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Constitution of India | SEP | NEP | BCU | Sindhi College The Supreme Court According to James Bryce "If the lamp of justice goes out in darkness, how great is the darkness". The judiciary also known as the Rule-Adjudication Department is one of the three essential pillars of the government that perf...

Constitution of India | SEP | NEP | BCU | Sindhi College The Supreme Court According to James Bryce "If the lamp of justice goes out in darkness, how great is the darkness". The judiciary also known as the Rule-Adjudication Department is one of the three essential pillars of the government that performs the task of interpreting the laws of the constitution. The other two organs being the legislature, which makes laws and executive, which implements laws. The judiciary completes the triangle of government along with legislature and executive. Philosophy of law The judicial system all over the world is based on the sacred principle of Jurisprudence that "Let a thousand culprits be acquitted, but not a single innocent person be punished". Thus, the judiciary is the essential part of a civilized society known for openness, stability and impartiality. Judiciary in India It is a single integrated judicial system and the courts deal in cases relating to both the centre and states. The head of the judicial system is the Supreme court of India. Below the Supreme court, there are High courts at the state level. There are other courts such as District and Sessions Court, Metropolitan Magistrates court. Court of sessions, Munisiff's court etc., and courts below the High court are called 'Subordinate courts' and they are under the control of the High court. The Supreme court is the 'apex court' of the land and the highest court of appeal on all matters- civil, criminal or constitutional. A law declared by the Supreme court is binding on all courts throughout the territory of India. The Supreme court The Supreme court of India was constituted in 1950 by raising the standard of the Federal court under the Government of India Act of 1935. The prominence of the Supreme court is so visible that it acts as the guardian of the constitution, defender of the federation by acting as the neutral umpire between the centre and the states. The growth and survival of the democratic system in India largely depends on efficient functioning of the Supreme court. Composition The Supreme court was born with the inauguration of the constitution of India on 26th January 1950. Initially there were 7 judges which later increased to 10 in 1956, which further went up to 14 in 1960 and 17 in 1977. With the 1986 amendment, the number of judges of the Supreme court stood at 26. By amending the Supeme Cout (Number of Judges) Act, 1956, the number of judges is increased from 26 to 31. At present, it stands at 33. Qualifications A person to be appointed a judge of the Supreme court must have the following qualifications: in high cours Jurist un 1. Must be a citizen of India. 2. Must be a distinguished jurist in the opinion of the President. 3. Must have served as a judge in one or more High courts for a period of 5 years. OR 4. Must have served as an advocate in one or more High courts successively for a period of 10 years. Prof. Shivakumar R. M.com, KSET. Assistant Professor, Department of Commerce 1  Constitution of India | SEP | NEP | BCU | Sindhi College Appointment The President of India appoints the judges of the Supreme court on the advice of the council of ministers in consultation with the Chief Justice of India. Article 124, makes it obligatory on the part of the President of India to consult the Chief Justice of India. In appointing the Chief Justice of India, the President shall, besides the advice of the council of ministers, consult the judges of the Supreme court and the High courts if he considers it necessary Terms of Office The constitution does not prescribe any fixed age or term for a judge of the Supreme court. In India, like in USA a judge of the Supreme court stays in office based on good behaviour. However, a judge of the Supreme court retires at the age of 65 years. He may retire from office before he attains the age of 65 years by addressing his resignation to the President. Removal The constitution does not provide for the impeachment of a judge of the Supreme court but he can be removed from office on charges on 'proven misbehaviour' or 'incapacity' (Article 124). He may be removed on the above grounds as follows: A motion of removal addressed to the President signed at least by 100 members of the Lok sabha or 50 members of the Rajya sabha is given to the Speaker or Chairman. The committee consisting of 3 members (2 Supreme court judges and one distinguished jurist) finds the judge guilty, the motion as well as the report of the committee is taken up for consideration in the house where the motion originates. The motion is passed in each house by a two third majority of the total membership of each house addressed to the President. If the President gives his order for removal, the judge stands removed. Power and Functions of the Supreme court The following are the powers and functions of the Supreme court: 1. Guardian of the Constitution 2. Enforcement of Fundamental Rights 3. Defender of the Federation 4. Original Jurisdiction 5. Appellate Jurisdiction 6. Special Leave Jurisdiction 7. Advisory Jurisdiction 8. Power of Judicial Review 9. The Court of Records 10. The Contempt of court 11. Self -correcting Court 12. Miscellaneous functions Prof. Shivakumar R. M.com, KSET. Assistant Professor, Department of Commerce 2  Constitution of India | SEP | NEP | BCU | Sindhi College 1. Guardian of the Constitution The Supreme court enjoys the privilege of protecting the constitution against violation of its provision either by the govemment or by the people. It is the responsibility of the Supreme court to see that the laws of the constitution are respected and adhered to by all in India. By acting as the watch tower of the constitution, it checks against the violation of laws. As guardian of the constitution, the Supreme court also exercises the power of interpreting the contents of the constitution. Any matter relating to technical interpretation of details or definitions of terms in the constitution is the sole prerogative of the Supreme court. 2. Enforcement of Fundamental Rights The Supreme court is empowered by the constitution to act as the protector and guarantor of the fundamental rights. Under Article 32, the Supreme court enjoys the power of issuing constitutional writs, also called as writ jurisdiction, for the enforcement of fundamental rights. The writs may be against the government or individuals. The writs are briefly explained as wrillin a. Habeas Corpus: This literally means 'to have a body'. It calls upon the authority, which arrests a person to produce in court, S-C/HC the person to set him free if he has done nothing wrong. It protects an individual against wrongful confinement. b. Mandamus: This literally means 'a command'. It is a command issued by the court asking a person to perform his legal duty, which is of public nature. c. Prohibition: It is a writ issued by the Supreme court to an if polluf inferior court restraining it from exercising powers which is not invested in them. d. Certiorari: It is a writ by which a case is removed from a lower court, which does not enjoy jurisdiction to deal with it. e. Quo warranto: This writ is issued to prevent a person from illegally occupying a public office to which he is not entitled. 3. Defender of the Federation India, as we have discussed earlier, is a federation in which the power and authority is divided between the centre and the states. They derive their power from the constitution and is limited by the constitution. The constitution vests the power of settling the disputes and problems between the centre and the states. In order to prevent the conflict of power between the two, the Supreme court interprets the laws, which help in maintaining the unity of the federation. Article 254 states that in case of inconsistency between the laws made by the union and the states, the union laws shall prevail. 4. Original Jurisdiction Article 131 of the constitution deals with the original jurisdiction of the Supreme court. The original jurisdiction of the Supreme court is purely federal in character. Matters relating to the problems and disputes arising between the union and the states or between the states are taken up by the Supreme court. The disputes entertained under the original jurisdiction are: a. A dispute involving the Government of India vs the state of Union of India. b. A dispute involving the Government of India plus one or more states vs one or more states. c. A dispute involving one or more states on one side vs one or more states on the other. Prof. Shivakumar R. M.com, KSET. Assistant Professor, Department of Commerce 3  Constitution of India | SEP | NEP | BCU | Sindhi College 5. Appellate Jurisdiction The Supreme court is the highest court in India. Under Appellate jurisdiction, the Supreme court only takes up such cases that come on appeal. It has no power to take up such cases, which it is not asked to take up. The appellate jurisdiction can be studied under the following heads: A. Constitutional Cases: The cases that come before the Supreme court are as follows: The cases involving a question of law relating to the interpretation of the constitution or certification by the High court. The Supreme court can take up a case, if the High court in its opinion feels that the case involves substantial question of law, which should be decided by the Supreme court. B. Civil Cases: Originally Article 133 provided for an appeal against the high court order if it certified that the amount involved was less than Rs. 20,000 and the case is fit for appeal. But, the Law Commission found the logic unreasonable and as a result, the 30th Amendment of 1972 did away with the ceiling of Rs. 20,000. The Supreme court can take up the civil appeal, if the High court certifies that the case involves a substantial question law of general importance. The certification by the High court is essential in these cases. C. Criminal Cases: Article 134 provides for an appeal to the Supreme court against the judgement of the High Court under the following conditions: If the High Court has reversed a decision of release of an accused and has given him a death sentence. In a case where the High court has exercised the authority of a lower court and given a death sentence to the accused. In any criminal case if the High court certifies that the case is fit for appeal in the Supreme court. 6. Special Leave Jurisdiction Article 136 confers a special power in the hands of the Supreme court to grant special Leave. In hearing appeals the Supreme court may grant Special Leave petition against any judgment or order made by any court or tribunal, except military tribunal, in a case. The decision is entirely left to the discretion of the Supreme court. This power, however, is to be used only under exceptional circumstances like matters involving general public interest or in cases of grave injustice or cases in which no appeal is otherwise provided by law. 7. Advisory Jurisdiction Article 143 confers the power of advisory opinion. The President of India may seek the advisory opinion of the Supreme court on the matter which is, in his opinion, important and necessary such as disputes arising out of treaty of agreement. However, the advice of the Supreme court is purley advisory in nature. The Supreme court may decline to give advisory opinion if it finds unnecessary. 8. Power of Judicial Review The supremacy of the Supreme court as the guardian of the constitution is emphasised by the power of judicial review. The Supreme court has the power of declaring a law made by the legislature or an executive action as ultra vires (intra vires) or 'null and void' or 'unconstitutional' if it is not in tune with the provisions of the constitution or violative of the fundamental law of the land. This acts as an effective check on both the legislature and the executive as any decision made or action taken whimsically without regard to the constitution is declared invalid. Prof. Shivakumar R. M.com, KSET. Assistant Professor, Department of Commerce 4  Constitution of India | SEP | NEP | BCU | Sindhi College 9. The Court of Records The proceedings and judgements of the Supreme court are kept preserved to be made use of in future cases and judgements, whenever necessary by the lower courts. Those decisions are authoritative records on law whose validity cannot be questioned in any court. The court of records also have the power to correct its own clerical errors. 10. The Contempt of court The Supreme court enjoys the authority of imposing fine or imprisonment for violating the orders of the court (Article 129). For example, the former Chief Secretary to the Government of Karnataka, S Vasudevan was imprisoned in 1996 for not implementing the orders of the Supreme court. 11. Self-correcting Court The Supreme court has the power of correcting its own judgements. This is to ensure any loss or damage, physical, emotional or material, that may be caused to any person seeking justice. To put it in legal terms, this is to ensure against 'miscarriage of justice'. For example, in the LPG dealership case, the supreme court went to the extent of amending it's own judgement. Justice Saghir Ahmed and K. Venkataswami directed for refund of Rs.50 lakhs fine imposed on Satish Sharma. The High Court In the order of judicial hierarchy, the High Court stands next to the Supreme court. Article 214 clearly states that "there shall be the High court in each state" The High Court is the head of the judiciary in the state and is a creation of the constitution independent of the Supreme court. The constitution provides for two or more states having a single High court. For example, the states of Punjab and Haryana have a common High court seated by Chandigarh. Similarly the states of Assam, Manipur, Meghalaya, Nagaland, Tripura, Mizoram and Arunachal Pradesh have a common High Court located at Guwahati. Composition The High Court consists of a Chief Justice and other judges appointed from time to time by the President. The President may appoint additional judges for a temporary period of two years if the work is heavy in the High court. He may also appoint a acting judge when a permanent judge is temporarily absent. Prof. Shivakumar R. M.com, KSET. Assistant Professor, Department of Commerce 5  Constitution of India | SEP | NEP | BCU | Sindhi College Qualifications A person to be appointed a judge of the High Court must have the following qualifications: Must be a citizen of India. Must have served as an advocate in one or more High courts for a period of 10 years. Must have held a judicial office in India for a period of 10 years. Appointment The President in consultation with the Chief Justice of India, the Governor of the concerned state, the Chief Justice of the High Court appoints the judge of the High court. Term A judge of the High court holds the office until the age of 62 years (formerly 60 years) subject to good behaviour. He may vacate his office by resignation addressed to the President in writing. He may also vacate his office if the President appoints him a judge of the Supreme court or on transfer from one high court to another. Removal A judge of the High court is removed from his office in the similar way as that of the judge of the Supreme court. By an address of both houses of parliament by a two third majority of 2/3 the total membership of the house and by a vote of not less than two third majority of the members present on grounds of proven misbehaviour or incapacity (Article 217). Powers and Functions of the High Court The High Court exercises its power over the territorial limits of the state. Being a responsible authority in protecting the constitution, the High Court may also interpret the laws but the final power of interpretation of the constitution lies with the Supreme court. The following are the powers and functions of the High court: 1. Protection of Fundamental Rights 2. Original Jurisdiction 3. Appellate Jurisdiction 4. Power of Superintendence 5. Transfer of Cases 6. The Court of Records 7. The Contempt of court 8. Control over subordinate courts 9. Control over the establishment Prof. Shivakumar R. M.com, KSET. Assistant Professor, Department of Commerce 6  Constitution of India | SEP | NEP | BCU | Sindhi College 1. Protection of Fundamental Rights The constitution has granted 6 fundamental rights to its citizens and it is also the responsibility of High courts to protect and defend them against legislative, executive or any other kind of encroachment. The High court may issue the writs Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warranto, to protect the people against violation of fundamental rights (Article 226). The writ jurisdiction of the high court also extends to the violation of legal rights as well. 2. Original Jurisdiction The High courts of the Presidencies of Calcutta, Madras and Bombay had original jurisdiction both on civil and criminal matters within the limits of the presidencies. However, the original criminal jurisdiction has now been completely taken over by the Criminal Procedure Code (CPC) of 1973. But, the original civil jurisdiction has been retained in matters of higher value. 3. Appellate Jurisdiction The appellate jurisdiction of the High courts can be studied under two heads: a. Civil cases The civil cases may go to the High court on either first appeal or second appeal. The appeal from the decisions of District judges and subordinate judges may go directly to the high court in cases of higher value on questions of fact as well as law. And also, when a court below the High court decides a case from the decision of an inferior court, the case can come to the high court on second appeal only on question of law and procedure. b. Criminal cases The High Court can take up criminal cases on appeal in two cases. A person can appeal against the decision of a Sessions Judge or an Additional Sessions Judge in a case where the punishment is an imprisonment exceeding seven years. / Against the decisions of an Assistant Sessions Judge or other Judicial Magistrates in certain special cases other than 'petty' cases. 4. Power of Superintendence The High court has the power to supervise all courts and tribunals under its territorial limits and to see that the courts discharge duty according to laws of the constitution. The high court may also issue general rules regarding the administration of laws, Supervisory power also gives the authority to intervene in case of any grave injustice or abuse of jurisdiction. 5. Transfer of Cases The High Court if satisfied that a case pending in a subordinate court involves a substantial question of law related to the interpretation of the constitution, it might transfer the case to itself and decide the case as well. 6. Court of Records Like the Supreme court, the high court is also the court of record whose judgements and decisions cannot be questioned by any court of law below the rank of the high court. It has the power to correct and punish itself. 7. Contempt of Court An individual or the government if violates the orders of the High court, it may impose fine or imprisonment for showing disrespect to its orders. Prof. Shivakumar R. M.com, KSET. Assistant Professor, Department of Commerce 7  Constitution of India | SEP | NEP | BCU | Sindhi College 8. Control over Subordinate Courts The High court exercises control over the subordinate judiciary in the state. a. The District Judges are appointed, posted and promoted by the Governor in consultation with the concerned High court. b. The members of the judicial service of the state are appointed by the Governor in consultation with the High court and the members of the Public Service Commission. c. It is the authority of the High court to decide on posting, promotion and grant of these judicial officers holding any post below that of a district judge. 9. Control over the Establishment The Chief Justice of a High Court is given the power of appointing officers and servants of the court for efficient discharge of judicial duties (Article 229). He may suspend or dismiss any official who does not follow the rules of the court. In 2006, the high court of Kamataka introduced information kiosks across the state where people can get information regarding pending of cases, the stages of different cases and the proceedings. Prof. Shivakumar R. M.com, KSET. Assistant Professor, Department of Commerce 8