Lesson 7- The Judiciary: Supreme Court Important Notes

 

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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