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BOOK: A MODEL OF NEW CONSTITUTION FOR INDIA
JUDICIARY AND ITS ANCILLARIES
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PART-X

JUDICIARY AND ITS ANCILLARIES

Supreme Judiciary

(Article 161 to 224 should be in place of Article 124 to 151 and 214 to 237 of the existing Constitution of India)

163.                  Establishment and constitution of National Judicial Commission and State Judicial Commissions.

 

(1)     There shall be a National Judicial Commission consisting of all retired Chief Justices of India and other retired Judges of Supreme Court, barring those who are holding any other office of any commission or those whose health does not permits, or those named for any doubt full conduct. The Chairman of the Commission shall be Senior Most Member of the commission on the basis of service records.

(2)     Every member of the National Judicial Commission, time to time, shall be allotted their respective serial numbers on the basis of their seniority, to use at the time of their appointment as a member of a particular Bench.

(3)     No Bench of the Judicial Commission shall be constituted less than seven or more than eleven members.

(4)     Every Bench shall be constituted through a predetermined mechanism, under which no member shall be appointed in two Benches, until all of its members shall be appointed in one such Bench. This shall be ensured under such mechanism that after every three months every member shall rotate from one Bench to another Bench.  Such mechanism shall be evolved by a Bench of National Judicial Commission consisting of all members and shall be transparent to public. A supervising committee consisting of nine seniors most members of the National Judicial Commission shall supervise the compliance of such mechanism.

(5)     Entire proceeding of every Bench of the National Judicial Commission shall be transparent to public and shall be recorded.

(6)     A Bench of National Judicial Commission, consisting of all of its members, shall also make similar provisions and procedures for the State Judicial Commissions.

 

164.     Supreme Court

(1)     There shall be a Supreme Court of Bharat consisting of a Chief Justice of Bharat and other number of Judges, as may be recommended time to time, by the National Judicial Commission and sanctioned by the President in consultation with the Government of Bharat.

(2)     Every Judge of the Supreme Court shall be appointed, minimum for seven years, by the President by warrant under his hand and seal on the basis of the recommendations by the National Judicial Commission, after satisfaction on merit.

(3)     The age of a person, to be appointed as a judge of Supreme Court, shall not be more than 58 years, at the time of appointment and shall hold such office till attain the age of 65 years.

(4)     A person shall not be qualified for appointment as a Judge of Supreme Court, unless he is Origin born Bharatiya, and has been for at least seven years a judge of any High Court or is an regular practitioner as Senior Advocate of Supreme Court for more than 10 years.

(5)     The Chief Justice of Bharat Should be appointed, for at least three years and not more than five years, by the President on the recommendations of the full Bench of National Judicial Commission, amongst Judges of the Supreme Court, on the basis of names forwarded by Central Government after considering the names forwarded by the Full Bench (barring the judges named for the considerations) of the Supreme Court.

(6)     A Judge of the Supreme Court, including Chief Justice of Bharat, can be removed by the Full Bench of National Judicial Commission, on the basis of enquiry and investigation made by a judicial committee constituted for the purpose, consisting of one Supreme Court Judge and two Chief Justices of different High Courts.

(7)     A Supreme Court Judge shall not contest any election of any office referred under this Constitution and shall not plead or act in any Court or accept any other job, except as a Chairman or member of any Commission constituted in accordance with the provisions provided under this Constitution, at least for five years from his retirement or resignation or removal.

(8)      Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation in the following manner:-

" I,   A.B., having been appointed Chief Justice  (or a Judge ) of the Supreme Court swear in the name of God (or solemnly affirm) that I will bear true faith and allegiance to the Constitution of Bharat as by law established, that I will uphold the sovereignty and integrity of Bharat that I will duly and faithfully and to the best of my knowledge and judgment guided by the Constitution, perform the duties of my office without fear or favour (even in a matter pertained to a brethren Judge), affection or illwill and that I will uphold the Constitution and the laws."

(9)     Violation of the Oath taken by a Supreme Court Judge shall evident his incompetence to continue as a Supreme Court Judge.

 

165.    Salaries. etc., of Judges.

(1)     The justified salaries, privileges allowances and pension for the the Members of National Judicial Commission, Chief Justice and other Judges of Supreme Court and High Courts, Law Commission of Bharat, time to time, shall be determined on the basis of a method to be evolved by a committee, consisting of one Supreme Court Judge, one Chief Justice of a High Court, one representative from Central Government, one representative of the second largest national political party, and one representative from the Bar.

(2)     The proceeding of such committee shall be transparent to public and every citizen shall right to represent before it.

(3)     Changing in scale of salaries privileges allowances and pension cannot be revised frequently, at least before two years from earlier change.

(4)     Method adopted under clause (1) shall not be reviewed at least by a gape of twenty years.

 

166.    Appointment of acting Chief Justice.

(1)When the office of the Chief Justice of Supreme Court vacant temporarily or otherwise, the senior most judge of Supreme Court shall be performed the duties of his office.

(2) Such senior most judge of Supreme Court, immediately after such vacant of such office, shall subscribe an oath or affirmation in accordance with the clause (8) of Article 162.

 

167.    Supreme Court to be a Court of record.

(1)                 The Supreme Court shall be a court of record and shall have powers of such a court including the power to punish for contempt caused by non-compliance of any order or by making false allegations against any judge or judiciary.

(2)                 Every person accused for the contempt of the Court shall have right to defend on the basis of truth.

(3)                 No person shall be punished for contempt charges, until his statement is proved beyond the truth.

168.    Seat of Supreme Court.

The Supreme Court shall sit in the Capital of the Country only.

 

169.    Original jurisdiction of the Supreme Court.

(1) Subject to the provisions of this Constitution, the Supreme Court shall to the exclusion of any other court, have original jurisdiction in any dispute involves any question of law or fact, on which existence or extent of a legal right depends -

            (a) between the Government of Bharat and one or more States; or

            (b) between the Government of Bharat and any State or State on one side and one or more States on the other; or

(c)  between two or more States.

(2)     Supreme Court shall admit a complaint after preliminary satisfaction, against the criminal misconduct by any person holds or holding the office of President, Vice-President, Prime Minister, any member of council of ministers in the Central Government, Chief Ministers of any State, and person holds or holding post with the or equal to rank of Cabinet Secretary; and Secretaries of the Central Government and Chief Secretary of any State, and after admit, it should be forwarded to a appropriate subordinate court for further criminal proceedings, determination and judgment.

(3)     Supreme Court shall adjudicate an application against contempt of the Supreme Court, by an individual or even by a Judge of the Supreme Court, just based on the principle that justice must be above all and any person whoever he may be law is still above him.

 

170.  Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases.

An appeal shall lie to the Supreme Court from any Judgment, decree or final order of a High Court in the territory of Bharat, whether in a civil, criminal or other proceeding, that the case involved a substantial question of law as to the interpretation of this Constitution.

 

171.      Appellate jurisdiction of Supreme Court in appeals from High Courts in regards to civil matters.

An appeal shall lie to the Supreme Court from any Judgment, decree or final order in a civil proceeding of a High Court in the territory of Bharat, if:

(a)     the case involves a substantial question of law of general importance;

(b)     the said question needs to be decided by the Supreme Court. 

 

172.      Appellate jurisdiction of Supreme Court in regards to criminal matters.

An appeal shall lie to the Supreme Court from any Judgment, final order or sentence not below three years in a criminal proceeding of a High Court in the territory of Bharat if the High Court:

(a)     on appeal, has reversed an order of acquittal of an accused person and sentenced him to death; or

(b)     has withdrawn for trial before itself any case from court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or

(c)     on preliminary hearing Supreme Court satisfied that the case is a fit one for appeal to the Supreme Court.

 

173.    Jurisdiction of Supreme Court in respect of the powers of Supreme Court before commencement of this Constitution.

Supreme Court shall have jurisdiction and powers with respect to any matter which does covered by appellate jurisdictions of Supreme Court with regards to Civil or Criminal matters, but were exercisable by the Supreme Court immediately before the commencement of this under any existing law.

 

174.     Special leave to appeal by the Supreme Court.

(1)          Notwithstanding anything in this chapter, the seven judge Bench of the Supreme Court shall frame appropriate rules to use its discretion and according to such rules Supreme Court shall grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of Bharat.

(2)          Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

 

175.     Review of Judgments or orders by the Supreme Court.

(1)                 Supreme Court, consisting of Nine Judge Bench, shall frame appropriate rules and according to such rules Supreme Court have powers to review any judgment or order made by it.

(2)                 Review should not be made by a Bench consisting of any Judge, who was member of earlier Bench, which passed such order or given such judgment.

 

176.     Enlargement of the jurisdiction of the Supreme Court.

(1)                The Supreme Court shall have such further jurisdiction and powers with respect to any matters relates to disputes between the Central Government and one or more States, or between two or more States.

(2)                The Supreme Court shall have such further jurisdiction and powers with respect to any matter as the Central Government and the Government of any State may by special agreement confer for it.

 

177.     Conferment on the Supreme Court of powers to issue certain writs.

 Parliament may by law confer on the Supreme Court power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for any purposes other than those mentioned in clause (4) of article 21.

 

178.     Transfer of certain cases.

(1) Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts or necessary in the interest of justice or Supreme Court is satisfied on its own motion  or on an application, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts or any other court or Courts and dispose of all the cases itself, or transfer to some other High Court or Courts.  

 

179.     Ancillary powers of Supreme Court.

Parliament may by law make provision for conferring upon the Supreme Court such supplementary powers not inconsistent with any of the provisions of this Constitution as may appear to be necessary or desirable for the purpose of enabling the Court more effectively to exercise the jurisdiction conferred upon it by or under this Constitution.

 

180.     Law declared by Supreme Court to be binding on all Courts.

(1)                    Law declared by the Supreme Court shall be binding on all courts within the territory of Bharat.

(2)                    To make effective the provision under clause (1), Supreme Court shall pass its each and every Judgment, orders, directions in such a way which shall help in improvement of jurisprudence (justice system) at the sub-ordinate courts.

 

181.        Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.

(1)                   To ensure the complete justice necessary orders or decree shall be passed by the Supreme Court in any cause of the matter before it, in exercise of its jurisdiction. Such order or decree shall be enforceable throughout the territory of Bharat.

(2)                   The Supreme Court shall have all and every power to make any order for securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.  

 

182.        Power of the President to consult Supreme Court.

On any question of public importance and not covered under the jurisdiction of the Supreme Court, and it is expedient to the President to obtain the opinion of Supreme Court upon it, he may refer the question to the Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.

 

183.     Civil and Judicial authorities to act in aid of the Supreme Court.

All authorities, civil and judicial, in the territory of Bharat shall act in aid of the Supreme Court.

 

184.     Rules of Courts, etc.

(1)                 Supreme Court shall frame and notify the Rules for regulating the practice procedures and proceedings of the Court, and for appointment of the Officers and servants of the Court, as far as practicable, with or without any changes, immediately after draft for such rules prepared and recommended by the Law Commission of Bharat.

(2)                 Such Rules shall be framed and notified by a Bench comprising of seven senior most Judges of the Supreme Court.

(3)                 Any Rule framed inconsistent with the Constitution, shall be void.

 

185.     Officers and servants and the expenses of the Supreme Court.

(1)                 Supreme Court shall made appointments of the officers and servants of the Court, in accordance with the rules framed in this respect.

(2)                 Conditions of service of the officers and servants of the Supreme Court shall be the same as of the similar grade officers and servants of the Central Government.

(3)                 The administrative expenses of the Supreme Court, including salaries, allowances, privileges and rights of the Judges, officers and servants shall be charged upon the Consolidated Fund of India, without any approval from the President or the Government.

(4)                 The administrative expenses of the Supreme Court, including salaries, allowances, privileges and rights of the Judges, officers and servants shall be subject to audit, by the Comptroller and Auditor-General of India and his report shall be transparent to public.  

 

186.    Interpretation.

Interpretation of this Constitution, with reference to any substantial question of law, shall be construed in conformity with the preamble of the Constitution and fundamental rights and duties of the Citizen.

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