The Union Judiciary The Supreme Court: Constitutional Law Notes

The Union Judiciary The Supreme Court: In a democratic set-up like India, judiciary is the supreme authority in the sense that it is the guardian of the Constitution and the rights of the citizens. Also, it has been vested with the duty to strike a balance between the central government and the governments of the federating units, other pillars of the democracy. Therefore, existence of an independent and impartial judiciary is an essential pre-requisite of a federal form of government. It acts as the custodian of democracy and the guardian of the rights and liberties of the people.

Unlike other federal systems, we do not have separate hierarchies of federal and state courts. For the entire Republic of India, there is one unified judicial system- one hierarchy of courts- with the Supreme Court as the highest or the apex court. Then there are High Courts at the state level and subordinate courts below them.

The Supreme Court of India consists of the Chief Justice and 30 other judges, appointed by the president. The Parliament has the power to prescribe the number of judges and no formal amendment of the constitution is required for this purpose.

Article 124 provides for the establishment and constitution of Supreme Court-

There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than 30 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:
Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted: Provided further that—
- a Judge may, by writing under his hand addressed to the President, resign his office;
- a Judge may be removed from his office in the manner provided in clause (4).

QUALIFICATIONS AND SALARY

For appointment as a judge of the Supreme Court a person must be-

Must be a citizen of India, and
has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or

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.

Thus, a non-practicing or an academic lawyer may also be appointed as a judge of the Supreme Court if he is, in the opinion of the President, a distinguished jurist.

Provision has also been made for the appointment of a judge of a High Court as ad hoc judge of the Supreme Court and retired judges of the Supreme Court or of High Court to sit and act as judge of the Supreme Court. The Constitution debars a retired judge of Supreme Court from practicing in any court of law or before any other authority in India. The salary of the judges is charged upon the Consolidated Fund of India.

REMOVAL OF JUDGES

The judges of the Supreme Court can be removed from office by the President only after an address by each house of Parliament supported by more than two thirds majority of members present and voting has been presented to the President in the same session for removal of the judges on the ground of proved misbehaviour or incapacity.

Oath- Every person appointed as a judge of the Supreme Court before he enters upon his office, takes an oath before the President or some person appointed in that behalf by him in the form prescribed in the Constitution. The Constitution prohibits a person who has hold office as a judge of the Supreme Court from practicing law before any court in the territory of India (Art 124 (6) and (7)).

The Constitution prohibits a person who has held office as a Judge of the Supreme Court from practicing or acting as a judge in any court or before any authority within the territory of India. But under Article 128, the Chief Justice may appoint the retired judges to act as ad hoc judges in the Supreme Court.

Appointment of ad hoc judges and his qualification-
Article 127 of the Constitution prescribes for the appointment and qualifications of the ad hoc Judges.
It reads as under-
If at any time there should not be a quorum of the Judges of the Supreme Court available to hold or continue any session of the Court, the Chief Justice of India may, with the previous consent of the President and after consultation with the Chief Justice of the High Court concerned, request in writing the attendance at the sittings of the Court, as an ad hoc Judge, for such period as may be necessary, of a Judge of High Court duly qualified for appointment as a Judge of the Supreme Court to be designated by the Chief Justice of India.

It shall be the duty of Judge who has been so designated, in priority to other duties of his Office, to attend the sittings of the Supreme Court at the time and for the period for which his attendance is required, and while so attending he shall have all the jurisdiction, powers and privileges, and shall discharge the duties of a Judge of the Supreme Court.

JURISDICTION OF SUPREME COURT

A COURT OF RECORD (Art. 129)

ORIGINAL JURISDICTION (Art. 131)
APPELLATE JURISDICTION (Art. 132, 133, 134,134A, 136
- APPEAL IN CONSTITUTIONAL MATTERS (ART. 132)
- APPEAL IN CIVIL CASES (ART. 133)
- APPEAL IN CRIMINAL CASES (ART. 134)
- APPEAL BY SPECIAL LEAVE (SLP) (ART. 136)

ADVISORY JURISDICTION (Art. 143)
WRIT JURISDICTION (Art. 32)

ORIGINAL JURISDICTION (ARTICLE 131)
This refers to the cases that directly originate in the Supreme Court.
It has original exclusive jurisdiction in any dispute between-

the Government of India and one or more States; or
the Government of India and any State or States on one side and one or more other States on the other; or
two or more States.

Such a dispute should, however, involve some question of law or fact on which the existence or extent of a legal right depends. The treaties concluded between the Centre and the princely states are excluded from the Court’s original jurisdiction

The President may, however, refer the above mentioned disputes to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.

Article 32 empowers the Supreme Court to issue directions or orders in the nature of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of fundamental rights. It is to be noted that this jurisdiction is not exclusive. It is concurrent. High Courts of States have also been granted similar powers.

Art 139 also empowers the Supreme Court with exactly similar powers. It says- “Parliament, by law, may 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.

Under the scheme of the Constitution, Article 131 confers original jurisdiction on the Supreme
Court in regard to a dispute between two States of the Union of India or between one or more States and the Union of India.

APPELLATE JURISDICTION (ARTICLES 132 TO 136)

This refers to the power of reviewing and revising the orders of lower courts and tribunals. This jurisdiction extends to both the civil and the criminal appeals from the High Courts under certification from these courts or, in its absence, permitted by the Supreme Court itself. Normally, these appeals are in cases involving substantial question of law of general importance or interpretation of the Constitution or death penalty awarded by a High Court.

The Appellate jurisdiction of the Supreme Court extends to three branches :

Civil,

Criminal, and
Constitutional.

CIVIL APPELLATE JURISDICTION (ART. 133)

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—
- that the case involves a substantial question of law of general importance; and
- that in the opinion of the High Court the said question needs to be decided by the Supreme Court.

(2) Notwithstanding anything in article 132, any party appealing to the Supreme Court under clause (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided.
Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court.

CRIMINAL APPELLATE JURISDICTION(SEC. 134)

According to Article 134 an appeal lies to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the following two ways-

with a certificate of the High Court, or
without a certificate of the High Court.

(1) With a certificate of the High Court— Under clause (e) an appeal lies to the Supreme Court if the High Court certifies under Article 134-A (Added by 44th Amendment, 1978) that it is a fit case for appeal to the Supreme Court. [Art 134(c)]
Under the new Art. 134-A the High Court can grant a certificate for appeal to the Supreme Court tinder An. 132 either on its own motion or on ‘oral’ application of the aggrieved party immediately after passing the judgment, decree, or final order. Prior to this, the High Court does so only on the application of the aggrieved party. Under new Article (134-A); it can now grant a certificate on its own motion if it deems fit.

(2) Without a certificate of the High Court— An appeal lies to the Supreme Court without the
certificate of the High Court if the High Court —

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

has withdrawn for trial before itself, any case from any Court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death. But if the High Court has reversed the order of conviction and has ordered the acquittal of an accused, no appeal would lie to the Supreme Court.

POWER OF PRESIDENT TO CONSULT SUPREME COURT (ADVISORY JURISDICTION)(Art. 143)

If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which 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 to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.

The President may, notwithstanding anything in the proviso to article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon. The use of the word ‘may’ in Art.143(1) indicates that the Supreme Court is not bound to answer a reference made to it by the President.

SUPREME COURT AS A COURT OF RECORD (ART. 129)

The Supreme Court shall be a Court of record and shall have all powers of such a Court, including the power to punish for contempt of itself. As a Court of record it has the power to punish those who are adjudged as guilty of contempt of court.

APPEAL BY SPECIAL LEAVE (SEC. 136)

This power has been conferred upon the Supreme Court by Article 136. It may, in its discretion, grant special leave to appeal from any judgments, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

WRIT JURISDICTION (ART. 32)

The Supreme Court is the guardian of the individual liberties and fundamental rights. It has the power to declare a law passed by any legislature null and void if it encroaches upon the fundamental rights guaranteed to the people by the Constitution. For the enforcement of fundamental rights, it can issue writs in the nature of Habeas Corpus, Mandamus, Certiorari, Prohibition and Qua-Warranto.

Besides the above mentioned powers, the Supreme Court has the power of judicial review under Art.13. It implies the power to review and determine validity of a law or an order. It refers to “the power of a court to inquire whether a law, executive order or other official action conflicts with the written Constitution, and if the court concludes that it does, to declare it unconstitutional and void”.

However, the Indian Constitution does not in so many words assign the power of judicial review to the court. There are several specific provisions in the Constitution, which guarantee judicial review of legislation such as Articles 13, 32, 131-136, 143, 226, 145, 246, 251, 254 and 372. Apart from these Articles, the power of judicial review is derived from the position of Supreme Court as the guardian of the Constitution.

The court can challenge the constitutional validity of a law on the following grounds:

the subject matter of the legislation is not within competence of the legislature which has passed it;
It is repugnant to the provisions of the Constitution; or

It infringes one of the fundamental rights.

The power of judicial review, in general, flows from the powers of the courts to interpret the
Constitution. As such it has the final say in the interpretation of the Constitution and by such interpretation; the Supreme Court has extended its power of judicial review to almost all the provi- sions of the Constitution.

The limitations on the power of judicial review of the Supreme Court:
Under Article 137, the Supreme Court has expressly been given the power to review its judgment. However, this is subject to any law passed by the Parliament. This power is exercisable under rules made by the Court under Article 145, on grounds mentioned in Order 47, Rule 1 of C. P. C., a review will lie in the Supreme Court on-

Discovery of new and important matter or evidence;
Mistake or error apparent on the face of the record; and
Any other sufficient reason.

Article 141 of the Constitution provides that the judgment of the Supreme Court will be binding on all Courts in India.

MAINTENANCE OF INDEPENDENCE OF JUDICIARY

Only an impartial and independent judiciary can protect the rights of the individual and provide equal justice without force and fear. It is very necessary that the Supreme -Court should be allowed to function without fear and political pressure. There must be security of tenure of the judges, no alteration in the salaries during the term of their office etc. to enable a judge to administer justice freely.

The Constitution has made the following provisions to ensure the independence of judiciary—

Security of Tenure—The Judges of the Supreme Court have security of tenure. They cannot be removed from their office except by an order of the President and that also on the ground of proved misbehaviour or incapacity supported by a resolution adopted by a majority of total membership of each House and also by a majority of not less than 2/3 of the members of the House present and voting. Parliament may, however, regulate the procedure for presentation of the address and for investigation and proof of misbehaviour or incapacity of a Judge. But Parliament cannot misuse this power because the special procedure for their removal must be followed.
Salaries etc. are fixed—The salaries of the Judges of the Supreme Court and High Court are fixed by the Constitution and charged on the Consolidated Fund of India. They are not subject to vote of legislature. During the term of their office, their salaries and allowances cannot be altered to their disadvantage except in grave financial emergency.

Jurisdiction of Supreme Court not to be curtailed—In respect of its jurisdiction, Parliament
may change pecuniary limit for appeals to the Supreme Court, confer supplementary power to enable it to work more effectively, confer power to issue directions, orders or writs including all the prerogative writs for any purpose other than those mentioned in Art. 132. In this respect, the Parliament can extend but cannot curtail die jurisdiction of Supreme Court.
No discussion in Legislature—Neither in Parliament nor in a State Legislature a discussion
can take place with respect to the conduct of a Judge of the Supreme Court in discharge of his
duties.
Appointment of Judges—The Constitution does not leave the appointment of the Judges of the Supreme Court to the unguided discretion of the Executive. The Executive is required to consult Judges of the Supreme Court and High Courts in the appointment of the Judges of the Supreme Court.
Thus the position of the Supreme Court is very strong and its independence is adequately guaranteed.