Lesson 7- The Judiciary: Supreme Court
Under the Act of 1935, for the first time an All India
Court, called the “Federal Court of India” was set up. With the coming in to
force of the Indian Constitution, on 28th January 1950 the Federal Court of India
was substituted by the Supreme Court. Under a Federal Constitution a Supreme
Court is an essential part of the constitutional scheme.
The Supreme Court was idealized by the Constituent Assembly
because the court was seen as an extension of the rights; it was to be an arm
of social movement; as the guardian of the Constitution; it would be the
expression of the new law created by Indian for Indian”.
According to article 32 Supreme Court is the protector of
all the fundamental rights embodied in the constitution and it has to safeguard
these rights every infringement at the hands of either the Union Government or
State Governments. The supreme court of India is made independent of the
legislative and executive influences.
The second function of the courtis federal in nature. It has
original jurisdiction in cases involving the states of the union inter seor
between one or more states, on the one hand, and the union on the other.
Thirdly, it is called upon to give advice to the president whenever he asked for
it. It has the power to supervise the working of the entire judicial system and
maintains uniformity of law ensuring high standards set by the framers of the
constitution.
Appointment of judges
The judges of the Supreme Court are appointed by the president.
The president appoints the Chief Justice of the Supreme Court in consultation
with such judges of Supreme Court and high courts as he may deem necessary.
However, in appointing other judges, the president also consults the chief
justice of India. It may be observed that the power of appointing judges of the
supreme court is only a formal power and he always appoint them on the advice
of the council of ministers.
Tenure
In United States of America, judges are appointed for life
or till they show good behaviour, which practically ensure them a lifelong
tenure. The constituent assembly of India decided against this. It valued the
independence of judiciary, but seems to have assumed that judges tend to become
on account of their legal background and old age. It was in favour of judicial
competence and efficiency but distrusted the old age and conservatism of the
judges. This is perhaps why article 124(2) stipulates that judges can be
appointed till they have attained the age of 65years. The Chief justice also
serves up to the age of 65 years.
Qualification
In order to be appointed as a Judge of the Supreme Court, a
person must be a citizen of India and must have been, for at least five years,
a Judge of a High Court or of two or more such Courts in succession, or an
Advocate of a High Court or of two or more such Courts in succession for at
least 10 years or he must be, in the opinion of the President, a distinguished
jurist.
Provisions exist for the appointment of a Judge of a High
Court as an Ad-hoc Judge of the Supreme Court and for retired Judges of the
Supreme Court or High Courts to sit and act as Judges of that Court. A judge
can resign from his job prior to his attaining the stipulated age by writing to
the president, who is the appointing authority.
A judge can be removed from office by an order of the
president when either house of parliament makes such a proposal by a majority
of the total membership of that house. The proposal must be adopted by a
majority of not less than two-thirds of the members of the other house during
the same session of the legislature. Besides the motion has to be based on the
grounds of misbehaviour.
Appointment of acting Chief
According to the Article 126, When the office of Chief
Justice of India is vacant or when the chief justice is, by reason of absence
or otherwise, unable to perform the duties of the office, his duties will shall
be performed by one of the other judges of the court as the president may
appoint for the purpose.
Seat of Supreme Court
The Supreme Court is permanently located at New Delhi.
However, the chief justice of India can arrange its sitting at some other place
in India with the approval of the president from time to time decide.
Appointment of Ad Hoc and Retired Judges
If the supreme court cannot hold or continue its meeting due
to lack of quorum, the chief Justice of India may, with the prior consent of
the president and in consultation with the Chief Justice of a particular High
Courts, can request a judge of that high court to act as an ad hoc judge of the
Supreme Court for such period as may be necessary, However, only such persons
can be appointed as ad hoc Judges who are qualified to be appointed as a judges
of the Supreme Court.
As far the Article 128, Chief justice can also require the
attendance of the retired judge of a supreme court, to act as the judge of the
Supreme Court. Such a judge is entitled to such allowances as the president may
by order determine, and shall have all the jurisdiction, powers and privileges of
a judge of the Supreme Court.
Jurisdiction of the Supreme Court
1. Original jurisdiction: The original jurisdiction
of the Supreme Court extends to all those cases which can originate only in the
Supreme Court. These include disputes, (a)between Government of India and one
or more states; (b) between the government of India and any state or states on
the one side and one or more other states on the other side; (c) between two or
more states.
However Supreme Court does not enjoy any original power with
regard to dispute arising out of any treaty, agreement, covenant, engagement, Sanad
or other similar instruments which had been entered into or executed before the
commencement of the constitution and which continued in operation even after
the commencement of constitution.
It may be observed that the disputes involving the above
parties are brought before the Supreme Court only if a question of law or fact
is involved. Even the case involving disputes over the enforcement of
fundamental Rights fall within the original jurisdiction of Supreme Court. The
Supreme Court is authorized to issue directions, orders or writs for the
enforcement of these rights.
The parliament can by law exclude the jurisdiction of the
Supreme Court in disputes with respect to the use, distribution or control of
the water of any inter-state river or river valley. The other matters which do
not fall under the original jurisdiction of the Supreme Court include matter
referred to the finance commission (Article 280) and adjustment of expenses
between the union and states (Article 290).
2. Appellate Jurisdiction: The Supreme Court is the
highest court of appeal in the country and hears appeals against the judgments
of the lower courts in constitutional, civil and criminal matters. In
constitutional matters an appeal can be made to the Supreme Court, if the High Court
certifies that the case involves a substantial question of law as to the
interpretation of the constitution.
In civil cases an appeal can be made to the Supreme Court
against the judgment, decree or final order of a High Court if it grants a
certificate (a)that the case involves a substantial question of law of general
importance; and (b) that in its opinion the said question needs to be decided
by the Supreme Court.
In criminal cases, an appeal lies to the Supreme Court
against the judgment, final order or sentence of a High Court, if the High
Court certifies that the case is fit for appeal for the Supreme Court. An
appeal can also be taken to the supreme court without the certificate of the
High Court if the lower court acquits the accused but the High Court reverses
the order of acquittal in appeal and passes a sentence of death; or the High
Court a case from the lower court, conducts the trial itself, convicts the
accused and awards the death sentence.
The appellate jurisdiction of the Supreme Court can be
further extended by the parliament (Article 134, clause 2). In pursuance of
this power, the parliament passed the supreme court ( enlargement of
jurisdiction) Act.1970 which provides that an appeal shall lie to the supreme
court from any judgment, final order of sentence in a criminal proceeding of a
High Court if the High Court has on appeal reversed an order of acquittal of an
accused person and sentenced him to imprisonment for life or to imprisonment
for a period of not less than 10 years; or has withdrawn for trial before
itself any case from any court subject to its authority and has in such trial
convicted the accused person and sentenced him to imprisonment for life or
imprisonment for a period of not less than 10 years.
As a result of this enactment, the accused can make an
appeal to the Supreme Court as a matter of right without any certificate from
the High Court even where the High Court Does not award the sentence of death.
3. Advisory Jurisdiction: The Supreme Court also
enjoys advisory jurisdiction. Advisory jurisdiction is provided in Article 143,
of the Indian constitution. If at any time it appears to the president that any
question of law or fact has arisen or is likely to arise; and the question is
of such a nature and of such public importance that it is expedient to obtain
the opinion of the supreme court upon it, he may refer the question for the
advisory opinion of the court, and the Court may after such hearing as it
thinks fit, report to the President its opinion thereon.
In actual practice, however, since the enforcement of the
constitution, the Supreme Court has never refused to give its opinion on any
matter referred to it. It is noteworthy that the supreme court of United States
does not enjoy any advisory jurisdiction. On the other hand, under the Canadian
Constitution, the Supreme Court has been given advisory jurisdiction and its
opinion on any matter referred to it for hearing and consideration.
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Other provisions
Firstly, article 129 of the constitution declares the Supreme
Court’s power as a court of record which implies that it has all the power of
such a court including the power to punish for contempt of court. The Supreme
Court has a summary jurisdiction to punish of its authority. This power is
exercised only in the public interest to punish an Act which might interfere in
the administration of justice.
The court exercise this power “cautiously, wisely and
circumspection.” The court can punish its contempt by fine or imprisonment. The
court may take action (a) Suomotu, or (b) on a petition made by
Attorney-General, or Solicitor General, or (c) on a petition made by any
person, and in the case of criminal contempt with the consent in writing of the
Attorney General or the Solicitor General. A court of record possesses the
following features: (a) its proceedings are recorded for perpetual verification
and testimony; (b) its records are admitted in evidence and cannot be
questioned when produced in any court of law; (c) it has the power to punish by
fine and imprisonment any person guilty of contempt of its authority.
The court exercise this power “cautiously, wisely and
circumspection.” The court can punish its contempt by fine or imprisonment. The
court may take action (a) Suomotu, or (b) on a petition made by Attorney-General,
or Solicitor General, or (c) on a petition made by any person, and in the case
of criminal contempt with the consent in writing of the Attorney General or the
Solicitor General. A court of record possesses the following features: (a) its
proceedings are recorded for perpetual verification and testimony; (b) its
records are admitted in evidence and cannot be questioned when produced in any
court of law; (c) it has the power to punish by fine and imprisonment any
person guilty of contempt of its authority.
Thirdly, the decree and orders etc. issued by the supreme
court of India are enforceable throughout the territory of India in such manner
as may be prescribed by or under any law made by the parliament. The Supreme
Court can also issue orders for the purpose of securing the attendance of any
person, the discovery or production of any documents or the investigation or
punishment of any contempt of itself.
Fourthly, the constitution authorizes the supreme court to
make rules for broadly regulating the practice and procedure of the court with
regard to which the supreme court can make rules include the persons practicing
before the court; the procedure for hearing appeals and other matters
pertaining to appeals including the time within which appeals to the court are
to be entered; proceeding in the court for the enforcement of any of the rights
conferred by part III of the constitution; condition subject to which any
judgment pronounced or order made by the court may be reviewed and the
procedure for such review; cost of the incidentals to any proceeding in the
court and the fees to be charged in respect of the proceedings therein;
granting of bails; stay of proceedings; summary determination of any appeal
which appears to the court to be frivolous or brought for the purpose of delay;
and procedure for enquiries etc.
Fifthly, the Chief justice of India can appoint officers and
servants of the Supreme Courtin consultation with the union public service
commission. The conditions of service of officers and servants of the supreme
court are also prescribed by the Chief Justice of India in consultation with
the president. It is noteworthy that the administrative expenses of the supreme
court, including all salaries, allowances and pensions payable to or in respect
of the officers and servants of the court, shall be charged upon the
Consolidated Fund of the India and any fees or other money taken by the court
form a part of that fund.
Sixthly, the Supreme Court decides the disputes regarding
the election of the president and the Vice-President and its decision in this
regard is final.
Seventhly, on reference made by the President, the Supreme
Court can recommend the removal of the Chairman and other members of Union
Public Service Commission on grounds of misbehaviour.
Independence of the Judiciary
1. Though president is the appointing authority, however, he
does not enjoy absolute discretion here. The judges are appointed after due
consultation with the Chief Justice of India. In the case of the appointment of
Chief Justice, the president must consult such judges of the Supreme Court and
High Court as he may deem necessary.
2. The judges of the Supreme Court enjoy the security of the
tenure. Their removal on the ground of proved misbehaviour or incapacity is
very difficult.
3. The constitution provides high retiring age for the
judges. Once appointed, they can hold office until they complete the age of 65
years.
4. During their tenure as judges of Supreme Court and after
their retirement, the judges cannot practice in India.
5. The judges also enjoy the security of service conditions.
Their salaries have been fixed by the constitution. Their privileges, rights
and allowances cannot be altered to their disadvantages.
6. Besides, the salaries of the judges and the
administrative expenses of the Supreme Court are charged on the consolidated
fund of India and are not subject to the vote of parliament.
7. Only during Financial Emergency, the salaries and
allowances of the judges can be reduced.
8. The independence of the Court is further safeguard by the
provision that the actions and decisions of the judges in their official capacity
are immune from criticism in the sense that no motive may be imputed to them.
Even parliament cannot discuss the conduct of a judge except when a resolution
for his removal is being considered.
9. The Supreme Court has its own establishment over which it
has complete control. The court determines the terms of service of its officers
and servants and appointments are made by the chief justice.
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