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Supreme Court
Unlike the American Constitution, the Indian Constitution has established an integrated judicial system with the Supreme Court at the top and the high courts below it. Under a high court (and below the state level), there is a hierarchy of subordinate courts, that is, district courts and other lower courts. This single system of courts, adopted from the Government of India Act of 1935, enforces both Central laws as well as the state laws. In USA, on the other hand, the federal laws are enforced by the federal judiciary and the state The Supreme Court of India was inaugurated on January 28, 1950. It succeeded the Federal Court of India, established under the Government of India Act of 1935. However, the jurisdiction of the Supreme Court is greater than that of its predecessor. This is because, the Supreme Court has replaced the British Privy Council as the highest court of appeal. 1 Articles 124 to 147 in Part V of the Constitution deal with the organisation, independence, jurisdiction, powers, procedures and so on of the Supreme Court. The Parliament is also authorised to regulate them.
ORGANISATION OF SUPREME COURT
At present, the Supreme Court consists of thirty-two judges (one chief justice and thirty one other judges). The Supreme Court is the apex level court and the court of final appeal in India. The Constitution (Article 124) provides: “There shall be, a Supreme Court of India.” It enjoys supreme judicial authority in the country. The whole of judicial administration is organised and run in accordance with the orders and rules of the Supreme Court. Its decisions bind all courts, all people and all institutions. No appeal lies against its decisions.
Judges
Appointment of Judges- The judges of the Supreme Court are appointed
by the president. The chief justice 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 president after consultation with the chief justice and such other judges of the Supreme Court and the high court’s as he deems necessary. The consultation with the chief justice is obligatory in the case of appointment of a judge other than Chief justice. Controversy over Consultation The Supreme Court has given different interpretation of the word ‘consultation’ in the above provision. In the first Judges case (1982), the Court held that consultation does not mean concurrence and it only implies exchange of views. But, in the Second Judges case (1993), the Court reversed its earlier ruling and changed the meaning of the word consultation to concurrence. Hence, it ruled that the advice tendered by the Chief Justice of India is binding on the President in the matters of appointment of the judges of the Supreme Court. But, the Chief Justice would tender his advice on the matter after consulting two of his senior most colleagues. Similarly, in the Third Judges case (1998), the Court opined that the consultation process to be adopted by the Chief justice of India requires ‘consultation of plurality judges’. The sole opinion of the chief justice of India does not constitute the consultation process. He should consult a collegium of four senior most judges of the Supreme Court and even if two judges give an adverse opinion, he should not send the recommendation to the government. The court held that the recommendation made by the chief justice of India without complying with the norms and requirements of the consultation process are not binding on the government.
Qualifications of Judges A person to be appointed as a judge of the Supreme Court should have the following qualifications:
- He should be a citizen of India.
- (a) He should have been a judge of a High Court (or high courts in Succession) for five years; or (b) He should have been an advocate of a High Court (or High Courts in succession) for ten years; or (c) He should be a distinguished jurist in the opinion of the president. From the above, it is clear that the Constitution has not prescribed a minimum age for appointment as a judge of the Supreme Court. Oath or Affirmation A person appointed as a judge of the Supreme Court, before entering upon his Office, has to make and subscribe an oath or affirmation before the President, or some person appointed by him for this purpose. In his oath, a judge of the Supreme Court swears:
- to bear true faith and allegiance to the Constitution of India;
- to uphold the sovereignty and integrity of India;
- to duly and faithfully and to the best of his ability, knowledge and Judgement perform the duties of the Office without fear or favour, Affection or ill-will; and
- to uphold the Constitution and the laws. Tenure of Judges The Constitution has not fixed the tenure of a judge of the Supreme Court. However, it makes the following three provisions in this regard:
- He holds office until he attains the age of 65 years. Any question Regarding his age is to be determined by such authority and in such Manner as provided by Parliament.
- He can resign his office by writing to the president.
- He can be removed from his office by the President on the Recommendation of the Parliament.
Removal of Judges ---very important A judge of the Supreme Court can be removed from his Office by an order of the president. The President can issue the removal order only after an address by Parliament has been presented to him in the same session for such removal. 5 The address must be supported by a special majority of each House of Parliament (i.e., a majority of the total membership of that House and a majority of not less than two-thirds of the members of that House present and voting). The grounds of removal are two—proved misbehaviour or incapacity. The Judges Enquiry Act (1968) regulates the procedure relating to the Removal of a judge of the Supreme Court by the process of impeachment:
- A removal motion signed by 100 members (in the case of Lok Sabha) or 50 members (in the case of Rajya Sabha) is to be given to the Speaker/Chairman.
- The Speaker/Chairman may admit the motion or refuse to admit it.
- If it is admitted, then the Speaker/Chairman is to constitute a three member committee to investigate into the charges.
- The committee should consist of (a) The chief justice or a judge of the Supreme Court, (b) a chief justice of a high court, and (c) a distinguished Jurist.
- If the committee finds the judge to be guilty of misbehaviour or suffering From an incapacity, the House can take up the consideration of the Motion.
- After the motion is passed by each House of Parliament by special Majority, an address is presented to the president for removal of the Judge.
- Finally, the president passes an order removing the judge. It is interesting to know that no judge of the Supreme Court has been Impeached so far. The first and the only case of impeachment is that of
INDEPENDENCE OF SUPREME COURT
The Supreme Court has been assigned a very significant role in the Indian democratic political system. It is a federal court, the highest court of appeal, the guarantor of the fundamental rights of the citizens and guardian of the Constitution. Therefore, its independence becomes very essential for the effective discharge of the duties assigned to it. It should be free from the encroachments, pressures and interferences of the executive (council of ministers) and the Legislature (Parliament). It should be allowed to do justice without fear or favour. The Constitution has made the following provisions to safeguard and ensure the independent and impartial functioning of the Supreme Court:
1. Mode of Appointment The judges of the Supreme Court are appointed by the President (which means the cabinet) in consultation with the members of the judiciary itself (ie, judges of the Supreme Court and the high courts). This provision curtails the absolute discretion of the executive as well as ensures that the judicial appointments are not based on any political or practical considerations.
2. Security of Tenure
The judges of the Supreme Court are provided with the Security of
Tenure. They can be removed from office by the President only in
the manner and on the grounds mentioned in the Constitution. This means that they do not hold their office during the pleasure of the President, though they are appointed by him. This is obvious from the fact that no judge of the Supreme Court has been removed (or impeached) so far.
3. Fixed Service Conditions The salaries, allowances, privileges, leave and pension of the judges of the Supreme Court are determined from time to time by the Parliament. They cannot be changed to their disadvantage after their appointment except during a financial emergency. Thus, the conditions of service of the judges of the Supreme Court remain same during their term of Office.
4. Expenses Charged on Consolidated Fund The salaries, allowances and pensions of the judges and the staff as well as all the administrative expenses of the Supreme Court are charged on the Consolidated Fund of India. Thus, they are non-votable by the Parliament (though they can be discussed by it). 5. Conduct of Judges cannot be Discussed The Constitution prohibits any discussion in Parliament or in a State Legislature with respect to the conduct of the judges of the Supreme Court in the discharge of their duties, except when an impeachment motion is under consideration of the Parliament. 6. Freedom to Appoint its Staff The Chief Justice of India can appoint officers and servants of the Supreme Court without any interference from the executive. He can also prescribe their conditions of service. 7. Its Jurisdiction cannot be Curtailed The Parliament is not authorised to curtail the jurisdiction and powers of the Supreme Court. The Constitution has guaranteed to the Supreme Court, jurisdiction of various kinds. However, the Parliament can extend the same. 10. Separation from Executive The Constitution directs the State to take steps to separate the Judiciary from the Executive in the public services. This means that the executive authorities should not possess the judicial powers. Consequently, upon its implementation, the role of executive authorities in judicial administration came to an end.
1. Original Jurisdiction
As a federal court, the Supreme Court decides the disputes between different units of the Indian Federation. More elaborately, any dispute between: (a) the Centre and one or more states; or (b) the Centre and any state or states on one side and one or more states on the other; or (c) between two or more states. In the above federal disputes, the Supreme Court has exclusive original jurisdiction. Exclusive means, no other court can decide such disputes and original means, the power to hear such disputes in the first instance, not by way of appeal. With regard to the exclusive original jurisdiction of the Supreme Court, two points should be noted. One, the dispute must involve a question (whether of law or fact) on which the existence or extent of a legal right depends. Thus, the questions of political nature are excluded from it. Two, any suit brought before the Supreme Court by a private citizen against the Centre or a state cannot be entertained under this. Further, this jurisdiction of the Supreme Court does not extend to the following: (a) A dispute arising out of any pre-Constitution treaty, agreement, covenant, engagement, sanad or other similar instrument. (b) A dispute arising out of any treaty, agreement, etc., which specifically provides that the said jurisdiction does not extent to such a dispute. (c) Inter-state water disputes. (d) Matters referred to the Finance Commission. (e) Adjustment of certain expenses and pensions between the Centre and thestates. (f) Ordinary dispute of Commercial nature between the Centre and the states. (g) Recovery of damages by a state against the Centre. In 1961, the first suit, under the original jurisdiction of the Supreme Court, was brought by West Bengal against the Centre. The State Government challenged the Constitutional validity of the Coal Bearing Areas (Acquisition and Development) Act, 1957, passed by the Parliament. However, the Supreme Court dismissed the suit by upholding the validity of the Act.
2. Writ Jurisdiction
The Constitution has constituted the Supreme Court as the guarantor and defender of the fundamental rights of the citizens. The Supreme Court is empowered to issue writs including habeas corpus , mandamus , prohibition , quo-warrento and certiorari for the enforcement of the fundamental rights of an aggrieved citizen. In this regard, the Supreme Court has original jurisdiction in the sense that an aggrieved citizen can directly go to the Supreme Court, not necessarily by way of appeal. However, the writ jurisdiction of the Supreme Court is not exclusive. The high courts are also empowered to issue writs for the enforcement of the Fundamental Rights. It means, when the Fundamental Rights of a citizen are violated, the aggrieved party has the option of moving either the high court or the Supreme Court directly. Therefore, the original jurisdiction of the Supreme Court with regard to federal disputes is different from its original jurisdiction with regard to disputes relating to fundamental rights. In the first case, it is exclusive and in the second case, it is concurrent with high courts jurisdiction. Moreover, the parties involved in the first case are units of the federation (Centre and states) while the dispute in the second case is between a citizen and the Government (Central or state). There is also a difference between the writ jurisdiction of the Supreme Court and that of the high court. The Supreme Court can issue writs only for the enforcement of the Fundamental Rights and not for other purposes. The high court, on the other hand, can issue writs not only for the enforcement of the fundamental rights but also for other purposes. It means that the writ jurisdiction of the high court is wider than that of the Supreme Court. But, the Parliament can confer on the Supreme Court, the power to issue writs for other purposes also.
(c) Criminal Matters The Supreme Court hears appeals against the judgement in a criminal proceeding of a high court if the high court— (i) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or (ii) has taken before itself any case from any subordinate court and convicted the accused person and sentenced him to death; or (iii) certifies that the case is a fit one for appeal to the Supreme Court. In the first two cases, an appeal lies to the Supreme Court as a matter of right (ie, without any certificate of the high court). But if the high court has reversed the order of conviction and has ordered the acquittal of the accused, there is no right to appeal to the Supreme Court. In 1970, the Parliament had enlarged the Criminal Appellate Jurisdiction of the Supreme Court. Accordingly, an appeal lies to the Supreme Court from the judgement of a high court if the high court: (i) has on appeal, reversed an order of acquittal of an accused person and sentenced him to imprisonment for life or for ten years; or (ii) has taken before itself any case from any subordinate court and convicted the accused person and sentenced him to imprisonment for life or for ten years. Further, the appellate jurisdiction of the Supreme Court extends to all civil and criminal cases in which the Federal Court of India had jurisdiction to hear appeals from the high court but which are not covered under the civil and criminal appellate jurisdiction of the Supreme Court mentioned above. (d) Appeal by Special Leave The Supreme Court is authorised to grant in its discretion special leave to appeal from any judgement in any matter passed by any court or tribunal in the country (except military tribunal and court martial). This provision contains the four aspects as under: (i) It is a discretionary power and hence, cannot be claimed as a matter of right. (ii) It can be granted in any judgement whether final or interlocutory. (iii) It may be related to any matter—constitutional, civil, criminal, incometax, labour, revenue, advocates, etc. (iv) It can be granted against any court or tribunal and not necessarily against a high court (of course, except a military court).
Thus, the scope of this provision is very wide and it vests the Supreme Court with a plenary jurisdiction to hear appeals. On the exercise of this power, the Supreme Court itself held that ‘being an exceptional and overriding power, it has to be exercised sparingly and with caution and only in special extraordinary situations. Beyond that it is not possible to fetter the exercise of this power by any set formula or rule’.
4. Advisory Jurisdiction
The Constitution (Article 143) authorises the president to seek the opinion of the Supreme Court in the two categories of matters: (a) On any question of law or fact of public importance which has arisen or which is likely to arise. (b) On any dispute arising out of any pre-constitution treaty, agreement, covenant, engagement, sanador other similar instruments. 11 In the first case, the Supreme Court may tender or may refuse to tender its opinion to the president. But, in the second case, the Supreme Court ‘must’ tender its opinion to the president. In both the cases, the opinion expressed by the Supreme Court is only advisory and not a judicial pronouncement. Hence, it is not binding on the president; he may follow or may not follow the opinion. However, it facilitates the government to have an authoritative legal opinion on a matter to be decided by it. So far (2013), the President has made fifteen references to the Supreme Court under its advisory jurisdiction (also known as consultative jurisdiction). These are mentioned below in the chronological order.
- 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 1 0. Rama Janma Bhumi case in 1993
- Consultation process to be adopted by the chief justice of India in 1998
6. Power of Judicial Review
Judicial review is the power of the Supreme Court to examine the constitutionality of legislative enactments and executive orders of both the Central and state governments. On examination, if they are found to be
violative of the Constitution (ultra-vires), they can be declared as
illegal, unconstitutional and invalid (null and void) by the Supreme Court.
Consequently, they cannot be enforced by the Government.
7. Other Powers
Besides the above, the Supreme Court has numerous other powers: (a) It decides the disputes regarding the election of the president and the vicepresident. In this regard, it has the original, exclusive and final authority. (b) It enquires into the conduct and behaviour of the chairman and members of the Union Public Service Commission on a reference made by the president. If it finds them guilty of misbehaviour, it can recommend to the president for their removal. The advice tendered by the Supreme Court in this regard is binding on the President. (c) It has power to review its own judgement or order. Thus, it is not bound by its previous decision and can depart from it in the interest of justice or community welfare. In brief, the Supreme Court is a self- correcting agency. For example, in the Kesavananda Bharati case (1973), the Supreme Court departed from its previous judgement in the Golak nath case (1967). (d) It is authorised to withdraw the cases pending before the high courts and dispose them by itself. It can also transfer a case or appeal pending before one high court to another high court. (e) Its law is binding on all courts in India. Its decree or order is enforceable throughout the country. All authorities (civil and judicial) in the country should act in aid of the Supreme Court. (f) It is the ultimate interpreter of the Constitution. It can give final version to the spirit and content of the provisions of the Constitution and the verbiage used in the Constitution. (g) It has power of judicial superintendence and control over all the courts and tribunals functioning in the entire territory of the country.
The Supreme Court’s jurisdiction and powers with respect to matters in the Union list can be enlarged by the Parliament. Further, its jurisdiction and powers with respect to other matters can be enlarged by a special agreement of the Centre and the states.
SUPREME COURT ADVOCATES
Three categories of Advocates are entitled to practice law before the Supreme Court. They are :
1. Senior Advocates These are Advocates who are designated as Senior Advocates by the Supreme Court of India or by any High Court. The Court can designate any Advocate, with his consent, as Senior Advocate if in its opinion by virtue of his ability, standing at the Bar or special knowledge or experience in law the said Advocate is deserving of such distinction. A Senior Advocate is not entitled to appear without an Advocate-on-Record in the Supreme Court or without a junior in any other court or tribunal in India. He is also not entitled to accept instructions to draw pleadings or affidavits, advise on evidence or do any drafting work of an analogous kind in any court or tribunal in India or undertake conveyancing work of any kind whatsoever but this prohibition shall not extend to settling any such matter as aforesaid in consultation with a junior.
Table 26.2 Articles Related to Supreme Court at a Glance . ArticleNo. Subject-matter
- Establishment and Constitution of Supreme Court 124A. National Judicial Appointments Commission 124B. Functions of Commission 124C. Power of Parliament to make law
- Salaries, etc., of Judges
- Appointment of acting Chief Justice
- Appointment of ad hoc Judges
- Attendance of retired Judges at sittings of the Supreme Court
- Supreme Court to be a court of record
- Seat of Supreme Court
- Original jurisdiction of the Supreme Court 131A. Exclusive jurisdiction of the Supreme Court in regard to questions as to constitutional validity of Central Laws (Repealed)
- Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases
- Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters
- Appellate jurisdiction of Supreme Court in regard to criminal matters 134A. Certificate for appeal to the Supreme Court
- Jurisdiction and powers of the Federal Court under existing law to be exercisable by the Supreme Court
- Special leave to appeal by the Supreme Court
- Review of judgments or orders by the Supreme Court .
- Enlargement of the jurisdiction of the Supreme Court
- Conferment on the Supreme Court of powers to issue certain writs 139A. Transfer of certain cases
- Ancillary powers of Supreme Court
- Law declared by Supreme Court to be binding on all courts
- Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.
- Power of President to consult Supreme Court
- Civil and judicial authorities to act in aid of the Supreme Court 144A. Special provisions as to disposal of questions relating to constitutional validity of laws (Repealed)
- Rules of court, etc.
- Officers and servants and the expenses of the Supreme Court
- Interpretation 2. Advocates-on-Record Only these advocates are entitled to file any matter or document before the Supreme Court. They can also file an appearance oract for a party in the Supreme Court. 3. Other Advocates These are advocates whose names are entered on the roll of any State Bar Council maintained under the Advocates Act, 1961 and they can appear and argue any matter on behalf of a party in the Supreme Court but they are not entitled to file any document or matter before the Court.
