Supreme court in india, Study notes of Constitutional Law

Download Supreme court in india and more Study notes Constitutional Law in PDF only on Docsity! Notes by Vedansh Lohani 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. Notes by Vedansh Lohani 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. Notes by Vedansh Lohani 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: 1. 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. 2. The Speaker/Chairman may admit the motion or refuse to admit it. 3. If it is admitted, then the Speaker/Chairman is to constitute a three member committee to investigate into the charges. 4. 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. 5. 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. 6. 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. 7. 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 Notes by Vedansh Lohani Justice V Ramaswami of the Supreme Court (1991–1993). Though the Enquiry Committee found him guilty of misbehaviour, he could not be Removed as the impeachment motion was defeated in the Lok Sabha. The Congress Party abstained from voting. Ad hoc Judge When there is a lack of quorum of the permanent judges to hold or continue any session of the Supreme Court, the Chief Justice of India can appoint a judge of a High Court as an ad hoc judge of the Supreme Court for a temporary period. He can do so only after consultation with the chief justice of the High Court concerned and with the previous consent of the president. The judge so appointed should be qualified for appointment as a judge of the Supreme Court. It is the duty of the judge so appointed to attend the sittings of the Supreme Court, in priority to other duties of his office. While so attending, he enjoys all the jurisdiction, powers and privileges (and discharges the duties) of a judge of the Supreme Court. Retired Judges At any time, the chief justice of India can request a retired judge of the Supreme Court or a retired judge of a high court (who is duly qualified for Appointment as a judge of the Supreme Court) to act as a judge of the Supreme Court for a temporary period. He can do so only with the previous Consent of the president and also of the person to be so appointed. Such a Judge is entitled to such allowances as the president may determine. He ill also enjoy all the jurisdiction, powers and privileges of a judge of Supreme Court. But, he will not otherwise be deemed to be a judge of the Supreme Court. Notes by Vedansh Lohani 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. Notes by Vedansh Lohani 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. Notes by Vedansh Lohani 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. Notes by Vedansh Lohani 3. Appellate Jurisdiction As mentioned earlier, the Supreme Court has not only succeeded the Federal Court of India but also replaced the British Privy Council as the highest court of appeal. The Supreme Court is primarily a court of appeal and hears appeals against the judgements of the lower courts. It enjoys a wide appellate jurisdiction which can be classified under four heads: (a) Appeals in constitutional matters. (b) Appeals in civil matters. (c) Appeals in criminal matters. (d) Appeals by special leave. (a) Constitutional Matters In the constitutional cases, an appeal can be made to the Supreme Court against the judgement of a high court if the high court certifies that the case involves a substantial question of law that requires the interpretation of the Constitution. Based on the certificate, the party in the case can appeal to the Supreme Court on the ground that the question has been wrongly decided. (b) Civil Matters In civil cases, an appe-al lies to the Supreme Court from any judgement of a high court if the high court certifies— (i) that the case involves a substantial question of law of general importance; and (ii) that the question needs to be decided by the Supreme Court. Originally, only those civil cases that involved a sum of 20,000 could be appealed before the Supreme Court. But this monetary limit was removed by the 30th Constitutional Amendment Act of 1972. Notes by Vedansh Lohani 12. Legislative competence of the Centre and States on the subject of natural gas and liquefied natural gas in 2001 13. The constitutional validity of the Election Commission’s decision on deferring the Gujarat Assembly Elections in 2002 14. Punjab Termination of Agreements Act in 2004 15. 2G spectrum case verdict and the mandatory auctioning of natural resources across all sectors in 2012 5. A Court of Record As a Court of Record, the Supreme Court has two powers: (a) The judgements, proceedings and acts of the Supreme Court are recorded for perpetual memory and testimony. These records are admitted to be of evidentiary value and cannot be questioned when produced before any court. They are recognised as legal precedents and legal references. (b) It has power to punish for contempt of court, either with simple imprisonment for a term up to six months or with fine up to 2,000 or with both. In 1991, the Supreme Court has ruled that it has power to punish for contempt not only of itself but also of high courts, subordinate courts and . tribunals functioning in the entire country. Contempt of court may be civil or criminal. Civil contempt means wilful disobedience to any judgement, order, writ or other process of a court or wilful breach of an undertaking given to a court. Criminal contempt means the publication of any matter or doing an act which— (i) scandalises or lowers the authority of a court; or (ii) prejudices or interferes with the due course of a judicial proceeding; or (iii) interferes or obstructs the administration of justice in any other manner. However, innocent publication and distribution of some matter, fair and accurate report of judicial proceedings, fair and reasonable criticism of judicial acts and comment on the administrative side of the judiciary do not amount to contempt of court. Notes by Vedansh Lohani 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. Notes by Vedansh Lohani 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.