achieved. Petty litigation for revenge taking is not necessary while govt also files such appeals.

All India Judicial Service

Would create new breed of officers — additional judges. Law would become an academic choice. Can be created u/a 312. Every judiciary cannot say No to such a mandate. Centralised recruitment + localised allocation (because regional language needed to administer justice effectively).

LOK ADALAT

Statutory body under Legal Services Authorities Act, 1987. For alternate dispute resolution. Can take up criminal, civil & matters falling within jurisdiction of revenue courts & tribunals. Award of Lok Adalat is binding on parties. If not able to arrive at settlement → case referred to HC / returned to the court from which reference was received. Pre-litigation dispute can also be referred to Lok Adalat for settlement.

National Court of Appeal — Prospects

SC removed appellate jurisdiction → remains as constitutional adjudicator. France & Germany → Court of Cassation (court at national level which you can approach; constitutional courts on adjudications → not appeals, unless constitutional appeal). Like a court of cassation.

Bihar Legal Support Society v CJI, 1986

Constitutional bench of SC requested govt to look at feasibility of creating NCA & CEI (Constitutional Court of India)

L. Chandra Kumar v UOI, 1997

Another constitutional bench SC declared Art.136 as part of basic structure → means cannot dilute 136. Without diluting 136, cannot create NCA. Finally, 86th CAA, Art.21A, R to primary education guaranteed.

⚡ Benefits & Opposition

People will have better access to justice; Maximum cases from SC: nearly Delhi (NE gets least)
In regional, people can access justice less expensively
70% of appeals coming to SC u/a 136 — vast majority of cases dismissed at threshold itself
If National Court of Appeal → litigant may get more patience, quality of justice better
Dedicated Constitutional court → better evolution of constitutional law

Opposition: Central Govt didn’t appreciate
Felt that may reduce traffic in SC, but pos appeal is burden in judiciary
Every litigant would also try luck in National Court of Appeal if in neighbourhood

          Orissa HC (June 2022) — published annual report taking stock of its performance. Reasons for delays: (1) tendency of HCs to ‘stay’ proceedings; (2) uneven distribution of cases in trial courts; (3) non-availability of witnesses. As a way forward, Parliament can enact a law to mandate HCs to publish annual reports.
        

Other Reforms & Issues

Retirement age — SC judges retire at 65; 65 was kept in 1952 when life expectancy was very low; UK 75; Canada 75; Ireland 70; USA remain in office till death. Judge at 65, digested. One hand to initiate, to retain the experienced hands.
Vacations — Constitutional courts & civil courts: SC on average 45 days summer vacation, 20 days winter vacation, 2 days a week vacation. Dr. Kalam proposed mission mode for judiciary — said reduce vacations. Was a colonial idea. Lawyers shall not resort to strike (Harish Uppal v UOI, 2003)

Home grown CJ — 18th Law Commission recommended; CJ always comes from outside state
Judiciary: Capital of Judicind & Lawyers is intellectual capital. Why can’t it be made in productive level? Environment of judicial courtroom is poor.
Science: 8 if it takes Central Forensic Labs 14 years to issue DNA test — public prosecutor + police all responsible for judiciary delays
Corporate cases taken away from courts. App courts including HC & SC — fee charged is only ₹1500. In trial courts — 7% of litigation value is assessed as court charges fee. Corporate loans → per parties in litigation → should be charged high

Indian Judiciary — Key Characteristics: Structure, Powers & Independence Explained