UNIT-III

Speaker; Parliament and State Legislature- Power and Functions,

Privileges , Anti Defection Law. ; Judiciary- Union and States,
Appointment, Powers, Jurisdiction and Transfer of Judges.
Union Judiciary
Union Judiciary

• The Indian constitution provides for a provision of Supreme Court under Part V (The Union) and Chapter 6 (The Union
Judiciary).
• Articles 124 to 147 in Part V of the Constitution deal with the organization, independence, jurisdiction, powers and
procedures of the Supreme Court.
• The Indian constitution under Article 124(1) states that there shall be a Supreme Court of India constituting of a Chief
Justice of India (CJI) and, until Parliament by law prescribes a larger number, of not more than seven (30 as per Act
2008) other Judges. 33 as per 2019
• The Jurisdiction of the Supreme Court of India can broadly be categorized into original jurisdiction, appellate
jurisdiction and advisory jurisdiction. However, there are other multiple powers of the Supreme Court.
• Seat of the supreme court The Constitution declares Delhi as the seat of the Supreme Court. It also authorizes the CJI
to appoint other place or places as seat of the Supreme Court.
• Appointment: The judges of the Supreme Court are appointed by the President. The CJI is appointed by the President after
consultation with such judges of the Supreme Court and high courts as he deems necessary.
• The other judges are appointed by the President after consultation with the CJI and such other judges of the Supreme
Court and the high courts as he deems necessary.
• The consultation with the chief justice is obligatory in the case of appointment of a judge other than Chief justice.
National Judicial Appointments Commission
• This Act provides for the insertion of Articles 124A, 124B and 124C to the Constitution of India, 1950
Article 124A of the COI: This Article deals with the composition of the NJAC. It states that -
• There shall be a National Judicial Appointments Commission consisting of the following, namely: —
• The Chief Justice of India as the ex officio chairperson
• Two senior-most Supreme Court judges as the ex officio chairperson
• The Union Minister of Law and Justice as the ex officio chairperson
• Two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and
the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of
single largest Opposition Party in the House of the People as members.
• Provided that one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes,
the Scheduled Tribes, Other Backward Classes, Minorities or Women.
• Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for re-
nomination.
• (2) No act or proceedings of the National Judicial Appointments Commission shall be questioned or be invalidated merely
on the ground of the existence of any vacancy or defect in the constitution of the Commission.
• Article 124B of the COI: This Article deals with the functions of NJAC.
• It states that it shall be the duty of the National Judicial Appointments Commission to—
• Recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High
Courts and other Judges of High Courts.
• Recommend transfer of Chief Justices and other Judges of High Courts from one High Court to any other High
Court.
• To ensure that the person recommended is of ability and integrity.
Article 124C of the COI: This Article deals with the power of parliament to make law.
• It states that the parliament may, by law, regulate the procedure for the appointment of Chief Justice of India and
other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the
Commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of
persons for appointment and such other matters as may be considered necessary by it.

• In 2015, the Supreme Court in the case of Supreme Court Advocates o-Record Association and
Anr. v. Union of India declared both the 99th Constitutional Amendment Act 2014 and the NJAC
Act, 2014 as unconstitutional and null and void.
Appointment and qualification of judges

Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation
with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the
purpose and shall hold office until he attains the age of sixty-five years:
(3) qualifications of persons to appointed as Judge of the Supreme Court
he is a citizen of India, has been for at least five years a Judge of a High Court or of two or more such Courts in succession,
has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or is, in the opinion
of the President, a distinguished jurist.
(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an
address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not
less than two-thirds of the members of that House present and voting has been presented to the President in the same session
for such removal on the ground of proved misbehaviour or incapacity.
(5) a judge of supreme court shall be removed form his office on the ground of proved misbehaviour or incapacity.
(6) a Judge of the Supreme Court shall, take oath from the President of Indian.
(7) a Judge of the Supreme Court shall not plead or act in any court or before any authority.
125. Salaries, etc., of Judges- salary and other allowances of judges of supreme court as may be determined by
parliament by law.
126. Appointment of acting Chief Justice.—in case office of CJ vacant, president appoint one of judge of S.C. as C.J.I.
127. Appointment of ad hoc Judges- where there should not be a quorum for conducting proceedings before the
supreme court at that time C.J.I. with prior consent from the president of India and chief justice of high court appoint
judge of high court as judge of S.C.
128. Attendance of retired Judges at sittings of the Supreme Court.— C.J.I. may request any person who has
retained or some other judges sit or act as judge of S.C. with prior consent from president of India.
129. Supreme Court to be a court of record.—
130. Seat of Supreme Court.—The Supreme Court shall sit in Delhi
131. Original jurisdiction of the Supreme Court.- the Supreme Court shall, have original jurisdiction in any dispute—
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one side and one or more other States on the other; or
(c) between two or more States,
132. Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases.—(1) An appeal shall
lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a
civil, criminal or other proceeding, if the High Court certifies under article 134A that the case involves a substantial
question of law as to the interpretation of this Constitution.
133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters.—(1) 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
India if the High Court certifies under article 134A—
(a) that the case involves a substantial question of law of general importance; and
(b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.
134. Appellate jurisdiction of Supreme Court in regard to criminal matters- with out certificate in case of where the
punishment is capital/death punishment. In other cases with certificate of high court.
134A. Certificate for appeal to the Supreme Court.—either on the application or on its own motion high court should issue
certificate.
135. Jurisdiction and powers of the Federal Court under existing law to be exercisable by the Supreme Court.—
136. Special leave to appeal by the Supreme Court- S.C may in its discretion grant special leave to appeal from any order
passed by lower courts/high courts existing in India but not on the order passed by tribunal constituted under army act.
137. Review of judgments or orders by the Supreme Court.—
138. Enlargement of the jurisdiction of the Supreme Court.— parliament by law confirm to S.C such powers to decide the
matters relating to union list and agreement b/w state and centre there by authorises to S.C.
139. 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 (2) of article 32.
139A. 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 and the Supreme
Court is satisfied on its own motion or on an application made by the Attorney-General of India or by a party to any such
case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or
cases pending before the High Court or the High Courts and dispose of all the cases itself:
Provided that the Supreme Court may after determining the said questions of law return any case so withdrawn together
with a copy of its judgment on such questions to the High Court from which the case has been withdrawn, and the High
Court shall on receipt thereof, proceed to dispose of the case in conformity with such judgment.
(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal or other
proceedings pending before any High Court to any other High Court.
140. Ancillary powers of Supreme Court.—
141. Law declared by Supreme Court to be binding on all courts.—
142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc
143. Power of President to consult Supreme Court
144. Civil and judicial authorities to act in aid of the Supreme Court.—All authorities, civil and judicial, in the
territory of India shall act in aid of the Supreme Court.
145. Rules of Court, etc.—
146. Officers and servants and the expenses of the Supreme Court are appointed by C.J.I.
147. power to interpretation
Case laws

• Sankalchand sheths AIR 1977, the question of constitutionality of the consultation was raised.
• Later in SP Gupta v/s UOI 1982 Popularly known as Judges Transfer Case consultation is same in article 212 & 222 (no
mandate to consult).
• S.C. Advocate on record associate v/s UOI 1993, Judges Transfer Case II overruled the S.P.Gupta case held that in the
matter of appointment of the judges of the S.C. and H.C. the chief justice of India should have primacy .i.e. earlier it was
executive supremacy later it is judicial supremacy.
• Later presidential Reference Case 1999; appointment of judges without consultation process are not binding on
government.
Independence of Supreme Court

The Constitution has made the following provisions to safeguard and ensure the independent and impartial functioning
of the Supreme Court:
 Mode of appointment
 Security of tenure
 Fixed service conditions
 Expenses charged on the consolidated fund
 Conduct of judges cannot be discussed
 Ban on practice after retirement
 Power to punish for its contempt
 Freedom to appoint its staff
 Its jurisdiction cannot be curtailed
 Separation from Executive
JURISDICTIONS OF SUPREME COURT

• Original & Writ Jurisdiction:

• Appellate Jurisdiction:
 Appeals in constitutional matters (Article 132)
 Appeals in civil matters (Article 133)
 Appeals in criminal matters (Article 134)
 Appeals by special leave (Article 136)
• Advisory Jurisdiction
• Writ Jurisdiction
• A Court of Record
• Power of Judicial Review
HIGH COURT
214. High Courts for States.—There shall be a High Court for each State.
215. High Courts to be courts of record.—
216. Constitution of High Courts.—Every High Court shall consist of a Chief Justice and such other Judges as the President
may from time to time deem it necessary to appoint.
217. Appointment and conditions of the office of a Judge of a High Court- every judge of high court shall be appointed by
the president after consultation with C.J.I., Governor of the state, and chief justice of high court in case of appointment of
other judges.
Qualifications for the appointment of judge of high court
(a) has for at least ten years held a judicial office in the territory of India; or
(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession.
218. Application of certain provisions relating to Supreme Court to High Courts.— The provisions of clauses (4) and (5)
of article 124 shall apply in relation to a High Court as they apply in relation to the Supreme Court.
219. Oath or affirmation by Judges of High Courts.—before Governor
High Court
220. Restriction on practice after being a permanent Judge.— once any person is appointed as judge of high court shall not
plead or act before any court except high court and supereme court.
221. Salaries, etc., of Judges- shall be as per the law made by the parliament.
222. Transfer of a Judge from one High Court to another.— president after consultation with the C.J.I transfer a high court
judge to another high court.
223. Appointment of acting Chief Justice.—
224. Appointment of additional and acting – due to workload in the high court president may appoint additional judges to the
high court.
224A. Appointment of retired Judges at sittings of High Courts.—
225. Jurisdiction of existing High Courts.—
226. Power of High Courts to issue certain writs
227. Power of superintendence over all courts by the High Court
228. Transfer of certain cases to High Court.—
229. Officers and servants and the expenses of High Courts- are appointed by the C.J.H. according to the rule made by
governor.
230. Extension of jurisdiction of High Courts to Union territories- parliament by law extend the jurisdiction of high court to
union territories or exclude the jurisdiction of high corut from union territories.
231. Establishment of a common High Court for two or more States
Subordinate Courts
233.Appointment of district judges- in a state shall be made by governor in consultation with high court
233A. Validation of appointments of, and judgments, etc., delivered by, certain district judges. —
234. Recruitment of persons other than district judges to the judicial service.—by governor.
235.Control over subordinate courts. high court having control over the district and subordinate courts
236. Interpretation.—
Parliamentary Privileges
Parliamentary privileges are special rights and immunities granted to members of a legislature to ensure they can effectively
perform their duties without undue interference.

constitutional provisions related to parliamentary privileges

• According to the Constitution of India, Articles 105 and 122 outline the privileges of Parliament, while Articles 194 and
212 pertain to the privileges of state governments.
• Article 105: There shall be freedom of speech in Parliament. No member of Parliament shall be liable to any proceedings in
any court in respect of anything said or any vote given by him in Parliament or any committee thereof.
• Article 122: The validity of any proceedings in Parliament shall not be called in question in court on the ground of any
alleged irregularity of procedure.
• Article 194: There shall be freedom of speech in the State Legislature. No member of the State Legislature shall be liable to
any proceedings in any court in respect of anything said or any vote given by him in the State Legislature or any committee
thereof.
• Article 212: The validity of any proceedings in the State Legislature shall not be called in question in court on the ground
of any alleged irregularity of procedure
Who can enjoy the parliamentary Privileges
• the two Houses as a whole,
• all the Members of Parliament,
• all the committees of Parliament,
• all the Union Ministers, and
• the Attorney General of India,
Sources of Parliamentary Privileges
• Constitutional provisions,
• Various laws made by Parliament,
• Rules of both the Houses of Parliament,
• Parliamentary conventions, and
• Judicial interpretations etc.
• How are the parliamentary privileges classified?
• Parliamentary privileges are intended to protect the independence and integrity of the legislative process and
to allow lawmakers to speak and act freely without fear of reprisal or legal consequences.
• Individual Privileges: Individual privileges refer to the rights and immunities enjoyed by members of the
Indian Parliament and State Legislature to enable them to perform their duties without fear of interference or
prosecution.
• Collective Privileges: Collective privileges in India refer to the rights and immunities that are enjoyed by
both Houses of the Indian Parliament and State Legislature as a whole, as well as their members and
officers...
Individual Privileges Collective Privileges
• Members cannot be arrested during the session of • Right to publish its reports, debates, and
Parliament 40 days before the beginning and 40 proceedings.
days after the end of a session. • Right to exclude strangers from its proceedings
• Members have freedom of speech in Parliament, • Right to make rules to regulate its own procedure
and no member is liable to any proceedings in any • Right to punish members as well as outsiders for
court breach of its privileges
• The courts prohibited inquiring into the
• They are exempted from jury service when proceedings of a House.
Parliament is in session.... • No person can be arrested without the permission
of the presiding officer
• What is the significance of Privileges in the Indian Parliament?
• Parliamentary privileges are an important aspect of the legislative process, as they help to ensure
the independence and integrity of the legislative body. These privileges are intended to protect the ability
of lawmakers to speak and act freely.
• By providing immunity from arrest and legal process, parliamentary privileges allow members of
parliament to carry out their duties and responsibilities without fear of intimidation or interference.
• In addition, parliamentary privileges such as the privilege of confidentiality and the privilege of access allow
members of parliament to obtain and share information that may be crucial to their decision-making
processes.
• Overall, parliamentary privileges are an important part of the checks and balances that help to safeguard the
independence and integrity of democratic institutions and ensure that they can function effectively
Tej Kiran Jain v. Sanjeeva Reddy- MP Cannot be sued
for statement made in the Parliament.

P.V. Narasimha Rao vs State (CBI/SPE) Case, 1998 –

In this case, the Supreme Court ruled that the lawmakers,
who accepted bribes, could not be prosecuted for
corruption if they followed through with voting or
speaking in the House as agreed.

State of Kerala Vs. K. Ajith and Others 2021 – The

Supreme Court has observed that parliamentary privileges
and immunities are not gateways to claim exemptions
from the general law of the land which governs the action
of every citizen.

Sita Soren Vs Union of India Case, 2024 – In this case,

the Supreme Court overturned its judgment in the P.V.
Narasimha Rao vs State (CBI/SPE) Case, 1998. The
court said that the parliamentarians do not enjoy
Parliamentary Immunity for acts of bribery.